Exhibit 10.29
ANNEX I
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of July 10, 2001
(amending and restating the Third Amended and Restated Credit Agreement,
dated as of March 17, 2000),
among
XXXXX XXXXX,
as the Borrower,
XXXXX XXXXX INC.,
DRI I INC.,
XXXXX XXXXX INTERNATIONAL, INC., and
XXXXX XXXXX REALTY, INC.,
as the Designated Guarantors,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
CREDIT SUISSE FIRST BOSTON,
as the Syndication Agent for the Lenders,
FLEET NATIONAL BANK,
as the Administrative Agent for the Lenders,
and
CREDIT LYONNAIS NEW YORK BRANCH, as the
Documentation Agent for the Lenders.
LEAD ARRANGER:
CREDIT SUISSE FIRST BOSTON
TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.......................................................3
1.2. Use of Defined Terms...............................................32
1.3. Cross-References...................................................32
1.4. Accounting and Financial Determinations............................32
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
2.1. Commitments........................................................33
2.1.1. New Term B Loan Commitment.........................................33
2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment...........34
2.1.3. Letter of Credit Commitment........................................34
2.1.4. Lenders Not Permitted or Required to Make the Loans................34
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit........35
2.1.6. Loans Made Prior to the Date Hereof................................35
2.2. Reduction or Increases of the Revolving Loan Commitment Amount.....35
2.2.1. Optional...........................................................35
2.2.2. Mandatory..........................................................35
2.2.3. Increase in the Revolving Commitment Amount........................36
2.3. Borrowing Procedures and Funding Maintenance.......................38
2.3.1. Revolving Loans....................................................38
2.3.2. Swing Line Loans...................................................39
2.4. Continuation and Conversion Elections..............................40
2.5. Funding............................................................41
2.6. Issuance Procedures................................................41
2.6.1. Other Lenders' Participation.......................................42
2.6.2. Disbursements; Conversion to Revolving Loans.......................42
2.6.3. Reimbursement......................................................43
2.6.4. Deemed Disbursements...............................................43
2.6.5. Nature of Reimbursement Obligations................................44
2.6.6. Indemnity..........................................................44
2.6.7. Borrower's Guaranty of Reimbursement Obligations under Letters
of Credit Issued for the Account of its Subsidiaries...............44
2.6.8. Continued Letters of Credit........................................48
2.7. Register; Notes....................................................48
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application............................50
3.1.1. Repayments and Prepayments.........................................50
3.1.2. Application........................................................54
3.2. Interest Provisions................................................55
3.2.1. Rates..............................................................55
3.2.2. Post-Maturity Rates................................................55
3.2.3. Payment Dates......................................................55
3.3. Fees...............................................................56
3.3.1. Commitment Fee.....................................................56
3.3.2. Agents' Fees.......................................................56
3.3.3. Letter of Credit Fee...............................................56
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.........................................57
4.2. Deposits Unavailable...............................................57
4.3. Increased LIBO Rate Loan Costs, etc................................57
4.4. Funding Losses.....................................................58
4.5. Increased Capital Costs............................................58
4.6. Taxes..............................................................59
4.7. Payments, Computations, etc........................................60
4.8. Sharing of Payments................................................60
4.9. Setoff.............................................................61
4.10. Replacement of Lenders.............................................61
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Conditions Precedent to Increase...................................62
5.2. All Credit Extensions..............................................62
5.2.1. Compliance with Warranties, No Default, etc........................62
5.2.2. Credit Extension Request...........................................63
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc..................................................63
6.2. Due Authorization, Non-Contravention, etc..........................63
6.3. Government Approval, Regulation, etc...............................64
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6.4. Validity, etc......................................................64
6.5. Financial Information..............................................64
6.6. No Material Adverse Change.........................................64
6.7. Litigation, Labor Controversies, etc...............................64
6.8. Subsidiaries.......................................................64
6.9. Ownership of Properties............................................65
6.10. Taxes..............................................................65
6.11. Pension and Welfare Plans..........................................65
6.12. Environmental Warranties...........................................65
6.13. Regulations U and X................................................67
6.14. Accuracy of Information............................................67
6.15. Solvency...........................................................67
6.16. Pharmaceutical Laws................................................68
6.17. Seniority of the Obligations and Senior Debt under
the Senior Subordinated Indenture..................................68
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants..............................................69
7.1.1. Financial Information, Reports, Notices, etc.......................69
7.1.2. Compliance with Laws, etc..........................................72
7.1.3. Maintenance of Properties..........................................72
7.1.4. Insurance..........................................................72
7.1.5. Books and Records..................................................73
7.1.6. Environmental Covenant.............................................73
7.1.7. Future Subsidiaries................................................74
7.1.8. Future Leased Property and Future Acquisitions of Property.........75
7.1.9. Use of Proceeds, etc...............................................76
7.1.10. Maintenance of Corporate Separateness..............................76
7.1.11. Borrower Indebtedness..............................................76
7.2. Negative Covenants.................................................77
7.2.1. Business Activities................................................77
7.2.2. Indebtedness.......................................................78
7.2.3. Liens..............................................................79
7.2.4. Financial Covenants................................................81
7.2.5. Investments........................................................82
7.2.6. Restricted Payments, etc...........................................83
7.2.7. Capital Expenditures, etc..........................................87
7.2.8. Consolidation, Merger, etc.........................................87
7.2.9. Asset Dispositions, etc............................................88
7.2.10. Modification of Certain Agreements.................................89
7.2.11. Transactions with Affiliates.......................................89
7.2.12. Negative Pledges, Restrictive Agreements, etc......................89
7.2.13. Stock of Subsidiaries..............................................90
7.2.14. Sale and Leaseback.................................................90
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ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.......................................90
8.1.1. Non-Payment of Obligations.........................................90
8.1.2. Breach of Warranty.................................................90
8.1.3. Non-Performance of Certain Covenants and Obligations...............91
8.1.4. Non-Performance of Other Covenants and Obligations.................91
8.1.5. Default on Other Indebtedness......................................91
8.1.6. Judgments..........................................................91
8.1.7. Pension Plans......................................................91
8.1.8. Change in Control..................................................92
8.1.9. Bankruptcy, Insolvency, etc........................................92
8.1.10. Impairment of Security, etc........................................92
8.2. Action if Bankruptcy, etc..........................................93
8.3. Action if Other Event of Default...................................93
ARTICLE IX
GUARANTY
9.1. Guaranty...........................................................93
9.2. Acceleration of Parent Guaranty....................................94
9.3. Guaranty Absolute, etc.............................................94
9.4. Reinstatement, etc.................................................95
9.5. Waiver, etc........................................................95
9.6. Postponement of Subrogation, etc...................................96
9.7. Successors, Transferees and Assigns; Transfers of Notes, etc.......96
9.8. Right of Contribution..............................................97
ARTICLE X
THE AGENTS
10.1. Actions............................................................97
10.2. Funding Reliance, etc..............................................98
10.3. Exculpation........................................................98
10.4. Successor..........................................................99
10.5. Credit Extensions by each Agent....................................99
10.6. Credit Decisions...................................................99
10.7. Copies, etc.......................................................100
10.8. The Swing Line Lender, the Issuer, the Agents, etc................100
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ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc..........................................100
11.2. Notices...........................................................101
11.3. Payment of Costs and Expenses.....................................102
11.4. Indemnification...................................................102
11.5. Survival..........................................................104
11.6. Severability......................................................104
11.7. Headings..........................................................104
11.8. Execution in Counterparts, Effectiveness, etc.....................104
11.9. Governing Law; Entire Agreement...................................104
11.10. Successors and Assigns............................................105
11.11. Sale and Transfer of Loans; Participations in Loans...............105
11.11.1. Assignments........................................................105
11.11.2. Participations.....................................................107
11.11.3. SPCs...............................................................108
11.12. Other Transactions................................................109
11.13. Independence of Covenants.........................................109
11.14. Confidentiality...................................................109
11.15. Forum Selection and Consent to Jurisdiction.......................110
11.16. Waiver of Jury Trial..............................................111
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 10,
2001, is made among XXXXX XXXXX, a New York general partnership (the
"BORROWER"), XXXXX XXXXX INC., a Delaware corporation ("HOLDINGS"), DRI I INC.,
a Delaware corporation ("DRI I" and, together with Holdings, collectively, the
"PARENT GUARANTORS"), XXXXX XXXXX INTERNATIONAL, INC., a Delaware corporation
("XXXXX XXXXX IP") XXXXX XXXXX REALTY, INC., a Delaware corporation ("XXXXX
XXXXX REALTY" and together with Xxxxx Xxxxx IP, collectively, the "AFFILIATE
GUARANTORS" and, together with the Parent Guarantors, collectively, the
"DESIGNATED GUARANTORS"), the various financial institutions as are or may
become parties hereto (collectively, the "LENDERS"), CREDIT SUISSE FIRST BOSTON
("CSFB"), as syndication agent (in such capacity, the "SYNDICATION AGENT") for
the Lenders, FLEET NATIONAL BANK ("FLEET"), as administrative agent (in such
capacity, the "ADMINISTRATIVE AGENT") for the Lenders and CREDIT LYONNAIS NEW
YORK BRANCH ("CREDIT LYONNAIS"), as the documentation agent (in such capacity,
the "DOCUMENTATION AGENT") for the Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to the Third Amended and Restated Credit Agreement,
dated as of March 17, 2000 (together with all Loan Documents (as defined
therein), in each case as amended prior to the date hereof, the "EXISTING CREDIT
AGREEMENT"), among the Borrower, the Designated Guarantors, the various
financial institutions party thereto (collectively, the "EXISTING LENDERS"), the
Syndication Agent, the Administrative Agent and the Documentation Agent, the
Existing Lenders made and were committed to make Credit Extensions to the
Borrower on the terms and conditions set forth therein;
WHEREAS, the Borrower and the Designated Guarantors have requested that
the Existing Credit Agreement be amended and restated in its entirety to become
effective and binding on the Borrower and the Designated Guarantors pursuant to
the terms of this Agreement and the Amendment Agreement, and the Lenders
(including the Existing Lenders) have agreed (subject to the terms of this
Agreement and the Amendment Agreement) to amend and restate the Existing Credit
Agreement in its entirety to read as set forth in this Agreement, and it has
been agreed by the parties to the Existing Credit Agreement that (a) the
commitments which the Existing Lenders have agreed to extend to the Borrower
under the Existing Credit Agreement shall be extended or advanced upon the
amended and restated terms and conditions contained in this Agreement and the
Amendment Agreement, and (b) any outstanding credit extensions made and other
Obligations outstanding under the Existing Credit Agreement shall be governed by
and deemed to be outstanding under the amended and restated terms and conditions
contained in this Agreement and the Amendment Agreement, with the intent that
the terms of this Agreement shall supersede the terms of the Existing Credit
Agreement (which shall hereafter have no further effect upon the parties
thereto, other than for accrued fees and expenses and other
obligations arising under those provisions which by their terms survive the
termination of the Existing Credit Agreement); PROVIDED, that any Rate
Protection Agreements (as defined in the Existing Credit Agreement) with any one
or more Existing Lenders (or their respective Affiliates) shall continue
unamended and in full force and effect;
WHEREAS, the Borrower desires to refinance the Existing Term B Loans
and the Existing Term C Loans with a Tranche of New Term B Loans;
WHEREAS, the Borrower desires to obtain or continue the following
financing facilities from the Lenders:
(a) the Existing Term A Loans shall continue to remain
outstanding as Term A Loans hereunder in an aggregate principal amount
outstanding on the Amendment Effective Date of $20,518,647.82;
(b) the Existing Term B Loans and Existing Term C Loans shall
be refinanced with a Tranche of New Term B Loans hereunder in an
aggregate principal amount outstanding on the Amendment Effective Date
of $139,518,852.19;
(c) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to
which Borrowings of Revolving Loans, in a maximum aggregate outstanding
principal amount (together with the aggregate outstanding amount of all
Swing Line Loans and Letter of Credit Outstandings) not to exceed the
Revolving Loan Commitment Amount are and will continue to be made to
the Borrower from time to time on and subsequent to the Amendment
Effective Date but prior to the Revolving Loan Commitment Termination
Date;
(d) a Letter of Credit Commitment pursuant to which the Issuer
has and will continue to issue Letters of Credit for the account of the
Borrower or any of its Subsidiaries from time to time on and subsequent
to the Amendment Effective Date but prior to the Revolving Loan
Commitment Termination Date in a maximum aggregate Stated Amount at any
one time outstanding not to exceed the Letter of Credit Commitment
Amount; and
(e) a Swing Line Loan Commitment pursuant to which Borrowings
of Swing Line Loans in an aggregate outstanding principal amount not to
exceed the Swing Line Loan Commitment Amount are and will continue to
be made to the Borrower on and from time to time subsequent to the
Amendment Effective Date but prior to the Revolving Loan Commitment
Termination Date;
WHEREAS, the Lenders and the Issuer are willing, on the terms and
subject to the conditions set forth in the Amendment Agreement and hereinafter
set forth, to so amend and
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restate the Existing Credit Agreement and to extend the Commitments and make the
Loans described herein and issue (or participate in) Letters of Credit for the
account of the Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. DEFINED TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ADJUSTED PERCENTAGE" is defined in CLAUSE (b) of SECTION 2.2.3.
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to SECTION 10.4.
"ADMINISTRATIVE AGENT'S FEE LETTER" means the confidential fee letter,
dated as of March 17, 1999, between the Borrower and the Administrative Agent
which superseded the confidential fee letter, dated as of September 11, 1998,
between the Borrower and the Administrative Agent.
"AFFECTED LENDER" is defined in SECTION 4.10.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners, or (b)
to direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"AFFILIATE GUARANTORS" is defined in the PREAMBLE.
"AFFILIATE SECURITY AGREEMENT" means the Affiliate Security Agreement,
dated as of August 22, 1999, executed and delivered by each Affiliate Guarantor,
a conformed copy of which is attached as EXHIBIT F-4 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
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"AGENT" means, as the context may require, the Administrative Agent
and/or the Syndication Agent.
"AGREEMENT" means, on any date, the Existing Credit Agreement as
amended and restated as of the Amendment Effective Date as the same may
thereafter from time to time be further amended, supplemented, amended and
restated, or otherwise modified and in effect on such date.
"ALTERNATE BASE RATE" means, for any day and with respect to all Base
Rate Loans, the higher of: (a) 0.50% per annum above the Federal Funds Rate most
recently determined by the Administrative Agent; and (b) the rate of interest in
effect for such day as most recently publicly announced or established by the
Administrative Agent in Boston, Massachusetts, as its "prime rate." (The "prime
rate" is a rate set by the Administrative Agent based upon various factors
including the Administrative Agent's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above or below such announced rate.) Any change
in the reference rate established or announced by the Administrative Agent shall
take effect at the opening of business on the day of such establishment or
announcement.
"AMENDMENT EFFECTIVE DATE" means the date all closing conditions set
forth in Section 3.1 of the Amendment Agreement are satisfied.
"AMENDMENT AGREEMENT" means the Amendment Agreement, dated as of the
date hereof, among the Borrower, the Designated Guarantors, the Lenders party
thereto, the Documentation Agent and the Agents.
"APPLICABLE COMMITMENT FEE" means, a fee which shall accrue at the
applicable rate per annum set forth below under the column entitled "Applicable
Commitment Fee", determined by reference to the Leverage Ratio as in effect for
the Fiscal Quarter last ended as of such time of determination:
APPLICABLE
LEVERAGE RATIO COMMITMENT FEE
-------------- --------------
greater than or equal to 3.5 0.500%
less than 3.5 0.375%
With respect to any time of determining the Applicable Commitment Fee, the
Leverage Ratio used to compute the Applicable Commitment Fee shall be equal to
the Leverage Ratio set forth in the Compliance Certificate most recently
delivered by Holdings to the Administrative Agent, as of such time of
determination pursuant to CLAUSE (D) of SECTION 7.1.1. Changes in the Applicable
Commitment Fee resulting from a change in the Leverage Ratio shall become
effective upon delivery by Holdings to the Administrative Agent of a new
Compliance Certificate pursuant to CLAUSE (D) of SECTION 7.1.1. If Holdings
fails to deliver a Compliance Certificate within the number of days required
pursuant to CLAUSE (D) of SECTION 7.1.1, the
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Applicable Commitment Fee from and including the first day after the date on
which such Compliance Certificate was required to be delivered through (but
excluding) the date Holdings actually delivers to the Administrative Agent an
appropriately completed Compliance Certificate shall conclusively equal the
highest Applicable Commitment Fee set forth above.
"APPLICABLE MARGIN" means
(a) prior to the Amendment Effective Date, the rate calculated
in accordance with the Existing Credit Agreement as in effect
immediately prior to the Effective Date; and
(b) on and after the Amendment Effective Date, with respect to
the unpaid principal amount of:
(i) each Swing Line Loan (each of which shall be
borrowed and maintained only as a Base Rate Loan), each Term A
Loan and each Revolving Loan maintained as a Base Rate Loan,
by reference to the Leverage Ratio and at the applicable
percentage per annum set forth below under the column entitled
"Applicable Margin for Term A Loans, Revolving Loans and Swing
Line Loans maintained as Base Rate Loans";
(ii) each Term A Loan and each Revolving Loan
maintained as a LIBO Rate Loan, by reference to the Leverage
Ratio and at the applicable percentage per annum set forth
below under the column entitled "Applicable Margin for Term A
Loans and Revolving Loans Maintained as LIBO Rate Loans";
APPLICABLE
MARGIN FOR APPLICABLE
TERM A LOANS, MARGIN FOR
REVOLVING LOANS AND TERM A LOANS AND
SWING LINE LOANS REVOLVING LOANS
MAINTAINED AS MAINTAINED AS
LEVERAGE RATIO BASE RATE LOANS LIBO RATE LOANS
-------------- --------------- ---------------
} 3.75 2.00% 3.00%
{=3.75 and } 3.25 1.75% 2.75%
{=3.25 and } 2.75 1.25% 2.25%
{=2.75 and } 2.25 0.75% 1.75%
{=2.25 0.50% 1.50%
(iii) each New Term B Loan maintained as a Base Rate
Loan, 1.50%; and
(iv) each New Term B Loan maintained as a LIBO Rate
Loan, 2.50%;
Where applicable, the Leverage Ratio used to compute the Applicable
Margin for all Loans shall be equal to the Leverage Ratio set forth in
the Compliance Certificate most
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recently delivered by Holdings to the Administrative Agent pursuant to
CLAUSE (D) of SECTION 7.1.1. Changes in the Applicable Margin for such
Loans resulting from a change in the Leverage Ratio shall become
effective upon delivery by Holdings to the Administrative Agent of a
new Compliance Certificate pursuant to CLAUSE (D) of SECTION 7.1.1. If
Holdings fails to deliver a Compliance Certificate within the number of
days required pursuant to CLAUSE (D) of SECTION 7.1.1, the Applicable
Margin for all Loans from and including the first day after the date on
which such Compliance Certificate was required to be delivered through
(but excluding) the date Holdings delivers to the Administrative Agent
an appropriately completed Compliance Certificate shall conclusively
equal the highest Applicable Margin for all Loans of the same type set
forth above.
"ARRANGER" means Credit Suisse First Boston.
"ASSIGNED AMOUNT" is defined in SECTION 11.11.1.
"ASSIGNEE LENDER" is defined in SECTION 11.11.1.
"ASSIGNOR LENDER" is defined in SECTION 11.11.1.
"AUTHORIZED OFFICER" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 3.1.2 of the Amendment
Agreement.
"BASE RATE LOAN" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"BORROWER" is defined in the PREAMBLE.
"BORROWER PARTNERSHIP AGREEMENT" means the Second Amended and Restated
Agreement of Partnership of Xxxxx Xxxxx, dated as of September 25, 1992, between
Daboco and DRI I, as in effect on the Closing Date and as amended or otherwise
modified from time to time in accordance with the terms hereof and thereof.
"BORROWER PLEDGE AGREEMENT" means the Pledge Agreement, dated as of
September 11, 1998, executed and delivered by the Borrower, a conformed copy of
which is attached hereto as EXHIBIT G-2 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"BORROWER SECURITY AGREEMENT" means the Amended and Restated Security
Agreement, dated as of September 11, 1998, executed and delivered by the
Borrower, a conformed copy of which is attached hereto as EXHIBIT F-2 hereto, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
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"BORROWING" means Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by the relevant Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
SECTION 2.1.
"BORROWING REQUEST" means a loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of EXHIBIT
B-1 hereto.
"BUSINESS DAY" means any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York City or Boston, Massachusetts and, with respect to Borrowings of, interest
rate determinations with respect to, Interest Periods with respect to, payments
of principal and interest in respect of, conversions of Base Rate Loans into,
and continuations of LIBO Rate Loans as, LIBO Rate Loans, on which dealings in
Dollars are carried on in the London interbank market.
"CAPITAL EXPENDITURES" means, with respect to any Person, for any
period, the sum (without duplication) of (a) the aggregate amount of all
expenditures of such Person and its Subsidiaries for fixed or capital assets
made during such period which, in accordance with GAAP, would be classified as
capital expenditures, and (b) the aggregate amount of all Capitalized Lease
Liabilities incurred during such period by such Person and its Subsidiaries.
"CAPITAL STOCK" means, with respect to any Person, (a) any and all
shares, interests, participations, rights or other equivalents of or interests
in (however designated) corporate or capital stock, including shares of
preferred or preference stock of such Person, (b) all partnership interests
(whether general or limited) in such Person, (c) all membership interests or
limited liability company interests in such Person, and (d) all other equity or
ownership interests in such Person of any other type.
"CAPITALIZED LEASE LIABILITIES" means (without duplication) all
monetary obligations of Holdings or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, would be classified as
capitalized leases, and, for purposes of this Agreement and each other Loan
Document, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP, and the stated maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"CASH EQUIVALENT INVESTMENT" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued directly, or guaranteed, by the United
States or any agency thereof;
(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by (i) a corporation (other than an
Affiliate of any Obligor) organized under the laws of any state of the
United States or of the District of Columbia
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and rated at least A-l by S&P or P-l by Xxxxx'x, or (ii) any Lender (or
its holding company);
(c) any time deposit, certificate of deposit or banker's
acceptance, maturing not more than one year after such time, maintained
with or issued by either (i) a commercial banking institution
(including U.S. branches of foreign banking institutions) that is a
member of the Federal Reserve System and has a combined capital and
surplus and undivided profits of not less than $500,000,000, or (ii)
any Lender;
(d) short-term tax-exempt securities rated not lower than
MIG-1/1+ by either Xxxxx'x or S&P with provisions for liquidity or
maturity accommodations of 183 days or less;
(e) repurchase agreements which (i) are entered into with any
entity referred to in CLAUSE (B) or (C) above or any other financial
institution whose unsecured long-term debt (or the unsecured long-term
debt of whose holding company) is rated at least A- or better by S&P or
Baa1 or better by Xxxxx'x and maturing not more than one year after
such time, (ii) are secured by a fully perfected security interest in
securities of the type referred to in CLAUSES (A) through (C) above and
(iii) have a market value at the time of such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of such
counterparty entity with whom such repurchase agreement has been
entered into; or
(f) shares of investment companies that are registered under
the Investment Company Act of 1940, as amended and invest solely in one
or more of the types of securities described in CLAUSES (A) through (D)
above.
"CASH MANAGEMENT DOCUMENTS" means (a) the Deposit Account Agreement,
dated as of October 7, 1999, between Xxxxx Xxxxx International and the
Administrative Agent and (b) the Deposit Account Agreement, dated as of July 14,
1999, between the Borrower and the Administrative Agent, in each case, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"CASUALTY EVENT" means the damage, destruction or condemnation, as the
case may be, of any property of the Borrower, any Designated Guarantor or any of
their respective Subsidiaries.
"CASUALTY PROCEEDS" means, with respect to any Casualty Event, the
amount of any insurance proceeds or condemnation awards received by the
Borrower, any Designated Guarantor or any of their respective Subsidiaries in
connection therewith, but excluding any proceeds or awards required to be paid
to a creditor (other than the Lenders) which holds a first- priority Lien
permitted by SECTION 7.2.3 on the property which is the subject of such Casualty
Event.
-8-
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"CHANGE IN CONTROL" means
(a) (i) the failure of Holdings or DRI I to be a general
partner of the Borrower, or (ii) the failure of Holdings or DRI I at
any time to own, free and clear of all Liens (other than the Liens
granted in favor of the Administrative Agent for the benefit of the
Secured Parties under the Loan Documents) and encumbrances, all right,
title and interest in 100% of the partnership interests of the
Borrower;
(b) the failure of Holdings at any time to own, free and clear
of all Liens (other than the Liens granted in favor of the
Administrative Agent for the benefit of the Secured Parties under the
Loan Documents) and encumbrances, all right, title and interest in 100%
of the Capital Stock of DRI I on a fully diluted basis;
(c) a "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act) (other than the DLJMB Entities
and their controlled Affiliates) (i) becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of more than 35% of the
total then outstanding voting power of the Voting Stock of Holdings or
(ii) has the right or the ability by voting right, contract or
otherwise to direct or control, directly or indirectly, the management
or policies of Holdings;
(d) during any period of twenty-four months, individuals who
at the beginning of such period constituted the board of directors of
Holdings (together with any new directors whose election or appointment
by such board of directors, or whose nomination for election by the
shareholders of Holdings, as the case may be, was approved by a vote of
662/3% of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute
a majority of the board of directors then in office; or
(e) any "Change of Control" as such term is defined in the
Senior Subordinated Note Indenture.
"CLOSING DATE" means February 13, 1998.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMITMENT" means, as the context may require, (a) a Lender's
Revolving Loan Commitment and/or Letter of Credit Commitment and/or (b) the
Swing Line Lender's Swing Line Loan Commitment.
-9-
"COMMITMENT AMOUNT" means, as the context may require, the Revolving
Loan Commitment Amount, the Letter of Credit Commitment Amount and/or the Swing
Line Loan Commitment Amount.
"COMMITMENT TERMINATION EVENT" means (a) the occurrence of any Event of
Default described in CLAUSES (A) through (D) of SECTION 8.1.9, or (b) the
occurrence and continuance of any other Event of Default and either (i) the
declaration of the Loans to be due and payable pursuant to SECTION 8.3, or (ii)
in the absence of such declaration, the giving of notice to the Borrower by the
Administrative Agent, acting at the direction of the Required Lenders, that the
Commitments have been terminated.
"COMPLIANCE CERTIFICATE" means a certificate duly completed and
executed by the chief financial or accounting Authorized Officer of Holdings,
substantially in the form of EXHIBIT E hereto.
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount of the debt, obligation or other liability guaranteed thereby.
"CONTINUATION/CONVERSION NOTICE" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of EXHIBIT C hereto.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with
Holdings, are treated as a single employer under Section 414(b) or 414(c) of the
Code or Section 4001 of ERISA, or for purposes of Section 412 of the Code,
Section 414(m) or Section 414(o) of the Code.
"CREDIT EXTENSION" means, as the context may require, (a) the making of
a Loan by a Lender and/or (b) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any previously issued Letter of Credit,
by the Issuer.
"CREDIT LYONNAIS" is defined in the PREAMBLE.
"DABOCO" means Daboco Inc., a New York corporation, a former
Wholly-owned Subsidiary of Holdings and general partner of the Borrower, which
merged with and into Holdings, with Holdings being the surviving corporation of
such merger.
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"DEBT" means (without duplication) the aggregate amount of all
Indebtedness of Holdings and its Subsidiaries that is of the type referred to in
CLAUSES (A), (B), (C) and (F) of the definition of "Indebtedness" and any
Contingent Liability in respect of such Indebtedness.
"DEFAULT" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would, unless cured or
waived, constitute an Event of Default.
"DESIGNATED GUARANTORS" is defined in the PREAMBLE.
"DISBURSEMENT" is defined in SECTION 2.6.2.
"DISBURSEMENT DATE" is defined in SECTION 2.6.2.
"DISBURSEMENT DUE DATE" is defined in SECTION 2.6.2.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
SCHEDULE I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Required Lenders.
"DLJMB ENTITIES" means DLJMB Funding II, Inc., DLJ Merchant Banking
Partners II, L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Diversified
Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ First ESC L.L.C., DLJ
Offshore Partners II, C.V., DLJ EAB Partners, L.P., DLJ Millennium Partners,
L.P., DLJ Millennium-A Partners, L.P. and UK Investment Plan 1997 Partners.
"DOCUMENTATION AGENT" is defined in the PREAMBLE and includes each
other Person as shall have subsequently been appointed as the successor
Documentation Agent pursuant to SECTION 10.4.
"DOLLAR" and the symbol "$" mean lawful money of the United States.
"DRI I" is defined in the PREAMBLE.
"XXXXX XXXXX IP" is defined in the PREAMBLE.
"XXXXX XXXXX REALTY" is defined in the PREAMBLE.
"EBITDA" means, for any applicable period, the sum (without
duplication) for Holdings and its Subsidiaries on a consolidated basis of
(a) Net Income,
-11-
PLUS
(b) the amount deducted in determining Net Income representing
non-cash charges, including depreciation, amortization and deferred
rent,
PLUS
(c) the amount deducted in determining Net Income representing
income taxes (whether actually paid or deferred),
PLUS
(d) the amount deducted in determining Net Income representing
Interest Expense,
PLUS
(e) the amount deducted in determining Net Income representing
extraordinary or non-recurring expenses,
MINUS
(f) an amount equal to the amount of all extraordinary or
non-recurring non-cash credits included in determining Net Income.
"ELIGIBLE LEASES" means, leases for which (i) no consent or approval of
any kind is required for transfer or (ii) any and all consents or approvals
required for transfer have been obtained.
"ENVIRONMENTAL LAWS" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" is defined in SECTION 8.1.
