EXHIBIT 10.5
CREDIT AGREEMENT
DATED AS OF MAY 11, 1999
AMONG
INTEGRATED CIRCUIT SYSTEMS, INC.,
THE LENDERS LISTED HEREIN,
as Lenders,
AND
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent, Sole Lead Arranger and Collateral Agent
TABLE OF CONTENTS
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PAGE
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SECTION 1.
DEFINITIONS..................................................................1
1.1 Certain Defined Terms ..................................................1
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement........................................................38
1.3 Other Definitional Provisions..........................................38
1.4 Changes in GAAP........................................................39
SECTION 2.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS..................................39
2.1 Commitments; Loans.....................................................39
2.2 Interest on the Loans..................................................46
2.3 Fees...................................................................50
2.4 Repayments, Prepayments and Reductions in Commitments; General
Provisions Regarding Payments..........................................51
2.5 Use of Proceeds........................................................61
2.6 Special Provisions Governing Eurodollar Rate Loans.....................62
2.7 Increased Costs; Taxes; Capital Adequacy...............................64
2.8 Obligation of Lenders and Issuing Bank to Mitigate.....................69
SECTION 3.
LETTERS OF CREDIT...........................................................70
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein................................................................70
3.2 Letter of Credit Fees..................................................72
3.3 Drawings and Payments and Reimbursement of Amounts Drawn or
Paid Under Letters of Credit...........................................72
3.4 Obligations Absolute...................................................75
3.5 Indemnification; Nature of Issuing Lenders' Duties.....................76
3.6 Increased Costs and Taxes Relating to Letters of Credit................77
SECTION 4.
CONDITIONS TO LOANS AND LETTERS OF CREDIT...................................78
4.1 Conditions to Term Loans; Initial Revolving Loans......................78
4.2 Conditions to All Loans................................................83
4.3 Conditions to Letters of Credit........................................84
SECTION 5.
REPRESENTATIONS AND WARRANTIES..............................................85
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5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries..........................................................85
5.2 Authorization of Borrowing, etc.......................................86
5.3 Financial Condition; Projections......................................87
5.4 No Material Adverse Change............................................88
5.5 Title to Properties; Liens; Real Property; Intellectual Property......88
5.6 Litigation; Adverse Facts.............................................89
5.7 Payment of Taxes......................................................89
5.8 Performance of Agreements.............................................89
5.9 Governmental Regulation...............................................90
5.10 Securities Activities.................................................90
5.11 Employee Benefit Plans................................................90
5.12 Certain Fees..........................................................90
5.13 Environmental Matters.................................................91
5.14 Employee Matters......................................................91
5.15 Solvency..............................................................92
5.16 Disclosure............................................................92
5.17 Year 2000 Matters.....................................................92
SECTION 6.
AFFIRMATIVE COVENANTS.......................................................93
6.1 Financial Statements and Other Reports................................93
6.2 Corporate Existence...................................................97
6.3 Payment of Taxes and Claims; Tax Consolidation........................97
6.4 Maintenance of Properties; Insurance..................................98
6.5 Inspection; Lender Meeting............................................98
6.6 Compliance with Laws, etc.............................................99
6.7 Environmental Disclosure and Inspection...............................99
6.8 Company's Remedial Action Regarding Hazardous Materials..............100
6.9 Execution of Guaranty and Collateral Documents by Future
Subsidiaries.........................................................100
6.10 Interest Rate Protection.............................................101
6.11 Further Assurances...................................................102
6.12 Conforming Leasehold Interests; Matters Relating to Additional and
Closing Real Property Collateral.....................................102
6.13 Year 2000 Matters....................................................105
SECTION 7.
NEGATIVE COVENANTS.........................................................106
7.1 Indebtedness.........................................................106
7.2 Liens and Related Matters............................................108
7.3 Investments; Joint Ventures..........................................110
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7.4 Contingent Obligations...............................................111
7.5 Restricted Payments..................................................112
7.6 Financial Covenants..................................................113
7.7 Restriction on Fundamental Changes; Asset Sales......................118
7.8 Sales and Lease-Backs................................................119
7.9 Transactions with Shareholders and Affiliates........................119
7.10 Ownership of Subsidiary Stock........................................120
7.11 Amendments or Waivers of Certain Agreements..........................120
7.12 Fiscal Year..........................................................121
7.13 Conduct of Business..................................................121
SECTION 8.
EVENTS OF DEFAULT..........................................................121
8.1 Failure to Make Payments When Due....................................121
8.2 Default in Other Agreements..........................................121
8.3 Breach of Certain Covenants..........................................122
8.4 Breach of Warranty...................................................122
8.5 Other Defaults Under Loan Documents..................................122
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.................123
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc...................123
8.8 Judgments and Attachments............................................123
8.9 Dissolution..........................................................124
8.10 Employee Benefit Plans...............................................124
8.11 Change in Control....................................................124
8.12 Invalidity of Guaranties.............................................124
8.13 Failure of Security..................................................124
SECTION 9.
AGENTS.....................................................................126
9.1 Appointment..........................................................126
9.2 Powers; General Immunity.............................................127
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness.....................................................129
9.4 Right to Indemnity...................................................129
9.5 Successor Administrative Agent and Swing Line Lender.................129
9.6 Collateral Documents; Successor Collateral Agent.....................130
SECTION 10.
MISCELLANEOUS..............................................................131
10.1 Assignments and Participations in Loans, Letters of Credit...........131
10.2 Expenses.............................................................134
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10.3 Indemnity...........................................................134
10.4 Set-Off; Security Interest in Deposit Accounts......................135
10.5 Ratable Sharing.....................................................136
10.6 Amendments and Waivers..............................................136
10.7 Independence of Covenants...........................................138
10.8 Notices.............................................................138
10.9 Survival of Representations, Warranties and Agreements..............138
10.10 Failure or Indulgence Not Waiver; Remedies Cumulative...............139
10.11 Marshalling; Payments Set Aside.....................................139
10.12 Severability........................................................139
10.13 Obligations Several; Independent Nature of the Lenders' Rights......139
10.14 Maximum Amount......................................................140
10.15 Headings............................................................140
10.16 Applicable Law......................................................141
10.17 Successors and Assigns..............................................141
10.18 Consent to Jurisdiction and Service of Process......................141
10.19 Waiver of Jury Trial................................................142
10.20 Confidentiality.....................................................142
10.21 Counterparts; Effectiveness.........................................143
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EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV-A FORM OF TERM A NOTE
IV-B FORM OF TERM B NOTE
V-A FORM OF REVOLVING NOTE
V-B FORM OF SWING LINE NOTE
VI FORM OF SUBSIDIARY GUARANTY
VII FORM OF PLEDGE AGREEMENT
VIII FORM OF SECURITY AGREEMENT
IX FORM OF COMPLIANCE CERTIFICATE
X FORMS OF OPINIONS OF COUNSEL TO LOAN PARTIES
XI FORM OF OPINION OF SASMF
XII FORM OF ASSIGNMENT AGREEMENT
XIII FORM OF COLLATERAL ACCOUNT AGREEMENT
XIV FORM OF CERTIFICATE OF NON-BANK STATUS
XV FORM OF MORTGAGE
XVI FORM OF PERMITTED SELLER PAPER SUBORDINATION PROVISIONS
XVII FORM OF LANDLORD CONSENT AND ESTOPPEL
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SCHEDULES
1.1(i) CERTAIN ADJUSTMENTS TO EBITDA/CONSOLIDATED INTEREST EXPENSE
1.1(ii) EXISTING INVESTORS
1.1(iii) OTHER INVESTORS
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
4.1Q CORPORATE STRUCTURE; CAPITAL STRUCTURE; OWNERSHIP
5.1 SUBSIDIARIES OF COMPANY
5.5B CERTAIN REAL PROPERTY MATTERS
5.5C CERTAIN INTELLECTUAL PROPERTY MATTERS
5.12 CERTAIN FEES
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2A CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
7.8 CERTAIN SALES AND LEASE-BACKS
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INTEGRATED CIRCUIT SYSTEMS, INC.
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of May 11, 1999 and entered into by
and among INTEGRATED CIRCUIT SYSTEMS, INC., a Pennsylvania corporation
("Company"), THE BANKS, FINANCIAL INSTITUTIONS AND OTHER ENTITIES LISTED ON THE
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SIGNATURE PAGES HEREOF (each individually referred to herein as a "Lender" and
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collectively as "Lenders"), CREDIT SUISSE FIRST BOSTON ("CSFB"), as
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administrative agent for the Lenders (in such capacity, the "Administrative
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Agent"), as sole lead arranger (in such capacity, the "Sole Lead Arranger"),
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and as collateral agent for the Administrative Agent and the Lenders (in such
capacity, the "Collateral Agent").
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R E C I T A L S
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WHEREAS, Bain (capitalized terms used herein having the meanings
assigned to those terms in subsection 1.1), the Other Investors and the Existing
Investors propose to engage in a series of Recapitalization Transactions,
whereby Company will be acquired on the Closing Date;
WHEREAS, Company has requested Lenders to extend, and Lenders have
agreed to extend, certain credit facilities in an aggregate principal amount of
up to $145,000,000 to Company, the proceeds of which will be used, together with
approximately $50,000,000 from the Equity Contribution and not less than
$47,500,000 in gross cash proceeds from the issuance and sale of Subordinated
Debt, to permit the consummation of the Recapitalization Transactions, to pay
related fees and expenses and to provide financing for working capital and other
general corporate purposes of Company and its Subsidiaries; and
WHEREAS, the Lenders are willing to make such credit facilities
available upon and subject to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto hereby agree as
follows:
SECTION 18.
DEFINITIONS
18.1 Certain Defined Terms.
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The following terms used in this Agreement shall have the following
meanings:
"Additional Mortgage" has the meaning assigned to that term in
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subsection 6.12C.
"Additional Mortgaged Property" has the meaning assigned to that term
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in subsection 6.12C.
"Administrative Agent" has the meaning assigned to that term in the
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Preamble to this Agreement and shall include any successor Administrative
Agent appointed pursuant to subsection 9.5.
"Affected Class" has the meaning assigned to that term in subsection
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10.6A.
"Affected Lender" has the meaning assigned to that term in subsection
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2.6C.
"Affected Loans" has the meaning assigned to that term in subsection
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2.6C.
"Affiliate" means, as applied to any Person, any other Person directly
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or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling", "controlled by" and
"under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through
the ownership of voting securities or by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the Collateral
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Agent and the Sole Lead Arranger.
"Agreement" means this Credit Agreement dated as of May 11, 1999, as
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it may be amended, restated, supplemented or otherwise modified from time
to time.
"Anniversary" means a date that is an anniversary of the Closing Date.
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"Applicable Base Rate Margin" means a percentage per annum determined
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by reference to the Applicable Leverage Ratio as set forth below:
Applicable Base
Rate Margin for Applicable Base
Applicable Term A Loans and Rate Margin for
Leverage Ratio Revolving Loans Term B Loans
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greater than 4.00:1.0 2.00% 2.50%
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less than
or equal to 4.00:1.0 1.75% 2.25%
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less than 3.50:1.0 1.50% 2.00%
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Applicable Base
Rate Margin for Applicable Base
Applicable Term A Loans and Rate Margin for
Leverage Ratio Revolving Loans Term B Loans
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less than 3.00:1.0 1.25% 2.00%
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less than 2.50:1.0 1.00% 2.00%
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less than 2.00:1.0 0.75% 2.00%
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; provided, however, that the Applicable Base Rate Margin shall be 2.00% in
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the case of Term A Loans and Revolving Loans and 2.50% in the case of Term
B Loans, in each case for so long (but only for so long) as an Event of
Default has occurred and is continuing or Company has not submitted to the
Administrative Agent the information as and when required under subsection
6.1(ii) or (iii), as applicable.
"Applicable Commitment Fee Percentage" means a percentage per annum
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determined by reference to the Applicable Leverage Ratio as set forth
below:
Applicable
Commitment
Leverage Ratio Fee Percentage
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greater than 4.00:1.0 0.500%
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less than or
equal to 4.00:1.0 0.500%
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less than 3.50:1.0 0.500%
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less than 3.00:1.0 0.375%
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less than 2.50:1.0 0.375%
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less than 2.00:1.0 0.375%
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; provided, however, that the Applicable Commitment Fee Percentage shall be
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0.500% for so long (but only for so long) as an Event of Default has
occurred and is continuing or Company has not submitted to the
Administrative Agent the information as and when required under subsection
6.1(ii) or (iii), as applicable.
"Applicable Eurodollar Rate Margin" means a percentage per annum
---------------------------------
determined by reference to the Applicable Leverage Ratio as set forth
below:
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Applicable
Eurodollar Applicable
Rate Margin for Eurodollar
Term A Loans and Rate margin for
Leverage Ratio Revolving Loans Term B Loans
==========================================================
greater than 4.00:1.0 3.00% 3.50%
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less than or
equal to 4.00:1.0 2.75% 3.25%
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less than 3.50:1.0 2.50% 3.00%
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less than 3.00:1.0 2.25% 3.00%
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less than 2.50:1.0 2.00% 3.00%
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less than 2.00:1.0 1.75% 3.00%
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; provided, however, that the Applicable Eurodollar Rate Margin shall be
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3.00% in the case of Term A Loans and Revolving Loans and 3.50% in the case
of Term B Loans, in each case for so long (but only for so long) as an
Event of Default has occurred and is continuing or Company has not
submitted to the Administrative Agent the information as and when required
under subsection 6.1(ii) or (iii), as applicable.
"Applicable Excess Subordinated Debt Amount" means (i)) with respect
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to the Term A Loan Commitments 40% of the Excess Subordinated Debt Amount
and (ii) with respect to the Term B Loan Commitments, 60% of the Excess
Subordinated Debt Amount.
"Applicable Laws" means, collectively, all statutes, laws, rules,
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regulations, ordinances, decisions, writs, judgments, decrees, and
injunctions of any Governmental Authority affecting Company or any of its
Subsidiaries or any Collateral or any of their other assets, whether now or
hereafter enacted and in force, and all Governmental Authorizations
relating thereto.
"Applicable Leverage Ratio" means, with respect to any date of
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determination, the Leverage Ratio set forth in the Pricing Certificate (as
defined below) in effect for the Pricing Period (as defined below) in which
such date of determination occurs. For purposes of this definition, (i)
"Pricing Certificate" means an Officer's Certificate of Company certifying
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as to the Leverage Ratio as of the last day of any Fiscal Quarter and
setting forth the calculation of such Leverage Ratio in reasonable detail,
which Officer's Certificate may be delivered to Administrative Agent at any
time on or after the date of delivery by Company of the Compliance
Certificate (the "Related Compliance Certificate") with respect to the
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period ending on the last day of such Fiscal Quarter pursuant to subsection
6.1(iv), and (ii) "Pricing Period" means each period commencing on the
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first Business Day after the delivery to Administrative Agent of a Pricing
Certificate and ending on the first Business Day after the next Pricing
Certificate is delivered to Administrative Agent; provided that, anything
contained in this definition to the contrary notwithstanding, (a) the
Applicable Leverage Ratio for the period from the Closing Date to but
excluding the First Adjustment Date shall be deemed to be greater than
4.0:1.00 for purposes of making the relevant calculation referred to
above, and (b) in the event that, after the First Adjustment Date, (X)
Company fails to deliver a Pricing Certificate to Administrative Agent
setting forth the Leverage Ratio as of the last day of any Fiscal Quarter
on or before the last day on which Company is required to deliver the
Related Compliance Certificate (such last day being the "Cutoff Date") and
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(Y) Administrative Agent determines
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(each such determination being an "Agent Determination") on or after the
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Cutoff Date (on the basis of the Related Compliance Certificate or a
Pricing Certifi cate delivered after the Cutoff Date) that the Applicable
Leverage Ratio that would have been in effect if Company had delivered a
Pricing Certificate on the Cutoff Date is greater than the Leverage Ratio
set forth in the most recent Pricing Certificate actually delivered by
Company, then (1) the Applicable Leverage Ratio in effect for purposes of
making the relevant calculation referred to above for the period from the
Cutoff Date to the date of delivery by Company of the next Pricing
Certificate (or, if earlier, the next date on which an Agent Determination
is made) shall be the Leverage Ratio determined pursuant to the Agent
Determination and (2) on the first Business Day after Administrative Agent
delivers written notice to Company of any Agent Determination, Company
shall pay to Administrative Agent, for distribution (as appropriate) to
Lenders, an aggregate amount equal to the additional interest, letter of
credit fees and commitment fees Company would have been required to pay in
respect of all applicable Loans, Letters of Credit or Commitments in
respect of which any interest or fees have been paid by Company during the
period from the Cutoff Date to the date such notice is given by
Administrative Agent to Company if the amount of such interest and fees had
been calculated using the Applicable Leverage Ratio based on such Agent
Determination.
"Approved Fund" with respect to any Lender that is a fund that invests
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in bank loans, any other fund or trust or entity that invests in bank loans
and is advised or managed by the same investment advisor as such Lender or
by an Affiliate of such investment advisor property.
"Asset Sale" means the sale, lease, sale and leaseback, assignment,
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conveyance, transfer or other disposition by Company or any of its
Subsidiaries to any Person (other than Company or any of its wholly-owned
Subsidiaries) of any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock (including,
without limitation, of any of Company's Subsidiaries), but excluding (a)
sales of assets in a single transaction or a series of related transactions
equal to $1,000,000 or less (b) sales or other disposals of obsolete,
uneconomical, negligible, worn out or surplus equipment or other assets,
and (c) sales and other disposals of assets in the ordinary course of
business, including sales or discounts of accounts receivable in connection
with the collection or compromise thereof, the sale or exchange of
equipment or other personal property, including intellectual
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property, for the functional equivalent thereof, and leasing or licensing
of real or personal property (including intellectual property).
"Assignment Agreement" means an assignment agreement in substantially
--------------------
the form of Exhibit XII annexed hereto or in such other form as may be
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approved by the Administrative Agent.
"Assignment of Rents and Leases" means each Assignment of Rents and
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Leases executed and delivered by any Loan Party in favor of the Collateral
Agent for the benefit of the Agents and the Lenders in such form as shall
be approved by the Collateral Agent in its reasonable discretion, in each
case with such changes thereto as may be reasonably recommended by the
Collateral Agent's local counsel based on local laws or customary practice,
as any such Assignment of Rents and Leases may heretofore have been or
hereafter may be amended, restated, supplemented, consolidated, extended or
otherwise modified from time to time in accordance with the terms thereof
and hereof.
"Bain" means Xxxx Capital, Inc. and/or one or more of its Affiliates.
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"Bain Advisory Services Agreement" means that certain Advisory
--------------------------------
Services Agreement by and between Company and Bain, dated on or about the
Closing Date, in form delivered to the Administrative Agent on or prior to
the Closing Date, as the same may thereafter be amended, restated,
supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.11A.
"Bain Management Fees" means the fees (including one-time fees payable
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in connection with acquisitions, divestitures and financings) and expenses
payable to Bain pursuant to the Bain Advisory Services Agreement.
"Bankruptcy Code" means Title 11 of the United States Code entitled
---------------
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"Base Rate" means, at any time, the higher of (x) the Prime Rate or
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(y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective
Rate.
"Base Rate Loans" means Loans bearing interest at rates determined by
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reference to the Base Rate as provided in subsection 2.2A.
"Business Day" means a day other than a Saturday, Sunday or other day
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on which commercial banks in New York City are authorized or required by
law to close; provided that, with respect to matters relating to Eurodollar
--------
Rate Loans, the term "Business Day" shall mean a day other than a Saturday,
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Sunday or other day on which commercial banks in New York City or London,
England, are authorized or required by law to close.
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"Calculation Date" has the meaning assigned to that term in subsection
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7.6B.
"Calculation Period" has the meaning assigned to that term in
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subsection 7.6A.
"Capital Lease" means, as applied to any Person, any lease of any
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property (whether real, personal or mixed) by that Person as lessee that,
in conformity with GAAP, is or should be accounted for as a capital lease
on the balance sheet of that Person.
"Capital Stock" means any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to
purchase or other arrangements or rights to acquire any of the foregoing.
"Carryforward" has the meaning assigned to that term in subsection
------------
7.6D.
"Cash" means money, currency or a credit balance in a Deposit Account.
----
"Cash Equivalents" means (i) marketable securities issued or directly
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and unconditionally guaranteed by the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date
of acquisition thereof and, at the time of acquisition, having the highest
rating obtainable from either S&P or Xxxxx'x; (iii) commercial paper
maturing no more than one year from the date of creation thereof and, at
the time of acquisition, having a rating of at least A-1 from S&P or at
least P-1 from Xxxxx'x; (iv) certificates of deposit or bankers'
acceptances maturing within one year from the date of acquisition thereof
and, at the time of acquisition, having a rating of at least A-1 from S&P
or at least P-1 from Xxxxx'x, issued by any Lender or any commercial bank
organized under the laws of the United States of America or any state
thereof or the District of Columbia, any member of the European Economic
Community or any U.S. branch of a foreign bank having combined capital and
surplus of not less than $250,000,000 (each Lender and each such commercial
bank being herein called a "Cash Equivalent Bank"); (v) Eurodollar time
--------------------
deposits having a maturity of less than one year purchased directly from
any Cash Equivalent Bank (provided such deposit is with such Cash
Equivalent Bank or any other Cash Equivalent Bank); and (vi) repurchase
obligations for underlying securities of the types described in clauses (i)
through (v) and (vii) investments in money market funds which invest their
assets in the types of Cash Equivalents described in clauses (i) through
(v) above.
"Cash Proceeds" means, with respect to any Asset Sale, Cash payments
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(including any Cash received by way of deferred payment pursuant to, or
monetization of, a note
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receivable or otherwise (other than the portion of such deferred payment
constituting interest), but only as and when so received) received from
such Asset Sale.
"Certificate of Non-Bank Status" means a certificate substantially in
------------------------------
the form of Exhibit XIV annexed hereto delivered by a Lender to the
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Administrative Agent pursuant to subsection 2.7B(iii).
"Class" means each of the following classes of the Lenders: (i) the
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Lenders having Term A Loan Exposure, (ii) the Lenders having Term B Loan
Exposure, and (iii) the Lenders having Revolving Loan Exposure.
"Cleanup" means all actions required to: (1) cleanup, remove, treat or
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remediate Hazardous Materials in the indoor or outdoor environment; (2)
prevent the Release of Hazardous Materials so that they do not migrate,
endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment; or (3) perform pre-remedial studies and investigations
and post-remedial monitoring and care.
"Closing Date" means the date on which the Term Loans are made, but in
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any event not later June 30, 1999.
"Collateral" means all of the properties and assets (including Capital
----------
Stock) in which Liens are purported to be granted by the Collateral
Documents as security for the Obligations.
"Collateral Account" has the meaning assigned to that term in the
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Collateral Account Agreement.
"Collateral Account Agreement" means the Collateral Account Agreement
----------------------------
executed and delivered by Company and the Collateral Agent as of the
Closing Date, substantially in the form of Exhibit XIII annexed hereto, as
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such Collateral Account Agreement may be amended, restated, supplemented or
otherwise modified from time to time.
"Collateral Agent" means CSFB, in its capacity as collateral agent
----------------
hereunder and under the Collateral Documents, and any successor in such
capacity.
"Collateral Documents" means the Pledge Agreement, the Security
--------------------
Agreement, the Collateral Account Agreement, the Mortgages, if any, and any
other documents, instruments or agreements delivered by any Loan Party
pursuant to this Agreement or any of the other Loan Documents in order to
grant to Collateral Agent, on behalf of the Lenders, Liens and to perfect
such Liens on any assets of such Loan Party as security for all or any of
the Obligations.
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"Commercial Letter of Credit" means any letter of credit or similar
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instrument issued for the purpose of providing the primary payment
mechanism in connection with the purchase of any materials, goods or
services by Company or any of its Subsidiaries in the ordinary course of
business of Company or such Subsidiary.
"Commitments" means the commitments of the Lenders to make Loans as
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set forth in subsection 2.1A of this Agreement.
"Company" has the meaning assigned to that term in the Preamble to
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this Agreement.
"Compliance Certificate" means a certificate substantially in the form
----------------------
of Exhibit IX annexed hereto delivered to the Administrative Agent by
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Company pursuant to subsection 6.1(iv).
"Conforming Leasehold Interest" means any Recorded Leasehold Interest
-----------------------------
as to which the lessor has substantially agreed in writing for the benefit
of the Collateral Agent (which writing has been delivered to the Collateral
Agent), whether under the terms of the applicable lease, under the terms of
a Landlord Consent and Estoppel, or otherwise, to the grant of a Mortgage
on the lessee's interest in such Recorded Leasehold Interest and such other
matters requested by the Collateral Agent, which interest, if a
subleasehold or sub-subleasehold interest, is not subject to any contrary
restrictions contained in a superior lease or sublease.
"Condemnation Proceeds" has the meaning assigned to that term in
---------------------
subsection 2.4B(iii)(d).
"Consolidated Adjusted EBITDA" means, for any period, without
----------------------------
duplication, the sum of the amounts for such period (as determined for
Company and its Subsidiaries on a consolidated basis) of (i) Consolidated
Net Income, (ii) Consolidated Interest Expense, (excluding the cash portion
of any payments made pursuant to subsection 2.3 to the Agent or Lenders on
or before the Closing Date, but including the non-cash amortization of
such amounts after the Closing Date), (iii) provisions for taxes based on
income (including, without duplication, foreign withholding taxes and any
state single business, unitary or similar taxes), (iv) total depreciation
expense, (v) total amortization expense, (vi) to the extent deducted in
determining Consolidated Net Income, those items de scribed in subdivision
A of Schedule 1.1(i) annexed hereto, and (vii) other non-cash items
reducing Consolidated Net Income (excluding accruals of expenses and
establishment of reserves in the ordinary course of business) to the
extent reflected as a charge or otherwise deducted from the determination
of Consolidated Net Income, less non-cash items increasing Consolidated Net
----
Income (other than accruals of revenue or reversals of reserves), all of
the foregoing (except as otherwise provided in the definition of any term
used herein) as determined on a consolidated basis in conformity with GAAP;
provided
--------
-9-
that, for purposes of determining Consolidated Adjusted EBITDA for any
period (or portion thereof) including the second and/or third Fiscal
Quarters of Fiscal Year 1999, Consolidated Adjusted EBITDA shall be
determined pursuant to the methodology set forth in subdivision B of
Schedule 1.1(i).
"Consolidated Capital Expenditures" means, for any period, the
---------------------------------
aggregate of all expenditures (whether paid in cash or other consideration
or accrued as a liability (including that portion of Capital Leases which
is capitalized on a consolidated balance sheet in accordance with GAAP), by
Company and its Subsidiaries during that period that, in conformity with
GAAP, are or should be included in "purchases of property, plant or
equipment" or comparable items reflected in the consolidated statement of
cash flows of Company and its Subsidiaries; provided, however, that the
-------- -------
following shall in any event be excluded from the definition of
Consolidated Capital Expenditures: (a) any such expenditures made with, or
subsequently reimbursed out of, the proceeds of insurance, condemnation
awards (or payments in lieu thereof), indemnity payments or payments in
respect of judgments or settlements received from third parties for
purposes of replacing or repairing the assets in respect of which such
proceeds, awards or payments were received, so long as such expenditures
are commenced (or are contractually committed to commence) within 365 days
of the later of the occurrence of the damage to or loss of the assets being
replaced or repaired and the receipt of such proceeds, awards or payments
in respect thereof and (b) any such expenditures constituting the
reinvestment of proceeds from the sales of assets in equipment or other
productive assets of Company and its Subsidiaries, so long as such
expenditures are commenced (or are contractually committed to commence)
within 365 days of the receipt of such proceeds; and provided further,
-------- -------
however, that Consolidated Capital Expenditures shall not include any
-------
expenditures made by Company or any of its Subsidiaries to acquire in a
Permitted Acquisition the business, property or assets of any Person, or
the stock or other evidence of beneficial ownership of any Person that, as
a result of such acquisition, becomes a Subsidiary of Company.
"Consolidated Current Assets" means, as at any date of determination,
---------------------------
the total assets of Company and its Subsidiaries on a consolidated basis
which may properly be classified as current assets in conformity with GAAP,
excluding Cash, Cash Equivalents and deferred income taxes to the extent
otherwise included in current assets.
"Consolidated Current Liabilities" means, as at any date of
--------------------------------
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities
in conformity with GAAP, other than (i) any liabilities that are the
current portion of Indebtedness classified as long term liabilities in
conformity with GAAP (including accrued but unpaid interest) and (ii)
deferred income taxes to the extent otherwise included in current
liabilities.
"Consolidated Excess Cash Flow" means, for any period, an amount (if
-----------------------------
positive) equal to (i) the sum, without duplication, of the amounts for
such period of (a)
-10-
Consolidated Adjusted EBITDA and (b) the Consolidated Working Capital
Adjustment (which may be a negative number) minus (ii) the sum, without
-----
duplication, of the amounts for such period of (a) voluntary and scheduled
cash principal repayments made in respect of Consolidated Total Debt
(excluding repayments of Revolving Loans except to the extent the Revolving
Loan Commitments are permanently reduced in connection with such
repayments), (b) Consolidated Capital Expenditures (net of any proceeds of
any related financings with respect to such Capital Expenditures) plus (or
----
minus, if negative) the Carryforward for such period to be carried forward
-----
to the next period less the Carryforward (if any) for the preceding period
----
carried forward to the current period, (c) Consolidated Interest Expense
paid in cash during such period and (d) the provision for taxes (including,
without duplication, foreign withholding taxes and any single business,
unitary or similar taxes) based on income of Company and its Subsidiaries
and paid in cash with respect to such period (including taxes payable in
cash within 90 days following such period), (e) any cash payments made
during such period with respect to items set forth in subdivision A of
Schedule 1.1(i) annexed hereto, (f) non-cash charges added in calculating
---------------
Consolidated Adjusted EBITDA in a prior period to the extent such non-cash
charges are paid in cash in the current period, (g) fees and expenses
associated with any exchange of Subordinated Debt contemplated under the
terms of the Subordinated Debt Documents, (h) to the extent not otherwise
deducted in determining Consolidated Excess Cash Flow, cash payments made
during such period with respect to non-current liabilities and cash
payments made during such period with respect to restructuring reserves and
expenditures with respect to Permitted Acquisitions, and (i) to the extent
not otherwise deducted in determining Consolidated Net Income, Restricted
Payments and Investments made pursuant to subsections 7.3 or 7.5 made
during such period.
"Consolidated Interest Expense" means, for any period (as determined
-----------------------------
for Company and its Subsidiaries on a consolidated basis), total cash or
non-cash interest expense (including that portion attributable to capital
leases in accordance with GAAP), including, without limitation, all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net costs under
Interest Rate Agreements and other Hedge Agreements, commitment fees
accrued under subsection 2.3A and any Administrative Agent's fees payable
to Administrative Agent, provided that Consolidated Interest Expense for
the second, third, and fourth Fiscal Quarters of Fiscal year 1999 shall be
determined in accordance with subdivision B of Schedule 1.1(i).
---------------
"Consolidated Net Income" means, for any period, the net income (or
-----------------------
loss) of Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
GAAP; provided that there shall be excluded therefrom (i) the income (or
--------
loss) of any Person other than a Subsidiary of Company in which any other
person (other than Company or any of its Subsidiaries) has a joint
interest, except to the extent of the amount of dividends or other
distributions actually paid to Company or any Subsidiary of Company by such
Person during such
-11-
period, (ii) the income (or loss) of any Person accrued prior to the date
it becomes a Subsidiary of Company or is merged into or consolidated with
Company or any Subsidiary of Company or that Person's assets are acquired
by Company or any Subsidiary of Company, (iii) the amount of income of any
Subsidiary of Company only to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of such amount of
income is not at the time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary, (iv) any
after-tax gains or losses attributable to Asset Sales, (v) Transaction
Costs, and (vi) to the extent not included in clauses (i) through (v)
above, any net extraordinary unusual or nonrecurring gains or net unusual
or nonrecurring extraordinary losses and any write-offs of deferred
financing costs associated with Indebtedness of Company repaid on the
Closing Date.
"Consolidated Total Debt" means, as at any date of determination, the
-----------------------
aggregate amount of all outstanding Indebtedness of Company and its
Subsidiaries on a consolidated basis; provided that the term
--------
"Consolidated Total Debt" shall exclude any Indebtedness with respect to
outstanding Permitted Seller Paper so long as the terms and conditions of
such Permitted Seller Paper do not require any cash payments to be made to
the holder of such Permitted Seller Paper prior to the payment in full of
all Obligations.
"Consolidated Working Capital" means, as at any date of determination,
----------------------------
the excess of Consolidated Current Assets over Consolidated Current
Liabilities.
"Consolidated Working Capital Adjustment" means, for any period on a
---------------------------------------
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or
is less than) Consolidated Working Capital as of the end of such period.
"Contingent Obligation" means, as applied to any Person, any direct or
---------------------
indirect liability, contingent or otherwise, of that Person (i) with
respect to any Indebtedness, lease, dividend or other obligation of another
if the primary purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the obligee of such
obligation of another that such obligation of another will be paid or
discharged, or that any agreements relating thereto will be complied with,
or that the holders of such obligation will be protected (in whole or in
part) against loss in respect thereof, (ii) with respect to any letter of
credit issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings, or (iii) under Interest
Rate Agreements or other Hedge Agreements. Contingent Obligations shall
include, without limitation, (a) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another, (b) the obligation to
make take-or-pay or similar payments if required regardless of non-
performance by any other party or parties to an agreement, and (c) any
liability of such Person for the obligation of
-12-
another through any agreement (contingent or otherwise) (X) to purchase,
repurchase or otherwise acquire such obligation or any security therefor,
or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (Y) to maintain the solvency or any balance
sheet item, level of income or financial condition of another if, in the
case of any agreement described under subclauses (X) or (Y) of this
sentence, the primary purpose or intent thereof is as described in the
preceding sentence. The amount of any Contingent Obligation shall be equal
to (A) the amount of the obligation so guaranteed or otherwise supported
or, if less, the amount to which such Contingent Obligation is specifically
limited (including netting of Interest Rate Agreements of Hedge Agreements)
or (B) if neither amount in clause (A) is stated or determinable, the
maximum reasonably anticipated liability in respect there of (assuming such
Person is required to perform) as determined by such Person in good faith.
Contingent Obligations shall not include standard contractual indemnities
entered into in the ordinary course of business.
"Continuing Director" shall mean, as of any date of determination, any
-------------------
member of the Board of Directors of Company who (i) was a member of such
Board of Directors on the Closing Date or (ii) was nominated for election
or elected to such Board of Directors with the affirmative vote (directly
or indirectly) of Bain and the Other Investors.
"Contractual Obligation" means, as applied to any Person, any
----------------------
provision of any material indenture, mortgage, deed of trust, contract,
undertaking or other material agreement or instrument to which such Person
is a party or to which such Person or any of its assets is subject.
"CSFB" means Credit Suisse First Boston.
----
"CSM" means Chartered Semiconductor Manufacturing LTD, a Singapore
---
company.
"CSM Deposit Agreements" means (i) the Deposit Agreement, dated
----------------------
November 8, 1995, and as amended though the Closing Date between Company
and CSM, and (ii) the Second Deposit Agreement, dated October 7, 1998, and
as amended through the Closing Date, between Company and CSM, in each case
as delivered to the Administrative Agent on or prior to the Closing Date,
and as the same may thereafter be amended, restated, supplemented or
otherwise modified from time to time to the extent permitted under
subsection 7.13A.
"CSM Deposits" means the aggregate deposits made by Company to CSM
------------
pursuant to the CSM Deposit Agreements.
"Default" means a condition or event that, after notice or after any
-------
applicable grace period has lapsed, or both, would constitute an Event of
Default.
-13-
"Defaulting Lender" means any Lender with respect to which a Lender
-----------------
Default is in effect.
"Deposit Account" means a demand, time, savings, passbook or like
---------------
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate
of deposit.
"Dollars" and the sign "$" mean the lawful money of the United States
------- -
of America.
"Domestic Subsidiary" means any Subsidiary of Company which is
-------------------
organized under the laws of the United States or any state thereof.