"EXCESS CASH FLOW" means, for any applicable period, the excess (if
any), of
(a) EBITDA for such applicable period;
-12-
OVER
(b) the sum (without duplication) (for such applicable period)
of
(i) the cash portion of Interest Expense (net of
interest income) for such applicable period;
PLUS
(ii) scheduled payments and optional and mandatory
prepayments, to the extent actually made, of the principal
amount of the Term Loans or any other term Debt (including the
principal component of payments in respect of Capitalized
Lease Liabilities but excluding mandatory prepayments of the
principal amount of the Revolving Loans pursuant to CLAUSE (F)
of SECTION 3.1.1 in connection with a permanent reduction of
the Revolving Loan Commitment Amount, in each case for such
applicable period;
PLUS
(iii) all federal, state and foreign income taxes
paid or payable by Holdings and its Subsidiaries during such
applicable period;
PLUS
(iv) Capital Expenditures of the Borrower and its
Subsidiaries actually made during such applicable period
(excluding Capital Expenditures of the Borrower and its
Subsidiaries constituting Capitalized Lease Liabilities and by
way of the incurrence of Indebtedness permitted pursuant to
CLAUSE (E) of SECTION 7.2.2 to a vendor of any assets
permitted to be acquired pursuant to SECTION 7.2.7 to finance
the acquisition of such assets);
PLUS
(v) Investments permitted and actually made, in cash,
pursuant to CLAUSES (d) and (i) of SECTION 7.2.5 during such
applicable period;
PLUS
(vi) the amount of the net increase (or minus a net
decrease) of current assets, other than cash and Cash
Equivalent Investments, over current liabilities of Holdings
and its Subsidiaries for such applicable period;
MINUS
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(vii) the amount of tax refunds received by Holdings
and its Subsidiaries during such applicable period.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"EXISTING MORTGAGE" means the mortgage, dated as of the Closing Date
between the Administrative Agent and the Borrower, as amended, supplemented, and
restated or otherwise modified from time to time.
"EXISTING REVOLVING LOANS" means the Revolving Loans as defined in the
Existing Credit Agreement.
"EXISTING TERM A LOANS" means the Term A Loans as defined in the
Existing Credit Agreement.
"EXISTING TERM B LOANS" means the Term B Loans as defined in the
Existing Credit Agreement.
"EXISTING TERM C LOANS" means the Term C Loans as defined in the
Existing Credit Agreement.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to (a) the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or (b) if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"FEE LETTER" means the confidential fee letter, dated as of June 20,
2001, between the Borrower and the Syndication Agent.
"FISCAL QUARTER" means any fiscal quarter of a Fiscal Year, which
fiscal quarters shall end on the last Saturday of each March, June, September or
December of such Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive months ending on
the last Saturday of December of any calendar year.
"FIXED CHARGE COVERAGE RATIO" means, at the end of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and each of
the three immediately prior Fiscal Quarters of
(a) EBITDA for all such Fiscal Quarters
-14-
TO
(b) the sum (without duplication) of
(i) Capital Expenditures of Holdings and its
Subsidiaries actually made during all such Fiscal Quarters
pursuant to CLAUSE (A) of SECTION 7.2.7 (excluding Capital
Expenditures of Holdings and its Subsidiaries constituting
Capitalized Lease Liabilities and by way of the incurrence of
Indebtedness permitted pursuant to CLAUSE (G) of SECTION 7.2.2
to a vendor of any assets permitted to be acquired pursuant to
SECTION 7.2.7 to finance the acquisition of such assets);
PLUS
(ii) the cash portion of Interest Expense (net of
cash interest income) for all such Fiscal Quarters;
PLUS
(iii) all scheduled payments of principal of the Term
Loans and other term Debt (including the principal component
of payments in respect of any Capitalized Lease Liabilities)
during all such Fiscal Quarters;
PLUS
(iv) all federal, state and foreign income taxes paid
or payable by Holdings and its Subsidiaries during such
applicable period;
PLUS
(v) Restricted Payments of the types described in
CLAUSE (G) of SECTION 7.2.6 made during such applicable
period.
"FLEET" is defined in the PREAMBLE.
"FOREIGN SUBSIDIARY" means any Subsidiary of the Borrower (a) which is
organized under the laws of any jurisdiction outside of the United States, (b)
which conducts the major portion of its business outside of the United States
and (c) all or substantially all of the property and assets of which are located
outside of the United States.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in SECTION 1.4.
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"GUARANTORS" means, collectively, the Designated Guarantors and the
Subsidiary Guarantors, if any.
"HAZARDOUS MATERIAL" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"HEDGING OBLIGATIONS" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"HEREIN", "HEREOF", "HERETO", "HEREUNDER" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"HOLDINGS" is defined in the PREAMBLE.
"HOLDINGS PLEDGE AGREEMENT" means the Amended and Restated Pledge
Agreement, dated as of September 11, 1998, executed and delivered by Holdings, a
conformed copy of which is attached hereto as EXHIBIT G-1 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature, (b) which relates to the
limited scope of examination of matters relevant to such financial statement, or
(c) which relates to the treatment or classification of any item in such
financial statement and which, as a condition to its removal, would require an
adjustment to such item the effect of which would be to cause such Obligor to be
in default of any of its obligations under SECTION 7.2.4.
-16-
"INCLUDING" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of EJUSDEM GENERIS
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"INCREASE" means an increase in the Revolving Loan Commitment Amount.
"INCREASE AMOUNT" is defined in CLAUSE (A) of SECTION 2.2.3.
"INCREASE CONSENT DATE" is defined in CLAUSE (B) of SECTION 2.2.3.
"INCREASE DATE" means any date on which an Increase occurs.
"INCREASE REQUEST" means an Increase Request, substantially in the form
of EXHIBIT J-1 hereto, duly executed and delivered by an Authorized Officer of
the Borrower pursuant to the terms of this Agreement.
"INCREASING LENDER" is defined in CLAUSE (B) of SECTION 2.2.3.
"INDEBTEDNESS" of any Person means (without duplication):
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(d) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance sheet of
such Person as of the date at which Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, and indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse; PROVIDED, HOWEVER, that, to the extent
-17-
such Indebtedness is limited in recourse to the assets securing such
Indebtedness, the amount of such Indebtedness shall be limited to the
fair market value of such assets;
(g) Redeemable Capital Stock; and
(h) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer (to the extent such Person is liable for
such Indebtedness).
"INDEMNIFIED LIABILITIES" is defined in SECTION 11.4.
"INDEMNIFIED PARTIES" is defined in SECTION 11.4.
"INTEREST COVERAGE RATIO" means, at the end of any Fiscal Quarter, the
ratio computed for the period consisting of such Fiscal Quarter and each of the
three immediately prior Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
TO
(b) the cash portion of Interest Expense (for all such Fiscal
Quarters).
"INTEREST EXPENSE" means, for any applicable period, the aggregate
consolidated interest expense of Holdings and its Subsidiaries for such
applicable period, as determined in accordance with GAAP, including the portion
of any payments made in respect of Capitalized Lease Liabilities allocable to
interest expense.
"INTEREST PERIOD" means, as to any LIBO Rate Loan, the period
commencing on the Borrowing date of such Loan or on the date on which the Loan
is converted into or continued as a LIBO Rate Loan, and ending on the date one,
two, three or six months thereafter as selected by the Borrower in its Borrowing
Request or its Conversion/Continuation Notice; PROVIDED, HOWEVER that:
(a) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business
Day;
(b) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at
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the end of such Interest Period) shall end on the last Business Day of
the calendar month at the end of such Interest Period;
(c) no Interest Period for any Loan shall extend beyond the
Stated Maturity Date for such Loan;
(d) no Interest Period applicable to a Term Loan or any
portion thereof shall extend beyond any date upon which is due any
scheduled principal payment in respect of the Term Loans unless the
aggregate principal amount of Term Loans represented by Base Rate
Loans, or by LIBO Rate Loans having Interest Periods that will expire
on or before such date, equals or exceeds the amount of such principal
payment; and
(e) there shall be no more than ten Interest Periods in effect
at any one time.
"INVESTMENT" means, relative to any Person, (a) any loan or advance
made by such Person to any other Person (excluding commission, travel and
similar advances to officers, directors and employees (or individuals acting in
similar capacities) made in the ordinary course of business), and (b) any
ownership or similar interest held by such Person in any other Person. The
amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such transfer or exchange.
"ISSUANCE REQUEST" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, substantially in the
form of EXHIBIT B-2 hereto.
"ISSUER" means Fleet, in its capacity as issuer of Letters of Credit
and any Lender as may be designated by the Borrower (and consented to by the
Agents and such Lender, such consent by the Agents not to be unreasonably
withheld), in its capacity as issuer of Letters of Credit.
"LENDER ASSIGNMENT AGREEMENT" means a Lender Assignment Agreement,
substantially in the form of EXHIBIT D hereto.
"LENDERS" is defined in the PREAMBLE.
"LETTER OF CREDIT" is defined in SECTION 2.1.3.
"LETTER OF CREDIT COMMITMENT" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to SECTION 2.1.3 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligation of each such Lender to participate in such Letters of Credit
pursuant to SECTION 2.6.1.
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"LETTER OF CREDIT COMMITMENT AMOUNT" means, on any date, $10,000,000,
as such amount may be reduced from time to time pursuant to SECTION 2.2.
"LETTER OF CREDIT OUTSTANDINGS" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding Letters of Credit,
PLUS
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
"LEVERAGE RATIO" means, at the end of any Fiscal Quarter, the ratio of
(a) total Debt of Holdings and its Subsidiaries on a
consolidated basis outstanding at such time;
TO
(b) EBITDA for the period of four consecutive Fiscal Quarters
ended on such date.
"LIBO RATE" means, relative to any Interest Period for LIBO Rate Loans,
the interest rate per annum for deposits in Dollars, if any, for a period equal
to the relevant Interest Period which appears on Telerate Page 3750 at
approximately 11:00 a.m., London time, prior to the commencement of such
Interest Period. If such a rate does not appear on Telerate Page 3750, the LIBO
Rate shall be the rate of interest per annum determined by the Administrative
Agent to be the arithmetic mean (rounded upward to the next 1/16th of 1%) of the
rates of interest per annum at which dollar deposits in the approximate amount
of the Loan to be made or continued as, or converted into, a LIBO Rate Loan by
the Administrative Agent and having a maturity comparable to such Interest
Period would be offered to the Administrative Agent in the London interbank
market at its request at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"LIBO RATE LOAN" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO RATE (RESERVE ADJUSTED)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, the rate of interest per annum (rounded upwards to the next 1/16th of
1%) determined by the Administrative Agent as follows:
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LIBO Rate LIBO Rate
(Reserve =
Adjusted)
--------------------------------------------
1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding
as of the effective date of any change in the LIBOR Reserve Percentage.
"LIBOR OFFICE" means, relative to any Lender, the office of such Lender
designated as such on SCHEDULE II hereto or designated in the Lender Assignment
Agreement pursuant to which such Lender became a Lender hereunder or such other
office of a Lender as shall be so designated from time to time by notice from
such Lender to the Borrower and the Administrative Agent, which shall be making
or maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR RESERVE PERCENTAGE" means, relative to any Interest Period for
LIBO Rate Loans, the percentage (expressed as a decimal, rounded upward to the
next 1/16th of 1%) in effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time by the F.R.S. Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the F.R.S. Board).
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or any other priority or preferential treatment
of any kind or nature whatsoever that has the practical effect of creating a
security interest in property.
"LOAN" means, as the context may require, a Revolving Loan, a Term Loan
and/or a Swing Line Loan, of any type.
"LOAN DOCUMENT" means this Agreement, the Amendment Agreement, the
Notes, the Letters of Credit, each Rate Protection Agreement, each Cash
Management Document, each Borrowing Request, each Issuance Request, the Fee
Letter, the Administrative Agent Fee Letter, each Pledge Agreement, the
Subsidiary Guaranty, each Mortgage (upon execution and delivery thereof), each
Security Agreement and each other agreement, document or instrument delivered in
connection with this Agreement or any other Loan Document, whether or not
specifically mentioned herein or therein.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect on the
business, assets, debt service capacity, tax position, environmental liability,
financial condition, operations, properties or prospects of the Borrower and its
Subsidiaries, taken as a whole, or Holdings and
-21-
its Subsidiaries, taken as a whole, (b) a material impairment of the ability of
the Borrower or any other Obligor to perform its respective material obligations
under the Loan Documents to which it is or will be a party, or (c) an impairment
of the validity or enforceability of, or a material impairment of the rights,
remedies or benefits available to any Secured Party under any Loan Document.
"MATERIAL DOCUMENTS" means the Merger Documents, the Senior
Subordinated Note Documents, the Recapitalization Agreement, the Rapid Remit
Program Documents and the Borrower Partnership Agreement, each as amended or
otherwise modified from time to time in accordance with the terms thereof and
hereof.
"MERGER DOCUMENTS" means the Agreement and Plan of Merger, dated as of
February 2, 1998, between Holdings and Daboco and the Certificate of Merger of
Daboco Inc. into Xxxxx Xxxxx Inc. referred to therein, in each case as in effect
on the Closing Date and as the same may be amended or otherwise modified from
time to time thereafter in accordance with the terms hereof and thereof.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means, collectively, the Existing Mortgage and each Mortgage
or Deed of Trust executed and delivered pursuant to the terms of this Agreement
(including SECTION 7.1.8(B)), in form and substance reasonably satisfactory to
the Agents.
"NET DEBT PROCEEDS" means, with respect to the incurrence, sale or
issuance by the Borrower, any Designated Guarantor or any of their respective
Subsidiaries of any Debt (other than Debt permitted by SECTION 7.2.2 as in
effect on the date hereof), the EXCESS of:
(a) the gross cash proceeds received by the Borrower, any
Designated Guarantor or any of their respective Subsidiaries from such
incurrence, sale or issuance,
OVER
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such incurrence, sale or issuance.
"NET DISPOSITION PROCEEDS" means, with respect to any sale, transfer or
other disposition of any assets of the Borrower, any Designated Guarantor or any
of their respective Subsidiaries (other than sales permitted pursuant to CLAUSE
(A), (B) or (C) of SECTION 7.2.9), the excess of
(a) the gross cash proceeds received by the Borrower, any
Designated Guarantor or any of their respective Subsidiaries from any
such sale, transfer or other disposition and any cash payments received
in respect of promissory notes or other non-cash
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consideration delivered to the Borrower, such Designated Guarantor or
such Subsidiary in respect thereof,
LESS
(b) the sum (without duplication) of (i) all reasonable and
customary fees and expenses with respect to legal, investment banking,
brokerage, accounting and other professional fees, sales commissions
and disbursements and all other reasonable fees, expenses and charges,
in each case actually incurred in connection with such sale, transfer
or other disposition, (ii) all taxes and other governmental costs and
expenses actually paid or estimated by Holdings (in good faith) to be
payable in cash in connection with such sale, transfer or other
disposition, and (iii) payments made by the Borrower, any Designated
Guarantor or any of their respective Subsidiaries to retire
Indebtedness (other than the Credit Extensions) of the Borrower, such
Designated Guarantor or such Subsidiary where payment of such
Indebtedness is required in connection with such sale, transfer or
other disposition;
PROVIDED, HOWEVER, that if, after the payment of all taxes with respect to such
sale, transfer or other disposition, the amount of estimated taxes, if any,
pursuant to CLAUSE (B)(II) above exceeded the tax amount actually paid in cash
in respect of such sale, transfer or other disposition, the aggregate amount of
such excess shall, at such time, constitute Net Disposition Proceeds.
"NET EQUITY PROCEEDS" means with respect to the sale or issuance by the
Borrower, any Designated Guarantor or any of their respective Subsidiaries to
any Person, whether pursuant to a public or private offering, of any of its
Capital Stock or any warrants or options with respect to its Capital Stock or
the exercise of any such warrants or options after the Closing Date (other than
pursuant to any subscription agreement, incentive plan or similar arrangement
with any officer, employee or director of the Borrower, such Designated
Guarantor or such Subsidiary), the excess of:
(a) the gross cash proceeds received by the Borrower, such
Designated Guarantor or such Subsidiary from such sale, exercise or
issuance,
OVER
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage, accounting and other professional
fees, sales commissions and disbursements and all other reasonable
fees, expenses and charges, in each case actually incurred in
connection with such sale, exercise or issuance.
"NET INCOME" means, for any period, the net income of Holdings and its
Subsidiaries for such period on a consolidated basis.
"NEW REVOLVING LENDER" is defined in CLAUSE (c) of SECTION 2.2.3.
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"NON-INCREASING LENDER" is defined in CLAUSE (b) of SECTION 2.2.3.
"NEW TERM B LOAN" is defined in SECTION 2.1.1.
"NEW TERM B LOAN COMMITMENT" is defined in SECTION 2.1.1.
"NEW TERM B LOAN COMMITMENT AMOUNT" means, on any date,
$139,518,852.19.
"NEW TERM B NOTE" means a promissory note of the Borrower payable to
the order of any Lender, in the form of EXHIBIT A-3 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time in
accordance with the terms hereof and thereof), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding New Term
B Loans, and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"NET WORTH" means the consolidated net worth of Holdings and its
Subsidiaries.
"NOTE" means, as the context may require, a Revolving Note, a Term
Note, a Swing Line Note and/or a Registered Note.
"OBLIGATIONS" means all obligations (monetary or otherwise) of the
Borrower and each other Obligor arising under or in connection with this
Agreement, any Rate Protection Agreement, the Notes, each Letter of Credit and
each other Loan Document.
"OBLIGOR" means the Borrower or any other Person (other than any Agent,
the Documentation Agent, the Arranger, the Issuer or any Lender) obligated under
any Loan Document.
"ORGANIC DOCUMENT" means, relative to any Obligor, its partnership
agreement, its certificate of incorporation, its by-laws and all shareholder or
equity holder agreements, voting trusts and similar arrangements to which such
Obligor is a party or which is applicable to any of its Capital Stock, its
partnership agreement and all other arrangements relating to the control or
management of such entity.
"PAID VISIT" is defined in SECTION 7.1.5.
"PARENT GUARANTORS" is defined in the PREAMBLE.
"PARTICIPANT" is defined in SECTION 11.11.2.
"PARTNERSHIP SECURITY AGREEMENT" means the Amended and Restated
Security Agreement, dated as of September 11, 1998, executed and delivered by an
Authorized Officer of each of Holdings and DRI I, a conformed copy of which is
attached hereto as EXHIBIT F-1, as amended, supplemented, amended and restated
or otherwise modified from time to time.
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"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
"PENSION PLAN" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which
Holdings or any corporation, trade or business that is, along with Holdings, a
member of a Controlled Group, has or within the prior six years has had any
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA.
"PERCENTAGE" means, relative to any Lender, the applicable percentage
relating to Term A Loans, New Term B Loans, or Revolving Loans, as the case may
be, as set forth opposite its name on SCHEDULE II hereto under the applicable
column heading or set forth in Lender Assignment Agreement(s) under the
applicable column heading, as such percentage may be adjusted from time to time
pursuant to Lender Assignment Agreement(s) executed by such Lender and its
Assignee Lender(s) and delivered pursuant to SECTION 11.11 or pursuant to
operation of SECTION 2.2.3. A Lender shall not have any Commitment to make
Revolving Loans if its percentage under the applicable column heading on
SCHEDULE II is zero. As used herein, "Percentage" as it relates to a Lender's
Percentage of Letter of Credit Outstandings or Swing Line Loans shall be equal
to such Lender's Percentage of Revolving Loans.
"PERFECTION CERTIFICATE" means the Perfection Certificate executed and
delivered by an Authorized Officer of each Obligor that is a party to a Security
Agreement pursuant to SECTION 7.1.7, substantially in the form of EXHIBIT I
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"PERSON" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"PHARMACEUTICAL LAWS" means Federal, state and local laws, rules or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered, relating to dispensing, storing or
distributing prescription medicines or products, including laws, rules or
regulations relating to the qualifications of Persons employed to do the same.
"PHARMACY FUND" means Pharmacy Fund Receivables, Inc., a New York
corporation, and any successor thereto.
"PLAN" means any Pension Plan or Welfare Plan.
"PLEDGE AGREEMENT" means, as the context may require, the Holdings
Pledge Agreement, the Borrower Pledge Agreement and/or the Subsidiary Pledge
Agreement.
"PRESCRIPTION RECEIVABLES" is defined in CLAUSE (b) of SECTION 7.2.9.
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"PROPERTY WAIVER" means, with respect to premises leased by an Obligor,
a waiver and release in favor of the Agents for the benefit of the Lenders
relating to any liens the lessor of such premises may have with respect to the
assets of such Obligor located on or at such premises, in form and substance
reasonably satisfactory to the Agents.
"QUARTERLY PAYMENT DATE" means the fifteenth day of each February, May,
August and November, or, if any such day is not a Business Day, the next
succeeding Business Day.
"RAPID REMIT PROGRAM" shall mean the program pursuant to which
Prescription Receivables are sold by the Borrower to Pharmacy Fund for cash
pursuant to the Rapid Remit Program Documents.
"RAPID REMIT PROGRAM DOCUMENTS" shall mean (a) the Purchase Agreement,
dated as of March 10, 1997, between the Borrower and Pharmacy Fund and each
other document or agreement entered into in connection therewith, in each case
as in effect on the Closing Date and as the same may be amended or otherwise
modified from time to time thereafter in accordance with the terms hereof and
thereof, and (b) each of the other documents and agreements entered into in
connection therewith after the Closing Date in form and substance satisfactory
to the Syndication Agent, and as each such other document and agreement may be
amended or otherwise modified from time to time thereafter in accordance with
the terms hereof and thereof.
"RATE PROTECTION AGREEMENT" means, collectively, any interest rate
swap, cap, collar or similar agreement entered into by the Borrower in respect
of the Loans pursuant to the terms of this Agreement under which the
counterparty to such agreement is (or at the time such Rate Protection Agreement
was entered into, was) a Lender or an Affiliate of a Lender.
"REAL PROPERTY" means, with respect to any Person, all of the right,
title and interest of such Person in and to lands, improvements and fixtures,
including all of the rights, title and interest of such Person as Lessee or
licensee in, to and under leases or licenses of land, improvements and fixtures.
"RECAPITALIZATION AGREEMENT" shall mean the Recapitalization Agreement,
dated as of June 18, 1997, among the DLJMB Entities and the stockholders parties
thereto and Holdings and each other document or agreement entered into in
connection therewith, in each case as in effect on the Closing Date and as the
same may be amended or otherwise modified from time to time thereafter in
accordance with the terms hereof and thereof.
"REDEEMABLE CAPITAL STOCK" means, with respect to any Person, any class
of Capital Stock of such Person or any of its Subsidiaries which, either by its
terms, by the terms of any security into which it is convertible or exchangeable
or otherwise, (a) is or upon the happening of an event or passage of time would
be required to be redeemed on or prior to the first anniversary of the Stated
Maturity Date for the New Term B Loans, (b) is redeemable at the option of the
holder thereof at any time prior to such anniversary or (c) is convertible into
or exchangeable for debt securities of such Person or any of its Subsidiaries at
any time prior to
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such anniversary; PROVIDED, HOWEVER, that for purposes of CLAUSES (A) and (B) of
this definition, any issuances of equity interests or the right to directly or
indirectly acquire any equity interests of such Person pursuant to any director
or employee stock option or similar plan of such Person shall be deemed not to
be Redeemable Capital Stock.
"REFINANCING" is defined in the THIRD RECITAL.
"REFUNDED SWING LINE LOANS" is defined in CLAUSE (b) of SECTION 2.3.2.
"REGISTER" is defined in CLAUSE (b) of SECTION 2.7.
"REGISTERED NOTE" means a promissory note of the Borrower payable to
the order of any Lender, in the form of EXHIBIT A-4 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time in
accordance with the terms hereof and thereof), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding Term A
Loans or New Term B Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"REIMBURSEMENT OBLIGATION" is defined in SECTION 2.6.3.
"REINSTATEMENT DATE" is defined in SECTION 4.1.
"RELATED FUND" means, with respect to any Lender that is a fund that
invests in loans, any other fund that invests in loans and is managed by the
same investment advisor or investment manager as such Lender.
"RELEASE" means a "release", as such term is defined in CERCLA.
"REPLACEMENT LENDER" is defined in SECTION 4.10.
"REPLACEMENT NOTICE" is defined in SECTION 4.10.
"REQUIRED LENDERS" means, at any time, Lenders holding greater than 50%
of (a) the Total Exposure Amount or (b) if the Revolving Loan Commitments shall
have been terminated or expired for purposes of acceleration pursuant to SECTION
8.3, the then outstanding Loans and Letter of Credit Outstandings.
"RESOURCE CONSERVATION AND RECOVERY ACT" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, ET SEQ., as in effect
from time to time.
"RESTRICTED PAYMENTS" is defined in SECTION 7.2.6.
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"REVOLVING LOAN" is defined in CLAUSE (A) of SECTION 2.1.2 and shall
include the Existing Revolving Loans held by the Lenders under the Existing
Credit Agreement which have been designated as Revolving Loans hereunder
pursuant to SECTION 2.1.6.
"REVOLVING LOAN COMMITMENT" is defined in CLAUSE (A) of SECTION 2.1.2.
"REVOLVING LOAN COMMITMENT ACCEPTANCE" means the Revolving Loan
Commitment Acceptance executed and delivered by a New Revolving Lender pursuant
to the terms of this Agreement, substantially in the form of EXHIBIT J-2 hereto.
"REVOLVING LOAN COMMITMENT AMOUNT" means, on any date on or subsequent
to the Amendment Effective Date, an amount equal to$80,000,000, as such amount
may be reduced or increased from time to time pursuant to SECTION 2.2; provided,
however that such amount shall not exceed an amount equal to $100,000,000.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" and "COMMITMENT
TERMINATION DATE" mean the earliest of (a) February 15, 2004, (b) the date on
which the Revolving Loan Commitment Amount is terminated in full or reduced to
zero pursuant to SECTION 2.2, and (c) the date on which any Commitment
Termination Event occurs.
"REVOLVING NOTE" means a promissory note of the Borrower payable to any
Lender, substantially in the form of EXHIBIT A-1 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time in accordance
with the terms hereof and thereof), evidencing the aggregate Indebtedness of the
Borrower to such Lender resulting from outstanding Revolving Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.
"SALE AND LEASEBACK TRANSACTION" is defined in SECTION 7.2.14.
"SECURED PARTIES" means the Lenders, the Issuer, the Agents, the
Documentation Agent, the Arranger, each counterparty to a Rate Protection
Agreement that is (or at the time such Rate Protection Agreement was entered
into, was) a Lender or an Affiliate thereof and in each case, each of their
respective successors, transferees and assigns.
"SECURITY AGREEMENT" means, as the context may require, the Partnership
Security Agreement, the Borrower Security Agreement, the Affiliate Security
Agreement and/or the Subsidiary Security Agreement.
"SENIOR SUBORDINATED NOTE DOCUMENTS" means the Senior Subordinated Note
Indenture, the Senior Subordinated Notes Guarantee and the Senior Subordinated
Notes, in each case as in
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effect on the Closing Date and as the same may be amended or otherwise modified
from time to time thereafter in accordance with the terms hereof and thereof.
"SENIOR SUBORDINATED NOTE INDENTURE" means that certain indenture among
Holdings and the Borrower and DRI I, as subsidiary guarantors, and State Street
Bank and Trust Company of Connecticut, N.A., as Trustee, as in effect on the
Closing Date and as the same may be amended or otherwise modified from time to
time thereafter in accordance with the terms hereof and thereof.
"SENIOR SUBORDINATED NOTES" means the 91/4% Senior Subordinated Notes
due 2008 issued by Holdings for gross cash proceeds of $80,000,000.
"SENIOR SUBORDINATED NOTES GUARANTEE" means the joint and several
guarantees of the Borrower, DRI I and each other Subsidiary of Holdings in favor
of the holders of the Senior Subordinated Notes as set forth in Article 11 of
the Senior Subordinated Note Indenture and each Subsidiary Guarantee delivered
substantially in the form of Exhibit B to such indenture and, in each case,
subject to the Subordination provisions of Article 12 of such indenture and as
in effect on the Closing Date and as the same may be amended or otherwise
modified from time to time thereafter in accordance with the terms hereof and
thereof.
"SOLVENT" means, with respect to any Person and its Subsidiaries on a
particular date, that on such date (a) the fair value of the property of such
Person and its Subsidiaries on a consolidated basis is greater than the total
amount of liabilities, including contingent liabilities, of such Person and its
Subsidiaries on a consolidated basis, (b) the present fair salable value of the
assets of such Person and its Subsidiaries on a consolidated basis is not less
than the amount that will be required to pay the probable liability of such
Person and its Subsidiaries on a consolidated basis on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not believe
that it or its Subsidiaries will, incur debts or liabilities beyond the ability
of such Person and its Subsidiaries to pay as such debts and liabilities mature,
and (d) such Person and its Subsidiaries on a consolidated basis is not engaged
in business or a transaction, and such Person and its Subsidiaries on a
consolidated basis is not about to engage in business or a transaction, for
which the property of such Person and its Subsidiaries on a consolidated basis
would constitute an unreasonably small capital. The amount of Contingent
Liabilities at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at such time, can reasonably be expected to
become an actual or matured liability.
"STATED AMOUNT" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"STATED EXPIRY DATE" is defined in SECTION 2.6.
"STATED MATURITY DATE" means (a) in the case of any Revolving Loan or
any Term A Loan, February 15, 2004 and (b) in the case of any New Term B Loan,
February 15, 2007.
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"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Stock (or other ownership interests) of any other class or classes of such
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person.
"SUBSIDIARY GUARANTOR" means any Subsidiary of the Borrower that,
pursuant to SECTION 7.1.7, executes and delivers a Subsidiary Guaranty or a
supplement to a Subsidiary Guaranty.
"SUBSIDIARY GUARANTY" means the Guaranty executed and delivered by an
Authorized Officer of a Subsidiary Guarantor pursuant to SECTION 7.1.7,
substantially in the form of EXHIBIT H hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"SUBSIDIARY PLEDGE AGREEMENT" means the Pledge Agreement executed and
delivered by an Authorized Officer of each Subsidiary of the Borrower that is
not a Foreign Subsidiary pursuant to SECTION 7.1.7, substantially in the form of
EXHIBIT G-3 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"SUBSIDIARY SECURITY AGREEMENT" means the Security Agreement executed
and delivered by an Authorized Officer of each Subsidiary of the Borrower that
is not a Foreign Subsidiary pursuant to SECTION 7.1.7, substantially in the form
of EXHIBIT F-3 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"SUBJECT PROPERTY" is defined SECTION 7.1.8.
"SWING LINE LENDER" means Fleet, in its capacity as Swing Line Lender
hereunder.
"SWING LINE LOAN" is defined in CLAUSE (b) of SECTION 2.1.2.
"SWING LINE LOAN COMMITMENT" is defined in CLAUSE (b) of SECTION 2.1.2.
"SWING LINE LOAN COMMITMENT AMOUNT" means, on any date, $5,000,000, as
such amount may be reduced from time to time pursuant to SECTION 2.2.