"Eligible Assignee" means (A) (i) a commercial bank organized under
-----------------
the laws of the United States or any state thereof; (ii) a commercial bank
organized under the laws of any other country or a political subdivision
thereof; provided that (x) such bank is acting through a branch or agency
--------
located in the United States or (y) such bank is organized under the laws
of a country that is a member of the Organization for Economic Cooperation
and Development or a political subdivision of such country; and (iii) any
other financial institution or entity which is an "accredited investor" (as
defined in Regulation D under the Securities Act) which extends credit or
buys loans as one of its businesses including, but not limited to,
insurance companies, mutual funds and lease financing companies; (B) any
Lender and any Affiliate of any Lender; provided that neither Company nor
--------
any Affiliate of Company shall be an Eligible Assignee (other than by
assignment within three weeks of the Closing Date to an investment fund
controlled by or under common control with Bain) and (C) an Approved Fund.
"Employee Benefit Plan" means any "employee benefit plan" as defined
---------------------
in Section 3(3) of ERISA which is subject to ERISA and which is maintained
or contributed to by Company or any of its ERISA Affiliates.
"Environmental Claim" means any written claim, action, or notice by
-------------------
any Person alleging potential liability (including, without limitation,
potential liability for investigatory costs, Cleanup costs, governmental
response costs, natural resources damages, property damages, personal
injuries, or penalties) arising out of, based on or resulting from (a) the
presence, or Release of any Hazardous Materials at any location owned,
leased or operated by Company or any of its Subsidiaries, or (b) any
violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state, local and foreign laws
------------------
and regulations relating to pollution or protection of the environment,
including, without limitation, laws relating to Releases or threatened
Releases of Hazardous Materials or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage,
-14-
Release, disposal, transport or handling of Hazardous Materials, laws and
regulations with regard to recordkeeping, notification, disclosure and
reporting requirements respecting Hazardous Materials and laws relating to
the management or use of natural resources.
"Environmental Liabilities" means all liabilities, obligations to
--------------------------
conduct Cleanup, and all Environmental Claims finally determined (by a
court or governmental agency) against any Loan Party or its Subsidiaries or
against any Person whose liability for any Environmental Claim any Loan
Party or its Subsidiaries may have retained or assumed contractually
arising from (a) the presence, Release or threatened Release of Hazardous
Materials at any location, whether or not owned, leased or operated by
Company or its Subsidiaries, or (b) any violation, or alleged violation, of
any Environmental Law.
"Equity Contribution" means, collectively, (i) the contribution by the
-------------------
Bain and the Other Investors to ICS Merger Corp. of cash in exchange for
all of the outstanding common stock of ICS Merger Corp. and (ii) the
rollover equity contribution (and related loans) by the Existing Investors,
all as contemplated by the Recapitalization Transactions in the aggregate
amount valued at not less than $50,000,000 fair value.
"Equity Proceeds" means the cash proceeds (net of underwriting
---------------
discounts and commissions and other costs and expenses (including legal
costs) associated therewith) from the issuance of any Capital Stock or
other equity Securities of, or the making of any capital contribution to,
Company or any of its Subsidiaries after the Closing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and any successor statute, and the regulations
promulgated and rulings issued thereunder.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation
---------------
which is a member of a controlled group of corporations within the meaning
of Section 414(b) of the Internal Revenue Code of which that Person is a
member; (ii) any trade or business (whether or not incorporated) which is a
member of a group of trades or businesses under common control within the
meaning of Section 414(c) of the Internal Revenue Code of which that Person
is a member; and (iii) solely for purposes of obligations under Section 412
of the Internal Revenue Code or under the applicable sections set forth in
Section 414(t)(2) of the Internal Revenue Code, any member of an affiliated
service group within the meaning of Section 414(m) or (o) of the Internal
Revenue Code of which that Person, any corporation described in clause (i)
above or any trade or business described in clause (ii) above is a member.
"ERISA Event" means (i) a "reportable event" within the meaning of
-----------
Section 4043(c) of ERISA and the regulations issued thereunder with respect
to any Pension Plan
-15-
(excluding those for which the provision for 30-day notice to the PBGC has
been waived by regulation or with respect to which no penalty will be
assessed by the PBGC for failure to satisfy such notice requirements); (ii)
the failure to meet the minimum funding standard of Section 412 of the
Internal Revenue Code with respect to any Pension Plan (whether or not
waived in accordance with Section 412(d) of the Internal Revenue Code) or
the failure to make by its due date a required installment under Section
412(m) of the Internal Revenue Code with respect to any Pension Plan or the
failure to make any required contribution to a Multiemployer Plan; (iii)
the provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a
distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company or any of its ERISA Affiliates from any Pension Plan
with two or more contributing sponsors or the termination of any such
Pension Plan resulting, in either case, in liability pursuant to Section
4063 or 4064 of ERISA, respectively; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan pursuant to Section 4042 of
ERISA; (vi) the imposition of liability on Company or any of its ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal by Company or
any of its ERISA Affiliates in a complete or partial withdrawal (within the
meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan
resulting in withdrawal liability pursuant to Section 4201 of ERISA, or the
receipt by Company or any of its ERISA Affiliates of written notice from
any Multiemployer Plan that it is in reorganization or insolvency pursuant
to Section 4241 or 4245 of ERISA, or that it intends to terminate or has
terminated under Section 4042 of ERISA or under Section 4041A of ERISA if
such termination would result in liability to Company or any of its ERISA
Affiliates; (viii) the imposition on Company or any of its ERISA Affiliates
of fines, penalties or taxes under Chapter 43 of the Internal Revenue Code
or under Section 409 or 502(c), (i) or (l) or 4071 of ERISA in respect of
any Employee Benefit Plan; (ix) the disqualification by the Internal
Revenue Service of any Pension Plan (or any other Employee Benefit Plan
intended to be qualified under Section 401(a) of the Internal Revenue Code)
under Section 401(a) of the Internal Revenue Code, or the determination by
the Internal Revenue Service that any trust forming part of any Pension
Plan fails to qualify for exemption from taxation under Section 501(a) of
the Internal Revenue Code; or (x) the imposition of a Lien pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to
ERISA with respect to any Pension Plan.
"Eurocurrency Reserve Requirements" means, for each Interest Period
---------------------------------
for each Eurodollar Rate Loan, the highest reserve percentage applicable to
any Lender during such Interest Period under regulations issued from time
to time by the Board of Governors of the Federal Reserve System or any
successor for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement), with respect to liabilities or assets consisting of or
including Eurocurrency liabilities having a term equal to such Interest
Period.
-16-
"Eurodollar Base Rate" means the rate per annum determined by the
--------------------
Administrative Agent at approximately 11:00 A.M. (London time) on the date
which is two (2) Business Days prior to the beginning of the relevant
Interest Period (as specified in the applicable Notice of Borrowing) by
reference to the British Bankers' Association Interest Settlement Rates for
deposits in Dollars (as set forth by any service selected by the
Administrative Agent which has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of
displaying such rates) for a period equal to such Interest Period; provided
--------
that, to the extent that an interest rate is not ascertainable pursuant to
the foregoing provisions of this definition, the "Eurodollar Base Rate"
shall be the interest rate per annum determined by the Administrative Agent
to be the average of the rates per annum at which deposits in Dollars are
offered for such relevant Interest Period to major banks in the London
interbank market in London, England by the Reference Lenders at
approximately 11:00 A.M. (London time) on the date which is two Business
Days prior to the beginning of such Interest Period. If any of the
Reference Lenders shall be unable or shall otherwise fail to supply such
rates to the Administrative Agent upon its request, the rate of interest
shall be determined on the basis of the quotations of the remaining
Reference Lender.
"Eurodollar Rate Loans" means Loans bearing interest at rates
---------------------
determined by reference to the Reserve Adjusted Eurodollar Rate as provided
in subsection 2.2A.
"Event of Default" means each of the events set forth in Section 8.
----------------
"Excess Proceeds Amount" means, initially, $0, which amount shall be
----------------------
(i) increased (a) on the date of delivery in any Fiscal Year of an
---------
Officer's Certificate setting forth the calculation of Consolidated Excess
Cash Flow for the preceding Fiscal Year pursuant to subsection 2.4B(iii)(e)
(each such date being an "Excess Cash Payment Date"), so long as any
------------------------
prepayment required pursuant to subsection 2.4B(iii)(e) has been made, by
an amount equal to the amount of such Consolidated Excess Cash Flow which
is not so prepaid, and (b) on the date of the receipt by Company of any
Equity Proceeds, so long as any prepayment required pursuant to subsection
2.4B(iii)(c) has been made, by an amount equal to such Equity Proceeds and
such other proceeds which are not so prepaid, and (ii) reduced (a) on each
-------
Excess Cash Payment Date where Consolidated Excess Cash Flow for the
immediately preceding Fiscal Year is a negative number, by such amount, (b)
at the time any Consolidated Capital Expenditures are made pursuant to
subsection 7.6D(ii), by the amount of such Consolidated Capital
Expenditure, (c) at the time any time a Permitted Acquisition is funded
pursuant to subsection 7.7(v)(Z) with an amount attributable to the Excess
Proceeds Amount, by the portion of the purchase price paid with the Excess
Proceeds Amount, and (d) at the time Investments are made pursuant to
subsection 7.3(xii), by the amount of such Investments in excess of
$5,000,000, it being understood that the Excess Proceeds Amount may be
reduced to an amount below $0 after giving effect to the reductions
enumerated in clause (ii)(a) above.
-17-
"Excess Subordinated Debt Amount" means that portion, if any, of the
-------------------------------
net proceeds of the Subordinated Debt in excess of $50,000,000.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, and any successor statute.
"Excluded Leased Asset" has the meaning assigned to that term in
---------------------
subsection 6.12C.
"Existing Credit Agreement" means that certain Revolving Credit
-------------------------
Agreement, dated as of June 5, 1995, and as amended through the Closing
Date, among Company, ICS Technologies, Inc. and Mellon Bank, N.A.
"Existing Investors" means certain existing shareholders, management
------------------
officers and employees of Company and other investors identified in
Schedule 1.1(ii) annexed hereto as Existing Investors.
----------------
"Facilities" means any and all real property (including, without
----------
limitation, all buildings, fixtures or other improvements located thereon)
now, hereafter or (for purposes of Section 5.13 only) heretofore owned,
leased, operated or used by Company or any of its Subsidiaries (but only as
to portions thereof actually owned, leased, operated or used) or any of
their respective predecessors or any of their respective Affiliates that
are directly or indirectly controlled by Company.
"Federal Funds Effective Rate" means, for any period, a fluctuating
----------------------------
interest rate equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by
the Administrative Agent.
"First Adjustment Date" means the date on which the financial
---------------------
statements for the Fiscal Quarter ending on the Saturday closest to June
30, 1999 are delivered as required pursuant to subsection 6.1(ii).
"First Priority" means, with respect to any Lien purported to be
--------------
created in any Collateral pursuant to any Collateral Document, that such
Lien is the most senior Lien (other than Permitted Encumbrances and other
Liens permitted pursuant to subsection 7.2A to the extent not perfected by
filing of any UCC financing statements) to which such Collateral is
subject.
-18-
"Fiscal Quarter" means a fiscal quarter of a Fiscal Year.
--------------
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
-----------
ending on the Saturday occurring closest to June 30 of each calendar year.
For purposes of this Agreement, any particular Fiscal Year shall be
designated by reference to the calendar year in which such Fiscal Year
ends.
"Flood Hazard Property" means a Mortgaged Property located in an area
---------------------
designated by the Federal Emergency Management Agency as having special
flood or mud slide hazards.
"Foreign Subsidiary" means any Subsidiary of Company other than a
------------------
Domestic Subsidiary.
"Funding and Payment Office" means the office of the Administrative
--------------------------
Agent located at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (or such office of
the Administrative Agent or any successor Administrative Agent specified by
the Administrative Agent or such successor Administrative Agent in a
written notice to the Loan Parties and the Lenders).
"Funding Date" means the date of the funding of a Loan, which, in the
------------
case of the Term Loans, shall be the Closing Date.
"GAAP" means, subject to the limitations on the application thereof
----
set forth in subsection 1.2, generally accepted accounting principles set
forth in opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession, in each case as the same are applicable to
the circumstances as of the date of determination and specifically, terms
used herein applicable to Company and its Subsidiaries defined by reference
to GAAP shall give effect to the subtraction of minority interests.
"Governmental Acts" has the meaning assigned to that term in
-----------------
subsection 3.5A.
"Governmental Authority" means any nation or government, any state or
----------------------
any political subdivision of any of the foregoing and any entity exercising
executive, legislative, judicial or regulatory functions of or pertaining
to government.
"Governmental Authorization" means any permit, license, authorization,
--------------------------
plan, directive, consent order or consent decree of or from any
Governmental Authority.
"Granting Bank" has the meaning assigned to that term in subsection
-------------
10.1F.
-19-
"Guaranty" means, individually, the Subsidiary Guaranty, or any other
--------
guaranty of the Obligations, and "Guaranties" means, collectively, the
----------
Subsidiary Guaranty, and each other guaranty of the Obligations.
"Guarantor" means, individually, the Subsidiary Guarantors, or any
---------
other guarantor of the Obligations, and "Guarantors" means, collectively,
----------
the Subsidiary Guarantors and each other guarantor of the Obligations.
"Hazardous Materials" means all substances defined as Hazardous
-------------------
Substances, Oils, Pollutants or Contaminants in the National Oil and
Hazardous Substances Pollution Contingency Plan, 40 C.F.R. (S) 300.5, or
defined as such by, or regulated as such under, any Environmental Law.
"Hedge Agreements" means all swaps, caps or collar agreements or
----------------
similar arrangements entered into by Company or any of its Subsidiaries
providing for protection against fluctuations in currency exchange rates or
the exchange of nominal interest obligations, either generally or under
specific contingencies.
"Immaterial Subsidiaries" means one or more Subsidiaries of Company,
-----------------------
designated in writing to the Administrative Agent from time to time;
provided, that, (x) the assets of all such designated Subsidiaries
--------
constitute, in the aggregate, less than or equal to 5% of the total assets
of Company and its Subsidiaries on a consolidated basis, (y) the revenues
of such designated Subsidiaries account for less than or equal to 5% of the
total revenues of Company and its Subsidiaries on a consolidated basis or
(z) all such designated Subsidiaries contribute, individually or in the
aggregate, less than or equal to 5% of Consolidated Adjusted EBITDA.
"Improvements" means all buildings, structures, fixtures, tenant
------------
improvements, and other improvements of any kind and description now or
hereafter located in or on or attached to any land that is a Real Property
Asset, including all building materials, water sanitary and storm sewers,
drainage, electricity, steam, gas, telephone and other utility, facilities,
parking areas, roads, driveways, walks and other site improvements; and all
additions and betterments thereto and all renewals, substitutions and
replacements thereof.
"Indebtedness" means, as applied to any Person, (i) all indebtedness
------------
for borrowed money, (ii) that portion of obligations with respect to
Capital Leases that is properly classified as a liability on a balance
sheet in conformity with GAAP, (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations
for borrowed money (other than current accounts payable incurred in the
ordinary course of business and accrued expenses incurred in the ordinary
course of business), (iv) any obligation owed for all or any part of the
deferred purchase price of property or services (excluding any such
obligations incurred under ERISA, any
-20-
obligation under employment or consulting agreements of Company or its
subsidiaries and current trade payables incurred in the ordinary course of
business) which obligation in accordance with GAAP would be shown as a
liability on the balance sheet of such Person, (v) all indebtedness created
or arising under any conditional sale or other title retention agreement
with respect to any property or assets acquired by such Person (unless the
rights and remedies of the seller or the lender under such agreement in the
event of default are limited to repossession or sale of such property or
assets), (vi) all obligations, contingent or otherwise, as an account party
under any Letter of Credit or under acceptance, letter of credit or similar
facilities to the extent not reflected as trade liabilities on the balance
sheet of such Person in accordance with GAAP, and (vii) all indebtedness
secured by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person. The
amount of Indebtedness which is non-recourse to the obligor thereunder or
to any other obligor and for which recourse is limited to an identified
asset or assets shall be equal to the lesser of (1) the stated amount of
such obligation and (2) the fair market value of such asset or assets.
Obligations under Interest Rate Agreements and Hedge Agreements constitute
(X) in the case of Hedge Agreements, Contingent Obligations, and (Y) in all
other cases, Investments, and in neither case constitute Indebtedness.
"Indemnitee" has the meaning assigned to that term in subsection 10.3.
----------
"Information Memorandum" means the Confidential Information Memorandum
----------------------
dated February 1999, that was used in connection with the syndication of
the credit facilities set forth herein.
"Initial Period" means the period commencing on and including the
--------------
Closing Date and ending on the earlier of (i) the date on which the Sole
Lead Arranger notifies Company that it has concluded its primary
syndication of the Loans and the Commitments, and (ii) thirty (30) days
after the Closing Date.
"Insurance Proceeds" has the meaning assigned to that term in
------------------
subsection 2.4B(iii)(d).
"Intellectual Property" has the meaning assigned to that term in
---------------------
subsection 5.5C.
"Interest Coverage Ratio" has the meaning assigned to that term in
-----------------------
subsection 7.6.
"Interest Payment Date" means (i) with respect to any Base Rate Loan,
---------------------
the last Business Day in each of March, June, September and December of
each year, commencing June, 1999, and (ii) with respect to any Eurodollar
Rate Loan, the last day
-21-
of each Interest Period applicable to such Loan; provided that in the case
--------
of each Interest Period of longer than three months, "Interest Payment
Date" shall also include the date that is three months or integral multiple
thereof after the commencement of such Interest Period.
"Interest Period" has the meaning assigned to that term in subsection
---------------
2.2B.
"Interest Rate Agreement" means any interest rate swap agreement,
-----------------------
interest rate cap agreement, interest rate collar agreement or other
similar agreement or arrangement designed to hedge Company or any of its
Subsidiaries against fluctuations in interest rates.
"Interest Rate Determination Date" means each date for calculating the
--------------------------------
Reserve Adjusted Eurodollar Rate, for purposes of determining the interest
rate in respect of an Interest Period. The Interest Rate Determination
Date for purposes of calculating the Reserve Adjusted Eurodollar Rate shall
be the second Business Day prior to the first day of the related Interest
Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended to the date hereof and from time to time hereafter and any
successor statute and the regulations promulgated by the Internal Revenue
Service thereunder.