"SWING LINE NOTE" means a promissory note of the Borrower payable to
the Swing Line Lender, in the form of EXHIBIT A-5 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to the Swing Line Lender
resulting from outstanding Swing Line Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.
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"SYNDICATION AGENT" is defined in the PREAMBLE and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent pursuant to SECTION 10.4.
"TAXES" is defined in SECTION 4.6.
"TELERATE PAGE 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on the service or
such other service as may be nominated by the British Bankers' Association as
the information vendor for the purpose of displaying British Bankers'
Association interest settlement rates for Dollar deposits).
"TERM A LOANS" means the Existing Term A Loans held by the Lenders
under the Existing Credit Agreement which have been designated as Term A Loans
hereunder pursuant to SECTION 2.1.6.
"TERM A LOAN OUTSTANDING AMOUNT" means $20,518,647.82, as such amount
may be reduced by any repayments or prepayments made hereunder.
"TERM A NOTE" means a promissory note of the Borrower payable to the
order of any Lender, in the form of EXHIBIT A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time in accordance
with the terms hereof and thereof), evidencing the aggregate Indebtedness of the
Borrower to such Lender resulting from outstanding Term A Loans, and also means
all other promissory notes accepted from time to time in substitution therefor
or renewal thereof.
"TERM LOAN" means, as the context may require, a Term A Loan and/or a
New Term B Loan.
"TERM NOTE" means, as the context may require, a Term A Note and/or a
New Term B Note.
"TOTAL EXPOSURE AMOUNT" means, on any date of determination, the then
outstanding principal amount of all Term Loans and the Revolving Loan Commitment
Amount then in effect.
"TRANCHE" means, as the context may require, the Loans constituting
Term A Loans, New Term B Loans, Revolving Loans and/or Swing Line Loans.
"TYPE" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
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"UNITED STATES" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"VALUATION AMOUNT" means, with respect to any real property, the
greater of the fair market value or the purchase price of such real property.
"WAIVER" means an agreement in favor of the Agents for the benefit of
the Lenders in form and substance reasonably satisfactory to the Agents.
"WELFARE PLAN" means a "welfare plan", as such term is defined in
section 3(1) of ERISA, and to which the Borrower has any liability.
"WHOLLY-OWNED SUBSIDIARY" shall mean, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (and all rights and options
to purchase such Capital Stock) of which, other than directors' qualifying
shares, are owned, beneficially and of record, by such Person and/or one or more
wholly-owned Subsidiaries of such Person.
SECTION 1.2. USE OF DEFINED TERMS. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each other Loan Document, notice and other communication delivered from time to
time in connection with this Agreement or any other Loan Document.
SECTION 1.3. CROSS-REFERENCES. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. ACCOUNTING AND FINANCIAL DETERMINATIONS. (a) Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, all accounting determinations and computations
hereunder or thereunder (including under SECTION 7.2.4) shall be made, and all
financial statements required to be delivered hereunder or thereunder shall be
prepared in accordance, and in a manner consistent, with those generally
accepted accounting principles ("GAAP"), as in effect on December 28, 1996 and
as used to prepare the audited consolidated financial statements of Holdings and
its Subsidiaries for the Fiscal Year ending on such date and, unless otherwise
expressly provided herein, shall be computed or determined on a consolidated
basis and without duplication.
(b) For purposes of calculating each of the Fixed Charge Coverage
Ratio, the Interest Coverage Ratio and the Leverage Ratio, each such ratio shall
be calculated giving pro forma effect to any acquisition, disposition, merger,
consolidation or discontinued operation (including any related financing
transaction) made by the Borrower or any of its Subsidiaries during the period
comprised of the Fiscal Quarters that are the subject of such calculation as if
such
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acquisition, disposition, merger, consolidation or discontinued operation
(including such related financing transaction) had been made at the beginning of
such period. Not in limitation of the immediately preceding sentence but in
furtherance thereof, for purposes of such calculation, EBITDA for such period
shall be calculated to (i) include the EBITDA (adjusted to exclude the cost of
any compensation, remuneration or other benefit paid or provided to any
employee, consultant, Affiliate or equity owner of the acquired entities to the
extent such costs are eliminated and not replaced and as determined in good
faith by the chief financial or accounting Authorized Officer of Holdings)
attributable to any business or assets acquired by the Borrower or any of its
Subsidiaries utilizing the actual revenues attributable to such business or
assets for such and the expenses that would have been attributable to such
business or assets had the Borrower acquired such business or assets at the
beginning of such period and (ii) exclude the EBITDA attributable to
discontinued operations, as determined in accordance with GAAP, and operations,
businesses and assets disposed of prior to the end of such period from such
calculation, in each case, as determined in good faith by the chief financial or
accounting Authorized Officer of Holdings.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. COMMITMENTS. On the terms and subject to the conditions of
this Agreement and the Amendment Agreement,
(a) each Lender severally agrees to make Loans (other than
Swing Line Loans) pursuant to the Commitments and the Swing Line Lender
agrees to make Swing Line Loans pursuant to the Swing Line Loan
Commitment, in each case as described in this SECTION 2.1; and
(b) the Issuer agrees that it will issue Letters of Credit
pursuant to SECTION 2.1.3, and each other Lender that has a Revolving
Loan Commitment severally agrees that it will purchase participation
interests in such Letters of Credit pursuant to SECTION 2.6.1.
SECTION 2.1.1. NEW TERM B LOAN COMMITMENT. On the Amendment Effective
Date, each Lender that has a Percentage in excess of zero of the New Term B Loan
Commitment Amount will make loans (relative to such Lender, its "NEW TERM B
LOANS") to the Borrower equal to such Lender's Percentage of the aggregate
amount of the Borrowing or Borrowings of New Term B Loans requested by the
Borrower to be made on the Amendment Effective Date (the commitment of each such
Lender described in this SECTION 2.1.1 is herein referred to as its "NEW TERM B
LOAN COMMITMENT"). No amounts paid or prepaid with respect to any New Term B
Loans may be reborrowed.
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SECTION 2.1.2. REVOLVING LOAN COMMITMENT AND SWING LINE LOAN
COMMITMENT. From time to time on any Business Day prior to the Revolving Loan
Commitment Termination Date,
(a) each Lender that has a Percentage in excess of zero of the
Revolving Loan Commitment Amount will make loans (relative to such
Lender, its "REVOLVING LOANS") to the Borrower equal to such Lender's
Percentage of the aggregate amount of the Borrowing or Borrowings of
Revolving Loans requested by the Borrower to be made on such day. The
Commitment of each Lender described in this CLAUSE (A) is herein
referred to as its "REVOLVING LOAN COMMITMENT". On the terms and
subject to the conditions hereof, the Borrower may from time to time
borrow, prepay and reborrow Revolving Loans.
(b) the Swing Line Lender will make loans (each a "SWING LINE
LOAN") to the Borrower equal to the principal amount of the Swing Line
Loan requested by the Borrower to be made on such day. The Commitment
of the Swing Line Lender described in this CLAUSE (B) is herein
referred to as its "SWING LINE LOAN COMMITMENT". On the terms and
subject to the conditions hereof, the Borrower may from time to time
borrow, prepay and reborrow Swing Line Loans.
SECTION 2.1.3. LETTER OF CREDIT COMMITMENT. From time to time on any
Business Day prior to the Revolving Loan Commitment Termination Date, the Issuer
will (a) issue one or more standby or commercial letters of credit (each
referred to as a "LETTER OF CREDIT") for the account of the Borrower in the
Stated Amount requested by the Borrower on such day, or (b) extend the Stated
Expiry Date of an existing standby or commercial Letter of Credit previously
issued hereunder.
SECTION 2.1.4. LENDERS NOT PERMITTED OR REQUIRED TO MAKE THE LOANS. No
Lender shall be permitted or required to, and the Borrower shall not request any
Lender to, make
(a) any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all the Revolving Loans (i)
of all Lenders, together with all Letter of Credit Outstandings and the
aggregate outstanding principal amount of all Swing Line Loans, would
exceed the Revolving Loan Commitment Amount, or (ii) of such Lender
(other than the Swing Line Lender), together with its Percentage of all
Letter of Credit Outstandings, would exceed such Lender's Percentage of
the Revolving Loan Commitment Amount; or
(b) any Swing Line Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all Swing Line Loans (i)
would exceed the Swing Line Loan Commitment Amount, or (ii) together
with all Letter of Credit Outstandings and the aggregate outstanding
principal amount of all Revolving Loans, would exceed the Revolving
Loan Commitment Amount.
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SECTION 2.1.5. ISSUER NOT PERMITTED OR REQUIRED TO ISSUE LETTERS OF
CREDIT. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount or (b)
the sum of the aggregate amount of all Letter of Credit Outstandings plus the
aggregate principal amount of all Revolving Loans and all Swing Line Loans then
outstanding would exceed the Revolving Loan Commitment Amount.
SECTION 2.1.6. LOANS MADE PRIOR TO THE DATE HEREOF. As of the Amendment
Effective Date, the Existing Term A Loans and Existing Revolving Loans shall
continue to remain outstanding hereunder as Term A Loans, and Revolving Loans
respectively, in each case, as if made hereunder, and each Lender with Existing
Term A Loans and Existing Revolving Loans shall have the Percentage of the Term
A Loan Outstanding Amount and the Revolving Loan Commitment Amount set forth in
SCHEDULE II hereto.
SECTION 2.2. REDUCTION OR INCREASES OF THE REVOLVING LOAN COMMITMENT
AMOUNT. The Commitment Amounts are subject to reductions or increases from time
to time pursuant to this SECTION 2.2.
SECTION 2.2.1. OPTIONAL. The Borrower may, from time to time on any
Business Day occurring after the time of the initial Credit Extension hereunder,
voluntarily reduce the Revolving Loan Commitment Amount; PROVIDED, HOWEVER, that
all such reductions shall require at least three Business Days' prior notice to
the Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in an aggregate amount of $5,000,000 or any larger
integral multiple of $1,000,000. Any such reduction of the Revolving Loan
Commitment Amount which reduces the Revolving Loan Commitment Amount below the
Letter of Credit Commitment Amount or the Swing Line Loan Commitment Amount
shall result in an automatic and corresponding reduction of the Letter of Credit
Commitment Amount or the Swing Line Loan Commitment Amount, as the case may be,
to an aggregate amount not in excess of the Revolving Loan Commitment Amount, as
so reduced, without any further action on the part of the Issuer or the Swing
Line Lender.
SECTION 2.2.2. MANDATORY. The Revolving Loan Commitment Amount shall,
without any further action, automatically and permanently be reduced
(a) on the Revolving Loan Commitment Termination Date so that
the Revolving Loan Commitment Amount equals $0; and
(b) following the prepayment in full of the Term Loans, on the
date the Term Loans would otherwise have been required to be prepaid
pursuant to CLAUSE (B), (C), (D), (E) or (F) of SECTION 3.1.1, in an
amount equal to the amount by which the Term Loans would otherwise have
been required to be prepaid if any Term Loans had been outstanding. Any
such reduction of the Revolving Loan Commitment Amount which reduces
the Revolving Loan Commitment Amount below the Letter of Credit
Commitment Amount or the Swing Line Loan Commitment Amount shall result
in an
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automatic and corresponding permanent reduction of the Letter of Credit
Commitment Amount or the Swing Line Loan Commitment Amount, as the case
may be, to an aggregate amount not in excess of the Revolving Loan
Commitment Amount, as so reduced, without any further action on the
part of the Issuer or the Swing Line Lender.
SECTION 2.2.3. INCREASE IN THE REVOLVING COMMITMENT AMOUNT. (a) The
Borrower may, from time to time on any Business Day, request an increase in the
Revolving Loan Commitment Amount by delivering an Increase Request to the
Agents. Upon receipt of each such Increase Request, the Administrative Agent
shall promptly forward such Increase Request to each Lender with a Revolving
Loan Commitment, and each such existing Lender with a Revolving Loan Commitment
shall have the right (but not the obligation) to commit to all or a specified
portion of the proposed increase.
(b) Each Lender, acting in its sole discretion, shall, by
notice to the Agents given no later than the date (the "INCREASE
CONSENT DATE") that is three Business Days after the date that the
Administrative Agent forwards such Increase Request to them, advise the
Agents (x) whether or not such Lender agrees to the increase its
Revolving Loan Commitment and (y) the principal amount, stated in
Dollars, of the proposed increase to the Revolving Loan Commitment of
such Lender (any existing Lender agreeing to any increase being called
an "INCREASING LENDER"); PROVIDED, that each Lender that determines not
to increase its Revolving Loan Commitment (a "NON-INCREASING LENDER")
shall notify the Agents of such fact promptly after such determination
(but in any event no later than the Increase Consent Date) and any
Lender that does not advise the Agents on or before the Increase
Consent Date shall be deemed to be a Non-Increasing Lender. The
Syndication Agent shall promptly notify the Borrower of the names of
the Increasing Lenders and the Non-Increasing Lenders and the amount of
each Increasing Lender's proposed increase upon receipt of each notice
from such Lender. The election of any Lender to agree to such increases
(as each proposed increase may be decreased during the allocation
process set forth in CLAUSE (D) below) shall be irrevocable but shall
not obligate any other Lender to so agree.
(c) If the aggregate amount of the proposed increase in the
Revolving Loan Commitments of the then existing Lenders pursuant to
CLAUSE (B) above is less than the aggregate increase in Revolving Loan
Commitments requested by the Borrower, then the proposed increase may
be offered to prospective Lenders (and existing Lenders may still
consider the offer). Each such prospective Lender (each, a "NEW
REVOLVING LENDER"), shall, by notice to the Borrower and the Agents
given no later than five Business Days after the Increase Consent Date,
advise the Borrower and the Agents of the amount, stated in Dollars, of
the Revolving Loan Commitments to which such New Revolving Lender is
willing to commit.
(d) The Syndication Agent and the Borrower shall allocate the
increased Revolving Loan Commitments among the Increasing Lenders and
the New Revolving Lenders (if any) as they may agree; PROVIDED that the
resulting Revolving Loan
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Commitment of each New Revolving Lender shall be at least $1,000,000
and PROVIDED, FURTHER that any Lender that does not advise the Agents
on or before the Increase Consent Date shall be deemed to be a
Non-Increasing Lender. Following such allocation the Syndication Agent
shall promptly notify the Administrative Agent who shall in turn
promptly notify each then existing Lender and each New Revolving Lender
of the increased Revolving Loan Commitments, confirming the effective
date thereof and the aggregate amount of Revolving Loan Commitments
after giving effect to such increase, (y) each then existing Lender of
the amount of the increase (if any) in its Revolving Loan Commitment
and (z) each New Revolving Lender of its new Revolving Loan Commitment;
and on such Increase Date, each Increasing Lender's Revolving Loan
Commitment shall automatically, without any other action by any Person,
be increased by such additional amount.
(e) Each New Revolving Lender shall, following the Increase
Consent Date but prior to the Increase Date, execute and deliver a
Revolving Loan Commitment Acceptance pursuant to which it undertakes a
Revolving Loan Commitment hereunder (and such New Revolving Lender
shall thereupon become a "Lender" for all purposes of this Agreement)
in the amount agreed to by such New Revolving Lender.
(f) Each Lender by delivering an election to increase its
Revolving Loan Commitment and each New Revolving Lender by delivering a
Revolving Loan Commitment Acceptance, as the case may be, hereby agrees
to and confirms its obligations set forth in SECTION 2.6 based on such
Lender's or New Revolving Lender's revised Revolving Loan Commitments
as then in effect on the Increase Date.
(g) Notwithstanding the foregoing, any increase in the
aggregate Revolving Loan Commitments hereunder pursuant to this SECTION
2.2.3 shall not be effective unless:
(i) if any Revolving Loans are outstanding hereunder
on the Increase Date, the principal amount of all such
Revolving Loans shall on or prior to such date be repaid,
together with accrued interest thereon and any costs incurred
by any existing Lender in accordance with SECTION 4.4 (but all
such Revolving Loans may, on the terms and conditions hereof,
be reborrowed on the Increase Date PRO RATA among all of the
Lenders (including the New Revolving Lenders) based on their
revised Revolving Loan Commitments as then in effect on such
date) and the Administrative Agent may, in its sole
discretion, net out the differences prior to the Increase and
following the Increase based on each Lender's Percentage of
the Revolving Loan Commitment Amount;
(ii) the Borrower shall have given the Syndication
Agent the Increase Request no more than 20 Business Days prior
to any such Increase Date;
(iii) the Borrower has complied with SECTION 5.1;
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(iv) concurrently with the increase in the Revolving
Loan Commitment, the Administrative Agent shall recalculate
each Lender's Revolving Loan Commitment Percentage by reducing
each Non-Increasing Lender's Revolving Loan Percentage,
increasing each Increasing Lender's Revolving Loan Percentage
and establishing a Revolving Loan Percentage for each New
Revolving Lender, as applicable and as appropriate; and
(v) there shall have been no voluntary reduction of
the Revolving Loan Commitment Amount pursuant to SECTION
2.2.1.
(h) The aggregate amount of increases to the Revolving Loan
Commitment Amount pursuant to this SECTION 2.2.3 may not exceed
$20,000,000, and the amount of each individual increase in the
Revolving Loan Commitment Amount pursuant to this SECTION 2.2.3 shall
at least equal to $1,000,000 or any larger integral multiple of
$1,000,000.
SECTION 2.3. BORROWING PROCEDURES AND FUNDING MAINTENANCE. Loans (other
than Swing Line Loans) shall be made by the Lenders in accordance with SECTION
2.3.1, and Swing Line Loans shall be made by the Swing Line Lender in accordance
with SECTION 2.3.2.
SECTION 2.3.1. REVOLVING LOANS. By delivering a Borrowing Request to
the Administrative Agent on or before 12:00 noon, New York City time, on a
Business Day, the Borrower may from time to time irrevocably request, on not
less than one Business Day's notice (in the case of Base Rate Loans) or three
Business Days' notice (in the case of LIBO Rate Loans) nor more than five
Business Days' notice (in the case of any Loans), that a Borrowing be made, in
the case of LIBO Rate Loans, in an aggregate amount of $1,000,000 or any larger
integral multiple of $500,000, and in the case of Base Rate Loans, in an
aggregate amount of $500,000 or any larger integral multiple of $100,000, or, in
either case, in the unused amount of the applicable Commitment. No Borrowing
Request shall be required, and the minimum aggregate amounts specified under
this SECTION 2.3.1 shall not apply, in the case of Revolving Loans made under
CLAUSE (B) of SECTION 2.3.2 to refund Refunded Swing Line Loans or deemed made
under SECTION 2.6.2 in respect of unreimbursed Disbursements. On the terms and
subject to the conditions of this Agreement, each Borrowing shall be comprised
of the type of Loans, and shall be made on the Business Day, specified in such
Borrowing Request. On or before 11:00 a.m., New York City time, on such Business
Day each Lender shall deposit with the Administrative Agent same day funds in an
amount equal to such Lender's Percentage of the requested Borrowing. Such
deposit will be made to an account which the Administrative Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received
from the Lenders, the Administrative Agent shall make such funds available to
the Borrower by wire transfer to the accounts the Borrower shall have specified
in its Borrowing Request. No Lender's obligation to make any Loan shall be
affected by any other Lender's failure to make any Loan.
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SECTION 2.3.2. SWING LINE LOANS. (a) By telephonic notice, promptly
followed (within one Business Day) by the delivery of a confirming Borrowing
Request, to the Swing Line Lender and the Administrative Agent on or before
12:00 noon, New York City time, on the Business Day the proposed Swing Line Loan
is to be made, the Borrower may from time to time irrevocably request that a
Swing Line Loan be made by the Swing Line Lender in a minimum principal amount
of $100,000 or any larger integral multiple of $50,000. All Swing Line Loans
shall be made as Base Rate Loans and shall not be entitled to be converted into
LIBO Rate Loans. The proceeds of each Swing Line Loan shall be made available by
the Swing Line Lender, by 5:00 p.m., New York City time, on the Business Day
telephonic notice is received by it as provided in this CLAUSE (A), to the
Borrower by wire transfer to the account the Borrower shall have specified in
its notice therefor.
(b) If (i) any Swing Line Loan (A) shall be outstanding for more than
four Business Days or (B) is or will be outstanding on a date when the Borrower
requests that a Revolving Loan be made or (ii) any Default (other than a Default
of the nature set forth in SECTION 8.1.9) shall occur and be continuing, each
Lender with a Revolving Loan Commitment (other than the Swing Line Lender)
irrevocably agrees that it will, at the request of the Swing Line Lender and
upon notice from the Administrative Agent, make a Revolving Loan (which shall
initially be funded as a Base Rate Loan) in an amount equal to such Lender's
Percentage of the aggregate principal amount of all such Swing Line Loans then
outstanding (such outstanding Swing Line Loans hereinafter referred to as the
"REFUNDED SWING LINE LOANS"); PROVIDED, that the Swing Line Lender shall not
request, and no Lender with a Revolving Loan Commitment shall make, any Refunded
Swing Line Loan if, after giving effect to the making of such Refunded Swing
Line Loan, the sum of all Swing Line Loans and Revolving Loans made by such
Lender, plus such Lender's Percentage of the aggregate amount of all Letter of
Credit Outstandings, would exceed such Lender's Percentage of the then existing
Revolving Loan Commitment Amount. On or before 11:00 a.m. (New York City time)
on the first Business Day following receipt by each Lender of a request to make
Revolving Loans as provided in the preceding sentence, each such Lender with a
Revolving Loan Commitment shall deposit in an account specified by the Swing
Line Lender the amount so requested in same day funds and such funds shall be
applied by the Swing Line Lender to repay the Refunded Swing Line Loans. At the
time the aforementioned Lenders make the above referenced Revolving Loans, the
Swing Line Lender shall be deemed to have made, in consideration of the making
of the Refunded Swing Line Loans, a Revolving Loan in an amount equal to the
Swing Line Lender's Percentage of the aggregate principal amount of the Refunded
Swing Line Loans. Upon the making (or deemed making, in the case of the Swing
Line Lender) of any Revolving Loans pursuant to this CLAUSE (B), the amount so
funded shall become outstanding under such Lender's Revolving Note and shall no
longer be owed under the Swing Line Note. All interest payable with respect to
any Revolving Loans made (or deemed made, in the case of the Swing Line Lender)
pursuant to this CLAUSE (B) shall be appropriately adjusted to reflect the
period of time during which the Swing Line Lender had outstanding Swing Line
Loans in respect of which such Revolving Loans were made.
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(c) If, at any time prior to the making of Revolving Loans to replace
any outstanding Swing Line Loans pursuant to CLAUSE (B) above, any Default of
the nature of the nature set forth in SECTION 8.1.9 shall have occurred, each
Lender with a Revolving Loan Commitment (other than the Swing Line Lender)
irrevocably agrees that it will, at the request of the Swing Line Lender and
upon notice from the Administrative Agent, purchase an undivided participation
interest in all such Swing Line Loans in an amount equal to its Percentage of
the aggregate outstanding amount of such Swing Line Loans and transfer
immediately to an account identified by the Swing Line Lender, in immediately
available funds, the amount of its participation. The Swing Line Lender will
deliver to each such Lender, promptly following receipt of such funds, a
participation certificate, dated the date of receipt of such funds and in the
amount of such Lender's participation if requested to do so by such Lender.
(d) The Borrower expressly agrees that, in respect of each Lender's
funded participation interest in any Swing Line Loan, such Lender shall be
deemed to be in privity of contract with the Borrower and have the same rights
and remedies against the Borrower under the Loan Documents as if such funded
participation interest in such Swing Line Loan were a Revolving Loan.
(e) Each Lender's obligation (in the case of Lenders with a Revolving
Loan Commitment) to make Revolving Loans or purchase participation interests in
Swing Line Loans, as contemplated by CLAUSE (B) or (C) above, shall be absolute
and unconditional and without recourse to the Swing Line Lender and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default, an Event of Default
or a Material Adverse Effect; (iii) the acceleration or maturity of any Loans or
the termination of any Commitment after the making of any Swing Line Loan; (iv)
any breach of this Agreement or any other Loan Document by the Borrower, any
other Obligor or any Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
SECTION 2.4. CONTINUATION AND CONVERSION ELECTIONS. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
noon, New York City time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice (in the case of a
conversion of LIBO Rate Loans to Base Rate Loans) or three Business Days' notice
(in the case of a continuation of LIBO Rate Loans or a conversion of Base Rate
Loans into LIBO Rate Loans) nor more than five Business Days' notice (in the
case of any Loans) that all, or any portion (a) in a minimum amount of
$1,000,000 or any larger integral multiple of $500,000, be, in the case of Base
Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate Loans,
continued as LIBO Rate Loans or (b) in a minimum amount of $500,000 or any
larger integral multiple of $100,000, be, in the case of LIBO Rate Loans,
converted into Base Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three
Business Days before the last day of the then current Interest Period with
respect thereto, such LIBO Rate Loan shall, on such last day, automatically
convert to a Base Rate Loan); PROVIDED, HOWEVER,
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that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of the relevant Lenders, and (y) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, LIBO Rate Loans when any Default or Event of Default has occurred and is
continuing.
SECTION 2.5. FUNDING. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as such
action does not result in increased costs to the Borrower; PROVIDED, HOWEVER,
that such LIBO Rate Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the obligation of the Borrower to repay such LIBO Rate
Loan shall nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility; PROVIDED FURTHER, HOWEVER,
that, except for purposes of determining whether any such increased costs are
payable by the Borrower, such Lender shall cause such foreign branch, Affiliate
or international banking facility to comply with the applicable provisions of
CLAUSE (B) of SECTION 4.6 with respect to such LIBO Rate Loan. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of SECTION 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank Eurodollar market.
SECTION 2.6. ISSUANCE PROCEDURES. By delivering to the Administrative
Agent an Issuance Request on or before 12:00 noon, New York City time, on a
Business Day, the Borrower may, from time to time irrevocably request, on not
less than three nor more than ten Business Days' notice (or such shorter or
longer notice as may be acceptable to the Issuer), in the case of an initial
issuance of a Letter of Credit, and not less than three nor more than ten
Business Days' notice (unless a shorter or longer notice period is acceptable to
the Issuer) prior to the then existing Stated Expiry Date of a Letter of Credit,
in the case of a request for the extension of the Stated Expiry Date of a Letter
of Credit, that the Issuer issue, or extend the Stated Expiry Date of, as the
case may be, an irrevocable Letter of Credit on behalf of the Borrower (whether
the account party on such Letter of Credit is the Borrower or a Subsidiary of
the Borrower) in such form as may be requested by the Borrower and approved by
the Issuer, for the purposes described in SECTION 7.1.9; PROVIDED, HOWEVER, that
no extension of the Stated Expiry Date of an outstanding Letter of Credit may
provide for a Stated Expiry Date subsequent to the earlier of (i) the Revolving
Loan Commitment Termination Date and (ii) one year from the date of such
extension. Notwithstanding anything to the contrary contained herein or in any
separate application for any Letter of Credit, the Borrower hereby acknowledges
and agrees that it shall be obligated to reimburse the Issuer upon each
Disbursement paid under a Letter of Credit, and it shall be deemed to be the
obligor for purposes of each such Letter of Credit issued hereunder (whether the
account party on such Letter of Credit is the Borrower or a Subsidiary of the
Borrower). Upon receipt of an Issuance Request, the Administrative Agent shall
promptly notify the Issuer and each Lender thereof. Each Letter of Credit shall
by its terms be stated to expire on a date (its "STATED EXPIRY DATE") no later
than the earlier to occur of (i) the Revolving Loan Commitment Termination Date
or (ii) one year from the date of its issuance. The Issuer
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will make available to the beneficiary thereof the original of each Letter of
Credit which it issues hereunder.
SECTION 2.6.1. OTHER LENDERS' PARTICIPATION. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased from the Issuer, to the extent of
its Percentage in respect of Revolving Loans, and the Issuer shall be deemed to
have irrevocably granted and sold to such Lender a participation interest in
such Letter of Credit (including the Contingent Liability and any Reimbursement
Obligation and all rights with respect thereto), and such Lender shall, to the
extent of its Percentage in respect of Revolving Loans, be responsible for
reimbursing promptly (and in any event within one Business Day) the Issuer for
Reimbursement Obligations which have not been reimbursed by the Borrower in
accordance with SECTION 2.6.3. In addition, such Lender shall, to the extent of
its Percentage in respect of Revolving Loans, be entitled to receive a ratable
portion of the Letter of Credit fees payable pursuant to SECTION 3.3.3 with
respect to each Letter of Credit and of interest payable pursuant to SECTION 3.2
with respect to any Reimbursement Obligation. To the extent that any Lender has
reimbursed the Issuer for a Disbursement as required by this Section, such
Lender shall be entitled to receive its ratable portion of any amounts
subsequently received (from the Borrower or otherwise) in respect of such
Disbursement.
SECTION 2.6.2. DISBURSEMENTS; CONVERSION TO REVOLVING LOANS. The Issuer
will notify the Borrower and the Administrative Agent promptly of the
presentment for payment of any drawing under any Letter of Credit issued by the
Issuer, together with notice of the date (the "DISBURSEMENT DATE") such payment
shall be made (each such payment, a "DISBURSEMENT"). Subject to the terms and
provisions of such Letter of Credit and this Agreement, the Issuer shall make
such payment to the beneficiary (or its designee) of such Letter of Credit.
Prior to 12:00 noon, New York City time, on the first Business Day following the
Disbursement Date (the "DISBURSEMENT DUE DATE"), the Borrower will reimburse the
Administrative Agent, for the account of the Issuer, for all amounts which the
Issuer has disbursed under such Letter of Credit, together with interest thereon
at the rate per annum otherwise applicable to Revolving Loans (made as Base Rate
Loans) from and including the Disbursement Date to but excluding the
Disbursement Due Date and, thereafter (unless such Disbursement is converted
into a Revolving Loan made as a Base Rate Loan on the Disbursement Due Date), at
a rate per annum equal to the rate per annum then in effect with respect to
overdue Revolving Loans (made as Base Rate Loans) pursuant to SECTION 3.2.2 for
the period from the Disbursement Due Date through the date of such
reimbursement; PROVIDED, HOWEVER, that, if no Default shall have then occurred
and be continuing, unless the Borrower has notified the Administrative Agent no
later than one Business Day prior to the Disbursement Due Date that it will
reimburse the Issuer for the applicable Disbursement, then the amount of the
Disbursement shall be deemed to be a Borrowing of Revolving Loans constituting
Base Rate Loans and following the giving of notice thereof by the Administrative
Agent to the Lenders, each Lender with a Revolving Loan Commitment (other than
the Issuer) will deliver to the Issuer on the Disbursement Due Date immediately
available funds in an amount equal to such Lender's Percentage of such
Borrowing. Each conversion of Disbursement amounts into Revolving Loans shall
constitute a
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representation and warranty by the Borrower that on the date of the making of
such Revolving Loans all of the statements set forth in SECTION 5.2.1 are true
and correct.