"Investment" means (i) any direct or indirect purchase or other
----------
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, stock or other Securities of any other Person, (ii) any direct
or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
Company or any of its Subsidiaries to any other Person, including all
indebtedness and accounts receivable acquired from that other Person that
are not current assets or did not arise from sales to that other Person in
the ordinary course of business or (iii) Interest Rate Agreements;
provided, however, that the term "Investment" shall not include (a) current
-------- -------
trade and customer accounts receivable for goods furnished or services
rendered in the ordinary course of business and payable in accordance with
customary trade terms, (b) advances and prepayments to suppliers for goods
and services in the ordinary course of business, (c) stock or other
securities acquired in connection with the satisfaction or enforcement of
Indebtedness or claims due or owing to Company or any of its Subsidiaries
(whether in bankruptcy of customers or suppliers or otherwise) or as
security for any such Indebtedness or claims, (d) Cash, and (e) deposits to
secure the performance of leases. The amount of any Investment shall be
the original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment
"Investors" means Xxxx, the Other Investors and the Existing
---------
Investors.
-22-
"IP Collateral" has the meaning assigned to the term "Intellectual
-------------
Property Collateral" in the Security Agreement.
"Issuing Bank" means, with respect to any Letter of Credit, CSFB, in
------------
its capacity as issuer of Letters of Credit, and, any other Lender that is
a New York based commercial bank, reasonably acceptable to Company, having
a Letter of Credit Subfacility Commitment.
"Landlord Consent and Estoppel" means, with respect to any Leasehold
-----------------------------
Property, a letter, certificate or other instrument in writing from the
lessor under the related lease, in form and substance reasonably acceptable
to the Collateral Agent and containing the provisions set forth on Exhibit
-------
XVII hereto.
-----------
"Leasehold Property" means any leasehold interest of any Loan Party as
------------------
lessee under any lease of real property, other than any such leasehold
interest designated from time to time by the Collateral Agent in its
reasonable discretion as not being required to be included in the
Collateral.
"Lender" and "Lenders" means the Persons identified as "Lenders" and
------ -------
listed on the signature pages of this Agreement, together with their
successors and permitted assigns pursuant to subsection 10.1, and the term
"Lenders" shall include the Swing Line Lender unless the context otherwise
requires; provided that the term "Lenders", when used in the context of a
--------
particular Commitment, shall mean the Lenders having that Commitment.
"Lender Default" means (i) the refusal (which has not been retracted)
--------------
of a Lender to make available its portion of any Loans (including any
Revolving Loans made to pay Refunded Swing Line Loans or to reimburse
drawings under Letters of Credit) in accordance with subsection 2.1A or its
portion of any unreimbursed drawing or payment under a Letter of Credit in
accordance with subsection 3.3C or (ii) a Lender having notified Company
and/or the Administrative Agent in writing that it does not intend to
comply with its obligations under subsection 2.1 or subsections 3.1C, 3.3B
or 3.3C.
"Lending Office" means, as to any Lender, the office or offices of
--------------
such Lender specified as the "Lending Office" on Schedule 2.1, or such
------------
other office or offices as such Lender may from time to time notify Company
and the Administrative Agent.
"Letter of Credit" or "Letters of Credit" means Commercial Letters of
---------------- -----------------
Credit and Standby Letters of Credit issued or to be issued by the Issuing
Bank for the account of Company or any Subsidiary Guarantor that is a
Domestic Subsidiary pursuant to subsection 3.1.
-23-
"Letter of Credit Issuing Office" means, as to any Issuing Bank, the
-------------------------------
address from time to time specified by such Issuing Bank to Company and the
Administrative Agent as its letter of credit issuing office. The initial
"Letter of Credit Issuing Office" for CSFB shall be 5 World Xxxxx Xxxxxx,
0/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
"Letter of Credit Subfacility Commitment" means, with respect to any
---------------------------------------
Issuing Bank at any time, the commitment of such Issuing Bank to issue
Letters of Credit pursuant to subsection 3.1A; provided, that the aggregate
--------
amount the Letter Credit Subfacility Commitments shall in no event exceed
$15,000,000; provided, further, that any reduction in the Revolving Loan
-------- -------
Commitments to a level that is below the then aggregate amount of the
Letter of Credit Subfacility Commitments shall result in the pro rata
reduction of the aggregate Letter of Credit Subfacility Commitments pro
rata to each Issuing Bank.
"Letter of Credit Usage" means, as at any date of determination, the
----------------------
sum of (i) the maximum aggregate amount which is or at any time thereafter
may become available for drawing under all Letters of Credit then
outstanding plus (ii) the aggregate amount of all drawings under Letters of
----
Credit honored by the Issuing Bank and not theretofore reimbursed by
Company (including any such reimbursement out of the proceeds of Revolving
Loans pursuant to subsection 3.3B).
"Leverage Ratio" has the meaning assigned to that term in subsection
--------------
7.6.
"Lien" means any lien, mortgage, pledge, assignment, security
----
interest, fixed or floating charge or encumbrance of any kind (including
any conditional sale or other title retention agreement, any lease in the
nature thereof, and any agreement to give any security interest) and any
option, trust or deposit or other preferential arrangement having the
practical effect of any of the foregoing.
"Loan" or "Loans" means, as the context requires, one or more of the
---- -----
Term Loans, Revolving Loans, Swing Line Loans or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of
--------------
Credit (and any applications for, or reimbursement agreements or other
documents or certificates executed by Company in favor of the Issuing Bank
relating to, the Letters of Credit), the Guaranties and the Collateral
Documents.
"Loan Parties" means Company and each Subsidiary Guarantor.
------------
"Margin Stock" has the meaning assigned to that term in Regulation U
------------
of the Board of Governors of the Federal Reserve System as in effect from
time to time.
-24-
"Material Adverse Effect" means a material adverse effect upon (i) the
-----------------------
business, results of operations, financial condition or prospects of
Company and its Subsidiaries, taken as a whole, or (ii) the ability of (a)
any Loan Party (other than Immaterial Subsidiaries) to fully and timely
perform the Obligations or (b) the Administrative Agent, Collateral Agent
or Lenders to enforce the Obligations.
"Material Contracts" means any indenture, mortgage, deed of trust,
------------------
contract, undertaking, agreement or other instrument to which Company or
any of its Subsidiaries is a party for which breach, nonperformance,
cancellation or failure to renew would reasonably be expected to have a
Material Adverse Effect.
"Merger Agreement" means the Agreement and Plan of Merger, as in
----------------
effect on the Closing Date, entered into between Merger Corp and Company,
that is in the form delivered to the Administrative Agent on or prior to
the Closing Date, as the same may thereafter be amended, restated,
supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.11A.
"Merger Corp" means ICS Merger Corp., a Pennsylvania corporation.
-----------
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Mortgage" means (i) a security instrument (whether designated as a
--------
deed of trust or a mortgage or by any similar title) executed and delivered
by any Loan Party, substantially in the form of Exhibit XV annexed hereto
----------
(in the case of any security instrument in respect of Leasehold Property,
with such changes as shall be appropriate to reflect a security interest in
Leasehold Property) or in such other form as may be approved by the
Collateral Agent in its reasonable discretion, in each case with such
changes thereto as may be reasonably recommended by the Collateral Agent's
local counsel based on local laws or customary local mortgage or deed of
trust practices, or (ii) at the Collateral Agent's option, in the case of
an Additional Mortgaged Property, an amendment to an existing Mortgage, in
form reasonably satisfactory to the Collateral Agent, adding such
Additional Mortgaged Property to the assets encumbered by such existing
Mortgage, in either case as such security instrument or amendment may
heretofore have been or hereafter may be amended, supplemented or otherwise
modified from time to time. "Mortgages" means all such instruments,
---------
including the Closing Date Mortgages and any Additional Mortgages,
collectively.
"Multiemployer Plan" means a "multiemployer plan", as defined in
------------------
Section 4001(a)(3) of ERISA which is subject to Title IV of ERISA, to which
Company or any of its ERISA Affiliates is contributing or to which Company
or any of its ERISA Affiliates has an obligation to contribute.
-25-
"Net Cash Proceeds" means, with respect to any Asset Sale, Cash
-----------------
Proceeds of such Asset Sale net of costs of sale including, without
limitation, (i) income taxes estimated to be payable as a result of such
Asset Sale within two years of the date of receipt of such Cash Proceeds,
(ii) transfer, sales, use and other taxes payable in connection with such
Asset Sale, (iii) payment of the outstanding principal amount of, premium
or penalty, if any, and interest on any Indebtedness (other than the Loans)
that is secured by a Lien on the stock or assets in question and that is
required to be repaid under the terms thereof as a result of such Asset
Sale, and (iv) financial advisor's commissions and fees and expenses of
counsel and other advisors in connection with such Asset Sale.
"Non-Defaulting Lender" means and includes each Lender other than a
---------------------
Defaulting Lender.
"Non-US Lender" has the meaning assigned to that term in subsection
-------------
2.7B(iii).
"Notes" means one or more of the Term Notes, Revolving Notes, Swing
-----
Line Notes or any combination thereof.
"Notice of Borrowing" means a notice in the form of Exhibit I annexed
------------------- ---------
hereto delivered by Company to the Administrative Agent pursuant to
subsection 2.1B with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially in
---------------------------------
the form of Exhibit II annexed hereto delivered by Company to the
----------
Administrative Agent pursuant to subsection 2.2D with respect to a proposed
conversion or continuation of the applicable basis for determining the
interest rate with respect to the Loans specified therein.
"Notice of Issuance of Letter of Credit" means a notice in the form of
--------------------------------------
Exhibit III annexed hereto delivered by Company to the Administrative Agent
-----------
pursuant to subsection 3.1B(i) with respect to the proposed issuance of a
Letter of Credit.
"Obligations" means all obligations of every nature of each Loan Party
-----------
from time to time owed to the Agents, the Lenders or any of them or their
respective Affiliates under the Loan Documents, whether for principal,
interest, reimbursement of amounts drawn under Letters of Credit or
payments for early termination of Interest Rate Agreements, fees, expenses,
indemnification or otherwise.
"Officer's Certificate" means, with respect to any Person, a
---------------------
certificate executed on behalf of such Person (x) if such Person is a
partnership or limited liability company, by its chairman of the Board (if
an officer) or chief executive officer or by the chief financial officer or
treasurer of its general partner or managing member or other Person
authorized to do so by its Organizational Documents, (y) if such Person is
a corporation,
-26-
on behalf of such corporation by its chairman of the board (if an officer)
or chief executive officer or its chief financial officer or vice president
or treasurer, and (z) if such person is Company or a Subsidiary of Company,
a Responsible Officer; provided that every Officer's Certificate with
--------
respect to the compliance with a condition precedent to the making of any
Loans hereunder shall include (i) a statement that the officer or officers
making or giving such Officer's Certificate have read such condition and
any definitions or other provisions contained in this Agreement relating
thereto, (ii) a statement that, in the opinion of the signer or signers,
they have made or have caused to be made such examination or investigation
as is necessary to enable them to express an informed opinion as to whether
or not such condition has been complied with, and (iii) a statement as to
whether, in the opinion of the signer or signers, such condition has been
complied with.
"Operating Lease" means, as applied to any Person, any lease
---------------
(including, without limitation, leases that may be terminated by the lessee
at any time) of any property (whether real, personal or mixed) that is not
a Capital Lease other than any such lease under which that Person is the
lessor.
"Organizational Authorizations" means, with respect to any Person,
-----------------------------
resolutions of its Board of Directors, general partners or members of such
Person, and such other Persons, groups or committees (including, without
limitation, managers and managing committees), if any, required by the
Organizational Certificate or Organization Documents of such Person to
authorize or approve the taking of any action or the entering into of any
transaction.
"Organizational Certificate" means, with respect to any Person, the
--------------------------
certificate or articles of incorporation, partnership or limited liability
company or any other similar or equivalent organizational, charter or
constitutional certificate or document filed with the applicable
Governmental Authority in the jurisdiction of its incorporation,
organization or formation.
"Organizational Documents" means, with respect to any Person, the by-
------------------------
laws, partnership agreement, limited liability company agreement, operating
agreement, management agreement or other similar or equivalent
organizational, charter or constitutional agreement or arrangement.
"Other Investors" means certain persons identified on Schedule
--------------- --------
1.1(iii) annexed hereto as Other Investors.
--------
"PBGC" means the Pension Benefit Guaranty Corporation established
----
pursuant to Section 4002 of ERISA (or any successor thereto).
-27-
"Pension Plan" means any Employee Benefit Plan, other than a
------------
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue
Code or Section 302 of ERISA.
"Permitted Acquisitions" means an acquisition made pursuant to
----------------------
subsection 7.7(v).
"Permitted Encumbrances" means the following types of Liens:
----------------------
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by subsection
6.3;
(ii) statutory Liens of landlords, statutory Liens of banks and
rights of setoff, statutory Liens of carriers, warehousemen, mechanics and
materialmen and other Liens imposed by law (other than any such Lien
imposed pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue
Code or by ERISA) incurred in the ordinary course of business for sums not
yet delinquent or being contested in good faith pursuant to appropriate
proceedings, if such reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made therefor;
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the performance
of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive, in each case, of
obligations for the payment of borrowed money or other Indebtedness);
(iv) any attachment or judgment Lien not constituting an Event of
Default under subsection 8.8;
(v) leases or subleases granted to others (in the ordinary course
of business consistent with past practices) not interfering in any material
respect with the ordinary conduct of the business or operations of Company
or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, minor defects,
encroachments or irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the ordinary
conduct of the business of Company or any of its Subsidiaries and
encumbrances set forth on the title reports delivered to the Administrative
Agent;
-28-
(vii) Any (a) interest or title of a lessor or sublessor
under any Capital Lease permitted by subsection 7.1(v) or any operating
lease not prohibited by this Agreement, (b) restriction or encumbrance that
the interest or title of such lessor or sublessor may be subject to, or (c)
subordination of the interest of the lessee or sublessee under such lease
to any restriction or encumbrance referred to in the preceding clause (b);
(viii) Liens arising from filing UCC financing statements
relating solely to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with the
importation of goods;
(x) Deposits in the ordinary course of business to secure
liabilities to insurance carriers, lessors, utilities and other service
providers;
(xi) Bankers liens and rights of setoff with respect to customary
depository arrangements entered into in the ordinary course of business;
(x) Any zoning or similar law or right reserved to or vested in
any governmental office or agency to control or regulate the use of
any real property; and
(xii) Licenses of patents, trademarks and other intellectual
property rights granted by Company or any of its Subsidiaries in the
ordinary course of business and not interfering in any material
respect with the ordinary conduct of the business of Company or such
Subsidiary.
"Permitted Seller Paper" means any unsecured Indebtedness of Company
----------------------
or its Subsidiaries that is not guaranteed by any Subsidiary and that is
incurred in connection with any acquisition consummated in accordance with
the provisions of subsection 7.7(v) and payable to the seller in connection
therewith and containing the subordination provisions set forth on Exhibit
-------
XVI hereto.
----------
"Person" means and includes natural persons, corporations, limited
------
partnerships, limited liability companies, general partnerships, joint
stock companies, joint ventures, associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations,
whether or not legal entities, and governments and agencies and political
subdivisions thereof and any other entities of whatever nature.
"Pledge Agreement" means that certain Pledge Agreement entered into by
----------------
and among Company, the Subsidiary Guarantors and the Collateral Agent as of
the Closing
-29-
Date, or pursuant to subsection 6.9, substantially in the form of
Exhibit VII annexed hereto, as such Pledge Agreement may hereafter be
-----------
amended, restated, supplemented or otherwise modified from time to time.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by CSFB as its prime commercial lending rate in effect at
its principal office in New York City. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate actually charged
to any customer. CSFB or any other Lender may make commercial loans or
other loans at rates of interest at, above or below the Prime Rate.
"Pro Forma Basis" means, with respect to compliance with any test or
---------------
covenant hereunder, compliance with such covenant or test after giving
effect to any proposed acquisition or other action which requires
compliance on a pro forma basis (including pro forma adjustments arising
out of events which are directly attributable to a specific transaction,
are factually supportable and are expected to have a continuing impact, in
each case determined on a basis consistent with Article 11 of Regulation S-
X of the Securities Act and as interpreted by the Staff of the Securities
and Exchange Commission which (to the extent consistent therewith) may
include cost savings resulting from head count reductions, closure of
facilities and similar restructuring charges or integration activities or
other adjustments certified by a financial officer of Company, together
with such other pro forma adjustments as may be reasonably acceptable to
the Administrative Agent) using, for purposes of determining such
compliance, the historical financial statements of all entities or assets
so acquired or to be acquired and the consolidated financial statements of
Company and its Subsidiaries which shall be reformulated as if such
acquisition or other action, and any other acquisitions which have been
consummated during the period, and any Indebtedness or other liabilities
incurred in connection with any such acquisition had been consummated at
the beginning of such period and assuming that such Indebtedness bears
interest during any portion of the applicable measurement period prior to
the relevant acquisition at the weighted average of the interest rates
applicable to outstanding Loans during such period, and otherwise in
conformity with such procedures as may be agreed upon between the
Administrative Agent and Company, all such calculations to be in form and
substance reasonably satisfactory to the Administrative Agent.
"Pro Forma Compliance" means, at any date of determination, Company
--------------------
shall be in pro forma compliance with the covenants set forth in
--- -----
subsections 7.6A, B, C and D as of the last day of the most recent Fiscal
Quarter end (computed on the basis of (i) balance sheet amounts as of the
most recently completed Fiscal Quarter, and (ii) income statement amounts
for the most recently completed period of four consecutive Fiscal Quarters,
in each case, for which financial statements shall have been delivered to
the Administrative Agent and calculated on a Pro Forma Basis in respect of
the event giving
-30-
rise to such determination), and Company shall have demonstrated such
compliance to the reasonable satisfaction of the Administrative Agent.