SECTION 2.6.3. REIMBURSEMENT. The obligation (a "REIMBURSEMENT
OBLIGATION") of the Borrower under SECTION 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon) not converted into a
Revolving Loan made as a Base Rate Loan pursuant to SECTION 2.6.2, and, upon the
failure of the Borrower to reimburse the Issuer and the giving of notice thereof
by the Administrative Agent to the Lenders, each Lender's (to the extent it has
a Revolving Loan Commitment) obligation under SECTION 2.6.1 to reimburse the
Issuer or fund its Percentage of any Disbursement converted into a Revolving
Loan made as a Base Rate Loan, shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower or such Lender, as the case may be, may have or have
had against the Issuer or any such Lender, including any defense based upon the
failure of any Disbursement to conform to the terms of the applicable Letter of
Credit (if, in the Issuer's good faith opinion, such Disbursement is determined
to be appropriate) or any non-application or misapplication by the beneficiary
of the proceeds of such Letter of Credit; PROVIDED, HOWEVER, that after paying
in full its Reimbursement Obligation hereunder, nothing herein shall adversely
affect the right of the Borrower or such Lender, as the case may be, to commence
any proceeding against the Issuer for any wrongful Disbursement made by the
Issuer under a Letter of Credit as a result of acts or omissions constituting
gross negligence or willful misconduct on the part of the Issuer.
SECTION 2.6.4. DEEMED DISBURSEMENTS. Upon the occurrence and during the
continuation of any Event of Default of the type described in CLAUSES (A)
through (D) of SECTION 8.1.9 or, with notice from the Administrative Agent
acting at the direction of the Required Lenders, upon the occurrence and during
the continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding shall,
without demand upon or notice to the Borrower or any other Person, be
deemed to have been paid or disbursed by the Issuer under such Letters
of Credit (notwithstanding that such amount may not in fact have been
so paid or disbursed); and
(b) upon notification by the Administrative Agent to the
Borrower of its obligations under this Section, the Borrower shall be
immediately obligated to reimburse the Issuer for the amount deemed to
have been so paid or disbursed by the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time as the Events of Default giving rise to the deemed
disbursements hereunder shall have been cured or waived, the Administrative
Agent shall return to the Borrower all amounts then on deposit with the
Administrative Agent pursuant
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to this Section, together with accrued interest at the Federal Funds Rate, which
have not been applied to the satisfaction of such Obligations.
SECTION 2.6.5. NATURE OF REIMBURSEMENT OBLIGATIONS. The Borrower and,
to the extent set forth in SECTION 2.6.1, each Lender with a Revolving Loan
Commitment, shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuer (except to the extent of
its own gross negligence or willful misconduct) shall not be responsible for (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the
application for and issuance of a Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged, (ii) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or the proceeds
thereof in whole or in part, which may prove to be invalid or ineffective for
any reason, (iii) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit, (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, or (v) any loss or delay in the
transmission or otherwise of any document or draft required in order to make a
Disbursement under a Letter of Credit. None of the foregoing shall affect,
impair or prevent the vesting of any of the rights or powers granted to the
Issuer or any Lender with a Revolving Loan Commitment hereunder. In furtherance
and extension and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by the Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon the
Borrower, each Obligor and each such Lender, and shall not put the Issuer under
any resulting liability to the Borrower, any Obligor or any such Lender, as the
case may be.
SECTION 2.6.6. INDEMNITY. In addition to amounts payable as elsewhere
provided herein, the Borrower hereby agrees to protect, indemnify, pay and save
the Issuer harmless 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) which the Issuer may incur or be
subject to as a consequence, direct or indirect, of (a) the issuance of the
Letters of Credit, other than as a result of the gross negligence or wilful
misconduct of the Issuer as determined by a court of competent jurisdiction, or
(b) the failure of the Issuer to honor a drawing under any Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or governmental authority.
SECTION 2.6.7. BORROWER'S GUARANTY OF REIMBURSEMENT OBLIGATIONS UNDER
LETTERS OF CREDIT ISSUED FOR THE ACCOUNT OF ITS SUBSIDIARIES. The Borrower
agrees as follows in respect of the reimbursement obligations under Letters of
Credit issued for the account of its Subsidiaries:
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(a) The Borrower hereby absolutely, unconditionally and irrevocably
(i) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all such reimbursement obligations now or
hereafter existing, of each of its Subsidiaries (the "ACCOUNT PARTIES")
that is an account party to a Letter of Credit which arise out of, or
are incurred in connection with, such Letters of Credit, whether for
principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic
stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. ss.362(a), and the operation of Sections 502(b) and 506(b) of
the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)),
and
(ii) indemnifies and holds harmless each Secured Party and
each holder of a Note for any and all costs and expenses (including
reasonable attorney's fees and expenses) incurred by such Secured Party
or such holder, as the case may be, in enforcing any rights under the
guaranty set forth in this SECTION 2.6.7.
The guaranty set forth in this SECTION 2.6.7 constitutes a guaranty of payment
when due and not of collection, and the Borrower specifically agrees that it
shall not be necessary or required that any Secured Party or any holder of any
Note exercise any right, assert any claim or demand or enforce any remedy
whatsoever against any Account Party or any other Obligor (or any other Person)
before or as a condition to the obligations of the Borrower under the guaranty
set forth in this SECTION 2.6.7 (such obligations hereinafter referred to as the
"GUARANTEED OBLIGATIONS").
(b) The Borrower agrees that upon the occurrence of an Event of Default
of the nature set forth in CLAUSES (A) through (D) of SECTION 8.1.9, at a time
when any of the Guaranteed Obligations of any Account Party may not then be due
and payable, then the Borrower agrees that it will pay to the Administrative
Agent for the account of the Secured Parties forthwith the full amount which
would be payable under the guaranty set forth in this SECTION 2.6.7 by the
Borrower if all such Guaranteed Obligations were then due and payable.
(c) The guaranty set forth in this SECTION 2.6.7 shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until all Guaranteed Obligations of
the Account Parties have been paid in full in cash, all Obligations of the
Borrower and each other Obligor hereunder have been paid in full in cash, all
Letters of Credit have been terminated or expired, all Rate Protection
Agreements have been terminated or expired and all Commitments shall have
terminated. The Borrower guarantees that the Guaranteed Obligations of the
Account Parties will be paid strictly in accordance with the terms of this
Agreement and each other Loan Document under which they arise, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Secured Party or any holder of
any Note with respect thereto. The liability of the Borrower under the guaranty
set forth in this SECTION 2.6.7 shall be absolute, unconditional and irrevocable
irrespective of:
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(i) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(ii) the failure of any Secured Party or any holder of any
Note
(A) to assert any claim or demand or to enforce any
right or remedy against any Account Party, any other Obligor
or any other Person (including any other guarantor (including
the Borrower)) under the provisions of this Agreement, any
Note, any other Loan Document or otherwise, or
(B) to exercise any right or remedy against any other
guarantor (including the Borrower) of, or collateral securing,
any Guaranteed Obligations of any Account Party;
(iii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Guaranteed Obligations of
any Account Party, or any other extension, compromise or renewal of any
Guaranteed Obligation of any Account Party;
(iv) any reduction, limitation, impairment or termination of
any Guaranteed Obligations of any Account Party for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and the Borrower hereby waives
any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Guaranteed
Obligations of any Account Party or otherwise;
(v) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
this Agreement, any Note or any other Loan Document;
(vi) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Secured Party or any holder of any Note securing
any of the Guaranteed Obligations of any Account Party; or
(vii) any other circumstance which might otherwise constitute
a defense available to, or a legal or equitable discharge of, any
Account Party any surety or any guarantor.
(d) The Borrower agrees that the guaranty set forth in this SECTION
2.6.7 shall continue to be effective or be reinstated, as the case may be, if at
any time any payment (in whole or in part) of any of the Guaranteed Obligations
is rescinded or must otherwise be restored by any Secured Party or any holder of
any Note, upon the insolvency, bankruptcy or reorganization of any Account Party
or otherwise, all as though such payment had not been made.
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(e) The Borrower hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations of any Account Party or any other Obligor and the guaranty set forth
in this SECTION 2.6.7 and any requirement that the Administrative Agent, any
other Secured Party or any holder of any Note protect, secure, perfect or insure
any security interest or Lien, or any property subject thereto, or exhaust any
right or take any action against any Account Party, any other Obligor or any
other Person (including any other guarantor) or entity or any collateral
securing the Guaranteed Obligations of any Account Party.
(f) The Borrower agrees that it will not exercise any rights which it
may acquire by way of rights of subrogation under the guaranty set forth in this
SECTION 2.6.7, by any payment made under the guaranty set forth in this SECTION
2.6.7 or otherwise, until the prior payment in full in cash of all Guaranteed
Obligations of each Account Party, the prior payment in full in cash of all
Obligations of the Borrower, the termination or expiration of all Letters of
Credit, the termination or expiration of all Rate Protection Agreements and the
termination of all Commitments. Any amount paid to the Borrower on account of
any such subrogation rights prior to the payment in full in cash of all
Guaranteed Obligations of each Account Party shall be held in trust for the
benefit of the Secured Parties and each holder of a Note and shall immediately
be paid to the Administrative Agent for the benefit of the Secured Parties and
each holder of a Note and credited and applied against the Guaranteed
Obligations of each Account Party, whether matured or unmatured, in accordance
with the terms of this Agreement; PROVIDED, HOWEVER, that if
(i) the Borrower has made payment to the Secured Parties and
each holder of a Note of all or any part of the Guaranteed Obligations
of any Account Party, and
(ii) all Guaranteed Obligations of each Account Party have
been paid in full in cash, all Obligations of the Borrower have been
paid in full in cash, all Letters of Credit have been terminated or
expired and all Commitments have been permanently terminated,
each Secured Party and each holder of a Note agrees that, at the Borrower's
request, the Administrative Agent, on behalf of the Secured Parties and the
holders of the Notes, will execute and deliver to the Borrower appropriate
documents (without recourse and without representation or warranty) necessary to
evidence the transfer by subrogation to the Borrower of an interest in the
Guaranteed Obligations of each Account Party resulting from such payment by the
Borrower. In furtherance of the foregoing, for so long as any Obligations
(including Guaranteed Obligations) or Commitments remain outstanding, the
Borrower shall refrain from taking any action or commencing any proceeding
against any Account Party(or its successors or assigns, whether in connection
with a bankruptcy proceeding or otherwise) to recover any amounts in the respect
of payments made under the guaranty set forth in this SECTION 2.6.7 to any
Secured Party or any holder of a Note.
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(g) The guaranty set forth in this SECTION 2.6.7 shall:
(i) be binding upon the Borrower, and its successors,
transferees and assigns; and
(ii) inure to the benefit of and be enforceable by the
Administrative Agent and each other Secured Party.
Without limiting the generality of the foregoing CLAUSE (B), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty set forth in this
SECTION 2.6.7) or otherwise, subject, however, to any contrary provisions in
such assignment or transfer, and to the provisions of SECTION 11.11 and ARTICLE
X.
SECTION 2.6.8. CONTINUED LETTERS OF CREDIT. Notwithstanding anything to
the contrary herein, the Letters of Credit (as defined in the Existing Credit
Agreement) shall be deemed to be Letters of Credit issued hereunder by the
Issuer on the Amendment Effective Date.
SECTION 2.7. REGISTER; NOTES.
(a) Each Lender may maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder. In the case of a Lender that
does not request, pursuant to CLAUSE (B)(II) below, execution and
delivery of a Note evidencing the Loans made by such Lender to the
Borrower, such account or accounts shall, to the extent not
inconsistent with the notations made by the Administrative Agent in the
Register, be conclusive and binding on the Borrower absent manifest
error; PROVIDED, HOWEVER, that the failure of any Lender to maintain
such account or accounts shall not limit or otherwise affect any
Obligations of the Borrower or any other Obligor.
(b)(i) The Borrower hereby designates the Administrative Agent
to serve as the Borrower's agent, solely for the purpose of this CLAUSE
(B), to maintain a register (the "REGISTER") on which the
Administrative Agent will record each Lender's Commitment, the Loans
made by each Lender and each repayment in respect of the principal
amount of the Loans of each Lender and annexed to which the
Administrative Agent shall retain a copy of each Lender Assignment
Agreement delivered to the Administrative Agent pursuant to SECTION
11.11.1. Failure to make any recordation, or any error in such
recordation, shall not affect the Borrower's obligation in respect of
such Loans. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent
and the Lenders shall treat each Person in whose name a Loan (and as
provided in CLAUSE (II) the Note evidencing such Loan, if any) is
registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A
Lender's Commitment and the Loans made
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pursuant thereto may be assigned or otherwise transferred in whole or
in part only by registration of such assignment or transfer in the
Register. Any assignment or transfer of a Lender's Commitment or the
Loans made pursuant thereto shall be registered in the Register only
upon delivery to the Administrative Agent of a Lender Assignment
Agreement duly executed by the assignor thereof and the compliance by
the parties thereto with the other requirements of SECTION 11.11.1. No
assignment or transfer of a Lender's Commitment or the Loans made
pursuant thereto shall be effective unless such assignment or transfer
shall have been recorded in the Register by the Administrative Agent as
provided in this Section.
(ii) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender, as applicable, a Revolving Note, a Term Note
(or Registered Note) and/or a Swing Line Note evidencing the Loans made
by such Lender. The Borrower hereby irrevocably authorizes each Lender
to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Notes (or on any continuation of such grid),
which notations, if made, shall evidence, INTER ALIA, the date of, the
outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations shall,
to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on the
Borrower absent manifest error; PROVIDED, HOWEVER, that the failure of
any Lender to make any such notations shall not limit or otherwise
affect any Obligations of the Borrower or any other Obligor. The Loans
evidenced by any Registered Note and interest thereon shall at all
times (including after assignment pursuant to SECTION 11.11.1) be
payable to the order of the payee named therein and its registered
assigns. A Registered Note and the obligation evidenced thereby may be
assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Registered Note and
the obligation evidenced thereby in the Register (and each Registered
Note shall expressly so provide). Any assignment or transfer of all or
part of an obligation evidenced by a Registered Note shall be
registered in the Register only upon surrender for registration of
assignment or transfer of the Registered Note evidencing such
obligation, accompanied by a Lender Assignment Agreement duly executed
by the assignor thereof and the compliance by the parties thereto with
the other requirements of SECTION 11.11.1, and thereupon, if requested
by the assignee, one or more new Notes shall be issued to the
designated assignee and the old Registered Note shall be returned by
the Administrative Agent to the Borrower marked "exchanged". No
assignment of a Registered Note and the obligation evidenced thereby
shall be effective unless it shall have been recorded in the Register
by the Administrative Agent as provided in this Section.
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. REPAYMENTS AND PREPAYMENTS; APPLICATION.
SECTION 3.1.1. REPAYMENTS AND PREPAYMENTS. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any
(i) Loans (other than Swing Line Loans); PROVIDED,
HOWEVER, that
(A) any such prepayment of the Term Loans
shall be made PRO RATA among the Term Loans of the
same type and, if applicable, having the same
Interest Period of all Lenders that have made such
Term Loans, and any such prepayment of Revolving
Loans shall be made PRO RATA among the Revolving
Loans of the same type and, if applicable, having the
same Interest Period of all Lenders that have made
such Revolving Loans;
(B) the Borrower shall comply with SECTION
4.4 in the event that any LIBO Rate Loan is prepaid
on any day other than the last day of the Interest
Period for such Loan;
(C) all such voluntary prepayments shall
require at least one Business Day's notice in the
case of Base Rate Loans (or such shorter period as
may be agreed to by the Administrative Agent), three
Business Days' notice in the case of LIBO Rate Loans,
but no more than five Business Days' notice in the
case of any Loans, in each case in writing to the
Administrative Agent; and
(D) all such voluntary partial prepayments
shall be, in the case of LIBO Rate Loans, in an
aggregate amount of $1,000,000 or any larger integral
multiple of $500,000, and, in the case of Base Rate
Loans, in an aggregate amount of $500,000 or any
larger integral multiple of $100,000, or, in either
case, in the aggregate principal amount of all Loans
of the applicable Tranche and type then outstanding;
or
(ii) Swing Line Loans; PROVIDED, HOWEVER, that
(A) all such voluntary prepayments shall
require prior telephonic notice to the Swing Line
Lender on or before 12:00 noon, New York City
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time, on the day of such prepayment (such notice to
be confirmed in writing by the Borrower within 24
hours thereafter); and
(B) all such voluntary partial prepayments
shall be in an aggregate amount of $100,000 and an
integral multiple of $50,000 or in the aggregate
principal amount of all Swing Line Loans then
outstanding;
(b) shall, no later than five Business Days following the
delivery by the Borrower of its annual audited financial reports
required pursuant to CLAUSE (C) of SECTION 7.1.1, deliver to the
Administrative Agent a calculation of the Excess Cash Flow for the
Fiscal Year last ended and, no later than five Business Days following
the delivery of such calculation, make a mandatory prepayment of the
Term Loans in an amount equal to (i) 75% of the Excess Cash Flow (if
any) for such Fiscal Year if the Leverage Ratio for such Fiscal Year
was greater than or equal to 3.00:1, (ii) 50% of the Excess Cash Flow
(if any) for such Fiscal Year if the Leverage Ratio for such Fiscal
Year was less than 3.00:1 but greater than or equal to 2.25:1 and (iii)
25% of the Excess Cash Flow (if any) for such Fiscal Year if the
Leverage Ratio for such Fiscal Year was less than 2.25:1, in each case,
to be applied as set forth in SECTION 3.1.2;
(c) shall, not later than one Business Day following the
receipt of any Net Debt Proceeds by the Borrower, any Designated
Guarantor or any of their respective Subsidiaries, deliver to the
Administrative Agent a calculation of the amount of such Net Debt
Proceeds and make a mandatory prepayment of the Term Loans in an amount
equal to 100% of such Net Debt Proceeds to be applied as set forth in
SECTION 3.1.2;
(d) shall, concurrently with the receipt of any Net Equity
Proceeds by the Borrower, any Designated Guarantor or any of their
respective Subsidiaries, deliver to the Administrative Agent a
calculation of the amount of such Net Equity Proceeds, and no later
than five Business Days following the delivery of such calculation,
make a mandatory prepayment of the Term Loans in an amount equal to 50%
of such Net Equity Proceeds to be applied as set forth in SECTION
3.1.2;
(e) shall, following the receipt by the Borrower, any
Designated Guarantor or any of their respective Subsidiaries of any
Casualty Proceeds in excess of $500,000 (individually or in the
aggregate (when taken together with Net Disposition Proceeds) over the
course of a Fiscal Year), deliver to the Administrative Agent a
calculation of the amount of such Casualty Proceeds and make a
mandatory prepayment of the Term Loans in an amount equal to 100% of
such Casualty Proceeds within 60 days of the receipt thereof to be
applied as set forth in SECTION 3.1.2; PROVIDED, HOWEVER, that no
mandatory prepayment on account of Casualty Proceeds shall be required
under this clause if the Borrower informs the Agents in writing no
later than 60 days following the occurrence of the Casualty Event
resulting in such Casualty Proceeds of its, such Designated Guarantor's
or such Subsidiary's good faith intention to apply such Casualty
Proceeds to the rebuilding or replacement of the damaged, destroyed or
condemned assets or property
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and the Borrower, such Designated Guarantor or such Subsidiary in fact
uses such Casualty Proceeds to rebuild or replace such assets or
property within 365 days following the receipt of such Casualty
Proceeds, with the amount of such Casualty Proceeds unused after such
365-day period being applied to the Term Loans pursuant to SECTION
3.1.2; PROVIDED, FURTHER, HOWEVER, that (i) at any time when any
Default or Event of Default shall have occurred and be continuing, all
Casualty Proceeds (together with Net Disposition Proceeds not applied
as provided in CLAUSE (F) below) shall be deposited in an account
maintained with the Administrative Agent to pay for such rebuilding or
replacement whenever no Default or Event of Default is then continuing
or except as otherwise agreed to by the Agents for disbursement at the
request of the Borrower, such Designated Guarantor or such Subsidiary,
as the case may be, or (ii) if all such Casualty Proceeds (together
with Net Disposition Proceeds not applied as provided in CLAUSE (F)
below) aggregating in excess of $1,000,000 have not yet been applied as
described in the notice required above (or in accordance with CLAUSE
(F) below), all such Casualty Proceeds and Net Disposition Proceeds
shall be deposited in an account maintained with the Administrative
Agent for disbursement at the request of the Borrower, such Designated
Guarantor or such Subsidiary, as the case may be, to be used for the
purpose(s) set forth in such written notice(s);
(f) shall, following the receipt by the Borrower, any
Designated Guarantor or any of their respective Subsidiaries of any Net
Disposition Proceeds in excess of $500,000 (individually or in the
aggregate (when taken together with Casualty Proceeds) over the course
of a Fiscal Year), deliver to the Administrative Agent a calculation of
the amount of such Net Disposition Proceeds and make a mandatory
prepayment of the Term Loans in an amount equal to 100% of such Net
Disposition Proceeds within one Business Day of the receipt thereof to
be applied as set forth in SECTION 3.1.2; PROVIDED, HOWEVER, that no
mandatory prepayment on account of Net Disposition Proceeds shall be
required under this clause if the Borrower informs the Agents in
writing no later than one Business Day following the receipt of such
Net Disposition Proceeds of its, such Designated Guarantor's or such
Subsidiary's good faith intention to apply such Net Disposition
Proceeds to the replacement of the sold, conveyed or transferred assets
or property with any other long-term assets or property that are used
or useful in the permitted business activities of the Borrower and its
Subsidiaries and the Borrower, such Designated Guarantor or such
Subsidiary in fact uses such Net Disposition Proceeds to replace such
assets or property within 365 days following the receipt of such Net
Disposition Proceeds, with the amount of such Net Disposition Proceeds
unused after such 365-day period being applied to the Term Loans
pursuant to SECTION 3.1.2; PROVIDED, FURTHER, HOWEVER, that (i) at any
time when any Default or Event of Default shall have occurred and be
continuing, all Net Disposition Proceeds (together with Casualty
Proceeds not applied as provided in CLAUSE (E) above) shall be
deposited in an account maintained with the Administrative Agent to pay
for such replacement whenever no Default or Event of Default is then
continuing or except as otherwise agreed to by the Agents for
disbursement at the request of the Borrower, such Designated Guarantor
or such Subsidiary, as the case may be, or (ii) if all such Net
Disposition Proceeds (together
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with Casualty Proceeds not applied as provided in CLAUSE (E) above)
aggregating in excess of $1,000,000 have not yet been applied as
described in the notice required above (or in accordance with CLAUSE
(E) above), all such Net Disposition Proceeds and Casualty Proceeds
shall be deposited in an account maintained with the Administrative
Agent for disbursement at the request of the Borrower, such Designated
Guarantor or such Subsidiary, as the case may be, to be used for the
purpose(s) set forth in such written notice(s);
(g) shall, on each date when any reduction in the Revolving
Loan Commitment Amount shall become effective, make a mandatory
prepayment of Revolving Loans and Swing Line Loans and (if necessary)
deposit with the Administrative Agent cash collateral for Letter of
Credit Outstandings in an aggregate amount equal to the excess, if any,
of the sum of (i) the aggregate outstanding principal amount of all
Revolving Loans and Swing Line Loans and (ii) the aggregate amount of
all Letter of Credit Outstandings over the Revolving Loan Commitment
Amount as so reduced;
(h) shall on each Quarterly Payment Date occurring during any
period set forth below, make a scheduled repayment of the outstanding
principal amount, if any, of Term A Loans in an amount equal to the
amount set forth below opposite such period (in each case as such
amounts may have otherwise been reduced pursuant to this Agreement):
SCHEDULED
PERIOD PRINCIPAL REPAYMENT
------ -------------------
August 15, 2001 through
November 15, 2002 $1,590,593.63
February 15, 2003 through
November 15, 2003 $1,908,712.36
February 15, 2004 $3,340,246.62 or any other
outstanding Term A Loans;
(i) shall on each Quarterly Payment Date occurring on or
during any period set forth below, make a scheduled repayment of the
outstanding principal amount, if any, the of New Term B Loans in an
amount equal to the amount set forth below opposite period (in each
case as such amounts may have otherwise been reduced pursuant to this
Agreement):
SCHEDULED
PERIOD PRINCIPAL REPAYMENT
------ -------------------
August 15, 2001 through
November 15, 2006 $348,797.13
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Scheduled
February 15, 2007 $131,845,315.33 or any
other outstanding New Term
B Loans;
(j) shall, immediately upon the occurrence of the Stated
Maturity Date of any Loans or Obligations, whether by way of
acceleration pursuant to SECTION 8.2 or 8.3 or otherwise, repay all
outstanding Loans and other Obligations, unless, pursuant to SECTION
8.3, only a portion of all Loans and other Obligations are so
accelerated (in which case the portion so accelerated shall be so
prepaid).
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by SECTION 4.4. No
prepayment of principal of any Revolving Loans or Swing Line Loans pursuant to
CLAUSE (A) of this SECTION 3.1.1 shall cause a reduction in the Revolving Loan
Commitment Amount or the Swing Line Loan Commitment Amount, as the case may be.
SECTION 3.1.2. APPLICATION. (a) Subject to CLAUSE (B) below, each
prepayment or repayment of principal of the Loans of any Tranche shall be
applied, to the extent of such prepayment or repayment, FIRST, to the principal
amount thereof being maintained as Base Rate Loans, and SECOND, to the principal
amount thereof being maintained as LIBO Rate Loans.
(b) Each prepayment of Term Loans made pursuant to CLAUSES
(A), (B), (C), (D), (E) and (F) of SECTION 3.1.1 shall be applied, on a
pro rata basis, to the outstanding principal amount of all remaining
Term Loans and the remaining scheduled quarterly amortization payments
in respect thereof, until all such Term Loans have been paid in full;
PROVIDED, HOWEVER, that in the case of any such prepayment of the New
Term B Loans made pursuant to CLAUSE (B), (C), (D), (E) and (F) of
SECTION 3.1.1, with the consent of the Borrower, any Lender that has
New Term B Loans may elect not to have such Loans prepaid by delivering
a notice to the Administrative Agent at least one Business Day prior to
the date that such prepayment is to be made in which notice such Lender
shall decline to have such Loans prepaid with the amounts set forth
above, in which case the amounts that would have been applied to a
prepayment of such Lender's New Term B Loans shall instead be applied
to a prepayment of the principal amount (if any) of all outstanding
Term A Loans until all outstanding Term A Loans have been prepaid in
full, then applied to a prepayment of the principal amount (if any) of
all outstanding Swing Line Loans until all outstanding Swing Line Loans
have been prepaid in full and then applied to a prepayment of the
principal amount (if any) of all outstanding Revolving Loans until all
outstanding Revolving Loans have been prepaid in full, with the balance
(if any) being returned by the Administrative Agent to the Borrower. No
prepayment of principal of any Revolving Loans or Swing Line Loans
pursuant to the proviso of the
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immediately preceding sentence shall cause a reduction in the Revolving
Loan Commitment Amount or the Swing Line Loan Commitment Amount, as the
case may be.
SECTION 3.2. INTEREST PROVISIONS. Interest on the outstanding principal
amount of the Loans shall accrue and be payable in accordance with this SECTION
3.2.
SECTION 3.2.1. RATES. Each Base Rate Loan shall accrue interest on the
unpaid principal amount thereof for each day from and including the day upon
which such Loan was made or converted to a Base Rate Loan to but excluding the
date such Loan is repaid or converted to a LIBO Rate Loan at a rate per annum
equal to the sum of the Alternate Base Rate for such day plus the Applicable
Margin for such Loan on such day. Each LIBO Rate Loan shall accrue interest on
the unpaid principal amount thereof for each day from and including the first
day of the Interest Period applicable thereto to but excluding the date such
Loan is repaid or converted to a Base Rate Loan at a rate per annum equal to the
sum of the LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin for such Loan on such day.
SECTION 3.2.2. POST-MATURITY RATES. After the date any principal amount
of any Loan shall have become due and payable (whether on the applicable Stated
Maturity Date, upon acceleration or otherwise), or any other monetary Obligation
(other than overdue Reimbursement Obligations which shall bear interest as
provided in SECTION 2.6.2) of the Borrower shall have become due and payable,
the Borrower shall pay, but only to the extent permitted by law, interest (after
as well as before judgment) on such amounts at a rate per annum equal to (a) in
the case of any overdue principal of Loans, overdue interest thereon, overdue
commitment fees or other overdue amounts in respect of Loans or other
obligations (or the related Commitments) under a particular Tranche, the rate
that would otherwise be applicable to Base Rate Loans under such Tranche
pursuant to SECTION 3.2.1 plus 2% and (b) in the case of other overdue monetary
Obligations, the rate that would otherwise be applicable to Revolving Loans made
as Base Rate Loans plus 2%.
SECTION 3.2.3. PAYMENT DATES. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) with respect to Loans maintained as LIBO Rate Loans and
Term Loans maintained as Base Rate Loans, on the date of any payment or
prepayment, in whole or in part, of principal outstanding on such Loan,
to the extent of the unpaid interest accrued through such date on the
principal so paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment
Date occurring after the Amendment Effective Date hereunder;
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(d) with respect to LIBO Rate Loans, on the last day of the
applicable Interest Period (and, if such Interest Period shall exceed
three months, at intervals of three months after the first day of such
Interest Period);
(e) with respect to the principal amount of any Base Rate
Loans converted into LIBO Rate Loans on a day when interest would not
otherwise have been payable pursuant to CLAUSE (C), on the date of such
conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to SECTION 8.2 or 8.3, immediately upon
such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. FEES. The Borrower agrees to pay the fees set forth in
this SECTION 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment, for each day during the period (including any portion thereof when
any of the Lenders' Revolving Loan Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of ARTICLE V) commencing on the
Amendment Effective Date and continuing to but excluding the Revolving Loan
Commitment Termination Date, a commitment fee on such Lender's Percentage of the
unused portion of the Revolving Loan Commitment Amount, whether or not then
available, for such day at a rate per annum equal to the Applicable Commitment
Fee for such day. Such commitment fees shall be payable by the Borrower in
arrears on each Quarterly Payment Date, commencing with the first such day
following the Amendment Effective Date, and on the Revolving Loan Commitment
Termination Date. The making of Swing Line Loans by the Swing Line Lender shall
not constitute usage under the Revolving Loan Commitment for the purpose of
calculating the commitment fees to be paid by the Borrower to the Lenders (other
than the Swing Line Lender) pursuant to this SECTION 3.3.1.