"Pro Rata Share" means (i) with respect to all payments, computations
--------------
and other matters relating to the Term A Loan Commitment or the Term A
Loans of any Lender, the percentage obtained by dividing (x) the Term A
--------
Loan Exposure of that Lender by (y) the aggregate Term A Loan Exposure of
--
all the Lenders; (ii) with respect to all payments, computations and other
matters relating to the Term B Loan Commitment or the Term B Loans of any
Lender, the percentage obtained by dividing (x) the Term B Loan Exposure of
--------
that Lender by (y) the aggregate Term B Loan Exposure of all the Lenders;
--
(iii) with respect to all payments, computations and other matters relating
to the Revolving Loan Commitment or the Revolving Loans of any Lender or
any Letters of Credit issued by any Lender or any participations purchased
by any Lender therein or in any Swing Line Loans, the percentage obtained
by dividing (x) the Revolving Loan Exposure of that Lender by (y) the
-------- --
aggregate Revolving Loan Exposure of all the Lenders; and (iv) for all
other purposes with respect to each Lender, the percentage obtained by
dividing (x) the sum of the Term Loan Exposure of that Lender and the
--------
Revolving Loan Exposure of that Lender by (y) the sum of the aggregate Term
--
Loan Exposure of all the Lenders and the aggregate Revolving Loan Exposure
of all the Lenders; in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 10.1. The initial
Pro Rata Share of each Lender for purposes of each of clauses (i), (ii) and
(iii) of the preceding sentence is set forth opposite the name of that
Lender in Schedule 2.1 annexed hereto.
------------
"Projections" has the meaning assigned to that term in subsection
-----------
5.3B.
"PTO" means the United States Patent and Trademark Office.
---
"Real Property Asset" means, at any time of determination, any
-------------------
interest (fee, leasehold or otherwise) then owned by any Loan Party in any
real property.
"Recapitalization Transactions" means the transactions contemplated by
-----------------------------
the Merger Agreement, the repayment of Indebtedness under the Existing
Credit Agreement and the payment of Transaction Costs , in each case
occurring on or about the Closing Date.
"Recovery Event" has the meaning assigned to that term in subsection
--------------
2.4B(iii)(d).
"Reference Lenders" means (i) CSFB and (ii) another Lender determined
-----------------
by the Administrative Agent with the consent of Company.
-31-
"Refunded Swing Line Loans" has the meaning assigned to that term in
-------------------------
subsection 2.1A(iv).
"Register" has the meaning assigned to that term in subsection 2.1D.
--------
"Regulation D" means Regulation D of the Board of Governors of the
------------
Federal Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in
------------------
subsection 3.3B.
"Reinvestment Assets" means, in the case of any Reinvestment Event,
-------------------
any assets which are either (i) in replacement of the assets subject to the
Reinvestment Event, or (ii) long term assets (including Capital Stock)
useful in the business of Company or its Subsidiary whose assets were
subject to the Reinvestment Event.
"Reinvestment Deferred Amount" means, with respect to any Reinvestment
----------------------------
Event, the aggregate Net Cash Proceeds, Insurance Proceeds or Condemnation
Proceeds, as the case may be, received by Company or any of its
Subsidiaries in connection therewith which are not applied to prepay the
Loans (and/or reduce the Revolving Loan Commitments) in accordance with
subsection 2.4B(iii)(a) or (d) as a result of the delivery of a
Reinvestment Notice.
"Reinvestment Event" means any Asset Sale or Recovery Event in respect
------------------
of which Company has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a Responsible
-------------------
Officer stating that no Default or Event of Default has occurred and is
continuing and that Company (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net Cash
Proceeds, Insurance Proceeds or Condemnation Proceeds, as the case may be,
of an Asset Sale or Recovery Event to acquire Reinvestment Assets within
three hundred sixty five (365) days of the receipt of such Net Cash
Proceeds, Insurance Proceeds or Condemnation Proceeds, as the case may be.
"Reinvestment Prepayment Amount" means, with respect to any
------------------------------
Reinvestment Event, the Reinvestment Deferred Amount, if any, relating
thereto less any amount expended prior to the relevant Reinvestment
Prepayment Date to acquire Reinvestment Assets.
"Reinvestment Prepayment Date" means, with respect to any Reinvestment
----------------------------
Event, the earlier of (a) the date occurring three hundred sixty five (365)
days after such Reinvestment Event and (b) the date on which Company shall
have determined not to, or
-32-
shall have otherwise ceased to, acquire Reinvestment Assets with all or any
portion of the relevant Reinvestment Deferred Amount.
"Release" means any release, spill, emission, leaking, pumping,
-------
pouring, injection, escaping, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Materials into the environment.
"Requisite Class Lenders" means, at any time of determination (i) for
-----------------------
the Class of the Lenders having Term A Loan Exposure, Non-Defaulting
Lenders having or holding more than 50% of the aggregate Term A Loan
Exposure of all Non-Defaulting Lenders, (ii) for the Class of Lenders
having Term B Loan Exposure, Non-Defaulting Lenders having or holding more
than 50% of the aggregate Term B Loan Exposure of all Non-Defaulting
Lenders, and (iii) for the Class of Lenders having Revolving Loan Exposure,
Non-Defaulting Lenders having or holding more than 50% of the aggregate
Revolving Loan Exposure of all Non-Defaulting Lenders.
"Requisite Lenders" means Non-Defaulting Lenders having or holding
-----------------
more than 50% of the sum of the aggregate Term Loan Exposure of all Non-
Defaulting Lenders and the aggregate Revolving Loan Exposure of all Non-
Defaulting Lenders.
"Reserve Adjusted Eurodollar Rate" means, with respect to each day
--------------------------------
during each Interest Period pertaining to a Eurodollar Rate Loan, a rate
per annum determined for such day in accordance with the following formula:
Eurodollar Base Rate
---------------------------------
1.00 - Eurocurrency Reserve Requirements
"Responsible Officer" means the chairman of the board of directors (if
-------------------
an officer) chief executive officer, president, executive vice president,
general counsel, chief financial officer, assistant treasurer, assistant
secretary, principal financial or accounting officer or the secretary of
Company, or as applicable, Subsidiary of Company or other officer
designated by the board of Company of any of its Subsidiaries but, in any
event, with respect to financial reporting matters, the chief executive
officer or chief financial officer of Company.
"Restricted Payment" means (i) any dividend or other distribution,
------------------
direct or indirect, on account of any shares of any class of stock (or of
any other Capital Stock) of Company or any of its Subsidiaries now or
hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of stock (or of
any other Capital Stock) of Company or any of its Subsidiaries now or
hereafter outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other
-33-
rights to acquire shares of any class of stock (or of any other Capital
Stock) of Company or any of its Subsidiaries now or hereafter outstanding,
and (iv) any payment or prepayment of principal of, premium, if any, or
interest on, or redemption, purchase, retirement, defeasance (including in
substance or legal defeasance), sinking fund or similar payment with
respect to, Subordinated Debt.
"Revolving Loan Commitment" means the commitment of a Lender to make
-------------------------
Revolving Loans to Company pursuant to subsection 2.1A(iii), and "Revolving
---------
Loan Commitments" means such commitments of all Lenders in the aggregate.
----------------
"Revolving Loan Commitment Termination Date" means the fifth
------------------------------------------
Anniversary of the Closing Date.
"Revolving Loan Exposure" means, with respect to any Lender as of any
-----------------------
date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that Lender plus (b)
----
in the event that Lender is an Issuing Bank, the aggregate Letter of Credit
Usage in respect of all Letters of Credit issued by that Lender (net of any
participations purchased by other Lenders in such Letters of Credit) plus
----
(c) the aggregate amount of all participations purchased by that Lender in
any outstanding Letters of Credit or any unreimbursed drawings under any
Letters of Credit plus (d) the aggregate amount of all participations
----
purchased by that Lender in any outstanding Swing Line Loans plus (e) in
----
the case of the Swing Line Lender, the sum of the aggregate outstanding
principal amount of all Swing Line Loans (in each case net of any
participations therein purchased by other Lenders).
"Revolving Loans" means the Loans made by the Lenders to Company
---------------
pursuant to subsection 2.1A(iii).
"Revolving Notes" means (i) the promissory notes of Company issued
---------------
pursuant to subsection 2.1E(iii) on the Closing Date and (ii) any
promissory notes issued by Company pursuant to the last sentence of
subsection 10.1B(i) in connection with assignments of the Revolving Loan
Commitment and Revolving Loans of any Lender, in each case substantially in
the form of Exhibit V-A annexed hereto, as they may be amended, restated,
-----------
supplemented or otherwise modified from time to time.
"S&P" means Standard & Poor's, a division of the XxXxxx-Xxxx
---
Companies, Inc.
"Securities" means any stock, shares, partnership interests, voting
----------
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds,
debentures, notes, or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general
-34-
any instruments commonly known as "securities" or any certificates of
interest, shares or participations in temporary or interim certificates for
the purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing.
"Security Agreement" means the Security Agreement entered into by and
------------------
among Company, the Subsidiary Guarantors and the Collateral Agent on and as
of the Closing Date, or pursuant to subsection 6.9, substantially in the
form of Exhibit VIII annexed hereto, as such Security Agreement may
------------
hereafter be amended, restated, supplemented or otherwise modified from
time to time.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, and any successor statute.
"Shareholders Agreement" means that certain Shareholders Agreement to
----------------------
be entered into on or prior to the Closing Date by and among Company and
certain shareholders of Company which Shareholders Agreement shall be in
the form delivered to the Administrative Agent on or prior to the Closing
Date and as such Shareholders Agreement may hereafter be amended, restated,
supplemented or otherwise modified from time to time to the extent
permitted under subsection 7.11A.
"Sole Lead Arranger" has the meaning assigned to that term in the
------------------
Preamble to this Agreement.
"Solvent" means, with respect to any Person, that as of the date of
-------
determination both (i) (a) the then fair saleable value of the property
sold as a going concern of such Person is (y) greater than the total amount
of liabilities (including contingent liabilities but excluding amounts
payable under intercompany promissory notes) of such Person and (z) not
less than the amount that will be required to pay the probable liabilities
on such Person's then existing debts as they become absolute and matured
considering all financing alternatives and potential asset sales reasonably
available to such Person; (b) such Person's capital is not unreasonably
small in relation to its business or any contemplated or undertaken
transaction; and (c) such Person does not intend to incur, or believe that
it will incur, debts beyond its ability to pay such debts as they become
due; and (ii) such Person is "solvent" within the meaning given that term
and similar terms under applicable laws relating to fraudulent transfers
and conveyances. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in
light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"SPC" has the meaning assigned to that term in subsection 10.1F.
---
"Standby Letter of Credit" means any standby letter of credit or
------------------------
similar instrument, issued for the purpose of supporting obligations of
Company and its
-35-
Subsidiaries incurred or arising in the ordinary course of business;
provided that Standby Letters of Credit may not be issued for the purpose
--------
of supporting trade payables.
"Subordinated Debt" means subordinated, unsecured Indebtedness of
-----------------
Company evidenced by the Subordinated Debt Documents and issued on the
Closing Date (and any Indebtedness issued in exchange for such Indebtedness
as contemplated by the Subordinated Debt Documents) in any aggregate
principal amount of not less than $47,500,000.
"Subordinated Debt Documents" means the documents pursuant to which
---------------------------
the Subordinated Debt is issued (or exchanged) in the form delivered to
Administrative Agent and Lenders on or prior to the Closing Date, as such
documents may be amended, restated, supplemented or otherwise modified from
time to time to the extent permitted under Subsection 7.11A.
"Subsidiary" means, with respect to any Person, any corporation,
----------
partnership, association, joint venture or other business entity of which
more than 50% of the total voting power of shares of stock or other
ownership interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar
functions) having the power to direct or cause the direction of the
management and policies thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
"Subsidiary Guarantor" means any Subsidiary of Company that is a party
--------------------
to the Subsidiary Guaranty on the Closing Date (which shall be each
Domestic Subsidiary existing as of the Closing Date) or at any time after
the Closing Date pursuant to subsection 6.9.
"Subsidiary Guaranty" means the Subsidiary Guaranty, substantially in
-------------------
the form of Exhibit VI annexed hereto, executed and delivered by the
----------
Subsidiary Guarantors as of the Closing Date or by any additional
Subsidiary Guarantor from time to time thereafter pursuant to subsection
6.9, as such Subsidiary Guaranty may heretofore have been or hereafter may
be amended, restated, supplemented or otherwise modified from time to time.
"Swing Line Lender" means CSFB, or any Person serving as a successor
-----------------
Administrative Agent hereunder, in its capacity as Swing Line Lender
hereunder.
"Swing Line Loan Commitment" means the commitment of the Swing Line
--------------------------
Lender to make Swing Line Loans to Company pursuant to subsection 2.1A(iv).
-36-
"Swing Line Loans" means the Loans made by the Swing Line Lender
----------------
pursuant to subsection 2.1A(iv).
"Swing Line Note" means (i) the promissory note of Company issued
---------------
pursuant to subsection 2.1E(iv) on the Closing Date and (ii) any promissory
note issued by Company to any successor Swing Line Lender pursuant to the
last sentence of subsection 9.5B, in each case substantially in the form of
Exhibit V-B annexed hereto, as it may be amended, restated, supplemented or
-----------
otherwise modified from time to time.
"Systems" has the meaning assigned to that term in the definition of
-------
Year 2000 Problems.
"Tax" or "Taxes" means any present or future tax, levy, impost, duty,
--- -----
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld
or assessed; provided that "Tax on the overall net income" of a Person
-------- -----------------------------
shall be construed as a reference to a tax on all or part of the net
income, profits or gains of that Person (whether worldwide, or only insofar
as such income, profits or gains are considered to arise in or to relate to
a particular jurisdiction, or otherwise) including a franchise tax imposed
in lieu of a net income tax.
"Term A Loan Commitment" means the commitment of a Lender to make a
----------------------
Term A Loan to Company pursuant to subsection 2.1A(i), and "Term A Loan
-----------
Commitments" means such commitments of all Lenders in the aggregate.
-----------
"Term A Loan Exposure" means, with respect to any Lender, as of any
--------------------
date of determination (i) prior to the funding of the Term A Loans, that
Lender's Term A Loan Commitment and (ii) after the funding of the Term A
Loans, the outstanding principal amount of the Term A Loan of that Lender.
"Term A Loans" means the Loans made by the Lenders pursuant to
------------
subsection 2.1A(i).
"Term A Notes" means (i) the promissory notes of Company issued
------------
pursuant to subsection 2.1E(i) on the Closing Date and (ii) any promissory
notes issued by Company pursuant to the last sentence of subsection
10.1B(i) in connection with assignments of the Term A Loans of any Lender,
in each case substantially in the form of Exhibit IV-A annexed hereto, as
------------
they may be amended, restated, supplemented or otherwise modified from time
to time.
"Term B Loan Commitment" means the commitment of a Lender to make a
----------------------
Term B Loan to Company pursuant to subsection 2.1A(ii), and "Term B Loan
-----------
Commitments" means such commitments of all Lenders in the aggregate.
-----------
-37-
"Term B Loan Exposure" means, with respect to any Lender, as of any
--------------------
date of determination (i) prior to the funding of the Term B Loans, that
Lender's Term B Loan Commitment and (ii) after the funding of the Term B
Loans, the outstanding principal amount of the Term B Loan of that Lender.
"Term B Loans" means the Loans made by the Lenders pursuant to
------------
subsection 2.1A(ii).
"Term B Notes" means (i) the promissory notes of Company issued
------------
pursuant to subsection 2.1E(ii) on the Closing Date and (ii) any promissory
notes issued by Company pursuant to the last sentence of subsection
10.1B(i) in connection with assignments of the Term B Loans of any Lender,
in each case substantially in the form of Exhibit IV-B annexed hereto, as
------------
they may be amended, restated, supplemented or otherwise modified from time
to time.
"Term Loan Commitment" means the Term A Loan Commitment or the Term B
--------------------
Loan Commitment of a Lender, and "Term Loan Commitments" means such
commitments of all Lenders in the aggregate.
"Term Loan Exposure" means, with respect to any Lender as of any date
------------------
of determination, the aggregate Term A Loan Exposure and Term B Loan
Exposure of that Lender.
"Term Loans" means the Term A Loans and the Term B Loans.
----------
"Term Notes" means the Term A Notes and the Term B Notes.
----------
"Total Utilization of Revolving Loan Commitments" means, as at any
-----------------------------------------------
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the
purpose of repaying any Refunded Swing Line Loans or reimbursing the
applicable Issuing Bank for any amount drawn under any Letter of Credit but
not yet so applied) plus (ii) the aggregate principal amount of all
----
outstanding Swing Line Loans plus (iii) the Letter of Credit Usage.
----
"Transaction Costs" means the fees, costs and expenses payable by
-----------------
Company and its Subsidiaries in connection with the transactions
contemplated by the Transaction Documents including, without limitation,
amounts payable to the Agents and the Lenders.
"Transaction Documents" means, collectively, (i) any documentation
---------------------
related to the Equity Contribution, (ii) the Merger Agreement, (iii) the
Shareholders Agreement, (iv) the Xxxx Advisory Services Agreement, (v) the
Subordinated Debt Documents, (vi) the Subordinated Debt, and (vii) and any
and all other documents, agreements,
-38-
instruments and arrangements related to or in connection with the
Recapitalization Transactions.
"Unfunded Current Liability" means, with respect to any Pension Plan,
--------------------------
the amount, if any, by which the actuarial present value of the accumulated
plan benefits under such Pension Plan as of the close of its most recent
plan year exceeds the fair market value of the assets allocable thereto,
each determined in accordance with Statement of Financial Accounting
Standards No. 87, based upon the actuarial assumptions used by such Pension
Plan's actuary in the most recent annual valuation of such Pension Plan.
"Year 2000 Problems" means limitations in the capacity or readiness to
------------------
handle date information (including, without limitation, calculations based
on date information) for the Year 1999 or years beginning January 1, 2000
of any of the hardware, firmware or software systems ("SYSTEMS") associated
-------
with information processing and delivery, operations or services (e.g.,
security and alarms, elevators, communications, and HVAC), including,
without limitation, equipment containing embedded microchips, in each case
necessary to the business or operations of Company and its Subsidiaries
taken as a whole.
18.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
------------------------------------------------------------------------
Agreement.