SECTION 3.3.2. AGENTS' FEES. The Borrower agrees to pay to each of the
Syndication Agent and the Administrative Agent for each such Person's own
account, the fees set forth in the Fee Letter and the Administrative Agent's Fee
Letter in accordance with their respective terms.
SECTION 3.3.3. LETTER OF CREDIT FEE. The Borrower agrees to pay to
(a) the Administrative Agent, for the PRO RATA account of the
Issuer and each other Lender that has a Revolving Loan Commitment, a
Letter of Credit fee for each day on which there shall be any Letters
of Credit outstanding in an amount equal to the product of (i) a rate
per annum equal to the then Applicable Margin for Revolving Loans
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maintained as LIBO Rate Loans MULTIPLIED BY (ii) the Stated Amount of
each such Letter of Credit; and
(b) the Issuer (i) a Letter of Credit fronting fee for each
day on which there shall be any Letters of Credit outstanding in an
amount equal to 0.25% per annum on the Stated Amount of each such
Letter of Credit, and (ii) from time to time promptly after demand, the
normal issuance, presentation, amendment and other processing fees, and
other standard administrative costs and charges of the Issuer relating
to Letters of Credit as from time to time in effect.
Fees payable pursuant to this Section shall be payable quarterly in arrears on
each Quarterly Payment Date and on the Revolving Loan Commitment Termination
Date.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO RATE LENDING UNLAWFUL. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law makes it unlawful, or any central
bank or other governmental authority asserts that it is unlawful, for such
Lender to make, continue or maintain any Loan as, or to convert any Loan into, a
LIBO Rate Loan, the obligations of such Lender to make, continue, maintain or
convert any Loans as or to LIBO Rate Loans shall, upon such determination,
forthwith be suspended until such Lender shall notify the Administrative Agent
that the circumstances causing such suspension no longer exist (with the date of
such notice being the "REINSTATEMENT DATE"), and (a) all LIBO Rate Loans
previously made by such Lender shall automatically convert into Base Rate Loans
at the end of the then current Interest Periods with respect thereto or sooner,
if required by such law or assertion and (b) all Loans thereafter made by such
Lender and outstanding prior to the Reinstatement Date shall be made as Base
Rate Loans, with interest thereon being payable on the same date that interest
is payable with respect to the corresponding Borrowing of LIBO Rate Loans made
by Lenders not so affected.
SECTION 4.2. DEPOSITS UNAVAILABLE. If the Administrative Agent shall
have determined that (a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Administrative Agent in its
relevant market, or (b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for ascertaining the
interest rate applicable hereunder to LIBO Rate Loans, then, upon notice from
the Administrative Agent to the Borrower and the Lenders, the obligations of all
Lenders under SECTIONS 2.3 and 2.4 to make or continue any Loans as, or to
convert any Loans into, LIBO Rate Loans shall forthwith be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
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SECTION 4.3. INCREASED LIBO RATE LOAN COSTS, ETC. The Borrower agrees
to reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the Borrower
directly to such Lender within five days of its receipt of such notice, and such
notice shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.4. FUNDING LOSSES. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of (i) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to SECTION 3.1
or otherwise, (ii) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor, or (iii) any Loans not being continued as,
or converted into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor, then, upon the written notice of such
Lender to the Borrower (with a copy to the Administrative Agent), the Borrower
shall, within five days of its receipt thereof, pay directly to such Lender such
amount as will (in the reasonable determination of such Lender) reimburse such
Lender for such loss or expense. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower.
SECTION 4.5. INCREASED CAPITAL COSTS. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender, the Issuer or any Person
controlling such Lender or the Issuer, and such Lender or the Issuer determines
(in its sole and reasonable discretion) that the rate of return on its or such
controlling Person's capital as a consequence of its Commitments, participation
in, or the issuance or extension of, any Letter of Credit or any Loan made by
such Lender or the Issuer is reduced to a level below that which such Lender,
the Issuer or such controlling Person could have achieved but for the occurrence
of any such circumstance, then, in any such case upon notice from time to time
by such Lender or the Issuer to the Borrower, the Borrower shall immediately pay
directly to such Lender or the Issuer additional amounts sufficient to
compensate such Lender, the Issuer or such controlling Person for such reduction
in rate of return. A statement of such Lender or the Issuer as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower. In determining such amount, such
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Lender or the Issuer may use any method of averaging and attribution that it (in
its sole and absolute discretion) shall deem applicable.
SECTION 4.6. TAXES. (a) All payments by the Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations, fees and expenses) shall be made free and clear of
and without deduction for any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority, but excluding franchise
taxes and other taxes imposed on or measured by any Agent's, the Documentation
Agent's, the Issuer's or any Lender's net income or receipts (such non-excluded
items being called "TAXES"). In the event that any withholding or deduction from
any payment to be made by the Borrower hereunder is required in respect of any
Taxes pursuant to any applicable law, rule or regulation, then the Borrower will
(i) pay directly to the relevant taxing authority the full amount required to be
so withheld or deducted, (ii) promptly forward to the Administrative Agent an
official receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority, and (iii) pay to the Administrative
Agent for the account of such Agent, the Documentation Agent, the Issuer or such
Lender such additional amount or amounts as is necessary to ensure that the net
amount actually received by such Agent, the Documentation Agent, the Issuer or
such Lender will equal the full amount such Agent, the Documentation Agent, the
Issuer or such Lender would have received had no such withholding or deduction
been required.
Moreover, if any Taxes are directly asserted against any Agent, the
Documentation Agent, the Issuer or any Lender with respect to any payment
received by such Agent, the Documentation Agent, the Issuer or such Lender
hereunder, such Agent, the Documentation Agent, the Issuer or such Lender may
pay such Taxes and the Borrower will promptly pay to such Person such additional
amounts (including any penalties, interest or expenses) as is necessary in order
that the net amount received by such Person after the payment of such taxes
(including any Taxes on such additional amount) shall equal the amount such
Person would have received had such Taxes not been asserted.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this SECTION 4.6, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the Borrower.
(b) Upon the request of the Borrower or the Administrative Agent, each
Lender that is organized under the laws of a jurisdiction other than the United
States shall, on or prior to the due date of any payments under this Agreement
to such Lender, provide two or more (as the Borrower or the Administrative Agent
may reasonably request) United States Internal Revenue Service Forms W-8BEN or
W-8ECI or, solely if such Lender is claiming exemption from United
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States withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", United States Internal Revenue Service
Forms W-8BEN and a certificate signed by a duly authorized officer of such
Lender representing that such Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, or such other forms or documents (or successor
forms or documents), appropriately completed, as may be applicable to establish
the extent, if any, to which a payment to such Lender are exempt from
withholding or deduction of Taxes.
SECTION 4.7. PAYMENTS, COMPUTATIONS, ETC. Unless otherwise expressly
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement, the Notes or any other Loan Document shall be made by the Borrower to
the Administrative Agent for the PRO RATA account of the Lenders, the
Documentation Agent, the Agents or the Arranger, as applicable, entitled to
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 11:00 a.m., New York City time, on the date due, in same day or
immediately available funds, to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower. Funds received after that
time shall be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly remit in
same day funds to each Lender, the Documentation Agent, each Agent or the
Arranger, as the case may be, its share, if any, of such payments received by
the Administrative Agent for the account of such Lender, the Documentation
Agent, such Agent or the Arranger, as the case may be. All interest and fees
shall be computed on the basis of the actual number of days (including the first
day but excluding the last day) occurring during the period for which such
interest or fee is payable over a year comprised of 360 days (or, in the case of
interest on a Base Rate Loan that is not calculated at the Federal Funds Rate,
365 days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by CLAUSE (A) of the definition of the term
"INTEREST PERIOD") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. SHARING OF PAYMENTS. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligations (other
than pursuant to the terms of SECTIONS 4.3, 4.4 and 4.5) in excess of its PRO
RATA share of payments then or therewith obtained by all Lenders entitled
thereto, such Lender shall purchase from the other Lenders such participations
in the Credit Extensions made by them as shall be necessary to cause such
purchasing Lender to share the excess payment or other recovery ratably with
each of them; PROVIDED, HOWEVER, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the purchase price
to the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of (i) the amount of
such selling Lender's required repayment to the purchasing Lender in respect of
such recovery, TO (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the
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purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section may, to the fullest extent permitted by law, exercise
all its rights of payment (including pursuant to SECTION 4.9) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this Section to
share in the benefits of any recovery on such secured claim.
SECTION 4.9. SETOFF. Each Lender shall, upon the occurrence of any
Event of Default described in CLAUSES (A) through (D) of SECTION 8.1.9 or, with
the consent of the Required Lenders, upon the occurrence of any other Event of
Default, to the fullest extent permitted by law, have the right to appropriate
and apply to the payment of the Obligations then owing to it (whether or not
then due), and (as security for such Obligations) the Borrower hereby grants to
each Lender a continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter maintained with
or otherwise held by such Lender; PROVIDED, HOWEVER, that any such appropriation
and application shall be subject to the provisions of SECTION 4.8. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender; PROVIDED, HOWEVER, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 4.10. REPLACEMENT OF LENDERS. Each Lender hereby severally
agrees as set forth in this Section. If any Lender (an "AFFECTED LENDER") makes
demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to SECTION 4.3, 4.5 or 4.6 and the payment of such additional
amounts are, and are likely to continue to be, more onerous in the reasonable
judgment of the Borrower than with respect to the other Lenders, the Borrower
may, within 30 days of receipt by the Borrower of such demand or notice (or the
occurrence of such other event causing the Borrower to be required to pay such
compensation), as the case may be, give notice (a "REPLACEMENT NOTICE") in
writing to the Agents and such Affected Lender of its intention to replace such
Affected Lender with a financial institution (a "REPLACEMENT LENDER") designated
in such Replacement Notice. If the Agents shall, in the exercise of their
reasonable discretion and within 30 days of their receipt of such Replacement
Notice, notify the Borrower and such Affected Lender in writing that the
designated financial institution is satisfactory to the Agents (such consent not
being required where the Replacement Lender is already a Lender), then such
Affected Lender shall, subject to the payment of any amounts due pursuant to
SECTION 4.4, assign, in accordance with SECTION 11.11.1, all of its Commitments,
Loans, Notes and other rights and obligations under this Agreement and all other
Loan Documents (including Reimbursement Obligations, if applicable) to such
designated financial institution; PROVIDED, HOWEVER, that (i) such assignment
shall be without recourse, representation or warranty and shall be on terms and
conditions reasonably satisfactory to such Affected Lender and such designated
financial institution, (ii) the purchase price paid by such designated
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financial institution shall be in the amount of such Affected Lender's Loans and
its Percentage of outstanding Reimbursement Obligations, together with all
accrued and unpaid interest and fees in respect thereof, plus all other amounts
(including the amounts demanded and unreimbursed under SECTIONS 4.3, 4.5 and
4.6), owing to such Affected Lender hereunder and (iii) the Borrower shall pay
to the Affected Lender and the Agents all reasonable out-of-pocket expenses
incurred by the Affected Lender and the Agents in connection with such
assignment and assumption (including the processing fees described in SECTION
11.11.1). Upon the effective date of an assignment described above, the
Replacement Lender shall become a "Lender" for all purposes under this Agreement
and the other Loan Documents.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. CONDITIONS PRECEDENT TO INCREASE. The obligation of each
Lender and the Agents to increase the Revolving Loan Commitment Amount and make
Credit Extensions in connection therewith, shall be subject to the satisfaction
of each of the conditions precedent set forth in this SECTION 5.1.
(a) No Default shall have occurred and be continuing as of the
date that the Increase Request is delivered to the Agents and on the
Increase Date.
(b) The Agents shall have received, from the Borrower and each
Designated Guarantor, a certificate, dated the Increase Date, of its
Secretary, Assistant Secretary or general partners, as applicable, (i)
stating that there has been no amendments to any Obligor's Organic
Documents (or, if there has been an amendment it will be attached
thereto and such amendment shall not have a Material Adverse Effect)
and (ii) as to resolutions of its Board of Directors or all partnership
action, as applicable, then in full force and effect authorizing the
Increase.
(c) The Borrower shall have delivered Notes to any Lender
requesting a Note in connection with an Increase.
(d) The Administrative Agent shall have received, for the
account of each applicable Lender any fees to be paid in connection
with such Increase.
SECTION 5.2. ALL CREDIT EXTENSIONS. The obligation of each Lender and,
if applicable, the Issuer, to make any Credit Extension shall be subject to the
satisfaction of each of the conditions precedent set forth in this SECTION 5.2.
SECTION 5.2.1. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
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(a) the representations and warranties set forth in ARTICLE VI
and each other Loan Document shall, in each case, be true and correct
with the same effect as if then made (unless stated to relate solely to
an earlier date, in which case such representations and warranties
shall be true and correct as of such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.2. CREDIT EXTENSION REQUEST. The Agents shall have received
a Borrowing Request if Loans are being requested, or an Issuance Request if a
Letter of Credit is being requested or extended. Each of the delivery of a
Borrowing Request or Issuance Request and the acceptance by the Borrower of
proceeds of any Credit Extension shall constitute a representation and warranty
by the Borrower that on the date of such Credit Extension (both immediately
before and after giving effect thereto and the application of the proceeds
thereof) the statements made in SECTION 5.2.1 are true and correct.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Documentation Agent, the Issuer and
the Agents to enter into this Agreement and to make Credit Extensions hereunder,
each of the Borrower and each Designated Guarantor represents and warrants unto
the Agents, the Documentation Agent, the Issuer and each Lender as set forth in
this ARTICLE VI.
SECTION 6.1. ORGANIZATION, ETC. Each of the Borrower, each Designated
Guarantor and each of their respective Subsidiaries (a) is a corporation or
partnership validly organized and existing and in good standing to the extent
required under the laws of the jurisdiction of its incorporation or formation,
is duly qualified to do business and is in good standing as a foreign
corporation or partnership to the extent required under the laws of each
jurisdiction where the nature of its business requires such qualification, and
(b) has full power and authority and holds all requisite material governmental
licenses, permits and other approvals to (i) enter into and perform its
Obligations under this Agreement, the Notes and each other Loan Document to
which it is a party and (ii) own and hold under lease its property and to
conduct its business substantially as currently conducted by it.
SECTION 6.2. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by each of the Borrower, each Designated Guarantor and
each of their respective Subsidiaries of this Agreement, the Notes and each
other Loan Document executed or to be executed by it are within the Borrower's
and each such Obligor's corporate or partnership powers, have been duly
authorized by all necessary corporate or partnership action, and do not (i)
contravene the Borrower's or any such Obligor's Organic Documents, (ii)
contravene any contractual restriction, law or governmental regulation or court
decree or order binding on or affecting the Borrower or any such Obligor, or
(iii) result in, or require the creation or imposition
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of, any Lien on any of the Borrower's or any other Obligor's properties, except
pursuant to the terms of a Loan Document.
SECTION 6.3. GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due execution,
delivery or performance by any of the Borrower, any Designated Guarantor or any
of their respective Subsidiaries of this Agreement, the Notes or any other Loan
Document to which it is a party, except as have been duly obtained or made and
are in full force and effect. None of the Borrower, any Designated Guarantor or
any of their respective Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.4. VALIDITY, ETC. This Agreement constitutes, and the Notes
and each other Loan Document executed, or to be executed, by any of the
Borrower, any Designated Guarantor or any of their respective Subsidiaries, as
the case may be, constitutes, or will on the due execution and delivery thereof
constitute, the legal, valid and binding obligations of the Borrower and such
other Obligor enforceable in accordance with their respective terms.
SECTION 6.5. FINANCIAL INFORMATION. The financial statements of
Holdings and its Subsidiaries furnished to the Administrative Agent and to the
Lenders pursuant to SECTION 7.1.1 have been prepared in accordance with GAAP
consistently applied and presents fairly the consolidated financial condition of
the Persons covered thereby as at the date thereof and the results of their
operations for the periods then ended, and each of those financial statements
has been prepared in accordance with GAAP consistently applied and includes
appropriate pro forma adjustments to give pro forma effect to the New
Transaction.
SECTION 6.6. NO MATERIAL ADVERSE CHANGE. Except as set forth in ITEM
6.6 ("Material Adverse Change") of the Disclosure Schedule, since December 27,
1997, there has been no material adverse change in the business, assets, debt
service capacity, tax position, environmental liability, financial condition,
operations, properties or prospects of the Borrower and its Subsidiaries, taken
as a whole, or Holdings and its Subsidiaries, taken as a whole.
SECTION 6.7. LITIGATION, LABOR CONTROVERSIES, ETC. There is no pending
or, to the knowledge of the Borrower or any Designated Guarantor, threatened
litigation, action, proceeding, labor controversy, arbitration or governmental
investigation or proceeding (including any relating to any Pharmaceutical Law)
affecting the Borrower, any Designated Guarantor or any of their respective
Subsidiaries, or any of their respective properties, businesses, assets or
revenues, which might have a Material Adverse Effect or which purports to affect
the legality, validity or enforceability of this Agreement, the Notes or any
other Loan Document, except as disclosed in ITEM 6.7 ("Litigation") of the
Disclosure Schedule.
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SECTION 6.8. SUBSIDIARIES. Holdings has no direct Subsidiaries other
than DRI I, each Affiliate Guarantor and the Borrower (of which it is a general
partner and directly holds a 99% general partnership interest). DRI I has no
direct Subsidiaries other than the Borrower (of which it is a general partner
and holds a 1% general partnership interest). Each Affiliate Guarantor has no
Subsidiaries. The Borrower has no Subsidiaries, except for those Subsidiaries
which are permitted to have been acquired in accordance with SECTION 7.2.5 or
7.2.8.
SECTION 6.9. OWNERSHIP OF PROPERTIES. Each of the Borrower, each
Designated Guarantor and each of their respective Subsidiaries owns (except
where the failure to own such property would not reasonably be expected to have
a Material Adverse Effect) good and marketable title to all of its properties
and assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights), free
and clear of all Liens, charges or claims (including infringement claims with
respect to patents, trademarks, copyrights and the like), except as permitted
pursuant to SECTION 7.2.3. All Real Property owned or leased by any of the
Borrower, each Designated Guarantor and each of their respective Subsidiaries
and the nature of the interest therein is described in ITEM 6.9 ("Real
Property") of the Disclosure Schedule.
SECTION 6.10. TAXES. Each of the Borrower, each Designated Guarantor
and each of their respective Subsidiaries has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
SECTION 6.11. PENSION AND WELFARE PLANS. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the Amendment Effective Date, no steps have been
taken to terminate any Pension Plan (other than pursuant to a "standard
termination" in accordance with section 4041(B) of ERISA), and no contribution
failure has occurred with respect to any Pension Plan sufficient to give rise to
a Lien under section 302(f) of ERISA. No condition exists or event or
transaction has occurred with respect to any Pension Plan which could reasonably
be expected to result in the incurrence by Holdings or any member of the
Controlled Group of any material liability, fine or penalty. Except as disclosed
in ITEM 6.11 ("Employee Benefit Plans") of the Disclosure Schedule, neither
Holdings nor any member of the Controlled Group has any contingent liability
with respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Title I of ERISA.
SECTION 6.12. ENVIRONMENTAL WARRANTIES. Except as set forth in ITEM
6.12 ("Environmental Matters") of the Disclosure Schedule:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower, any Designated Guarantor
or any of their respective Subsidiaries
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have been, and continue to be, owned or leased by the Borrower, such
Designated Guarantor or such Subsidiary in material compliance with all
Environmental Laws;
(b) there have been no past, and there are no pending or, to
the best of each of the Borrower's and each Designated Guarantor's
knowledge after due inquiry, threatened
(i) claims, complaints, notices or requests for
information received by the Borrower, any Designated Guarantor
or any of their respective Subsidiaries with respect to any
alleged violation of any Environmental Law, or
(ii) complaints, notices or inquiries to the
Borrower, any Designated Guarantor or any of their respective
Subsidiaries regarding potential liability under any
Environmental Law;
(c) there have been no Releases of Hazardous Materials at, on
or under any property now or previously owned or leased by the
Borrower, any Designated Guarantor or any of their respective
Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect;
(d) the Borrower, each Designated Guarantor and each of their
respective Subsidiaries have been issued and are in material compliance
with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or
desirable for their businesses;
(e) no property now or previously owned or leased by the
Borrower, any Designated Guarantor or any of their respective
Subsidiaries is listed or, to the best of each of the Borrower's and
each Designated Guarantor's knowledge after due inquiry, proposed for
listing (with respect to owned property only) on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar
state list of sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned or leased by the Borrower, any Designated
Guarantor or any of their respective Subsidiaries that, singly or in
the aggregate, have, or could reasonably be expected to have, a
Material Adverse Effect;
(g) neither the Borrower, any Designated Guarantor nor any of
their respective Subsidiaries has directly transported or directly
arranged for the transportation of any Hazardous Material to any
location which is listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any similar
state list or which is the subject of federal, state or local
enforcement actions or other investigations which may lead to claims
against the Borrower, such Designated Guarantor or such Subsidiary
thereof for any remedial work, damage to natural resources or personal
injury,
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including claims under CERCLA that, singly or in the aggregate, have,
or could reasonably be expected to have, a Material Adverse Effect;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the
Borrower, any Designated Guarantor or any of their respective
Subsidiaries that, singly or in the aggregate, have, or could
reasonably be expected to have, a Material Adverse Effect; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by the Borrower, any Designated Guarantor or
any of their respective Subsidiaries which, with the passage of time,
or the giving of notice or both, would give rise to liability under any
Environmental Law that could reasonably be expected to have a Material
Adverse Effect.
SECTION 6.13. REGULATIONS U AND X. Neither the Borrower, any Designated
Guarantor nor any of their respective Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, and no
proceeds of any Credit Extension will be used to acquire any "margin stock".
Terms for which meanings are provided in F.R.S. Board Regulation U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 6.14. ACCURACY OF INFORMATION. All material factual information
concerning the financial condition, operations or prospects of the Borrower,
each Designated Guarantor and their respective Subsidiaries heretofore or
contemporaneously furnished by or on behalf of the Borrower, any Designated
Guarantor or any of their respective Subsidiaries in writing to the Agents, the
Documentation Agent, the Arranger, the Issuer or any Lender for purposes of or
in connection with this Agreement or any transaction contemplated hereby or with
respect to the New Transaction is, and all other such factual information
hereafter furnished by or on behalf of the Borrower, any Designated Guarantor or
any of their respective Subsidiaries to the Agents, the Documentation Agent, the
Arranger, the Issuer or any Lender will be, taken as a whole, true and accurate
in all material respects on the date as of which such information is dated or
certified and such information is not, or shall not be, taken as a whole, as the
case may be, incomplete by omitting to state any material fact necessary to make
such information not misleading at such time in light of the circumstances under
which such statements were made. Any term or provision of this Section to the
contrary notwithstanding, insofar as any of the factual information described
above includes assumptions, estimates, projections or opinions, no
representation or warranty is made herein with respect thereto; PROVIDED,
HOWEVER, that to the extent any such assumptions, estimates, projections or
opinions are based on factual matters, the Borrower and each Designated
Guarantor have reviewed such factual matters and nothing has come to the
attention of any such Person in the context of such review which would lead it
to believe that such factual matters were not or are not true and correct in all
material respects or that such factual matters omit to state any material fact
necessary to make such assumptions, estimates, projections or opinions not
misleading in any material respect.
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SECTION 6.15. SOLVENCY. The execution and delivery of this Agreement
(including, among other things, the increase in the Revolving Loan Commitment
Amount and the incurrence of the New Term B Loans) will not involve or result in
any fraudulent transfer or fraudulent conveyance under the provisions of Section
548 of the Bankruptcy Code (11 U.S.C. ss.101 ET SEQ., as from time to time
hereafter amended, and any successor or similar statute) or any applicable state
law respecting fraudulent transfers or fraudulent conveyances. On the Amendment
Effective Date, after giving effect to hereto, Holdings and its Subsidiaries and
the Borrower and its Subsidiaries, in each case taken as a whole, are Solvent.
SECTION 6.16. PHARMACEUTICAL LAWS. (a) The Borrower, each Designated
Guarantor and each of their respective Subsidiaries has obtained all permits,
licenses and other authorizations which are required with respect to the
ownership and operations of its business under any Pharmaceutical Law, except
where the failure to obtain such permits, licenses or other authorizations would
not reasonably be expected to have a Material Adverse Effect.
(b) The Borrower, each Designated Guarantor and each of their
respective Subsidiaries is in compliance with all terms and conditions of all
such permits, licenses, orders and authorizations, and is also in compliance
with all Pharmaceutical Laws, including all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in the Pharmaceutical Laws, except where the failure to
comply with such terms, conditions or laws would not reasonably be expected to
have a Material Adverse Effect.
(c) Other than as set forth in ITEM 6.16(C) ("Pharmaceutical
Liabilities") of the Disclosure Schedule, none of the Borrower, any Designated
Guarantor nor any of their respective Subsidiaries has any liabilities, any
claims against it and presently any outstanding notices imposed or based upon
any provision of any Pharmaceutical Law, except for such liabilities, claims,
citations or notices which individually or in the aggregate would not reasonably
be expected to have a Material Adverse Effect.
SECTION 6.17. SENIORITY OF THE OBLIGATIONS AND SENIOR DEBT UNDER THE
SENIOR SUBORDINATED INDENTURE. (a) The Senior Subordinated Notes have been
issued and sold to the underwriters thereof on the Closing Date in accordance
with and pursuant to the Senior Subordinated Note Indenture and the other Senior
Subordinated Note Documents and in compliance with all laws, including the
Securities Act of 1933, as amended and all other applicable federal and state
securities laws. The issuance of the Senior Subordinated Notes and the execution
of the Senior Subordinated Note Indenture and the other Senior Subordinated Note
Documents have been duly authorized by all necessary corporate action on the
part of Holdings, the Borrower and DRI I and will not require any consent or
approval of any governmental agency or authority that has not been obtained
prior to the Closing Date. The issuance of the Senior Subordinated Notes and the
execution of the Senior Subordinated Note Indenture and the other Senior
Subordinated Note Documents do not conflict with (i) any material provision of
any material law, (ii) the Organic Documents of Holdings, the Borrower or DRI I,
(iii) any material agreement binding upon Holdings, the Borrower or DRI I, or
(iv) any material court or
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administrative order or decree applicable to Holdings, the Borrower or DRI I,
and do not and will not require, or result in, the creation or imposition of any
Lien on any asset of Holdings, the Borrower or DRI I. All representations and
warranties of Holdings, the Borrower or DRI I contained in the Senior
Subordinated Note Indenture and the other Senior Subordinated Note Documents are
true and correct in all material respects as of the Closing Date.
(b) Each Senior Subordinated Note Document (including the Senior
Subordinated Notes and the Senior Subordinated Notes Guarantee) constitutes the
legal, valid and binding obligation of each of Holdings and the Borrower, as the
case may be, enforceable against each of Holdings and the Borrower, as the case
may be, in accordance with its terms. The subordination provisions of each such
Senior Subordinated Note Document will be enforceable against the holders of the
Senior Subordinated Notes by the holder of any "Senior Debt" (as defined in the
Senior Subordinated Note Indenture). All Obligations, including those to pay
principal of and interest (including post-petition interest) on the Loans and
Reimbursement Obligations, and fees and expenses in connection therewith,
constitute "Senior Debt" (as defined in the Senior Subordinated Note Indenture)
and all such Obligations are entitled to the benefits of the subordination
created by such Senior Subordinated Note Document. Each of Holdings and the
Borrower acknowledges that the Agents, the Documentation Agent, the Issuer and
each Lender is entering into this Agreement, and is extending its Commitments,
in reliance upon the subordination provisions of such Senior Subordinated Note
Documents and this Section.
ARTICLE VII
COVENANTS
SECTION 7.1. AFFIRMATIVE COVENANTS. Each of the Borrower and each
Designated Guarantor agrees with the Agents, the Documentation Agent, the Issuer
and each Lender that, until all Commitments have terminated, all Letters of
Credit have terminated or expired and all Obligations have been paid and
performed in full, each of the Borrower and each Designated Guarantor will
perform, or cause to be performed by their respective Subsidiaries, the
obligations set forth in this SECTION 7.1.