---------
Except as otherwise expressly provided in this Agreement, (a) all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP; and (b) financial statements and other
information required to be delivered by Company to the Lenders pursuant to
clauses (i), (ii), (iii) and (xiii) of subsection 6.1 shall be prepared in
accordance with GAAP (except, with respect to interim financial statements,
normal year-end audit adjustments and the absence of explanatory footnotes) as
in effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in subsection 6.1(v)). Notwithstanding
the foregoing, except as otherwise specifically provided herein, all
computations determining compliance with subsection 2.4 and Section 7, including
the definitions used therein, shall utilize accounting principles and policies
in effect at the time of preparation of the June 27, 1998 financial statements
but shall exclude impact of purchase accounting adjustments (APB 16 and 17) for
Permitted Acquisitions.
18.3 Other Definitional Provisions.
-----------------------------
References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in subsection 1.1 may, unless the context
otherwise requires, be used in the singular or the plural, depending on the
reference. The words "includes," "including" and similar forms used in any Loan
Document shall be construed as if followed by the words "without limitation."
-39-
18.4 Changes in GAAP.
---------------
In the event that a change in GAAP or other accounting principles and
policies after the date hereof affects in any material respect the calculations
of the compliance by Company and its Subsidiaries with the covenants contained
herein, Lenders and Company agree to negotiate in good faith to amend the
affected covenants (and related definitions) to compensate for the effect of
such changes so that the restrictions, limitations and performance standards
effectively imposed by such covenants, as so amended, are substantially
identical to the restrictions, limitations and performance standards imposed by
such covenants as in effect on the date hereof; provided that if Requisite
--------
Lenders and Company fail to reach agreement with respect to such amendment
within a reasonable period of time following the date of effectiveness of any
such change, calculation of compliance by Company and its Subsidiaries with the
covenants contained herein shall be determined in accordance with GAAP as in
effect immediately prior to such change.
SECTION 19.
AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
19.1 Commitments; Loans.
------------------
A. Commitments. Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Loan Parties set
forth herein and in the other Loan Documents, each Lender hereby severally
agrees to make the Loans described in subsections 2.1A(i), 2.1A(ii) and
2.1A(iii) and the Swing Line Lender hereby agrees to make the Swing Line Loans
as described in subsection 2.1A(iv).
(i) Term A Loans. Each Lender severally agrees to make Loans to
------------
Company on the Closing Date in an aggregate amount not exceeding its Pro
Rata Share of the aggregate amount of the Term A Loan Commitments less the
----
amount of any Applicable Excess Subordinated Debt Amount, to be used for
the purposes identified in subsection 2.5A. The amount of each Lender's
Term A Loan Commitment is set forth opposite its name on Schedule 2.1
------------
annexed hereto; provided that the Term A Loan Commitments of the Lenders
--------
shall be adjusted to give effect to any assignments of the Term A Loan
Commitments pursuant to subsection 10.1B. Each Lender's Term A Loan
Commitment shall expire immediately and without further action on June 30,
1999 if the Term A Loans are not made on or before that date. Company may
make only one borrowing under the Term A Loan Commitments. Amounts
borrowed under this subsection 2.1A(i) and subsequently repaid or prepaid
may not be reborrowed.
(ii) Term B Loans. Each Lender severally agrees to make Loans to
------------
Company on the Closing Date in an aggregate amount not exceeding its Pro
Rata Share of the aggregate amount of the Term B Loan Commitments less the
----
amount of any Applicable Excess Subordinated Debt Amount, to be used for
the purposes identified in subsection
-40-
2.5A. The amount of each Lender's Term B Loan Commitment is set forth
opposite its name on Schedule 2.1 annexed hereto; provided that the Term B
------------ --------
Loan Commitments of the Lenders shall be adjusted to give effect to any
assignments of the Term Loan Commitments pursuant to subsection 10.1B. Each
Lender's Term B Loan Commitment shall expire immediately and without
further action on June 30, 1999 if the Term B Loans are not made on or
before that date. Company may make only one borrowing under the Term B Loan
Commitments. Amounts borrowed under this subsection 2.1A(ii) and
subsequently repaid or prepaid may not be reborrowed.
(iii) Revolving Loans. Each Lender severally agrees, subject to the
---------------
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to lend to Company
from time to time during the period from the Closing Date to but excluding
the Revolving Loan Commitment Termination Date an aggregate amount not
exceeding its Pro Rata Share of the aggregate amount of the Revolving Loan
Commitments, to be used for the purposes identified in subsection 2.5B.
The original amount of each Lender's Revolving Loan Commitment is set forth
opposite its name on Schedule 2.1 annexed hereto and the aggregate
------------
original amount of the Revolving Loan Commitments is $25,000,000; provided
--------
that the Revolving Loan Commitments of the Lenders shall be adjusted to
give effect to any assignments of the Revolving Loan Commitments pursuant
to subsection 10.1B; provided further that the amount of the Revolving Loan
-------- -------
Commitments shall be reduced from time to time by the amount of any
reductions thereto made pursuant to subsection 2.4B. Each Lender's
Revolving Loan Commitment shall expire on the Revolving Loan Commitment
Termination Date and all Revolving Loans and all other amounts owed
hereunder with respect to the Revolving Loans and the Revolving Loan
Commitments shall be paid in full no later than that date. Amounts
borrowed under this subsection 2.1A(iii) may be repaid and reborrowed,
subject to the limitations and conditions set forth herein, to but
excluding the Revolving Loan Commitment Termination Date.
Notwithstanding anything contained herein to the contrary, in no event
shall the Total Utilization of Revolving Loan Commitments at any time
exceed the Revolving Loan Commitments then in effect.
(iv) Swing Line Loans. The Swing Line Lender hereby agrees, subject
----------------
to the limitations set forth below with respect to the maximum aggregate
amount of all Swing Line Loans outstanding from time to time, to make a
portion of the Revolving Loan Commitments available to Company from time to
time during the period from the Closing Date to but excluding the Revolving
Loan Commitment Termination Date by making Base Rate Loans as Swing Line
Loans to Company in an aggregate amount not to exceed the amount of the
Swing Line Loan Commitment, to be used for the purposes identified in
subsection 2.5B, notwithstanding the fact that such Swing Line Loans, when
aggregated with the sum of the Swing Line Lender's outstanding Revolving
Loans and the Swing Line Lender's Pro Rata Share of the Letter of Credit
Usage then in effect, may
-41-
exceed the Swing Line Lender's Revolving Loan Commitment. The original
amount of the Swing Line Loan Commitment is $10,000,000; provided that the
--------
amounts of the Swing Line Loan Commitment are subject to reduction as
provided in clause (b) of the next paragraph. The Swing Line Loan
Commitment shall expire on the Revolving Loan Commitment Termination Date
and all Swing Line Loans and all other amounts owed hereunder with respect
to the Swing Line Loans shall be paid in full no later than that date.
Amounts borrowed under this subsection 2.1A(iv) may be repaid and
reborrowed to but excluding the Revolving Loan Commitment Termination Date.
Notwithstanding anything contained herein to the contrary, the Swing
Line Loans and the Swing Line Loan Commitment shall be subject to the
following limitations:
(a) in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in
effect; and
(b) any reduction of the Revolving Loan Commitments made pursuant
to subsection 2.4B which reduces the aggregate Revolving Loan
Commitments to an amount less than the then current amount of the
Swing Line Loan Commitment shall result in an automatic corresponding
reduction of the Swing Line Loan Commitment such that the amount
thereof equals the amount of the Revolving Loan Commitments, as so
reduced, without any further action on the part of Company, the
Administrative Agent or the Swing Line Lender.
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Company pursuant to subsection 2.4B(i), the Swing Line Lender
may, at any time in its sole and absolute discretion, deliver to the
Administrative Agent (with a copy to Company), no later than 11:00 a.m.
(New York time) at least one (1) Business Day in advance of the proposed
Funding Date, a notice (which shall be deemed to be a Notice of Borrowing
given by Company) requesting the Lenders to make Revolving Loans that are
Base Rate Loans to Company on such Funding Date in an amount equal to the
amount of such Swing Line Loans (the "Refunded Swing Line Loans")
-------------------------
outstanding on the date such notice is given which the Swing Line Lender
requests the Lenders to prepay. Anything contained in this Agreement to the
contrary notwithstanding, (i) the proceeds of such Revolving Loans made by
the Lenders other than the Swing Line Lender shall be immediately delivered
by the Administrative Agent to the Swing Line Lender (and not to Company)
and applied to repay a corresponding portion of the Refunded Swing Line
Loans and (ii) on the day such Revolving Loans are made, the Swing Line
Lender's Pro Rata Share of the Refunded Swing Line Loans shall be deemed to
be paid with the proceeds of a Revolving Loan made by the Swing Line Lender
to Company, and such portion of the Swing Line Loans deemed to be so paid
shall no longer be outstanding as Swing Line Loans and shall no longer be
due under the Swing Line Note of the Swing Line Lender but shall instead
constitute part of the Swing Line Lender's outstanding
-42-
Revolving Loans to Company and shall be due under the Revolving Note issued
by Company to the Swing Line Lender. Company hereby authorizes the
Administrative Agent and the Swing Line Lender to charge Company's accounts
with the Administrative Agent and the Swing Line Lender (up to the amount
available in each such account) in order to immediately pay the Swing Line
Lender the amount of the Refunded Swing Line Loans to the extent the
proceeds of such Revolving Loans made by the Lenders, including the
Revolving Loan deemed to be made by the Swing Line Lender, are not
sufficient to repay in full the Refunded Swing Line Loans. If any portion
of any such amount paid (or deemed to be paid) to the Swing Line Lender
should be recovered by or on behalf of Company from the Swing Line Lender
in bankruptcy, by assignment for the benefit of creditors or otherwise, the
loss of the amount so recovered shall be ratably shared among all Lenders
in the manner contemplated by subsection 10.5.
If for any reason Revolving Loans are not made pursuant to this
subsection 2.1A(iv) in an amount sufficient to repay any amounts owed to
the Swing Line Lender in respect of any outstanding Swing Line Loans on or
before the third Business Day after demand for payment thereof by the Swing
Line Lender, each Lender shall be deemed to, and hereby agrees to, have
purchased a participation in such outstanding Swing Line Loans, and in an
amount equal to its Pro Rata Share of the applicable unpaid amount together
with accrued interest thereon. Upon one (1) Business Day's notice from the
Swing Line Lender, each Lender shall deliver to the Swing Line Lender an
amount equal to its respective participation in the applicable unpaid
amount in same day funds at the office of the Swing Line Lender located at
the Funding and Payment Office. In order to evidence such participation
each Lender agrees to enter into a participation agreement at the request
of the Swing Line Lender in form and substance satisfactory to the Swing
Line Lender. In the event any Lender fails to make available to the Swing
Line Lender the amount of such Lender's participation as provided in this
paragraph, the Swing Line Lender shall be entitled to recover such amount
on demand from such Lender together with interest thereon at the rate
customarily used by the Swing Line Lender for the correction of errors
among banks for three Business Days and thereafter at the Base Rate, as
applicable.
Notwithstanding anything contained herein to the contrary, (i) each
Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and
each Lender's obligation to purchase a participation in any unpaid Swing
Line Loans pursuant to the immediately preceding paragraph shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (a) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, Company or any other Person for any reason whatsoever; (b) the
occurrence or continuation of a Default or Event of Default; (c) any
adverse change in the business, operations, properties, assets, condition
(financial or otherwise) or prospects of Company or any of its
Subsidiaries; (d) any breach of this Agreement or any other Loan Document
-43-
by any party thereto; or (e) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided that
--------
such obligations of each Lender are subject to the condition that the Swing
Line Lender believed in good faith that all conditions under Section 4 to
the making of the applicable Refunded Swing Line Loans or other unpaid
Swing Line Loans, were satisfied at the time such Refunded Swing Line Loans
or unpaid Swing Line Loans were made, or the satisfaction of any such
condition not satisfied had been waived by Requisite Lenders prior to or at
the time such Refunded Swing Line Loans or other unpaid Swing Line Loans
were made; and (ii) the Swing Line Lender shall not be obligated to make
any Swing Line Loans if it has elected not to do so after the occurrence
and during the continuation of a Default or Event of Default.
B. Borrowing Mechanics. Term Loans or Revolving Loans (including any
such Loans made as Eurodollar Rate Loans with a particular Interest Period) made
on any Funding Date (other than Revolving Loans made pursuant to a request by
the Swing Line Lender pursuant to subsection 2.1A(iv) for the purpose of
repaying any Refunded Swing Line Loans and Revolving Loans made pursuant to
subsection 3.3B for the purpose of reimbursing the Issuing Bank for the amount
of a drawing or payment under a Letter of Credit issued by it) shall be in an
aggregate minimum amount of $500,000 and integral multiples of $100,000 in
excess of that amount; provided that any Eurodollar Rate Loan shall be in a
--------
minimum amount of $1,000,000 and integral multiples of $100,000 in excess of
that amount. Swing Line Loans made on any Funding Date shall be in an aggregate
minimum amount of $100,000 and integral multiples of $50,000 in excess of that
amount. Whenever Company desires that the Lenders make Term Loans or Revolving
Loans it shall deliver to the Administrative Agent a Notice of Borrowing no
later than 12:00 p.m. (New York time), at least three (3) Business Days in
advance of the proposed Funding Date in the case of a Eurodollar Rate Loan, or
at least one (1) Business Day in advance of the proposed Funding Date in the
case of a Base Rate Loan. Whenever Company desires that the Swing Line Lender
make a Swing Line Loan, it shall deliver to Administrative Agent a Notice of
Borrowing no later than 12:00 p.m. (New York time) on the proposed Funding Date.
The Notice of Borrowing shall specify (i) the proposed Funding Date (which shall
be a Business Day), (ii) the amount and type of Loans requested, (iii) in the
case of Swing Line Loans, that such Loans shall be Base Rate Loans, (iv) in the
case of any Loans other than Swing Line Loans, whether such Loans shall be Base
Rate Loans or Eurodollar Rate Loans, and (v) in the case of any Loans requested
to be made as Eurodollar Rate Loans, the initial Interest Period requested
therefor. Term Loans and Revolving Loans may be continued as or converted into
Base Rate Loans and Eurodollar Rate Loans in the manner provided in subsection
2.2D. In lieu of delivering the above-described Notice of Borrowing, Company
may give the Administrative Agent telephonic notice by the required time of any
proposed borrowing under this subsection 2.1B; provided that such notice shall
--------
be promptly confirmed in writing by delivery of a Notice of Borrowing to the
Administrative Agent on or before the applicable Funding Date.
Neither the Administrative Agent nor any Lender shall incur any liability
to Company in acting upon any telephonic notice referred to above that the
Administrative Agent believes in
-44-
good faith to have been given by a duly authorized officer authorized to borrow
on behalf of Company or for otherwise acting in good faith under this subsection
2.1B, and upon funding of Loans by the Lenders in accordance with this Agreement
pursuant to any such telephonic notice, Company shall have effected Loans
hereunder.
Company shall notify the Administrative Agent prior to the funding of any
Loans in the event that any of the matters to which Company is required to
certify in the applicable Notice of Borrowing are no longer true and correct
(with such materiality qualifications as is set forth in a particular matter to
which Company is required to certify) as of the applicable Funding Date, and the
acceptance by Company of the proceeds of any Loans shall constitute a re-
certification by Company, as of the applicable Funding Date, as to the matters
to which Company is required to certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the Related Interest Rate Determination Date,
and Company shall be bound to make a borrowing in accordance therewith.
C. Disbursement of Funds. All Term Loans and all Revolving Loans under
this Agreement shall be made by the Lenders simultaneously and proportionately
to their respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt by the
Administrative Agent of a Notice of Borrowing pursuant to subsection 2.1B (or
telephonic notice in lieu thereof), the Administrative Agent shall notify each
Lender or the Swing Line Lender, as the case may be, of the proposed borrowing
and of the amount of such Lender's Pro Rata Share of the applicable Loans.
Each Lender shall make the amount of its Loan available to the
Administrative Agent not later than 1:00 pm (New York time) on the applicable
Funding Date and the Swing Line Lender shall make the amount of its Swing Line
Loan available to the Administrative Agent not later than 2:00 P.M. (New York
time) on the applicable Funding Date, in each case in same day funds, at the
Funding and Payment Office. Except as provided in subsection 2.1A(iv) or
subsection 3.3B with respect to Revolving Loans used to repay Refunded Swing
Line Loans or to reimburse the Issuing Bank for the amount of an honored drawing
or payment under a Letter of Credit issued by it, upon satisfaction or waiver of
the conditions precedent specified in subsections 4.1 (in the case of Loans made
on the Closing Date) and 4.2 (in the case of all Loans), the Administrative
Agent shall make the proceeds of such Loans available to Company on the
applicable Funding Date by causing an amount of same day funds equal to the
proceeds of all such Loans received by the Administrative Agent from the Lenders
or the Swing Line Lender, as the case may be, to be credited to the account of
Company at the Funding and Payment Office.
-45-
Unless the Administrative Agent shall have been notified by any Lender
prior to the Funding Date for any Loans that such Lender does not intend to make
available to the Administrative Agent the amount of such Lender's Loan requested
on such Funding Date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on such Funding Date and
the Administrative Agent may, in its sole discretion, but shall not be obligated
to, make available to Company a corresponding amount on such Funding Date. If
such corresponding amount is not in fact made available to the Administrative
Agent by such Lender, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to the
Administrative Agent, at the customary rate set by the Administrative Agent for
the correction of errors among banks for three Business Days and thereafter at
the Base Rate. If such Lender does not pay such corresponding amount forthwith
upon the Administrative Agent's demand therefor, the Administrative Agent shall
promptly notify Company and Company shall immediately pay such corresponding
amount to the Administrative Agent, together with interest thereon for each day
from such Funding Date until the date such amount is paid to the Administrative
Agent at the rate applicable to such Loan. Nothing in this subsection 2.1C
shall be deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that Company may have against
any Lender as a result of any default by such Lender hereunder.
D. The Register.
(i) The Administrative Agent shall maintain, at its address referred
to in subsection 10.8, a register for the recordation of the names and
addresses of the Lenders and the Commitments and Loans of each Lender from
time to time (the "Register"). The Register shall be available for
--------
inspection by Company or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(ii) The Administrative Agent shall record in the Register the
Commitments and the outstanding Loans from time to time of each Lender and
each repayment or prepayment in respect of the principal amount of the
outstanding Loans of each Lender. Any such recordation shall be conclusive
and binding on Company and each Lender, absent manifest error; provided
--------
that failure to make any such recordation, or any error in such
recordation, shall not affect Company's Obligations in respect of the
applicable Loans.
(iii) Each Lender shall record on its internal records (including,
without limitation, the Notes held by such Lender) the amount of each Loan
made by it and each payment in respect thereof. Any such recordation shall
be conclusive and binding on Company, absent manifest error; provided that
--------
failure to make any such recordation, or any error in such recordation,
shall not affect Company's Obligations in respect of the applicable Loans;
and provided, further that in the event of any inconsistency between the
-------- -------
-46-
Register and any Lender's records, the recordations in the Register shall
govern absent manifest error with respect to the Register.
(iv) Company, the Administrative Agent and the Lenders shall deem and
treat the Persons listed as the Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any Commitment or Loan
shall be effective, in each case unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been accepted by
the Administrative Agent and recorded in the Register as provided in
subsection 10.1B(ii). Prior to such recordation, all amounts owed with
respect to the applicable Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving
such authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of
the corresponding Commitments or Loans.
(v) Company hereby designates CSFB and any financial institution
serving as a successor Administrative Agent to serve as Company's agent
solely for purposes of maintaining the Register as provided in this
subsection 2.1D, and Company hereby agrees that, to the extent CSFB serves
in such capacity, CSFB and its officers, directors, employees, agents and
affiliates shall constitute Indemnitees for all purposes under subsection
10.3.
E. Notes. Company shall execute and deliver on the Closing Date to each
Lender (or to the Administrative Agent for that Lender) (i) a Term A Note
substantially in the form of Exhibit IV-A annexed hereto, respectively, to
------------
evidence that Lender's Term A Loans in the principal amount of that Lender's
Term A Loans and with other appropriate insertions, and each Lender's Term A
Notes shall evidence such Lender's Pro Rata Share of such respective amounts,
(ii) a Term B Note substantially in the form of Exhibit IV-B annexed hereto,
------------
respectively, to evidence that Lender's Term B Loans in the principal amount of
that Lender's Term B Loans and with other appropriate insertions, and each
Lender's Term B Notes shall evidence such Lender's Pro Rata Share of such
respective amounts, (iii) a Revolving Note substantially in the form of Exhibit
-------
V-A annexed hereto to evidence that Lender's Revolving Loans, in the principal
---
amount of that Lender's Revolving Loan Commitment and with other appropriate
insertions and (iv) a Swing Line Note substantially in the form of Exhibit V-B
-----------
annexed hereto to evidence that Lender's Swing Line Loans, in the principal
amount of that Lender's Swing Line Loan Commitment and with other appropriate
insertions. The Notes and the Obligations evidenced thereby shall be governed
by, subject to and benefit from all of the terms and conditions of this
Agreement and the other Loan Documents and shall be secured by the Collateral.
-47-
19.2 Interest on the Loans.
---------------------
A. Rate of Interest. Subject to the provisions of subsections 2.6 and
2.7, each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made to maturity (whether by acceleration
or otherwise) at a rate determined by reference to the Base Rate or the Reserve
Adjusted Eurodollar Rate, as the case may be. Subject to the provisions of
subsection 2.7, each Swing Line Loan shall bear interest on the unpaid principal
amount thereof from the date made to maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate. The applicable
basis for determining the rate of interest with respect to any Loan shall be
selected by Company initially at the time a telephonic notice or Notice of
Borrowing is given with respect to such Loan pursuant to subsection 2.1B (so
long as Company delivers to Administrative Agent a Notice of Borrowing within
one Business Day prior thereto). The basis for determining the interest rate
with respect to any Term Loan or any Revolving Loan may be changed from time to
time pursuant to subsection 2.2D. If on any day any Term Loan or Revolving Loan
is outstanding with respect to which notice has not been delivered to the
Administrative Agent in accordance with the terms of this Agreement specifying
the applicable basis for determining the rate of interest, then for that day
that Loan shall bear interest determined by reference to the Base Rate. Subject
to the provisions of subsections 2.2E and 2.7, the Term Loans and the Revolving
Loans shall bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the sum of the Base Rate plus
----
the Applicable Base Rate Margin; or
(ii) if a Eurodollar Rate Loan, then at the sum of the Reserve
Adjusted Eurodollar Rate plus the Applicable Eurodollar Rate Margin.
----
Subject to the provisions of subsections 2.2E and 2.7, the Swing Line Loans
shall bear interest to maturity at the sum of the Base Rate plus the Applicable
----
Base Rate Margin for Revolving Loans less the Applicable Commitment Fee
----
Percentage.
B. Interest Periods. In connection with each Eurodollar Rate Loan,
Company may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, on behalf of Company select an
interest period (each an "Interest Period") to be applicable to such Loan, which
---------------
Interest Period shall be, at Company's option, either a one, two, three or six
month period (or any other period available to all the Lenders in a particular
tranche for which an Interest Period is being selected or otherwise agreed to by
such Lenders and the Administrative Agent); provided that:
--------
(i) the initial Interest Period for any Eurodollar Rate Loan shall
commence on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a Eurodollar Rate Loan;
-48-
(ii) in the case of immediately successive Interest Periods applicable
to a Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
--------
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall,
subject to clause (v) of this subsection 2.2B, end on the last Business Day
of a calendar month;
(v) no Interest Period with respect to any portion of the Term A Loans
shall extend beyond the fifth anniversary of the Closing Date, no Interest
Period with respect to any portion of the Term B Loans shall extend beyond
the seventh anniversary of the Closing Date, and no Interest Period with
respect to any portion of the Revolving Loans shall extend beyond the
Revolving Loan Commitment Termination Date;
(vi) no Interest Period with respect to any portion of the Term Loans
shall extend beyond a date on which Company is required to make a scheduled
payment of principal of the Term A Loans or the Term B Loans, as the case
may be, unless the aggregate principal amount of Term A Loans or Term B
Loans, as the case may be, that are Base Rate Loans plus the aggregate
----
principal amount of Term A Loans or Term B Loans, as the case may be, that
are Eurodollar Rate Loans with Interest Periods expiring on or before such
date equals or exceeds the principal amount required to be paid on the Term
A Loans or Term B Loans, as the case may be, on such date;
(vii) Company may not select an Interest Period of longer than one
month prior to the end of the Initial Period;
(viii) there shall be no more than one Interest Period outstanding at
any time during the Initial Period, and thereafter no more than fifteen
Interest Periods shall be outstanding at any time; and
(ix) in the event Company fails to specify an Interest Period for any
Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have selected an
Interest Period of one month.
-49-
C. Interest Payments. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity, by acceleration or otherwise); provided that in the event that any
--------
Swing Line Loans, Revolving Loans or any Term Loans that are Base Rate Loans are
prepaid pursuant to subsection 2.4B(i), interest accrued on such Loans through
the date of such prepayment shall be payable on the next succeeding Interest
Payment Date applicable to Base Rate Loans (or, if earlier, at final maturity).
D. Conversion or Continuation. Subject to the provisions of subsection
2.6, Company shall have the option (i) to convert at any time all or any part of
its outstanding Term Loans or Revolving Loans equal to $500,000 and integral
multiples of $100,000 in excess of that amount from Loans bearing interest at a
rate determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis (provided that any Loan being
converted to a Eurodollar Rate Loan shall be in a minimum amount of $1,000,000
and integral multiples of $100,000 in excess of such amount) or (ii) upon the
expiration of any Interest Period applicable to a Eurodollar Rate Loan, to
continue all or any portion of such Loan equal to $1,000,000 and integral
multiples of $100,000 in excess of that amount as a Eurodollar Rate Loan;
provided, however, that a Eurodollar Rate Loan may only be converted into a Base
-------- -------
Rate Loan on the expiration date of an Interest Period applicable thereto.
Company shall deliver a Notice of Conversion/Continuation to the
Administrative Agent no later than 12:00 pm at least one Business Day in advance
of the proposed conversion date (in the case of a conversion to a Base Rate
Loan), and at least three Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a continuation
of, a Eurodollar Rate Loan). A Notice of Conversion/Continuation shall specify
(i) the proposed conversion/continuation date (which shall be a Business Day),
(ii) the amount and type of the Loan to be converted/continued, (iii) the nature
of the proposed conversion/continuation, (iv) in the case of a conversion to, or
a continuation of, a Eurodollar Rate Loan, the requested Interest Period, and
(v) in the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan, that no Default or Event of Default has occurred and is continuing. In
lieu of delivering the above-described Notice of Conversion/Continuation,
Company may give the Administrative Agent telephonic notice by the required time
of any proposed conversion/continuation under this subsection 2.2D; provided
--------
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Conversion/Continuation to the Administrative Agent within one Business Day
prior to the proposed conversion/continuation date.
Neither the Administrative Agent nor any Lender shall incur any liability
to Company in acting upon any telephonic notice referred to above that the
Administrative Agent believes in good faith to have been given by a duly
authorized officer authorized to act on behalf of Company or for otherwise
acting in good faith under this subsection 2.2D, and upon conversion or
continuation of the applicable basis for determining the interest rate with
respect to any Loans
-50-
in accordance with this Agreement pursuant to any such telephonic notice Company
shall have effected a conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Conversion/Continuation for conversion to, or continuation of, a Eurodollar
Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Company shall be bound
to effect a conversion or continuation in accordance therewith.
E. Post-Default Interest. At the written election of the Lenders, the
outstanding principal amount of Loans not paid when due and, to the extent
permitted by applicable law, any interest payments thereon not paid when due,
and any fees and other amounts then due and payable hereunder and not paid,
shall thereafter bear interest (including post-petition interest in any
proceeding under the Bankruptcy Code, or other applicable bankruptcy or
insolvency laws) payable upon demand at a rate that is 2% per annum in excess of
the interest rate otherwise payable under this Agreement with respect to the
applicable Loans (or, in the case of any such fees and other amounts, at a rate
which is 2% per annum in excess of the interest rate otherwise payable under
this Agreement for Revolving Loans); provided that, in the case of Eurodollar
--------
Rate Loans, upon the expiration of the Interest Period in effect at the time any
such increase in interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest payable upon
demand at a rate equal to 2% per annum in excess of the interest rates otherwise
payable under this Agreement for Base Rate Loans that are Term A Loans, Term B
Loans, or Revolving Loans, as applicable. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of the
Administrative Agent or any Lender.
F. Computation of Interest. Interest on Loans shall be computed on the
basis of a 360-day year (a 365 or 366-day year, as applicable, in the case of
Base Rate Loans based on the Prime Rate) and for the actual number of days
elapsed in the period during which it accrues. In computing interest on any
Loan, the date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted
from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan
to such Base Rate Loan, as the case may be, shall be included, and the date of
payment of such Loan or the expiration date of an Interest Period applicable to
such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar
Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate
Loan, as the case may be, shall be excluded; provided that if a Loan is repaid
--------
on the same day on which it is made, one day's interest shall be paid on that
Loan.
19.3 Fees.
----
A. Commitment Fees.
-51-
(i) Revolving Loan Commitments. Company agrees to pay to the
--------------------------
Administrative Agent, for distribution to each Lender in proportion to that
Lender's Pro Rata Share of the Revolving Loan Commitments, commitment fees
for the period from and including the date hereof to and excluding the
Revolving Loan Commitment Termination Date equal to the sum of (x) the
average of the daily excess of the Revolving Loan Commitments over the sum
of the aggregate principal amount of Revolving Loans outstanding (but not
any Swing Line Loans outstanding) plus (y) the Letter of Credit Usage
----
multiplied by the Applicable Commitment Fee Percentage.
-------------
(ii) Calculation and Payment. All of the foregoing commitment fees
-----------------------
shall be calculated on the basis of a 360-day year and the actual number of
days elapsed and shall be payable quarterly in arrears on the last Business
Day in each of March, June, September and December of each year, commencing
in June 1999, and on the Revolving Loan Commitment Termination Date.
B. Other Fees. Company agrees to pay to Sole Lead Arranger and
Administrative Agent such fees in the amounts and at the times separately agreed
upon between Company, Sole Lead Arranger and Administrative Agent.
19. Repayments, Prepayments and Reductions in Commitments; General Provisions
-------------------------------------------------------------------------
Regarding Payments.
------------------
A. Scheduled Payments of Term Loans.
(i) Scheduled Payments of Term A Loans. Company shall make principal
----------------------------------
payments on the Term A Loans in installments on the dates set forth below,
each such installment to be in an amount equal to the corresponding
percentages set forth below of the principal amount of the Term A Loans as
of the Closing Date:
-52-
SCHEDULED REPAYMENT
DATE OF
TERM A LOANS
==========================================
September 30, 1999 0.50%
December 31, 1999 0.50%
March 31, 2000 0.50%
June 30, 2000 0.50%
-------------------------------------------
September 30, 2000 3.50%
December 31, 2000 3.50%
March 31, 2001 3.50%
June 30, 2001 3.50%
-------------------------------------------
September 30, 2001 5.00%
December 31, 2001 5.00%
March 31, 2002 5.00%
June 30, 2002 5.00%
-------------------------------------------
September 30, 2002 7.00%
December 31, 2002 7.00%
March 31, 2003 7.00%
June 30, 2003 7.00%
-------------------------------------------
September 30, 2003 9.00%
December 31, 2003 9.00%
Fifth Anniversary
of the Closing Date 18.00%
==========================================
; provided that the scheduled installments of principal of the Term A Loans
--------
set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term A Loans in accordance with subsection
2.4C; and provided, further that the final installment specified above for
-------- -------
the repayment by Company of the Term A Loans shall be in an amount, if such
amount is different from that specified above, sufficient to repay all
amounts owing by Company under this Agreement with respect to the Term A
Loans.
(ii Scheduled Payments of Term B Loans. Company shall make principal
----------------------------------
payments on the Term B Loans in installments on the dates set forth below,
each such installment to be in an amount equal to the corresponding
percentages set forth below of the principal amount of the Term B Loans as
of the Closing Date:
-53-
SCHEDULED REPAYMENT
DATE OF
TERM B LOANS
=========================================
September 30, 1999 0.25%
December 31, 1999 0.25%
March 31, 2000 0.25%
June 30, 2000 0.25%
-----------------------------------------
September 30, 2000 0.25%
December 31, 2000 0.25%
March 31, 2001 0.25%
June 30, 2001 0.25%
-----------------------------------------
September 30, 2001 0.25%
December 31, 2001 0.25%
March 31, 2002 0.25%
June 30, 2002 0.25%
-----------------------------------------
September 30, 2002 0.25%
December 31, 2002 0.25%
March 31, 2003 0.25%
June 30, 2003 0.25%
-----------------------------------------
September 30, 2003 0.25%
December 31, 2003 0.25%
March 31, 2004 0.25%
June 30, 2004 0.25%
-----------------------------------------
September 30, 2004 10.00%
December 31, 2004 10.00%
March 31, 2005 10.00%
June 30, 2005 10.00%
-----------------------------------------
September 30, 2005 13.75%
December 31, 2005 13.75%
Seventh Anniversary
of the Closing Date 27.50%
=========================================
; provided that the scheduled installments of principal of the Term B Loans
--------
set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Term B Loans in accordance with subsection
2.4C; and provided, further that the final installment specified above for
-------- -------
the repayment by Company of the Term B Loans shall be in an amount, if such
amount is different from that specified above, sufficient to repay all
amounts owing by Company under this Agreement with respect to the Term B
Loans.
-54-
B. Prepayments and Reductions in Commitments.
(i) Voluntary Prepayments. Company may, upon written or telephonic
---------------------
notice to the Administrative Agent on or prior to 1:00 pm (New York time)
on the date of prepayment, which notice, if telephonic, shall be promptly
confirmed in writing, at any time and from time to time prepay, without
premium or penalty, any Swing Line Loan on any Business Day in whole or in
part in an aggregate minimum amount of $100,000 and integral multiples of
$100,000 in excess of that amount. In addition, Company may, upon not less
than one (1) Business Days', in the case of Base Rate Loans, and upon less
than three (3) Business Days' in the case of Eurodollar Rate Loans, prior
written or telephonic notice, promptly confirmed in writing to the
Administrative Agent (which notice the Administrative Agent will promptly
transmit by facsimile or telephone to each Lender), at any time and from
time to time prepay, without premium or penalty, the Loans (other than
Swing Line Loans) on any Business Day in whole or in part in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess of
that amount; provided, however, that in the event Company shall prepay a
-------- -------
Eurodollar Rate Loan other than on the expiration of the Interest Period
applicable thereto, Company shall, at the time of such prepayment, also pay
any amounts payable under subsection 2.6D hereof. Notice of prepayment
having been given as aforesaid, the Loans shall become due and payable on
the prepayment date specified in such notice and in the aggregate principal
amount specified therein. Any voluntary prepayments pursuant to this
subsection 2.4B(i) shall be applied as specified in subsection 2.4C.
(ii) Voluntary Reductions of Revolving Loan Commitments . Company
---------------------------------------------------
may, upon not less than three (3) Business Days' prior written or
telephonic notice, promptly confirmed in writing to the Administrative
Agent (which notice the Administrative Agent will promptly transmit by
facsimile or telephone to each Lender), at any time and from time to time
terminate in whole or permanently reduce in part, without premium or
penalty, the Revolving Loan Commitments in an amount up to the amount by
which the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments at the time of such proposed termination or
reduction; provided that any such partial reduction of the Revolving Loan
--------
Commitments shall be in an aggregate minimum amount of $1,000,000 and
integral multiples of $100,000 in excess of that amount. Company's notice
to the Administrative Agent shall designate the date (which shall be a
Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of the Revolving Loan
Commitments shall be effective on the date specified in such notice and
shall reduce the Revolving Loan Commitment of each Lender proportionately
to its Pro Rata Share. Any such voluntary reduction of the Revolving Loan
Commitment shall be applied as specified in subsection 2.4C.
(iii) Mandatory Prepayments and Mandatory Reductions of Commitments.