SECTION 7.1.1. FINANCIAL INFORMATION, REPORTS, NOTICES, ETC. Holdings
will furnish, or will cause to be furnished, to each Lender, the Documentation
Agent, the Issuer and each Agent copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 30 days after
the end of each fiscal month other than the last such month of any
Fiscal Quarter of Holdings, a consolidated balance sheet of Holdings
and its Subsidiaries as at the end of such month, together, in each
case, with the related consolidated statements of income and cash flows
for such month and for the period commencing at the end of the previous
Fiscal Year and ending with the last day of such month, certified by
the chief financial or accounting Authorized Officer of Holdings;
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(b) as soon as available and in any event within 60 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
of Holdings (or, if Holdings is required to file such information on a
Form 10-Q with the Securities and Exchange Commission, promptly
following such filing), a consolidated balance sheet of Holdings and
its Subsidiaries as of the end of such Fiscal Quarter, together, in
each case, with the related consolidated statements of income and cash
flows for such Fiscal Quarter and for the period commencing at the end
of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, certified by the chief financial or accounting Authorized
Officer of Holdings;
(c) as soon as available and in any event within 90 days after
the end of each Fiscal Year of Holdings (or, if Holdings is required to
file such information on a Form 10-K with the Securities and Exchange
Commission, promptly following such filing), a copy of the annual audit
report for such Fiscal Year for Holdings and its Subsidiaries,
including therein a consolidated balance sheet for Holdings and its
Subsidiaries as of the end of such Fiscal Year, together with the
related consolidated statements of income and cash flows for such
Fiscal Year certified (without any Impermissible Qualification) by
Price Waterhouse LLP or another nationally recognized firm of
independent public accountants acceptable to the Agents, together with
a certificate from such accountants as to whether, in making the
examination necessary for the signing of such annual report by such
accountants, they have not become aware of any Default that has
occurred and is continuing or, if in the opinion of such accounting
firm such a Default has occurred and is continuing, a statement as to
the nature thereof;
(d) together with the delivery of the financial information
required pursuant to CLAUSES (B) and (C), a Compliance Certificate,
showing (in reasonable detail and with appropriate calculations and
computations in all respects satisfactory to the Agents) compliance
with, among other things, the financial covenants set forth in SECTION
7.2.4;
(e) (i) as soon as available and in any event no later than 60
days after the first day of each Fiscal Year of Holdings, an annual
budget, setting forth on a monthly basis and in reasonable detail for
such Fiscal Year of Holdings and its Subsidiaries containing
consolidated and consolidating projected statements of earnings and
cash flow and (ii) together with the delivery of financial statements
pursuant to CLAUSE (A), (B) or (C) above, a comparison of the current
year to date financial results (other than in respect of the balance
sheets included therein) against the budgets required to be submitted
pursuant to this CLAUSE (E);
(f) as soon as possible and in any event within five Business
Days after obtaining knowledge of the occurrence of any Default, a
statement of the president, chief executive officer, treasurer,
assistant treasurer, controller or chief financial or accounting
Authorized Officer of the Borrower or Holdings setting forth details of
such Default and the action which the Borrower or Holdings, as the case
may be, has taken or proposes to take with respect thereto;
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(g) as soon as possible and in any event within five Business
Days after (x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding, labor controversy,
arbitration or governmental investigation or proceeding described in
SECTION 6.7 or (y) the commencement of any labor controversy,
litigation, action, proceeding of the type described in SECTION 6.7,
notice thereof and of the action which the Borrower or Holdings has
taken or proposes to take with respect thereto;
(h) promptly after the sending or filing thereof, copies of
all reports and registration statements (other than exhibits thereto
and any registration statement on Form S-8 or its equivalent) which the
Borrower, any Designated Guarantor or any of their respective
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange;
(i) as soon as practicable after the chief executive or chief
financial or accounting Authorized Officer of Holdings or the chief
executive or chief financial or accounting officer of a member of
Holdings' Controlled Group becomes aware of (i) formal steps in writing
to terminate any Pension Plan or (ii) the occurrence of any event with
respect to a Pension Plan which, in the case of (i) or (ii), could
reasonably be expected to result in a contribution to such Pension Plan
by (or a liability to) Holdings or a member of the Holdings' Controlled
Group in excess of $1,000,000, (iii) the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give
rise to a Lien under section 302(f) of ERISA, (iv) the taking of any
action with respect to a Pension Plan which could reasonably be
expected to result in the requirement that Holdings or any of its
Subsidiaries furnish a bond to the PBGC or such Pension Plan or (v) any
material increase in the contingent liability of Holdings or any of its
Subsidiaries with respect to any post-retirement Welfare Plan benefit,
notice thereof and copies of all documentation relating thereto;
(j) as soon as possible and in any event within five Business
Days after the delivery thereof, copies of all notices, agreements or
documents delivered pursuant to the Senior Subordinated Note Documents
and each other agreement for borrowed money to which any Designated
Guarantor, the Borrower or any their respective Subsidiaries is a party
and with a commitment or outstandings exceeding $3,000,000, except for
such notices, agreements or documents delivered pursuant to the terms
hereof;
(k) on November 30, 2002, a certificate from an Authorized
Officer of the Borrower, dated as of such date, in which certificate
such Authorized Officer shall certify that all actions necessary for
the continued perfection of the Administrative Agent's Liens on all
Collateral (as defined in each Loan Document) for the period from the
fifth anniversary of the Closing Date until the Stated Maturity Date
for the New Term B Loans have been taken (including all recordings,
registerings, filings, re-recordings, re- registerings and refilings of
all financing statements, continuation statements or other instruments
of further assurance as is necessary to ensure such continued
perfection); and
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(l) such other information respecting the condition or
operations, financial or otherwise, of the Borrower, any Designated
Guarantor or any of their respective Subsidiaries as any Lender through
any Agent may from time to time reasonably request.
SECTION 7.1.2. COMPLIANCE WITH LAWS, ETC. Each of the Borrower and each
Designated Guarantor will, and will cause each of their respective Subsidiaries
to, comply in all material respects with all applicable laws, rules,
regulations, orders, decrees, judgments and injunctions, such compliance to
include (a) the maintenance and preservation of its corporate or partnership
existence and qualification as a foreign corporation or partnership, (b) the
payment, before the same become delinquent, of all material taxes, assessments
and governmental charges imposed upon it or upon its property except to the
extent being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its books
and (c) compliance with all Pharmaceutical Laws.
SECTION 7.1.3. MAINTENANCE OF PROPERTIES. Each of the Borrower and each
Designated Guarantor will, and will cause each of their respective Subsidiaries
to, maintain, preserve, protect and keep its material properties in good repair,
working order and condition (ordinary wear and tear excepted), and make
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times unless
the Borrower determines in good faith that the continued maintenance of any of
such properties is no longer economically desirable.
SECTION 7.1.4. INSURANCE. Each of the Borrower and each Designated
Guarantor will, and will cause each of their respective Subsidiaries to,
maintain or cause to be maintained with insurance companies rated A- or better
by A.M. Best Company insurance with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses in similar geographic
locations and with such provisions and endorsements as the Agents may reasonably
request (PROVIDED that in no event will any deductible or self-insured retention
in respect of liability claims or in respect of casualty damage exceed, in each
such case, $500,000 per occurrence) and will, upon request of the Agents,
furnish to the Agents, the Documentation Agent and each Lender a certificate of
an Authorized Officer of the Borrower setting forth the nature and extent of all
insurance maintained by each of the Borrower, each Designated Guarantor and each
of their respective Subsidiaries in accordance with this Section. Without
limiting the foregoing, each of the Borrower and each Designated Guarantor will,
and will cause each of their respective Subsidiaries to, ensure that:
(a) Each policy for property insurance shall show the
Administrative Agent as loss payee.
(b) Each policy for liability insurance shall show the
Administrative Agent as an additional insured.
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(c) With respect to each life insurance policy, the Borrower,
such Designated Guarantor or such Subsidiary, as the case may be, shall
execute and deliver to the Administrative Agent a collateral
assignment, notice of which has been acknowledged in writing by the
insurer.
(d) Each insurance policy shall provide that at least 30 days'
prior written notice of cancellation or of lapse shall be given to the
Administrative Agent by the insurer.
(e) The Borrower, such Designated Guarantor or such
Subsidiary, as the case may be, shall, if so requested by the
Administrative Agent, deliver to the Administrative Agent a copy of
each insurance policy.
SECTION 7.1.5. BOOKS AND RECORDS. Each of the Borrower and each
Designated Guarantor will, and will cause each of their respective Subsidiaries
to, (a) keep books and records which accurately reflect in all material respects
all of its business affairs and transactions and (b) permit the Agents, the
Documentation Agent, the Issuer and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
(i) to visit all of its offices, (ii) to discuss its financial matters with its
officers and, after notice to the Borrower and provision of an opportunity for
the Borrower to participate in such discussion, its independent public
accountant (and each of the Borrower and each Designated Guarantor hereby
authorizes, and will cause each of their respective Subsidiaries to authorize,
such independent public accountant to discuss the Borrower's, such Designated
Guarantor's or such Subsidiary's financial matters with the Issuer and each
Lender or its representatives whether or not any representative of the Borrower,
such Designated Guarantor or such Subsidiary is present, so long as the
Borrower, such Designated Guarantor or such Subsidiary has been afforded a
reasonable opportunity to be present) and (iii) to examine, and photocopy
extracts from, any of its books or other corporate or partnership records. The
cost and expense of one such visit (the "PAID VISIT") by each Agent in each
Fiscal Year shall be borne by the Borrower; PROVIDED, HOWEVER, that the cost and
expenses of any visit made by such Agent after a Default or an Event of Default
has occurred and is then continuing shall be for the account of the Borrower and
shall not count as the Paid Visit made by such Agent.
SECTION 7.1.6. ENVIRONMENTAL COVENANT. Each of the Borrower and each
Designated Guarantor will, and will cause each of their respective Subsidiaries
to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) immediately notify the Agents and provide copies upon
receipt of all written claims, complaints, notices or inquiries
relating to the condition of its facilities and properties or
compliance with Environmental Laws; and
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(c) provide such information and certifications which the
Agents may reasonably request from time to time to evidence compliance
with this SECTION 7.1.6.
SECTION 7.1.7. FUTURE SUBSIDIARIES. Each of the Borrower and each
Designated Guarantor hereby covenants and agrees that, upon any Person becoming,
after the Amendment Effective Date, a Subsidiary of the Borrower, or (in the
case of CLAUSE (B) below only) upon the Borrower or any Subsidiary acquiring
additional Capital Stock of any existing Subsidiary, the Borrower shall notify
the Agents of such acquisition, and
(a) the Borrower shall promptly cause such Subsidiary to
execute and deliver to the Administrative Agent, with counterparts for
each Lender, a Subsidiary Guaranty (or a supplement thereto in the form
of the exhibit thereto), the Subsidiary Security Agreement (or a
supplement thereto in the form of the exhibit thereto) (and, if such
Subsidiary owns any real property, a Mortgage) and a Perfection
Certificate, together with Uniform Commercial Code financing statements
(form UCC-1) executed and delivered by the Subsidiary naming the
Subsidiary as the debtor and the Administrative Agent as the secured
party, or other similar instruments or documents, in appropriate form
for filing under the Uniform Commercial Code and any other applicable
recording statutes, in the case of real property, of all jurisdictions
as may be necessary or, in the opinion of the Administrative Agent,
desirable to perfect the security interest of the Administrative Agent
pursuant to the Subsidiary Security Agreement or a Mortgage, as the
case may be; and
(b) the Borrower shall promptly deliver the Borrower Pledge
Agreement to the Agents, duly executed and delivered by an Authorized
Officer of the Borrower (unless so executed and delivered previously),
and shall promptly deliver, or cause to be delivered, the Subsidiary
Pledge Agreement to the Agents, duly executed and delivered by an
Authorized Officer of the relevant Subsidiary (unless so executed and
delivered previously), and shall promptly deliver, or cause to be
delivered, to the Administrative Agent under a Pledge Agreement (or a
supplement thereto) certificates (if any) representing all of the
issued and outstanding shares of Capital Stock of such Subsidiary owned
by the Borrower or any Subsidiary of the Borrower, as the case may be,
along with undated stock powers for such certificates, executed in
blank, or, if any securities subject thereto are uncertificated
securities or are held through a financial intermediary, confirmation
and evidence satisfactory to the Agents that appropriate book entries
have been made in the relevant books or records of a financial
intermediary or the issuer of such securities, as the case may be, or
other appropriate steps shall have been taken under applicable law
resulting in the perfection of the security interest granted in favor
of the Administrative Agent pursuant to the terms of a Pledge
Agreement;
together, in each case, with such opinions, in form and substance and from
counsel satisfactory to the Agents, as the Agents may reasonably request;
PROVIDED, HOWEVER, that notwithstanding the foregoing, no Foreign Subsidiary
shall be required to execute and deliver (x) a Mortgage or the Subsidiary
Security Agreement (or a supplement thereto) or (y) the Subsidiary Guaranty (or
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a supplement thereto) in the event that such execution and delivery thereof
would result in a material increase in tax or similar liabilities for the
Borrower and its Subsidiaries, on a consolidated basis, nor will the Borrower or
any Subsidiary of the Borrower be required to deliver in pledge pursuant to a
Pledge Agreement in excess of 65% of the total combined voting power of all
classes of Capital Stock of a Foreign Subsidiary entitled to vote in the event
that such pledge would result in a material increase in tax or similar
liabilities for the Borrower and its Subsidiaries, on a consolidated basis.
SECTION 7.1.8. FUTURE LEASED PROPERTY AND FUTURE ACQUISITIONS OF
PROPERTY. (a) Prior to entering into any new lease of real property or renewing
any existing lease of real property following the Amendment Effective Date
(including any lease entered into in connection with a Sale and Leaseback
Transaction), each of the Borrower and each Designated Guarantor shall, and
shall cause each of their respective Subsidiaries that is not a Foreign
Subsidiary to, use its (and their) commercially reasonable best efforts (which
shall not require the expenditure of cash or the making of any material
concessions under the relevant lease) to deliver to the Administrative Agent a
Property Waiver executed by the lessor of any real property that is to be leased
by the Borrower, such Designated Guarantor or such Subsidiary for a term in
excess of one year in any state which by statute grants such lessor a
"landlord's" (or similar) Lien which is superior to the Administrative Agent's.
(b) In the event that the Borrower, any Designated Guarantor
or any of their respective Subsidiaries that is not a Foreign
Subsidiary shall acquire any real property having a value as determined
in good faith by the Agents in excess of $1,000,000 in the aggregate,
the Borrower, such Designated Guarantor or such Subsidiary shall,
promptly after such acquisition, execute a Mortgage and provide the
Agents with (i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and filings of such
Mortgage as may be necessary or, in the reasonable opinion of the
Agents, desirable effectively to create a valid, perfected first
priority Lien, subject to Liens permitted by SECTION 7.2.3, against the
properties purported to be covered thereby, (ii) mortgagee's title
insurance policies in favor of the Administrative Agent for the benefit
of the Secured Parties in amounts and in form and substance and issued
by insurers, reasonably satisfactory to the Agents, with respect to the
property purported to be covered by such Mortgage, insuring that title
to such property is marketable and that the interests created by the
Mortgage constitute valid first Liens thereon free and clear of all
defects and encumbrances other than as approved by the Agents, and such
policies shall also include a revolving credit endorsement and such
other endorsements as the Agents shall request and shall be accompanied
by evidence of the payment in full of all premiums thereon, and (iii)
such other approvals, opinions, or documents as the Agents may
reasonably request; PROVIDED, HOWEVER, that the Borrower or any of its
Subsidiaries that is not a Foreign Subsidiary will not have to execute
and deliver a Mortgage in respect of such property under the terms of
this CLAUSE (B) if (A) the Borrower or such Subsidiary acquires such
property for the purposes of entering into a Sale and Leaseback
Transaction pursuant to SECTION 7.2.14 (such property a "SUBJECT
PROPERTY"), (B) such Subject Property is sold within one year of the
date of its purchase, and (C) the Valuation
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Amount of such Subject Property when taken together with the Valuation
Amount of each other Subject Property owned by the Borrower and its
Subsidiaries does not exceed $7,000,000 at any time.
(c) In accordance with the terms and provisions of the
Security Documents, provide the Agents with evidence of all recordings
and filings as may be necessary or, in the reasonable opinion of the
Agents, desirable to create a valid, perfected first priority Lien,
subject to the Liens permitted by SECTION 7.2.3, against all property
acquired after the Amendment Effective Date (excluding leases of real
property).
SECTION 7.1.9. USE OF PROCEEDS, ETC. The Borrower shall, and Holdings
shall cause the Borrower to
(a) apply the proceeds of the Revolving Loans and the Swing
Line Loans, for the general corporate purposes of (i) the Borrower and
its Subsidiaries, including working capital needs and financing for
store expansions and acquisitions and (ii) the Designated Guarantors,
to the extent permitted under SECTION 7.2.6;
(b) use Letters of Credit only for purposes of supporting
working capital and general corporate purposes of the Borrower and its
Subsidiaries; and
(c) apply the proceeds of the New Term B Loans to repay the
Existing Term B Loans and the Existing Term C Loans.
SECTION 7.1.10. MAINTENANCE OF CORPORATE SEPARATENESS. Each Designated
Guarantor will satisfy customary corporate formalities, including the
maintenance of corporate records. Each Designated Guarantor shall not make any
payment to a creditor of any other Obligor in respect of any liability of such
Obligor (other than pursuant to a Contingent Liability permitted hereunder), and
no bank account of such Designated Guarantor shall be commingled with any bank
account of any other Obligor. Any financial statements distributed to any
creditors of any Designated Guarantor shall, to the extent permitted by GAAP,
clearly establish the corporate separateness of such Designated Guarantor from
each other Obligor. Finally, each Designated Guarantor shall not take any
action, or conduct its affairs in a manner, which is likely to result in the
corporate existence of such Designated Guarantor on the one hand and of any
other Obligor on the other hand being ignored, or in the assets and liabilities
of such other Obligor being substantively consolidated with those of such
Designated Guarantor in a bankruptcy, reorganization or other insolvency
proceeding.
SECTION 7.1.11. BORROWER INDEBTEDNESS. Any Indebtedness of the Borrower
now or hereafter held by any Designated Guarantor or any of their respective
Subsidiaries (other than the Borrower) is hereby subordinated to the
Indebtedness of the Borrower to the Agents, the Issuer and the Lenders; and such
indebtedness of the Borrower to such Designated Guarantor or such Subsidiary, if
the Agents, after an Event of Default has occurred, so requests, shall be
collected, enforced and received by such Designated Guarantor or such Subsidiary
as trustee for
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the Agents, the Issuer and the Lenders and be paid over to the Administrative
Agent on behalf of the Agents, the Issuer and the Lenders on account of the
indebtedness of the Borrower to the Agents, the Issuer and the Lenders, but
without affecting or impairing in any manner the obligations of such Designated
Guarantor or such Subsidiary hereunder or under each other Loan Document to
which it is a party. Prior to the transfer by any Designated Guarantor or any
their respective Subsidiaries (other than the Borrower) of any note or
negotiable instrument evidencing any indebtedness of the Borrower to such
Designated Guarantor or such Subsidiary, such Designated Guarantor or such
Subsidiary shall xxxx such note or negotiable instrument with a legend that the
same is subject to this subordination.
SECTION 7.2. NEGATIVE COVENANTS. Each of the Borrower and each
Designated Guarantor agrees with the Agents, the Documentation Agent, the Issuer
and each Lender that, until all Commitments have terminated, all Letters of
Credit have terminated or expired and all Obligations have been paid and
performed in full, each of the Borrower and each Designated Guarantor will
perform the obligations set forth in this SECTION 7.2.
SECTION 7.2.1. BUSINESS ACTIVITIES. (a) The Borrower will not, and will
not permit any of its Subsidiaries to, engage in any business activity, except
business activities of the type in which the Borrower and its Subsidiaries are
engaged on the Closing Date and such activities as may be incidental, similar or
related thereto.
(b) No Designated Guarantor will engage in any business activity other
than
(i) (A) in the case of Holdings, (1) its continuing ownership
of the 99% general partnership interest in the Borrower, all the shares
of Capital Stock of DRI I and 99% of all of the shares of Capital Stock
of each of Xxxxx Xxxxx IP and Xxxxx Xxxxx Realty and (2) guaranteeing
the obligations of Xxxxx Xxxxx Realty under leases relating to realty
that is subleased to the Borrower, (B) in the case of DRI I, (1) its
continuing ownership of the 1% general partnership interest in the
Borrower and 1% of all of the shares of Capital Stock of each of Xxxxx
Xxxxx IP and Xxxxx Xxxxx Realty and (2) guaranteeing the obligations of
Xxxxx Xxxxx Realty under leases relating to realty that is subleased to
the Borrower, (C) in the case of Xxxxx Xxxxx IP, its continuing
ownership of the Intellectual Property Collateral (as defined in the
Affiliate Security Agreement) in which it has an interest and the
licensing thereof to the Borrower and such other activities directly
related thereto (including the filing of applications and registrations
relating to all Trademark Collateral (as defined in the Affiliate
Security Agreement) in which it has an interest) and (D) in the case of
Xxxxx Xxxxx Realty, its entering into leases and acquiring realty that
is concurrently subleased to the Borrower and such other activities
directly related thereto, and
(ii) its compliance with all applicable laws, rules and
regulations (including SEC reporting requirements) and the obligations
applicable to it under the Loan Documents and the Material Documents to
which such Designated Guarantor is a party. Without limiting the
generality of the immediately preceding sentence, no Parent Guarantor
will
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take any action, including the filing of any income tax return, that
would result in the Borrower ceasing to be treated as a partnership
within meaning of Section 761(a) of the Code for Federal income tax
purposes.
SECTION 7.2.2. INDEBTEDNESS. Each of the Borrower and each Designated
Guarantor will not, and will not permit any of their respective Subsidiaries to,
create, incur, assume or suffer to exist or otherwise become or be liable in
respect of any Indebtedness, other than, without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations;
(b) Indebtedness owing to the Administrative Agent pursuant to
the Cash Management Documents in an aggregate principal amount not to
exceed $10,000,000;
(c) Indebtedness identified in ITEM 7.2.2(C) ("Ongoing
Indebtedness") of the Disclosure Schedule;
(d) (i) Indebtedness of Holdings evidenced by the Senior
Subordinated Notes and (ii) Indebtedness of the Borrower, DRI I and
each other Subsidiary of Holdings consisting of Contingent Liabilities
under the Senior Subordinated Notes Guarantees in respect of the
Indebtedness described in CLAUSE (D)(I);
(e) Indebtedness in an aggregate principal amount not to
exceed $25,000,000 at any time outstanding which is, or has been,
incurred by the Borrower or any of its Subsidiaries (i) to a vendor of
any assets permitted to be acquired pursuant to SECTION 7.2.7 to
finance its acquisition of such assets or (ii) in respect of
Capitalized Lease Liabilities to the extent permitted by SECTION 7.2.7;
(f) Indebtedness of the Borrower owing to any Subsidiary
Guarantor;
(g) Indebtedness of Subsidiary Guarantors that are
Wholly-owned Subsidiaries of the Borrower owing to the Borrower or any
other Subsidiary Guarantor;
(h) Indebtedness of Subsidiaries of the Borrower owing to the
Borrower or a Subsidiary Guarantor to the extent permitted by CLAUSE
(e) of SECTION 7.2.5;
(i) Hedging Obligations of the Borrower in respect of the
Loans;
(j) unsecured Indebtedness of the Borrower or any of its
Subsidiaries incurred in the ordinary course of business (including
open accounts extended by suppliers on normal trade terms in connection
with purchases of goods and services, but excluding Indebtedness
incurred through the borrowing of money or Contingent Liabilities);
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(k) Indebtedness of the Borrower incurred under the Rapid
Remit Program in an aggregate amount at any time outstanding not to
exceed $5,000,000;
(l) Indebtedness which refinances Indebtedness permitted by
CLAUSE (c) and (d) above; PROVIDED, HOWEVER, that after giving effect
to such refinancing, (i) the principal amount of outstanding
Indebtedness is not increased (other than in the case of a refinancing
of Indebtedness permitted by CLAUSE (d) above by the amount of
reasonable fees and expenses incurred in connection with such
refinancing), (ii) neither the tenor nor the average life thereof is
reduced, (iii) the respective obligor or obligors shall be the same on
the refinancing Indebtedness as on the Indebtedness being refinanced,
(iv) the security, if any, for the refinancing Indebtedness shall be
the same as that for the Indebtedness being refinanced (except to the
extent that less security is granted to holders of such refinancing
Indebtedness), (v) the holders of such refinancing Indebtedness are not
afforded covenants, defaults, rights or remedies more burdensome to the
obligor or obligors than those contained in the Indebtedness being
refinanced and (vi) the refinancing Indebtedness is subordinated to the
same degree, if any, as the Indebtedness being refinanced;
(m) Indebtedness of (i) Xxxxx Xxxxx Realty consisting of lease
obligations in respect of leases relating to realty that is subleased
to the Borrower and (ii) the Parent Guarantors' and the Borrower
consisting of guarantees in respect of such Indebtedness of Xxxxx Xxxxx
Realty; and
(n) other unsecured Indebtedness of the Borrower and its
Subsidiaries in an aggregate amount at any time outstanding not to
exceed $7,500,000;
PROVIDED, HOWEVER, that (i) no Indebtedness otherwise permitted by CLAUSE (E) or
(N) may be incurred if, after giving effect to the incurrence thereof, any
Default shall have occurred and be continuing and (ii) no Indebtedness otherwise
permitted hereunder by any of CLAUSES (A) through (N) may be incurred if, after
giving effect to the application thereof, there shall be a "Default" or "Event
of Default" under and as defined in the Senior Subordinated Note Indenture, as
in effect on the Closing Date.
SECTION 7.2.3. LIENS. Each of the Borrower and each Designated
Guarantor will not, and will not permit any of their respective Subsidiaries to,
create, incur, assume or suffer to exist any Lien upon any of its property,
revenues or assets, whether now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations or any Hedging
Obligations owed to any Lender or any Affiliate of any Lender, granted
pursuant to any Loan Document;
(b) [INTENTIONALLY OMITTED];
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(c) Liens granted prior to the Closing Date to secure payment
of Indebtedness of the type permitted and described in CLAUSE (c) of
SECTION 7.2.2;
(d) Liens granted to secure payment of Indebtedness of the
type permitted and described in CLAUSE (e) of SECTION 7.2.2 and
covering only those assets acquired with the proceeds of such
Indebtedness;
(e) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(f) Liens of carriers, warehousemen, mechanics, materialmen
and landlords incurred in the ordinary course of business for sums not
overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(g) Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits, or to secure performance
of tenders, statutory obligations, leases and contracts (other than for
borrowed money) entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds;
(h) judgment Liens in existence less than 15 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible)
by insurance maintained with insurance companies of the nature
described in SECTION 7.1.4;
(i) Liens granted by the Borrower in favor of Pharmacy Fund
(A) securing the recourse obligations owing to Pharmacy Fund pursuant
to the Rapid Remit Program for rejected or adjusted Prescription
Receivables, (B) consisting of the right of set-off granted to Pharmacy
Fund in connection with rejected or adjusted receivables, other
payments owing to Pharmacy Fund and administrative fees and expenses
pursuant to the Rapid Remit Program and (C) consisting of precautionary
liens on receivables, chattel paper, general intangibles and the
proceeds thereof directly related to the Rapid Remit Program; and
(j) Liens with respect to minor imperfections of title and
easements, rights-of- way, restrictions, reservations, permits,
servitudes and other similar encumbrances on real property and fixtures
which do not materially detract from the value or materially impair the
use by the Borrower or any of its Subsidiaries in the ordinary course
of their business of the property subject thereto.
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SECTION 7.2.4. FINANCIAL COVENANTS. (a) NET WORTH. Each of the Borrower
and each Designated Guarantor will not permit Net Worth at any time from and
after the last day of the 1998 Fiscal Year to be less than an amount equal to
50% of the cumulative Net Income (in excess of zero) for the period from the
first day of the 1998 Fiscal Year to the end of the Fiscal Quarter most recently
ended on or prior to such date of determination.
(b) LEVERAGE RATIO. Each of the Borrower and each Designated
Guarantor will not permit the Leverage Ratio as of the end of any
Fiscal Quarter ending after the Second Amendment Effective Date and
occurring during any period set forth below to be greater than the
ratio set forth opposite such period:
PERIOD LEVERAGE RATIO
------ --------------
third Fiscal Quarter of the
2000 Fiscal Year through and
including the second Fiscal
Quarter of the 2001 Fiscal
Year 3.90:1
third Fiscal Quarter of the
2001 Fiscal Year 3.85:1
fourth Fiscal Quarter of the
2001 Fiscal Year through and
including the third Fiscal
Quarter of the 2002 Fiscal
Year 3.75:1
fourth Fiscal Quarter of the 3.00:1
2002 Fiscal Year and each
Fiscal Quarter thereafter
(c) INTEREST COVERAGE RATIO. Each of the Borrower and each
Designated Guarantor will not permit the Interest Coverage Ratio as of
the end of any Fiscal Quarter ending after the Second Amendment
Effective Date and occurring during any period set forth below to be
less than the ratio set forth opposite such period:
PERIOD INTEREST COVERAGE RATIO
------ -----------------------
third Fiscal Quarter of the
2000 Fiscal Year through the
third Fiscal Quarter of the
2002 Fiscal Year 2.75:1
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PERIOD INTEREST COVERAGE RATIO
------ -----------------------
fourth Fiscal Quarter of the 3.00:1
2002 Fiscal Year and each
Fiscal Quarter thereafter
(d) FIXED CHARGE COVERAGE RATIO. Each of the Borrower and each
Designated Guarantor will not permit the Fixed Charge Coverage Ratio as
of the end of any Fiscal Quarter ending after the Amendment Effective
Date and occurring during any period set forth below to be less than
the ratio set forth opposite such period:
PERIOD FIXED CHARGE COVERAGE RATIO
------ ---------------------------
first Fiscal Quarter of the 2000 1.10:1
Fiscal Year and each Fiscal
Quarter thereafter
SECTION 7.2.5. INVESTMENTS. Each of the Borrower and each Designated
Guarantor will not, and will not permit any of their respective Subsidiaries to,
make, incur, assume or suffer to exist any Investment in any other Person,
except:
(a) Investments existing on the Closing Date and identified in
ITEM 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to SECTION 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures of the Borrower and its Subsidiaries pursuant to SECTION
7.2.7;
(e) Investments by any Designated Guarantor, the Borrower or
any Subsidiary Guarantor in the Borrower or Subsidiary Guarantors that
are Wholly-owned Subsidiaries of the Borrower;
(f) Investments to the extent the consideration received
pursuant to CLAUSE (C)(I) of SECTION 7.2.9 is not all cash;
(g) Investments in the form of loans to officers, directors
and employees of Holdings and its Subsidiaries for the sole purpose of
purchasing Capital Stock of Holdings (or purchases of such loans made
by others) in an aggregate amount at any time outstanding not to exceed
$3,000,000;
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(h) other Investments made by the Borrower or any of its
Subsidiaries, by way of contributions to capital, the making of loans
or advances or the incurrence of Contingent Liabilities, in an
aggregate amount not to exceed
(i) to the extent such Investments are made with the
Capital Stock of Holdings, $30,000,000 since the Closing Date
(such amounts in this CLAUSE (H)(I) to be determined based on
the fair market value of such Capital Stock at the time of
such Investments); and
(ii) to the extent such Investments are not made with
the Capital Stock of Holdings, $20,000,000 since the Closing
Date,
which Investments shall result in the Borrower or the relevant
Subsidiary acquiring (subject to SECTION 7.2.1) a majority controlling
interest in the Person in which such Investment was made or increasing
any such controlling interest maintained by it in such Person; or
(i) other Investments made by the Borrower or any of its
Subsidiaries in an aggregate amount not to exceed $1,000,000 at any
time outstanding;
PROVIDED, HOWEVER, that
(j) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment"
may continue to be held notwithstanding that such Investment if made
thereafter would not comply with such requirements;
(k) no Investment otherwise permitted by CLAUSE (C) (except to
the extent permitted under SECTION 7.2.2), (F), (G), (H) or (I) shall
be permitted to be made if, immediately before or after giving effect
thereto, any Default shall have occurred and be continuing; and
(l) no Investment otherwise permitted by CLAUSES (A) through
(I) may be made if, after giving effect to the application thereof,
there shall be a "Default" or "Event of Default" under and as defined
in the Senior Subordinated Note Indenture, in each case as in effect on
the Closing Date.
SECTION 7.2.6. RESTRICTED PAYMENTS, ETC. On and at all times after the
date hereof;
(a) each of the Borrower and each Designated Guarantor will
not, and will not permit any of their respective Subsidiaries to,
declare, pay or make any dividend, distribution or exchange (in cash,
property or obligations) on or in respect of any shares of any class of
Capital Stock (now or hereafter outstanding) of the Borrower or any
Designated Guarantor or on any warrants, options or other rights with
respect to any
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shares of any class of Capital Stock (now or hereafter outstanding) of
the Borrower or any Designated Guarantor (other than (i) dividends or
distributions payable in its common stock or warrants to purchase its
common stock and (ii) splits or reclassifications of its stock into
additional or other shares of its common stock) or apply, or permit any
of its Subsidiaries to apply, any of its funds, property or assets to
the purchase, redemption, exchange, sinking fund or other retirement
of, or agree or permit any of its Subsidiaries to purchase, redeem or
exchange, any shares of any class of Capital Stock (now or hereafter
outstanding) of the Borrower or any Designated Guarantor, warrants,
options or other rights with respect to any shares of any class of
Capital Stock (now or hereafter outstanding) of the Borrower or any
Designated Guarantor;
(b) each of the Borrower and each Designated Guarantor will
not, and will not permit any of their respective Subsidiaries to, (i)
make any payment or prepayment of principal of, or make any payment of
interest on, any subordinated note (including any Senior Subordinated
Note) on any day other than the stated, scheduled date for such payment
or prepayment set forth in the documents and instruments memorializing
such subordinated note, or which would violate the subordination
provisions of such subordinated note, or (ii) redeem, purchase or
defease any subordinated note (including any Senior Subordinated Note)
(the foregoing prohibited acts referred to in CLAUSES (A) and (B) above
are herein collectively referred to as "RESTRICTED PAYMENTS");
PROVIDED, HOWEVER, that
(c) notwithstanding the provisions of CLAUSE (A) above, the
Borrower and each Affiliate Guarantor shall be permitted to make
Restricted Payments to DRI I (which shall in turn utilize all of any
such Restricted Payment to make Restricted Payments to Holdings) and to
Holdings, (i) in each case to the extent necessary to enable Holdings
to pay interest on the Senior Subordinated Notes, so long as (A) no
Default or Event of Default exists or would result therefrom and (B)
the Restricted Payments referred to below are permitted to be paid at
such time under the Senior Subordinated Note Indenture and (ii) to
allow Holdings to purchase, redeem or defease the Senior Subordinated
Notes in an amount not to exceed $20,000,000 from the Amendment
Effective Date until the Stated Maturity Date of the New Term B Loans,
so long as (A) no Default or Event of Default shall have occurred and
be continuing on the date such Restricted Payment is declared or to be
made, nor would a Default or an Event of Default result from the making
of such Restricted Payment, (B) after giving effect to the making of
such Restricted Payment, Holdings shall be in PRO FORMA compliance with
the covenants set forth in SECTION 7.2.4 for the most recent fully
ended Fiscal Quarter preceding the date of the making of such
Restricted Payment for which the relevant financial information has
been delivered pursuant to CLAUSE (B) or (C) of SECTION 7.1.1, and
(iii) an Authorized Officer of Holdings shall have delivered a
certificate to the Administrative Agent in form and substance
satisfactory to the Administrative Agent
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(including a calculation of Holdings' compliance with the covenants set
forth in SECTION 7.2.4) certifying as to the accuracy of SUBCLAUSES
(I), and (II) above;
(d) notwithstanding the provisions of CLAUSE (A) above, the
Borrower may from time to time and at any time distribute to the Parent
Guarantors (subject to the security interest granted by the Borrower to
the Administrative Agent for the benefit of the Secured Parties) all of
the Borrower's
(i) Intellectual Property Collateral (as defined in
the Borrower Security Agreement) so long as the Parent
Guarantors concurrently transfer such Intellectual Property
Collateral to Xxxxx Xxxxx IP and, to the extent they have not
previously done so, Xxxxx Xxxxx IP and the Borrower enter into
a royalty and license agreement (in form and substance
reasonably satisfactory to the Agents) pursuant to which Xxxxx
Xxxxx IP will permit the Borrower to use all Intellectual
Property Collateral so transferred in consideration for the
payment of a royalty to Xxxxx Xxxxx IP; and
(ii) rights under all or a portion of the Eligible
Leases to which the Borrower is a party so long as the Parent
Guarantors concurrently transfer such rights to Xxxxx Xxxxx
Realty and, to the extent they have not previously done so,
Xxxxx Xxxxx Realty and the Borrower enter into corresponding
sublease agreements (in form and substance reasonably
satisfactory to the Agents) pursuant to which Xxxxx Xxxxx
Realty will sublease to the Borrower the realty that is the
subject of such Eligible Leases in consideration for lease
payments to Xxxxx Xxxxx Realty,
in each case, so long as no Default or Event of default shall
have occurred and be continuing;
(e) notwithstanding the provisions of CLAUSE (A) above, (i)
the Borrower shall be permitted to make Restricted Payments to Holdings
and to DRI I (which may in turn utilize all or part of any such
Restricted Payment to make Restricted Payments to Holdings) and (ii)
each Affiliate Guarantor shall be permitted to make Restricted Payments
to Holdings and to DRI I (which may in turn utilize all or part of any
such Restricted Payment to make Restricted Payments to Holdings), in
each case to the extent necessary to enable Holdings and DRI I
(A) to pay their overhead expenses to the
extent permitted under the Senior Subordinated Note
Indenture as in effect on the Closing Date; PROVIDED,
that the aggregate amount of Restricted Payments paid
by the Borrower and the Affiliate Guarantors pursuant
to this SUBCLAUSE (E)(I)(A) in any Fiscal Year shall
not exceed $2,000,000; and
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(B) to pay their respective taxes based on
income and franchise taxes and other similar
licensure expenses;
(f) notwithstanding the provisions of CLAUSE (A) above, (i)
each Affiliate Guarantor shall be permitted to make Restricted Payments
to the Parent Guarantors so long as the Parent Guarantors concurrently
transfer such Restricted Payments to the Borrower as a capital
contribution;
(g) so long as (i) no Default or Event of Default shall have
occurred and be continuing on the date such Restricted Payment is
declared or to be made, nor would a Default or an Event of Default
result from the making of such Restricted Payment, (ii) after giving
effect to the making of such Restricted Payment, Holdings shall be in
PRO FORMA compliance with the covenants set forth in SECTION 7.2.4 for
the most recent fully ended Fiscal Quarter preceding the date of the
making of such Restricted Payment for which the relevant financial
information has been delivered pursuant to CLAUSE (B) or (C) of SECTION
7.1.1, and (iii) an Authorized Officer of Holdings shall have delivered
a certificate to the Administrative Agent in form and substance
satisfactory to the Administrative Agent (including a calculation of
Holdings' compliance with the covenants set forth in SECTION 7.2.4 in
reasonable detail) certifying as to the accuracy of SUBCLAUSES (I) and
(II) above, (A) the Borrower shall be permitted to make Restricted
Payments to Holdings and to DRI I (which shall in turn utilize all of
any such Restricted Payment to make Restricted Payments to Holdings)
and (B) each Affiliate Guarantor shall be permitted to make Restricted
Payments to Holdings and to DRI I (which shall in turn utilize all of
any such Restricted Payment to make Restricted Payments to Holdings),
in each case to the extent necessary to enable Holdings to repurchase,
redeem or otherwise acquire or retire for value any Capital Stock of
Holdings held by (x) any member of management of Holdings or any of its
Subsidiaries pursuant to any management equity subscription agreement
or stock option agreement, in each case as in effect on the Closing
Date; PROVIDED, HOWEVER, that (A) the aggregate price paid for all such
repurchased, redeemed, acquired or retired Capital Stock shall not
exceed an amount equal to $2,000,000 in any twelve month period PLUS
(B) the aggregate cash proceeds received by Holdings during such twelve
month period from any reissuance of Capital Stock of Holdings by
Holdings to members of management of Holdings or any of its
Subsidiaries or (y) any Person; PROVIDED that the aggregate price paid
for all such repurchased, redeemed, acquired or retired Capital Stock
shall not exceed an amount equal to $20,000,000; and
(h) so long as (i) no Default or Event of Default shall have
occurred and be continuing on the date such Restricted Payment is
declared or to be made, nor would a Default or an Event of Default
result from the making of such Restricted Payment, (ii) after giving
effect to the making of such Restricted Payment, Holdings shall be in
PRO FORMA compliance with the covenants set forth in SECTION 7.2.4 for
the most recent fully ended Fiscal Quarter preceding the date of the
making of such Restricted Payment for which the relevant financial
information has been delivered pursuant to CLAUSE (B) or (C)
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of SECTION 7.1.1, (iii) after giving effect to the making of such
Restricted Payment, Holdings shall be in PRO FORMA compliance with a
Leverage Ratio of less than or equal to 2.00:1 and (iv) an Authorized
Officer of Holdings shall have delivered a certificate to the
Administrative Agent in form and substance satisfactory to the
Administrative Agent (including a calculation of Holdings' compliance
with the covenants set forth in SECTION 7.2.4 in reasonable detail and
SUBCLAUSE (III) above) certifying as to the accuracy of SUBCLAUSES (I),
(II) and (III) above, (A) the Borrower shall be permitted to make
Restricted Payments to Holdings and to DRI I (which shall in turn
utilize all of any such Restricted Payment to make Restricted Payments
to Holdings) and (B) each Affiliate Guarantor shall be permitted to
make Restricted Payments to Holdings and to DRI I (which shall in turn
utilize all of any such Restricted Payment to make Restricted Payments
to Holdings), in each case to the extent necessary to enable Holdings
to repurchase, redeem or otherwise acquire or retire for value any
Capital Stock of Holdings held by any Person; PROVIDED, HOWEVER, that
the aggregate price paid for all such repurchased, redeemed, acquired
or retired Capital Stock shall not exceed an amount equal to
$20,000,000 from the Amendment Effective Date until the Stated Maturity
Date for the New Term B Loans.
SECTION 7.2.7. CAPITAL EXPENDITURES, ETC. Each of the Borrower and each
Designated Guarantor will not, and will not permit any of their respective
Subsidiaries to, make or commit to make Capital Expenditures in any Fiscal Year,
except (a) Capital Expenditures of the Borrower and its Subsidiaries which do
not aggregate in excess of $50,000,000 in such Fiscal Year.
SECTION 7.2.8. CONSOLIDATION, MERGER, ETC. Each of the Borrower and
each Designated Guarantor will not, and will not permit any of their respective
Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with,
any other corporation, or purchase or otherwise acquire all or substantially all
of the assets of any Person (or of any division thereof) except
(a) any Subsidiary of the Borrower may liquidate or dissolve
voluntarily into, and may merge with and into, the Borrower (so long as
the Borrower is the surviving entity of such combination or merger) or
any other Subsidiary, and the assets or stock of any such Subsidiary
may be purchased or otherwise acquired by the Borrower or any other
Subsidiary; PROVIDED, that notwithstanding the above, a Subsidiary may
only liquidate or dissolve into, or merge with and into, another
Subsidiary of the Borrower if, after giving effect to such combination
or merger, the Borrower continues to own (directly or indirectly), and
the Administrative Agent continues to have pledged to it pursuant to a
Pledge Agreement, a percentage of the issued and outstanding shares of
Capital Stock (on a fully diluted basis) of the Subsidiary surviving
such combination or merger that is equal to or in excess of the
percentage of the issued and outstanding shares of Capital Stock (on a
fully diluted basis) of the Subsidiary that does not survive such
combination or merger that was (immediately prior to the combination or
merger) owned by the Borrower or pledged to the Administrative Agent;
and
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(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Borrower or any of its
Subsidiaries may purchase all or substantially all of the assets of any
Person (or any division thereof) not then a Subsidiary, or acquire such
Person by merger, if permitted (without duplication) pursuant to
SECTION 7.2.7 or CLAUSE (I) of SECTION 7.2.5.
SECTION 7.2.9. ASSET DISPOSITIONS, ETC. Each of the Borrower and each
Designated Guarantor will not, and will not permit any of their respective
Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant
options, warrants or other rights with respect to, all or any part of its
assets, whether now owned or hereafter acquired (including accounts receivable
and Capital Stock of Subsidiaries) to any Person, unless:
(a) such sale, transfer, lease, contribution or conveyance of
such assets is (i) in the ordinary course of its business (and does not
constitute a sale, transfer, lease, contribution or other conveyance of
all or a substantial part of the Borrower's and its Subsidiaries'
assets, taken as a whole) or is of obsolete or worn out property, (ii)
permitted by CLAUSE (D) of SECTION 7.2.6 or SECTION 7.2.8 or 7.2.14, or
(iii) between the Borrower and one of its Subsidiary Guarantors or
between Subsidiary Guarantors of the Borrower;
(b) such sale, transfer, lease, contribution or conveyance
consists of the sale by the Borrower of third party prescription
receivables resulting from the sale of pharmaceutical products to
customers covered by third party insurance or payment programs (the
"PRESCRIPTION RECEIVABLES") to Pharmacy Fund, in each case pursuant to,
and in accordance with the terms of the Rapid Remit Program Documents;
(c) such sale, transfer, lease, contribution or conveyance by
(i) the Borrower or any of its Subsidiaries constitutes (A) an
Investment permitted under SECTION 7.2.5 or (B) a Lien permitted under
SECTION 7.2.3 or (ii) any Designated Guarantor constitutes an
Investment permitted under CLAUSE (B), (C) or (E) of SECTION 7.2.5; or
(d) (i) such sale, transfer, lease, contribution or conveyance
by the Borrower or any of its Subsidiaries of such assets is for fair
market value and the consideration consists of no less than 80% in cash
(other than assets sold, transferred, leased, contributed or conveyed
in an individual amount not to exceed $50,000 and in an aggregate
amount not to exceed $500,000 since the Closing Date), (ii) the Net
Disposition Proceeds received from such assets, together with the Net
Disposition Proceeds of all other assets sold, transferred, leased,
contributed or conveyed pursuant to this CLAUSE (D) since the Closing
Date, does not exceed (individually or in the aggregate) $10,000,000
over the term of this Agreement and (iii) an amount equal to the Net
Disposition Proceeds generated from such sale, transfer, lease,
contribution or conveyance is applied to prepay the Loans pursuant to
the terms of SECTIONS 3.1.1 and 3.1.2.
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SECTION 7.2.10. MODIFICATION OF CERTAIN AGREEMENTS. Without the prior
written consent of the Required Lenders, each of the Borrower and each
Designated Guarantor will not, and will not permit any of their respective
Subsidiaries to, consent to any amendment, supplement, amendment and
restatement, waiver or other modification of any of the terms or provisions
contained in, or applicable to, any Material Document or any schedules, exhibits
or agreements related thereto, in each case which does not comply with the
requirements set forth in the proviso to CLAUSE (L) of SECTION 7.2.2 or would
adversely affect the rights or remedies of the Lenders, or the Borrower's, such
Designated Guarantor's or such Subsidiary's ability to perform hereunder or
under any Loan Document.
SECTION 7.2.11. TRANSACTIONS WITH AFFILIATES. Each of the Borrower and
each Designated Guarantor will not, and will not permit any of their respective
Subsidiaries to, enter into, or cause, suffer or permit to exist any arrangement
or contract with any of its other Affiliates unless such arrangement or contract
is fair and equitable to the Borrower, such Designated Guarantor or such
Subsidiary and is an arrangement or contract of the kind which would be entered
into by a prudent Person in the position of the Borrower, such Designated
Guarantor or such Subsidiary with a Person which is not one of its Affiliates;
PROVIDED, HOWEVER, that (i) the Borrower may make (A) royalty payments to Xxxxx
Xxxxx IP at or less than fair market value under the royalty and license
agreement referred to in clause (d)(i) of Section 7.2.6 and (B) sublease
payments to Xxxxx Xxxxx Realty at or less than fair market value under the
sublease agreements that are referred to in clause (d)(ii) of Section 7.2.6 and
(ii) the Borrower, the Designated Guarantors and their respective Subsidiaries
shall be permitted to enter into and perform their obligations under the
Material Documents to which each is a party as of the Closing Date and
arrangements with CSFB and its Affiliates for underwriting, investment banking
and advisory services on usual and customary terms.
SECTION 7.2.12. NEGATIVE PLEDGES, RESTRICTIVE AGREEMENTS, ETC. Each of
the Borrower and each Designated Guarantor will not, and will not permit any of
their respective Subsidiaries to, enter into any agreement prohibiting
(a) the (i) creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter acquired
(other than, in the case of any assets acquired with the proceeds of
any Indebtedness, or subject to Capitalized Lease Liabilities,
permitted under CLAUSE (E) of SECTION 7.2.2, customary limitations and
prohibitions contained in such Indebtedness or Capitalized Lease), or
(ii) ability of the Borrower, any Designated Guarantor or any other
Obligor to amend or otherwise modify this Agreement or any other Loan
Document; or
(b) any Subsidiary from making any payments, directly or
indirectly, to the Borrower by way of dividends, advances, repayments
of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower.
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SECTION 7.2.13. STOCK OF SUBSIDIARIES. Each of the Borrower and each
Designated Guarantor will not permit any Subsidiary of the Borrower to issue any
Capital Stock (whether for value or otherwise) to any Person other than the
Borrower or another Wholly-owned Subsidiary of the Borrower.
SECTION 7.2.14. SALE AND LEASEBACK. Each of the Borrower and each
Designated Guarantor will not, and will not permit any of its Subsidiaries to,
enter into any agreement or arrangement with any other Person providing for the
leasing by Xxxxx Xxxxx Realty, the Borrower or any of its Subsidiaries of real
or personal property which has been or is to be sold or transferred by Xxxxx
Xxxxx Realty, the Borrower or any of its Subsidiaries to such other Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of Xxxxx Xxxxx Realty, the
Borrower or any of its Subsidiaries (a "SALE AND LEASEBACK TRANSACTION");
PROVIDED, HOWEVER, that Xxxxx Xxxxx Realty, the Borrower or any of its
Subsidiaries may enter into Sale and Leaseback Transactions so long as (a) each
such Sale and Leaseback Transaction is consummated no more than one year after
the original date of purchase of the Subject Property, (b) Xxxxx Xxxxx Realty,
the Borrower or such Subsidiary receives cash in an amount greater than or equal
to the Valuation Amount of such Subject Property concurrent with the sale
thereof, (c) each lease entered into in connection with each such Sale and
Leaseback Transaction is a true operating lease in accordance with GAAP, and (d)
the proceeds of such sale under such Sale and Leaseback Transaction are applied
in accordance with the terms of CLAUSE (F) of SECTION 3.1.1.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. LISTING OF EVENTS OF DEFAULT. Each of the following events
or occurrences described in this SECTION 8.1 shall constitute an "EVENT OF
DEFAULT".
SECTION 8.1.1. NON-PAYMENT OF OBLIGATIONS. (a) The Borrower shall
default in the payment or prepayment of any principal of any Loan when due or
any Reimbursement Obligations or any deposit of cash for collateral purposes
pursuant to SECTION 2.6.2 or SECTION 2.6.4, as the case may be, or (b) any
Obligor (including the Borrower) shall default (and such default shall continue
unremedied for a period of three Business Days) in the payment when due of any
interest or commitment fee with respect to the Loans or Commitments or of any
other monetary Obligation.
SECTION 8.1.2. BREACH OF WARRANTY. Any representation or warranty of
the Borrower or any other Obligor made or deemed to be made by it hereunder or
under any other Loan Document or any other writing or certificate furnished by
or on behalf of the Borrower or any other Obligor to the Agents, the
Documentation Agent, the Issuer, the Arranger or any Lender for the purposes of
or in connection with this Agreement or any such other Loan Document
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(including any certificates delivered pursuant to ARTICLE V) is or shall be
incorrect when made in any material respect.
SECTION 8.1.3. NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS.
The Borrower or any Designated Guarantor shall default in the due performance
and observance of any of its obligations under SECTION 7.1.4, 7.1.6(B), 7.1.9,
7.1.10, 7.1.11 or 7.2 (other than CLAUSE (A) of SECTION 7.2.1), or any other
Obligor shall default in the performance of any of its obligations in respect of
such Sections as such Sections are incorporated by reference or otherwise in any
Loan Document to which such Obligor is a party.
SECTION 8.1.4. NON-PERFORMANCE OF OTHER COVENANTS AND OBLIGATIONS. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days from the earlier
of the date an Authorized Officer of such Obligor has actual knowledge thereof
and the receipt by such Obligor of written notice thereof from the
Administrative Agent.
SECTION 8.1.5. DEFAULT ON OTHER INDEBTEDNESS. A default shall occur (i)
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in SECTION 8.1.1, of the Borrower or any of its Subsidiaries or any
other Obligor having a principal amount, individually or in the aggregate, in
excess of $3,000,000, or (ii) a default shall occur in the performance or
observance of any obligation or condition with respect to such Indebtedness if
the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable period
of time sufficient to permit the holder or holders of such Indebtedness, or any
trustee or agent for such holders, to cause such Indebtedness to become due and
payable prior to its expressed maturity.
SECTION 8.1.6. JUDGMENTS. Any judgment or order for the payment of
money in excess of $3,000,000 (not covered by insurance from an insurance
company rated A- or better by A.M. Best Company that is not denying its
liability with respect thereto) shall be rendered against the Borrower or any of
its Subsidiaries or any other Obligor and remain unpaid and either (a)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order, or (b) there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION 8.1.7. PENSION PLANS. Any of the following events shall occur
with respect to any Pension Plan (a) the institution of any steps by Holdings,
any member of its Controlled Group or any other Person to terminate a Pension
Plan if, as a result of such termination, Holdings or any such member could be
required to make a contribution to such Pension Plan, or could reasonably expect
to incur a liability or obligation to such Pension Plan, in excess of
$1,000,000, or (b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
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SECTION 8.1.8. CHANGE IN CONTROL. Any Change in Control shall occur.
SECTION 8.1.9. BANKRUPTCY, INSOLVENCY, ETC. The Borrower or any of its
Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become
due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for the Borrower
or any of its Subsidiaries or any other Obligor or any property of any
thereof, or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent, acquiescence
or assignment, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of
its Subsidiaries or any other Obligor or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within 60 days, provided that
the Borrower, each Subsidiary and each other Obligor hereby expressly
authorizes the Agents, the Documentation Agent, the Arranger, the
Issuer and each Lender to appear in any court conducting any relevant
proceeding during such 60-day period to preserve, protect and defend
their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower or any
of its Subsidiaries or any other Obligor, and, if any such case or
proceeding is not commenced by the Borrower or such Subsidiary or such
other Obligor, such case or proceeding shall be consented to or
acquiesced in by the Borrower or such Subsidiary or such other Obligor
or shall result in the entry of an order for relief or shall remain for
60 days undismissed, provided that the Borrower, each Subsidiary and
each other Obligor hereby expressly authorizes the Agents, the
Documentation Agent, the Arranger, the Issuer and each Lender to appear
in any court conducting any such case or proceeding during such 60-day
period to preserve, protect and defend their rights under the Loan
Documents; or
(e) take any action (partnership, corporate or otherwise)
authorizing, or in furtherance of, any of the foregoing.
SECTION 8.1.10. IMPAIRMENT OF SECURITY, ETC. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms), in whole
or in part, terminate, cease to be in full force and effect or cease to be the
legally valid, binding and enforceable obligation of any Obligor party thereto;
the Borrower or any other Obligor shall, directly or indirectly, contest in any
manner the effectiveness, validity, binding nature or enforceability
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thereof; or any Lien securing any Obligation shall, in whole or in part, cease
to be a perfected first priority Lien, subject only to those exceptions
expressly permitted by the Loan Documents.
SECTION 8.2. ACTION IF BANKRUPTCY, ETC. If any Event of Default
described in CLAUSES (A) through (D) of SECTION 8.1.9 shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations (including Reimbursement Obligations) shall automatically be and
become immediately due and payable, without notice or demand and the Borrower
shall automatically and immediately be obligated to deposit with the
Administrative Agent cash collateral in an amount equal to the undrawn amount of
all Letters of Credit outstanding.
SECTION 8.3. ACTION IF OTHER EVENT OF DEFAULT. If any Event of Default
(other than an Event of Default described in CLAUSES (A), through (D) of SECTION
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable, require the Borrower to
provide cash collateral to be deposited with the Administrative Agent in an
amount equal to the undrawn amount of all Letters of Credit outstanding and/or
declare the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the Borrower shall deposit with the
Administrative Agent cash collateral in an amount equal to the undrawn amount of
all Letters of Credit outstanding.
ARTICLE IX
GUARANTY
SECTION 9.1. GUARANTY. Each Designated Guarantor hereby jointly and
severally, absolutely, unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all Obligations of the Borrower and each other
Obligor now or hereafter existing, whether for principal, interest,
fees, expenses or otherwise (including all such amounts which would
become due but for the operation of the automatic stay under Section
362(a) of the United States Bankruptcy Code, 11 U.S.C. ss.362(a), and
the operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)), and
(b) indemnifies and holds harmless each Secured Party and each
holder of a Note for any and all costs and expenses (including
reasonable attorney's fees and expenses)
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incurred by such Secured Party or such holder, as the case may be, in
enforcing any rights under the guaranty set forth in this ARTICLE IX;
PROVIDED, HOWEVER, that (i) DRI I, with respect to its guaranty of the
Obligations of Holdings, and (ii) each Affiliate Guarantor shall be liable under
the guaranty set forth in this ARTICLE IX for the maximum amount of such
liability that can be incurred without rending such guaranty, as it relates to
such Designated Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount. The guaranty
set forth in this ARTICLE IX constitutes a guaranty of payment when due and not
of collection, and each Designated Guarantor specifically agrees that it shall
not be necessary or required that any Secured Party or any holder of any Note
exercise any right, assert any claim or demand or enforce any remedy whatsoever
against the Borrower or any other Obligor (or any other Person) before or as a
condition to the obligations of each Designated Guarantor under the guaranty set
forth in this ARTICLE IX.
SECTION 9.2. ACCELERATION OF PARENT GUARANTY. Each Designated Guarantor
agrees that upon the occurrence of an Event of Default of the nature set forth
in CLAUSES (A) through (D) of SECTION 8.1.9, at a time when any of the
Obligations of the Borrower and each other Obligor may not then be due and
payable, then each Designated Guarantor agrees that it will pay to the
Administrative Agent for the account of the Secured Parties forthwith the full
amount which would be payable under the guaranty set forth in this ARTICLE IX by
each Designated Guarantor if all such Obligations were then due and payable.
SECTION 9.3. GUARANTY ABSOLUTE, ETC. The guaranty set forth in this
ARTICLE IX shall in all respects be a continuing, absolute, unconditional and
irrevocable guaranty of payment, and shall remain in full force and effect until
all Obligations of the Borrower and each other Obligor have been paid in full in
cash, all obligations of each Designated Guarantor under the guaranty set forth
in this ARTICLE IX shall have been paid in full in cash, all Letters of Credit
have been terminated or expired, all Rate Protection Agreements have been
terminated or expired and all Commitments shall have terminated. Each Designated
Guarantor guarantees that the Obligations of the Borrower and each other Obligor
will be paid strictly in accordance with the terms of this Agreement and each
other Loan Document under which they arise, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of any Secured Party or any holder of any Note with respect
thereto. The liability of each Designated Guarantor under the guaranty set forth
in this ARTICLE IX shall be absolute, unconditional and irrevocable irrespective
of:
(a) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower, any other Obligor or any
other Person (including any other
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guarantor (including any Designated Guarantor)) under the
provisions of this Agreement, any Note, any other Loan
Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor (including any Designated Guarantor) of, or
collateral securing, any Obligations of the Borrower or any
other Obligor;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower or
any other Obligor, or any other extension, compromise or renewal of any
Obligation of the Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of
any Obligations of the Borrower or any other Obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and the each Designated
Guarantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, any
Obligations of the Borrower or any other Obligor or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
this Agreement, any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Secured Party or any holder of any Note securing
any of the Obligations of the Borrower or any other Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any surety or any guarantor.
SECTION 9.4. REINSTATEMENT, ETC. Each Designated Guarantor agrees that
the guaranty set forth in this ARTICLE IX shall continue to be effective or be
reinstated, as the case may be, if at any time any payment (in whole or in part)
of any of the Obligations is rescinded or must otherwise be restored by any
Secured Party or any holder of any Note, upon the insolvency, bankruptcy or
reorganization of the Borrower or any other Obligor or otherwise, all as though
such payment had not been made.
SECTION 9.5. WAIVER, ETC. Each Designated Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Obligations of the Borrower or any other Obligor and the guaranty set
forth in this ARTICLE IX and any requirement that the Administrative Agent, any
other Secured Party or any holder of any Note protect, secure, perfect or insure
any security interest or Lien, or any property subject thereto, or exhaust any
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right or take any action against the Borrower, any other Obligor or any other
Person (including any other guarantor) or entity or any collateral securing the
Obligations of the Borrower or any other Obligor.
SECTION 9.6. POSTPONEMENT OF SUBROGATION, ETC. Each Designated
Guarantor agrees that it will not exercise any rights which it may acquire by
way of rights of subrogation under the guaranty set forth in this ARTICLE IX, by
any payment made under the guaranty set forth in this ARTICLE IX or otherwise,
until the prior payment in full in cash of all Obligations of the Borrower and
each other Obligor, the termination or expiration of all Letters of Credit, the
termination or expiration of all Rate Protection Agreements and the termination
of all Commitments. Any amount paid to any Designated Guarantor on account of
any such subrogation rights prior to the payment in full in cash of all
Obligations of the Borrower and each other Obligor shall be held in trust for
the benefit of the Secured Parties and each holder of a Note and shall
immediately be paid to the Administrative Agent for the benefit of the Secured
Parties and each holder of a Note and credited and applied against the
Obligations of the Borrower and each other Obligor, whether matured or
unmatured, in accordance with the terms of this Agreement; PROVIDED, HOWEVER,
that if
(a) each Designated Guarantor has made payment to the Secured
Parties and each holder of a Note of all or any part of the Obligations
of the Borrower and each other Obligor, and
(b) all Obligations of the Borrower and each other Obligor
have been paid in full in cash, all Letters of Credit have been
terminated or expired, all Rate Protection Agreements have been
terminated or expired and all Commitments have been permanently
terminated,
each Secured Party and each holder of a Note agrees that, at any Designated
Guarantor's request, the Administrative Agent, on behalf of the Secured Parties
and the holders of the Notes, will execute and deliver to the applicable
Designated Guarantor appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
such Designated Guarantor of an interest in the Obligations of the Borrower or
such other Obligor, as the case may be, resulting from such payment by such
Designated Guarantor. In furtherance of the foregoing, for so long as any
Obligations or Commitments remain outstanding, each Designated Guarantor shall
refrain from taking any action or commencing any proceeding against each of the
Borrower and each other Obligor (or its successors or assigns, whether in
connection with a bankruptcy proceeding or otherwise) to recover any amounts in
the respect of payments made under the guaranty set forth in this ARTICLE IX to
any Secured Party or any holder of a Note.
SECTION 9.7. SUCCESSORS, TRANSFEREES AND ASSIGNS; TRANSFERS OF NOTES,
ETC. The guaranty set forth in this ARTICLE IX shall:
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(a) be binding upon each Designated Guarantor and its
successors, transferees and assigns; and
(b) inure to the benefit of and be enforceable by the
Administrative Agent and each other Secured Party.
Without limiting the generality of the foregoing CLAUSE (B), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to such Lender under any Loan Document (including the guaranty set forth in this
ARTICLE IX) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of SECTION 11.11 and ARTICLE X.
SECTION 9.8. RIGHT OF CONTRIBUTION. Each Designated Guarantor hereby
agrees that to the extent that a Designated Guarantor shall have paid more than
its proportionate share of any payment made under the guaranty set forth in this
ARTICLE IX to any Secured Party or any holder of a Note, such Designated
Guarantor shall be entitled to seek and receive contribution from and against
any other Designated Guarantor under such guaranty who has not paid its
proportionate share of such payment. Each Designated Guarantor's right of
contribution shall be subject to the terms and conditions of SECTION 9.6. The
provisions of this SECTION 9.8 shall in no respect limit the obligations and
liabilities of any Designated Guarantor to the Administrative Agent and each
other Secured Party for the full amount by such Designated Guarantor under such
guaranty.
ARTICLE X
THE AGENTS
SECTION 10.1. ACTIONS. Each Lender hereby appoints CSFB as its
Syndication Agent and Fleet as its Administrative Agent under and for purposes
of this Agreement, the Notes and each other Loan Document. Each Lender
authorizes the Agents to act on behalf of such Lender under this Agreement, the
Notes and each other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the Agents
(with respect to which each of the Agents agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Agents by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement) the Agents,
ratably in accordance with their respective Term Loans outstanding and
Commitments (or, if no Term Loans or Commitments are at the time outstanding and
in effect, then ratably in accordance with the principal amount of Term Loans
held by such Lender, and their respective Commitments as in effect in each case
on the date of the termination of this Agreement), from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any kind
or nature whatsoever which may at any time be imposed on, incurred by, or
asserted
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against, any of the Agents in any way relating to or arising out of this
Agreement, the Notes and any other Loan Document, including reasonable
attorneys' fees, and as to which any Agent is not reimbursed by the Borrower or
any other Obligor (and without limiting the obligation of the Borrower or any
other Obligor to do so); PROVIDED, HOWEVER, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from such Agent's
gross negligence or willful misconduct. The Agents shall not be required to take
any action hereunder, under the Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement, the Notes or any
other Loan Document, unless it is indemnified hereunder to its satisfaction. If
any indemnity in favor of any of the Agents shall be or become, in such Agent's
determination, inadequate, such Agent may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.
SECTION 10.2. FUNDING RELIANCE, ETC. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York City time, on the day prior to a Borrowing that such Lender
will not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the Borrower a corresponding
amount. If and to the extent that such Lender shall not have made such amount
available to the Administrative Agent, such Lender severally agrees and the
Borrower agrees to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the Borrower to the date
such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing.
SECTION 10.3. EXCULPATION. None of the Agents, the Swing Line Lender,
the Issuer or the Arranger nor any of their respective directors, officers,
employees or agents shall be liable to any Lender for any action taken or
omitted to be taken by it under this Agreement or any other Loan Document, or in
connection herewith or therewith, except for its own willful misconduct or gross
negligence, nor responsible for any recitals or warranties herein or therein,
nor for the effectiveness, enforceability, validity or due execution of this
Agreement or any other Loan Document, nor for the creation, perfection or
priority of any Liens purported to be created by any of the Loan Documents, or
the validity, genuineness, enforceability, existence, value or sufficiency of
any collateral security, nor to make any inquiry respecting the performance by
the Borrower of its obligations hereunder or under any other Loan Document. Any
such inquiry which may be made by any Agent, the Swing Line Lender or the Issuer
shall not obligate it to make any further inquiry or to take any action. The
Agents, the Swing Line Lender and the Issuer shall be entitled to rely upon
advice of counsel concerning legal matters and upon any notice, consent,
certificate, statement or writing which the Agents, the Swing Line Lender or the
Issuer, as applicable, believe to be genuine and to have been presented by a
proper Person.
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SECTION 10.4. SUCCESSOR. The Syndication Agent may resign as such upon
one Business Day's notice to the Borrower and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days' prior
notice to the Borrower and all Lenders. If the Administrative Agent at any time
shall resign, the Required Lenders may, with the prior consent of the Borrower
(which consent shall not be unreasonably withheld), appoint another Lender as a
successor Administrative Agent which shall thereupon become the Administrative
Agent hereunder. If no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be one of the
Lenders or a commercial banking institution organized under the laws of the
United States or a United States branch or agency of a commercial banking
institution, and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall be
entitled to receive from the retiring Administrative Agent such documents of
transfer and assignment as such successor Administrative Agent may reasonably
request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation hereunder as the Administrative Agent, the provisions of (i) this
ARTICLE X shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Agreement, and (ii)
SECTION 11.3 and SECTION 11.4 shall continue to inure to its benefit.
SECTION 10.5. CREDIT EXTENSIONS BY EACH AGENT. Each Agent, the Swing
Line Lender and the Issuer shall have the same rights and powers with respect to
(x) (i) in the case of the Agents and the Swing Line Lender, the Credit
Extensions made by it or any of its Affiliates and (ii) in the case of the
Issuer, the Loans made by it or any of its Affiliates, and (y) the Notes held by
such Agent, the Swing Line Lender, the Issuer or any of their respective
Affiliates as any other Lender and may exercise the same as if it were not an
Agent or the Issuer. Each Agent, the Swing Line Lender, the Issuer and each and
their respective Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if such Agent, the Swing Line Lender or Issuer were
not an Agent, the Swing Line Lender or the Issuer hereunder.
SECTION 10.6. CREDIT DECISIONS. Each Lender acknowledges that it has,
independently of each Agent, the Documentation Agent, the Arranger, the Swing
Line Lender, the Issuer and each other Lender, and based on such Lender's review
of the financial information of the Borrower, this Agreement, the other Loan
Documents (the terms and provisions of which being satisfactory to such Lender)
and such other documents, information and investigations as such Lender has
deemed appropriate, made its own credit decision to extend its Commitments. Each
Lender also acknowledges that it will, independently of each Agent, the
Documentation Agent, the Arranger, the Swing Line Lender, the Issuer and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to
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make its own credit decisions as to exercising or not exercising from time to
time any rights and privileges available to it under this Agreement or any other
Loan Document.
SECTION 10.7. COPIES, ETC. The Administrative Agent shall give prompt
notice to each Lender and the Issuer of each notice or request required or
permitted to be given to the Administrative Agent by the Borrower pursuant to
the terms of this Agreement (unless concurrently delivered to the Lenders and
the Issuer by the Borrower). The Administrative Agent will distribute to each
Lender and the Issuer each document or instrument received for such Lender's or
the Issuers's account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders and/or
the Issuer by the Administrative Agent in accordance with the terms of this
Agreement.
SECTION 10.8. THE SWING LINE LENDER, THE ISSUER, THE AGENTS, ETC.
Notwithstanding anything else to the contrary contained in this Agreement or any
other Loan Document, the Swing Line Lender, the Issuer, the Documentation Agent
and the Agents, in their respective capacities as such, each in such capacity,
shall have no duties or responsibilities under this Agreement or any other Loan
Document nor any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Swing Line Lender,
the Issuer, the Documentation Agent or any Agent, as applicable, in such
capacity except as are explicitly set forth herein or in the other Loan
Documents.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. WAIVERS, AMENDMENTS, ETC. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower and each Obligor party thereto and by the Required
Lenders; PROVIDED, HOWEVER, that no such amendment, modification or waiver which
would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this SECTION 11.1, or CLAUSE (A) of SECTION 11.10,
change the definition of "Required Lenders", increase any Commitment
Amount or the Percentage of any Lender, reduce, or extend the due date
for, any fees described in SECTION 3.3 (other than any fee referred to
in SECTION 3.3.2), release any Guarantor from its obligations under any
Guaranty, or release all or substantially all of the collateral
security (except in each case as otherwise specifically provided in
this Agreement, any such Guaranty, a Security
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Agreement or a Pledge Agreement) or extend any Commitment Termination
Date shall be made without the consent of each Lender adversely
affected thereby;
(c) extend the due date for, or reduce the amount of, (i) any
scheduled repayment or prepayment of principal of or interest on any
Loan (or reduce the principal amount of or rate of interest on any
Loan) or (ii) any repayment of any Reimbursement Obligation (or reduce
the amount of or rate of interest on any Reimbursement Obligation)
shall be made without the consent of the holder of the Note evidencing
such Loan or, in the case of a Reimbursement Obligation, the Issuer
owed, and those Lenders participating in, such Reimbursement
Obligation;
(d) affect adversely the interests, rights or obligations of
any Agent, the Swing Line Lender, the Issuer or the Arranger (in its
capacity as Agent, the Swing Line Lender, the Issuer or the Arranger),
unless consented to by such Agent, the Swing Line Lender, the Issuer or
the Arranger, as the case may be; or
(e) have the effect (either immediately or at some later time)
of enabling the Borrower to satisfy a condition precedent to the making
of a Revolving Loan, the Swing Line Loan or the issuance of a Letter of
Credit without the consent of Lenders holding at least 51% of the
Revolving Loan Commitments; or
(f) amend, modify or waive the provisions of CLAUSE (A)(I) of
SECTION 3.1.1 or CLAUSE (B) of SECTION 3.1.2 or effect any amendment,
modification or waiver that by its terms adversely affects the Lenders
participating in any Tranche differently from those of Lenders
participating in other Tranches, without the consent of the holders of
the Notes evidencing greater than 50% of the aggregate amount of Loans
outstanding under each Tranche affected by such modification, or, in
the case of a modification affecting the Revolving Loan Commitment
Amount, the Lenders holding greater than 50% of the Revolving Loan
Commitments.
No failure or delay on the part of any Agent, the Issuer, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by any Agent, the Issuer,
any Lender or the holder of any Note under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 11.2. NOTICES. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth on
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its signature page hereto or on SCHEDULE II hereto or, in the case of a Lender
that becomes a party hereto after the date hereof, as set forth in the Lender
Assignment Agreement pursuant to which such Lender becomes a Lender hereunder or
at such other address or facsimile number as may be designated by such party in
a notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when transmitted (and electronic confirmation of receipt
thereof has been received).
SECTION 11.3. PAYMENT OF COSTS AND EXPENSES. The Borrower agrees to pay
on demand all reasonable expenses of each of the Agents and the Arranger
(including the reasonable fees and out-of-pocket expenses of counsel to the
Agents and the Arranger and of local or foreign counsel, if any, who may be
retained by counsel to the Agents) in connection with
(a) the syndication by the Syndication Agent and the Arranger
of the Loans, the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of each
Pledge Agreement and each Security Agreement and/or any Uniform
Commercial Code financing statements relating thereto and all
amendments, supplements and modifications to any thereof and any and
all other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or of
such Pledge Agreement, Security Agreement or Uniform Commercial Code
financial statements; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Agents, the Documentation
Agent, the Arranger, the Issuer and the Lenders harmless from all liability for,
any stamp or other similar taxes which may be payable in connection with the
execution or delivery of this Agreement, the Credit Extensions made hereunder or
the issuance of the Notes or Letters of Credit or any other Loan Documents. The
Borrower also agrees to reimburse each Agent, the Documentation Agent, the
Arranger, the Issuer and each Lender upon demand for all reasonable
out-of-pocket expenses (including reasonable attorneys' fees and legal expenses)
incurred by such Agent, the Documentation Agent, the Arranger, the Issuer or
such Lender in connection with (x) the negotiation of any restructuring or
"work-out", whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 11.4. INDEMNIFICATION. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby, to the
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fullest extent permitted under applicable law, indemnifies, exonerates and holds
each Agent, the Documentation Agent, the Arranger, the Issuer, and each Lender
and each of their respective Affiliates, and each of their respective partners,
officers, directors, trustees, employees and agents, and each other Person
controlling any of the foregoing within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act
of 1934, as amended (collectively, the "INDEMNIFIED PARTIES"), free and harmless
from and against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses actually incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements (collectively, the "INDEMNIFIED LIABILITIES"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of the Borrower as the result of any
determination by any Lender to make any Credit Extension hereunder);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by Xxxxx Xxxxx Realty, the Borrower
or any of its Subsidiaries of all or any portion of the stock or assets
of any Person, whether or not such Agent, the Documentation Agent, the
Issuer, the Arranger or such Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
Xxxxx Xxxxx Realty's, the Borrower's or any of its Subsidiaries'
compliance with or liability under Environmental Law or the Release by
Xxxxx Xxxxx Realty, the Borrower or any of its Subsidiaries of any
Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission or release from, any real property owned
or operated by Xxxxx Xxxxx Realty, the Borrower or any Subsidiary
thereof of any Hazardous Material present on or under such property in
a manner giving rise to liability at or prior to the time Xxxxx Xxxxx
Realty, the Borrower or such Subsidiary owned or operated such property
(including any losses, liabilities, damages, injuries, costs, expenses
or claims asserted or arising under any Environmental Law), regardless
of whether caused by, or within the control of, Xxxxx Xxxxx Realty, the
Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct. The Borrower and its permitted successors and
assigns hereby waive, release and agree not to make
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any claim, or bring any cost recovery action against, any Agent, the
Documentation Agent, the Issuer, the Arranger or any Lender under CERCLA or any
state equivalent, or any similar law now existing or hereafter enacted, except
to the extent arising out of the gross negligence or willful misconduct of any
Indemnified Party. It is expressly understood and agreed that to the extent that
any of such Persons is strictly liable under any Environmental Laws, Xxxxx Xxxxx
Realty's or the Borrower's obligation to such Person under this indemnity shall
likewise be without regard to fault on the part of Xxxxx Xxxxx Realty or the
Borrower, to the extent permitted under applicable law, with respect to the
violation or condition which results in liability of such Person. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, Xxxxx
Xxxxx Realty and the Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
SECTION 11.5. SURVIVAL. The obligations of the Borrower under SECTIONS
2.6.7(A)(II), 4.3, 4.4, 4.5, 4.6, 11.3 and 11.4, the obligations of each
Designated Guarantor under SECTION 9.1(B) and the obligations of the Lenders
under SECTIONS 4.8 and 10.1, shall in each case survive any assignment or
participation pursuant to SECTION 11.11, any termination of this Agreement, the
payment in full of all Obligations and the termination of all Commitments. The
representations and warranties made by the Borrower and each other Obligor in
this Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION 11.6. SEVERABILITY. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 11.7. HEADINGS. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 11.8. EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. This Agreement shall become effective
pursuant to the terms of the Amendment Agreement.
SECTION 11.9. GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT, THE
NOTES AND, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED THEREIN, EACH OTHER
LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement, the Notes and the
other Loan Documents
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constitute the entire understanding among the parties hereto with respect to the
subject matter hereof and supersede any prior agreements, written or oral, with
respect thereto.
SECTION 11.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; PROVIDED, HOWEVER, that (a) the Borrower may not assign
or transfer its rights or obligations hereunder without the prior written
consent of each of the Agents and all Lenders, and (b) the rights of sale,
assignment and transfer of the Lenders are subject to SECTION 11.11.
SECTION 11.11. SALE AND TRANSFER OF LOANS; PARTICIPATIONS IN LOANS.
Each Lender may assign, or sell participations in, its Loans and Commitments to
one or more other Persons, on a non PRO RATA basis (except as provided below),
in accordance with this SECTION 11.11.
SECTION 11.11.1. ASSIGNMENTS. Any Lender (the "ASSIGNOR LENDER"),
(a) with the written consents of the Borrower, the Agents and
(in the case of any assignment of participations in Letters of Credit
or Revolving Loan Commitments) the Issuer (which consents shall not be
unreasonably delayed or withheld and which consents of the Agents and
the Issuer shall not be required in the case of assignments made by or
to CSFB or any of its Affiliates and which consent of the Borrower
shall not be required if a Default or an Event of Default shall have
occurred and be continuing), may at any time assign and delegate to one
or more commercial banks or other financial institutions or funds which
are regularly engaged in making, purchasing or investing in loans or
securities, and
(b) with notice to the Borrower, the Agents, and (in the case
of any assignment of participations in Letters of Credit or Revolving
Loan Commitments) the Issuer, but without the consent of the Borrower,
the Agents or the Issuer, may assign and delegate to any of its
Affiliates or Related Funds or to any other Lender
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "ASSIGNEE LENDER"), all or any fraction of such Lender's total Loans,
participations in Letters of Credit and Letter of Credit Outstandings with
respect thereto and Commitments (which assignment and delegation shall be, as
among Revolving Loan Commitments, Revolving Loans and participations in Letters
of Credit, of a constant, and not a varying, percentage) (the "ASSIGNED AMOUNT")
in a minimum aggregate amount of (i) $1,000,000 in the case of an assignment to
an existing Lender or an Affiliate or Related Fund thereof and $1,000,000 in the
case of an assignment to an Assignee Lender that is not an existing Lender or an
Affiliate or Related Fund thereof or (ii) the then remaining amount of such
Lender's Loans and Commitments; PROVIDED, HOWEVER, that any such Assignee Lender
will comply, if applicable, with the provisions contained in SECTION 4.6 and the
Borrower, each other Obligor, the Agents and the Issuer shall be entitled to
continue to deal solely and directly with such Assignor Lender in connection
with the interests so assigned and delegated to an Assignee Lender until
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(c) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the Borrower
and the Agents by such Assignor Lender and such Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to
the Borrower and the Agents a Lender Assignment Agreement, accepted by
the Agents;
(e) the processing fees described below shall have been paid;
and
(f) the Administrative Agent shall have registered such
assignment and delegation in the Register pursuant to CLAUSE (B) of
SECTION 2.7.
From and after the date that the Agents accept such Lender Assignment Agreement
and such assignment and delegation is registered in the Register pursuant to
CLAUSE (B) of SECTION 2.7, (i) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (ii)
the Assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Subject to the provisions of SECTION 2.7, within ten Business
Days after its receipt of notice that the Agent has received an executed Lender
Assignment Agreement, the Borrower shall execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender) new Notes
evidencing such Assignee Lender's assigned Loans and Commitments and, if the
Assignor Lender has retained Loans and Commitments hereunder, replacement Notes
in the principal amount of the Loans and Commitments retained by the Assignor
Lender hereunder (such Notes to be in exchange for, but not in payment of, those
Notes then held by such Assignor Lender). Each such Note requested shall be
dated the date of the predecessor Notes, if any. The Assignor Lender shall xxxx
such predecessor Notes "exchanged" and deliver them to the Borrower. Unless
otherwise specified in the Lender Assignment Agreement, interest and fees in
respect of the Assigned Amount that (A) have accrued prior to the date of such
assignment shall be for the account of the Assignor Lender and (B) accrue on and
subsequent to the date of such assignment shall be for the account of the
Assignee Lender. Accrued interest and fees shall be paid at the same time or
times provided in this Agreement. Such Assignor Lender or such Assignee Lender
(unless the Assignor Lender or the Assignee Lender is CSFB or any of its
Affiliates) must also pay a processing fee to the Administrative Agent upon
delivery of any Lender Assignment Agreement in the amount of $3,500, unless such
assignment and delegation is by a Lender to its Affiliate or Related Fund or if
such assignment and delegation consists of a pledge by a Lender to a Federal
Reserve Bank (or in the case of a Lender that is an investment fund, to the
trustee under the indenture to which such fund is a party), as provided below or
is otherwise consented to by the Administrative Agent. Any attempted assignment
and delegation not made in accordance with this SECTION 11.11.1 shall be null
and void. Nothing contained in this SECTION 11.11.1 shall prevent or
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prohibit any Lender from pledging its rights (but not its obligations to make
Loans or participate in Letters of Credit or Letter of Credit Outstandings)
under this Agreement and/or its Loans and/or its Notes hereunder (i) to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank, or (ii) any Lender that is a fund that invests in bank
loans may pledge all or any portion of its rights (but not its obligations to
make Loans or participate in Letters of Credit or Letter of Credit Outstandings)
hereunder to any trustee or any other representative of holders of obligations
owed or securities issued by such fund as security for such obligations or
securities, in either case without notice to or consent of the Borrower or the
Agents; PROVIDED, HOWEVER, that (A) such Lender shall remain a "Lender" under
this Agreement and the other Loan Documents, and (B) any assignment by such
trustee shall be subject to the provisions of CLAUSE (A) of this SECTION
11.11.1. In the event that S&P, Xxxxx'x or Xxxxxxxx'x BankWatch (or
InsuranceWatch Ratings Service, in the case of Lenders that are insurance
companies (or Best's Insurance Reports, if such insurance company is not rated
by Insurance Watch Ratings Service)) shall, after the date that any Lender with
a Commitment to make Revolving Loans or participate in Letters of Credit becomes
a Lender, downgrade the long-term certificate of deposit rating or long-term
senior unsecured debt rating of such Lender, and the resulting rating shall be
below BBB-, Baa3 or C (or BB, in the case of Lender that is an insurance company
(or B, in the case of an insurance company not rated by InsuranceWatch Ratings
Service)) respectively, then the Issuer or the Borrower (with the consent of the
Agents and the Issuer) shall have the right, but not the obligation, upon notice
to such Lender and the Agents, to replace such Lender with an Assignee Lender in
accordance with and subject to the restrictions contained in this Section, and
such Lender hereby agrees to transfer and assign without recourse (in accordance
with and subject to the restrictions contained in this Section) all its
interests, rights and obligations in respect of its Revolving Loan Commitment
under this Agreement to such Assignee Lender; PROVIDED, HOWEVER, that (i) no
such assignment shall conflict with any law, rule and regulation or order of any
governmental authority and (ii) such Assignee Lender shall pay to such Lender in
immediately available funds on the date of such assignment the principal of and
interest and fees (if any) accrued to the date of payment on the Loans made, and
Letters of Credit participated in, by such Lender hereunder and (iii) the
Borrower shall have paid such Lender all other amounts accrued for such Lender's
account or owed to it hereunder or under any other Loan Document.
SECTION 11.11.2. PARTICIPATIONS. Any Lender may at any time sell to one
or more commercial banks or other financial institution (each such commercial
bank and other financial institution being herein called a "PARTICIPANT")
participating interests in any of the Loans, Commitments, participations in
Letters of Credit and Letters of Credit Outstandings or other interests of such
Lender hereunder; PROVIDED, HOWEVER, that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
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(c) the Borrower and each other Obligor, the Agents and the
Issuer shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate or
Related Fund of such Lender, or is itself a Lender, shall be entitled
to require such Lender to take or refrain from taking any action
hereunder or under any other Loan Document, except that such Lender may
agree with any Participant that such Lender will not, without such
Participant's consent, agree to (i) any reduction in the interest rate
or amount of fees that such Participant is otherwise entitled to, (ii)
a decrease in the principal amount, or an extension of the final Stated
Maturity Date, of any Loan in which such Participant has purchased a
participating interest or (iii) a release of all or substantially all
of the collateral security under the Loan Documents or any Guarantor
under any Guaranty, in each case except as otherwise specifically
provided in a Loan Document; and
(e) the Borrower shall not be required to pay any amount under
SECTIONS 4.3, 4.4, 4.5, 4.6, 11.3 and 11.4 that is greater than the
amount which it would have been required to pay had no participating
interest been sold.
The Borrower acknowledges and agrees, subject to CLAUSE (E) above, that, to the
fullest extent permitted under applicable law, each Participant, for purposes of
SECTIONS 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 11.3 and 11.4, shall be considered a
Lender.
SECTION 11.11.3. SPCS. Notwithstanding anything to the contrary
contained herein, any Lender (a "GRANTING LENDER") may grant to a special
purpose funding vehicle (a "SPC"), identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such Granting
Lender would otherwise be obligated to make to the Borrower pursuant to this
Agreement; PROVIDED THAT (i) nothing herein shall constitute a commitment by any
SPC to make any Loan and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The making of
an Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Loan were made by such Granting Lender. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall
remain with the Granting Lender). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this clause, any SPC may (i) with notice to, but without the prior written
consent of, the Borrower, the Administrative Agent or the Syndication Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting
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Lender or to any financial institutions (consented to by the Borrower, the
Syndication Agent and the Administrative Agent) providing liquidity and/or
credit support to or for the account of such SPC to support the funding or
maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC. This section may not be amended without the written consent of the SPC. The
Borrower acknowledges and agrees, subject to the next sentence, that, to the
fullest extent permitted under applicable law, each SPC, for purposes of
SECTIONS 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 11.3 and 11.4, shall be considered a
Lender. The Borrower shall not be required to pay any amount under SECTIONS 4.3,
4.4, 4.5, 4.6, 11.3 and 11.4 that is greater than the amount which it would have
been required to pay had no grant been made by a Granting Lender to a SPC.
SECTION 11.12. OTHER TRANSACTIONS. Nothing contained herein shall
preclude any Agent, the Documentation Agent, the Issuer, the Arranger or any
other Lender from engaging in any transaction, in addition to those contemplated
by this Agreement or any other Loan Document, with the Borrower or any of its
Affiliates in which the Borrower or such Affiliate is not restricted hereby from
engaging with any other Person.
SECTION 11.13. INDEPENDENCE OF COVENANTS. All covenants contained in
this Agreement and each other Loan Document shall be given independent effect
such that, in the event a particular action or condition is not permitted by any
of such covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not, unless
expressly so provided in such first covenant, avoid the occurrence of a Default
or an Event of Default if such action is taken or such condition exists.
SECTION 11.14. CONFIDENTIALITY. The Agents, the Documentation Agent,
the Issuer, the Arranger and the Lenders shall hold all non-public information
obtained pursuant to or in connection with this Agreement or obtained by them
based on a review of the books and records of Holdings or any of its
Subsidiaries in accordance with their customary procedures for handling
confidential information of this nature, but may make disclosure to any of their
examiners, regulators (including the National Association of Insurance
Commissioners), Affiliates, outside auditors, counsel and other professional
advisors in connection with this Agreement or as reasonably required by any
potential BONA FIDE transferee, participant or assignee, or in connection with
the exercise of remedies under a Loan Document, or as requested by any
governmental agency or representative thereof or pursuant to legal process;
PROVIDED, HOWEVER, that
(a) unless specifically prohibited by applicable law or court
order, each Agent, the Documentation Agent, the Issuer, the Arranger
and each Lender shall promptly notify the Borrower of any request by
any governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition of
such Agent, the Documentation Agent, the Issuer, Arranger and Lender by
such governmental agency) for disclosure of any such non-public
information and, where practicable, prior to disclosure of such
information;
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(b) prior to any such disclosure pursuant to this SECTION
11.14, each Agent, the Documentation Agent, the Issuer, the Arranger
and each Lender shall require any such BONA FIDE transferee,
participant and assignee receiving a disclosure of non-public
information to agree, for the benefit of Holdings and its Subsidiaries,
in writing
(i) to be bound by this SECTION 11.14; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this SECTION 11.14;
(c) disclosure may, with the consent of the Agents and the
Borrower, be made by any Lender to any direct or indirect contractual
counterparties of such Lender in swap agreements or such contractual
counterparties' professional advisors; PROVIDED that such contractual
counterparty or professional advisor agrees in writing to keep such
information confidential to the same extent required of the Lenders
hereunder; and
(d) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by the
Borrower or any Affiliate thereof.
SECTION 11.15. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
DOCUMENTATION AGENT, THE ARRANGER, THE LENDERS, THE ISSUER, THE BORROWER OR ANY
DESIGNATED GUARANTOR RELATING THERETO SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY (TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE
STATE OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, IN EACH CASE LOCATED IN XXX XXXX XXXXXX XX XXX XXXXX XX
XXX XXXX; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE AGENTS' OPTION, IN THE
COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
THE BORROWER AND EACH DESIGNATED GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE
LOCATED IN NEW YORK COUNTY OF THE STATE OF NEW YORK, FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE BORROWER AND EACH
DESIGNATED GUARANTOR IRREVOCABLY
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CONSENT TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER AND EACH
DESIGNATED GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH ANY OF THEM MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER OR ANY DESIGNATED GUARANTOR
HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM
ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR
ITS PROPERTY, THE BORROWER AND EACH DESIGNATED GUARANTOR HEREBY IRREVOCABLY
WAIVE (TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) SUCH IMMUNITY IN RESPECT OF
ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.16. WAIVER OF JURY TRIAL. THE AGENTS, THE DOCUMENTATION
AGENT, THE ARRANGER, THE ISSUER, THE LENDERS, THE BORROWER AND THE DESIGNATED
GUARANTORS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF THE AGENTS, THE DOCUMENTATION AGENT, THE ARRANGER, THE
LENDERS, THE BORROWER OR THE DESIGNATED GUARANTORS RELATING THERETO. THE
BORROWER AND THE DESIGNATED GUARANTORS ACKNOWLEDGE AND AGREE THAT EACH SUCH
PERSON HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH SUCH PERSON IS A
PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE
DOCUMENTATION AGENT, THE ARRANGER, THE ISSUER AND THE LENDERS ENTERING INTO THIS
AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
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