-------------------------------------------------------------
The Loans shall be prepaid and/or the Revolving Loan Commitments shall be
reduced in
-55-
the manner provided in subsection 2.4C upon the occurrence of the following
circumstances:
(a) Asset Sales. No later than the fifth (5/th/) Business Day
-----------
following the date of receipt by Company or any of its Subsidiaries of
Cash Proceeds of any Asset Sale, Company shall prepay the Loans
(and/or the Revolving Loan Commitments shall be reduced) in an amount
equal to the Net Cash Proceeds received with respect thereto; provided
--------
that, if Company shall have delivered a Reinvestment Notice to the
Administrative Agent no later than the fifth (5/th/) Business Day
following the consummation of such Asset Sale, Company shall not be
required to make any prepayment with the proceeds of such Asset Sale
to the extent that all or any portion of such proceeds are reinvested
(or a contract has been entered into to reinvest) in Reinvestment
Assets within three hundred sixth five (365) days from the date of
receipt of such proceeds; provided further that the aggregate amount
-------- -------
of Net Cash Proceeds that may be reinvested pursuant to the
immediately preceding proviso shall not exceed $5,000,000 in any
Fiscal Year (or $10,000,000 in any Fiscal Year at any time the
Leverage Ratio, determined on a Pro Forma Basis after giving effect to
such Asset Sale, is less than 3.50:1.00); and provided still further
-------- ----- -------
that, on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied to prepay the Loans (and/or the
Revolving Loan Commitments shall be reduced). Concurrently with any
prepayment of Loans (and/or any reduction in the Revolving Loan
Commitments) pursuant to this subsection 2.4B(iii)(a), Company shall
deliver to the Administrative Agent an Officer's Certificate
demonstrating in detail reasonably satisfactory to the Administrative
Agent the derivation of the Net Cash Proceeds of the correlative Asset
Sale from the gross sales price thereof. In addition, in the event
that Company shall, at any time after receipt of proceeds of any
Reinvestment Event requiring a prepayment (and/or a reduction in the
Revolving Loan Commitments) pursuant to this subsection 2.4B(iii)(a),
determine that the prepayments (and/or a reduction in the Revolving
Loan Commitments) previously made in respect of such Reinvestment
Event were in an aggregate amount less than that required by the terms
of this subsection 2.4B(iii)(a), Company shall promptly cause to be
made an additional prepayment of the Loans (and/or reduction in the
Revolving Loan Commitments) in an amount equal to the amount of any
such deficit, and Company shall concurrently therewith deliver to the
Administrative Agent an Officer's Certificate demonstrating the
derivation of the additional proceeds resulting in such deficit. If
Company is otherwise required to apply any portion of Net Cash
Proceeds to prepay Indebtedness evidenced by the Subordinated Debt
then, notwithstanding anything contained in this Agreement to the
contrary, Company shall apply such Net Cash Proceeds to the prepayment
of the Loans so as to eliminate or minimize any obligation to prepay
the Subordinated Debt.
-56-
(b) Issuances of Debt. On or prior to the first (1/st/) Business
-----------------
Day after receipt by Company or any of its Subsidiaries of any
proceeds (net of any payment of underwriting discounts, commission and
other costs and expenses associated therewith (including legal costs
and expenses) of any Indebtedness (other than the Loans, the
Subordinated Debt and any other Indebtedness permitted by this
Agreement), Company shall prepay the Loans (and/or the Revolving Loan
Commitments shall be reduced) in an amount equal to the amount of such
proceeds; provided that payment or acceptance of the amounts provided
--------
for in this subsection 2.4B(iii)(b) shall not constitute a waiver of
any Event of Default resulting from the incurrence of such
Indebtedness or otherwise prejudice any rights or remedies of the
Administrative Agent or any Lender. If Company is otherwise required
to apply any portion of such proceeds to prepay Indebtedness
evidenced by the Subordinated Debt then, notwithstanding anything
contained in this Agreement to the contrary, Company shall apply such
proceeds to the prepayment of the Loans so as to eliminate or minimize
any obligation to prepay the Subordinated Debt.
(c) Issuances of Equity Securities. If at any time the Leverage
------------------------------
Ratio is greater than or equal to 3.50:1.00, then on or prior to the
first (1/st/ ) Business Day after receipt by Company or any of its
Subsidiaries of any Equity Proceeds (net of any payment of
underwriting discounts, commission and other costs and expenses
associated therewith (including legal costs and expenses)) other than
(w) capital contributions made by Company or any of its Subsidiaries,
(x) Equity Proceeds received by Company or any of its Subsidiaries as
payment for any shares of Capital Stock purchased by, or of the
exercise price under any option for any shares of Capital Stock of
Company held by, any officer, director, employee or consultant of
Company or any of its Subsidiaries, (y) Equity Proceeds received from
the Investors, or their respective Affiliates, and (z) Equity Proceeds
received by Company or any of its Subsidiaries solely to the extent
that such Equity Proceeds are used to finance a Permitted
Acquisition), Company shall prepay the Loans (and/or the Revolving
Loan Commitments shall be reduced) in an amount equal to 50% of all
such Equity Proceeds. If Company is otherwise required to apply any
portion of such Equity Proceeds to prepay Indebtedness evidenced by
the Subordinated Debt then, notwithstanding anything contained in this
Agreement to the contrary, Company shall apply such Equity Proceeds to
the prepayment of the Loans so as to eliminate or minimize any
obligation to prepay the Subordinated Debt.
(d) Insurance and Condemnation Proceeds. No later than the fifth
-----------------------------------
(5/th/) Business Day following the date of receipt by Company or any
of its Subsidiaries of any cash payments under any insurance policy as
a result of any damage to or loss of all or any portion of the
Collateral or any other tangible asset (net of actual costs incurred
and any taxes paid or payable by Company or any of its
-57-
Subsidiaries in connection with adjustment and settlement thereof,
"Insurance Proceeds") or any proceeds resulting from the taking of
------------------
assets by the power of eminent domain, condemnation or otherwise
(net of actual costs incurred and any taxes paid or payable by
Company or any of its Subsidiaries in connection with adjustment
and settlement thereof, "Condemnation Proceeds") (any such event
resulting in the recovery of Insurance Proceeds or Condemnation
Proceeds, a "Recovery Event"), Company shall prepay the Loans
--------------
(and/or the Revolving Loan Commitments shall be reduced) in an
amount equal to the Insurance Proceeds or Condemnation
Proceeds, as the case may be, received; provided, that, if Company
--------
shall have delivered a Reinvestment Notice to the Administrative Agent
no later than five (5) Business Days prior to the consummation of such
Recovery Event and no Event of Default exists at the time of such
consummation and the time of delivery of such notice, Company shall
not be required to make any prepayment (and/or reduction in the
Revolving Loan Commitments) with the proceeds of such Recovery Event
to the extent that (x) all or any portion of such proceeds are
reinvested (or a contract has been entered into to reinvest) in
Reinvestment Assets within three hundred sixty five (365) days from
the date of receipt of such proceeds, and (y) after giving effect
thereto, the aggregate amount of proceeds not used to make mandatory
prepayments of Loans (and/or reduce the Revolving Loan Commitments)
pursuant to this proviso does not exceed $7,500,000 during any Fiscal
Year; provided, further, that, on each Reinvestment Prepayment Date,
-------- -------
an amount equal to the Reinvestment Prepayment Amount with respect to
the relevant Reinvestment Event shall be applied to prepay the Loans
(and/or the Revolving Loan Commitments shall be reduced). In
addition, in the event that Company shall, at any time after receipt
of proceeds of any Reinvestment Event requiring a prepayment (and/or
reduction in the Revolving Loan Commitments) pursuant to this
subsection 2.4B(iii)(d), determine that the prepayments (and/or
reduction in the Revolving Loan Commitments) previously made in
respect of such Reinvestment Event were in an aggregate amount less
than that required by the terms of this subsection 2.4B(iii)(d),
Company shall promptly cause to be made an additional prepayment of
the Loans (and/or reduce the Revolving Loan Commitments) in an amount
equal to the amount of any such deficit, and Company shall
concurrently therewith deliver to the Administrative Agent an
Officer's Certificate demonstrating the derivation of the additional
proceeds resulting in such deficit.
(e) Consolidated Excess Cash Flow. If at any time the Leverage
-----------------------------
Ratio is greater than or equal to 3.00:1.00, then in the event that
there shall be Consolidated Excess Cash Flow for any Fiscal Year
(commencing with the Fiscal Year ending June 30, 2000), Company shall,
no later than ninety-five (95) days after the end of such Fiscal Year,
prepay the Loans (and/or the Revolving Loan Commitments shall be
reduced) in an aggregate amount equal to 50% of such Consolidated
Excess Cash Flow.
-58-
(f) Refund of CSM Deposits. On or prior to the fifth (5/th/)
----------------------
Business Day after receipt by Company or any of its Subsidiaries of
any refund of the CSM Deposits (or any portion thereof), Company shall
prepay the Loans in an amount equal to the amount of such refund net
of any actual costs or expenses related thereto.
(g) Reductions or Restrictions of Revolving Loan Commitments.
--------------------------------------------------------
Company shall prepay the Swing Line Loans and/or Revolving Loans from
time to time to the extent necessary so that (1) the Total Utilization
of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect, and (2) the aggregate
principal amount of all outstanding Swing Line Loans shall not at any
time exceed the Swing Line Loan Commitment then in effect. All Swing
Line Loans shall be prepaid in full prior to the prepayment of any
Revolving Loans pursuant to this subsection 2.4B(iii)(g). If at any
time that there are no Revolving Loans and Swing Line Loans
outstanding (whether after giving effect to any prepayment thereof
pursuant to this subclause (g) or otherwise) the Total Utilization of
Revolving Loan Commitments exceeds the Revolving Loan Commitment,
Company shall deposit into the Collateral Account such amounts as are
necessary so that, after giving effect thereto, the amount on deposit
in the Collateral Account pursuant to this subclause (g) is at least
equal to such excess.
C. Application of Prepayments and Unscheduled Reductions of Commitments.
(i) Application of Prepayments by Type of Loans. Any voluntary
-------------------------------------------
prepayments pursuant to subsection 2.4B(i) shall be applied as specified by
Company in the applicable notice of prepayment; provided that in the event
--------
Company fails to specify the Loans to which any such prepayment shall be
applied, such prepayment shall be applied first to repay outstanding Swing
-----
Line Loans to the full extent thereof, second to repay outstanding
------
Revolving Loans to the full extent thereof, and third to repay outstanding
-----
Term Loans to the full extent thereof. Any amount required to be applied
as a prepayment of Loans or Revolving Loan Commitment reduction pursuant to
any of subsections 2.4B(iii)(a) through (f) or this subsection 2.4C(i)
shall be applied first, to repay Term Loans as selected by Company in an
-----
amount not in excess of an amount equal to the scheduled amortization
payments on such Term Loans selected for the immediately succeeding twelve-
month period, second, to further prepay the Term Loans ratably to the full
------
extent thereof, third, to prepay Swing Line Loans to the full extent
-----
thereof and to permanently reduce the Revolving Loan Commitments by the
amount of such prepayment, fourth, to prepay Revolving Loans to the full
------
extent thereof and to further permanently reduce the Revolving Loan
Commitments by the amount of such prepayment, fifth, to prepay outstanding
-----
reimbursement obligations with respect to Letters of Credit, sixth, to cash
-----
collateralize Letters of Credit as provided in the Collateral Account
Agreement and seventh, to the extent of any remaining amount, to further
-------
reduce
-59-
the Revolving Loan Commitments. Anything contained herein to the
contrary notwithstanding, so long as any Term A Loans are outstanding, in
the case of any voluntary or mandatory prepayments of Term Loans pursuant
to subsections 2.4A or 2.4B or this subsection 2.4C, (a) Company shall use
reasonable efforts to notify the Lenders of such prepayment in advance of
payment to the Administrative Agent of such amount, (b) upon receipt of
such payment, the Administrative Agent shall notify the Lenders of such
payment, (c) in the event any Lender with Term B Loans elects to waive such
Lender's right to receive such prepayment in respect of any such Loans,
such Lender shall so advise the Administrative Agent in writing no later
than the close of business on the date it receives such notice from the
Administrative Agent and (d) upon receipt of such written advice from such
Lender, the Administrative Agent shall apply the amount waived by such
Lender to prepay the Term A Loans.
(ii) Application of Prepayments of Term Loans to Installments. The
--------------------------------------------------------
amount of any prepayments of Term A Loans or Term B Loans, as applicable,
shall be applied first, to reduce each scheduled installment thereof set
-----
forth in subsection 2.4A(i) or 2.4A(ii), as applicable, that is unpaid and
due within the next twelve months of the date of such prepayment in the
order that such installments are scheduled to occur, and second, to ratably
------
reduce each scheduled installment of principal thereof set forth in
subsection 2.4A(i) or 2.4A(ii), as applicable.
(iii) Application of Prepayments of Loans to Base Rate Loans and
----------------------------------------------------------
Eurodollar Rate Loans. Considering Loans constituting Term A Loans, Term B
---------------------
Loans and Revolving Loans being prepaid separately, any prepayment thereof
shall be applied first to Base Rate Loans to the full extent thereof before
application to Eurodollar Rate Loans, in each case in a manner which
minimizes the amount of any payments required to be made by Company
pursuant to subsection 2.6D.
D. Application of Proceeds of Collateral and Payments Under Guaranties.
(i) Application of Proceeds of Collateral. Except as provided in
-------------------------------------
subsection 2.4B(iii) with respect to prepayments from Net Cash Proceeds,
Insurance Proceeds or Condemnation Proceeds, all proceeds received by the
Administrative Agent or the Collateral Agent, as the case may be, in
respect of any sale of, collection from, or other realization upon all or
any part of the Collateral under any Collateral Document may, in the
discretion of the Collateral Agent, be held by the Collateral Agent as
Collateral for, and applied in full by the Administrative Agent against,
the applicable Secured Obligations (as defined in such Collateral Document)
in the following order of priority:
(a) to the payment of all costs and expenses of such sale,
collection or other realization, including all other reasonable
expenses, liabilities and advances made or incurred by such Agents in
connection therewith, and all amounts for which such Agents are
entitled to indemnification under such Collateral
-60-
Document and all advances made by the Collateral Agent thereunder for
the account of the applicable Loan Party, and to the payment of all
reasonable costs and expenses paid or incurred by the Collateral Agent
in connection with the exercise of any right or remedy under such
Collateral Document, all in accordance with the terms of this
Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess proceeds, to the
payment of all other such Secured Obligations for the ratable benefit
of the holders thereof; and
(c) thereafter, to the extent of any excess proceeds, to the
payment to or upon the order of such Loan Party or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
(ii) Application of Payments Under Guaranties. All payments received
----------------------------------------
by the Administrative Agent under any Guaranty shall be applied promptly
from time to time by the Administrative Agent in the following order of
priority:
(a) to the payment of the reasonable costs and expenses of any
collection or other realization under such Guaranty, including all
reasonable expenses, liabilities and advances made or incurred by the
Administrative Agent in connection therewith, all in accordance with
the terms of this Agreement and such Guaranty;
(b) thereafter, to the extent of any excess such payments, to the
payment of all other Guarantied Obligations (as defined in such
Guaranty) for the ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such payments, to the
payment to the applicable Guarantor or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction
may direct.
E. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Company of principal,
--------------------------
interest, fees and other Obligations hereunder and under the Notes shall be
made in same day funds and without defense, setoff or counterclaim, free of
any restriction or condition, and delivered to the Administrative Agent not
later than 12:00 Noon (New York time) on the date due at the Funding and
Payment Office for the account of the Lenders; funds received by the
Administrative Agent after that time on such due date shall be deemed to
have been paid by Company on the next succeeding Business Day. Company
hereby authorizes the Administrative Agent to charge its accounts with the
Administrative Agent in order to cause timely payment to be made to the
Administrative Agent of all principal,
-61-
interest, fees and expenses due hereunder (subject to sufficient funds
being available in its accounts for that purpose).
(ii) Application of Payments to Principal and Interest. Except as
-------------------------------------------------
provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest, on the
principal amount being repaid or prepaid, and all such payments (and in any
event any payments made in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to the payment
of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
-------------------------
payments shall be apportioned among all outstanding Loans to which such
payments relate, in each case proportionately to the Lenders' respective
Pro Rata Shares. The Administrative Agent shall promptly distribute to
each Lender, at its applicable Lending Office specified on Schedule 2.1 or
------------
at such other address as such Lender may request, its Pro Rata Share of all
such payments received by the Administrative Agent and the commitment fees
of such Lender when received by the Administrative Agent pursuant to
subsection 2.3. Notwithstanding the foregoing provisions of this subsection
2.4E(iii) if, pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, the Administrative Agent shall give effect thereto
in apportioning payments received thereafter.
(iv) Payments on Business Days. Except if expressly provided
-------------------------
otherwise, whenever any payment to be made hereunder shall be stated to be
due on a day that is not a Business Day, such payment shall be made on the
next succeeding Business Day and such extension of time shall be included
in the computation of the payment of interest hereunder or of the
commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before disposing
-------------------
of any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all
Loans evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon has been paid; provided
--------
that the failure to make (or any error in the making of) a notation of any
Loan made under such Note shall not limit or otherwise affect such
disposition or the obligations of Company hereunder or under such Note with
respect to any Loan or any payments of principal or interest on such Note.
19.5 Use of Proceeds.
---------------
A. Term Loans and Revolving Loans Made on the Closing Date. The proceeds
of the Term Loans and the Revolving Loans to be made to Company on the Closing
Date shall be applied, together with the cash proceeds of the
-62-
Equity Contribution, the net cash proceeds of the issuance and sale of the
Subordinated Debt and approximately $60,000,000 of cash on hand at Company, to
repay certain existing Indebtedness of Company and its Subsidiaries, finance the
redemption price of the Capital Stock of Company pursuant to the Merger
Agreement and to pay the Transaction Costs.
B. Revolving Loans; Swing Line Loans. The proceeds of any Revolving
Loans made after the Closing Date and any Swing Line Loans shall be applied by
Company for working capital and general corporate purposes of Company and its
Subsidiaries.
C. Margin Regulations. No portion of the proceeds of any borrowing under
this Agreement shall be used by Company or any of its Subsidiaries in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation U, Regulation T or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
19.6 Special Provisions Governing Eurodollar Rate Loans.
--------------------------------------------------
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Eurodollar Rate Loans as to
the matters covered:
A. Determination of Applicable Interest Rate. As soon as practicable
after 11:00 A.M. (New York time) on each Interest Rate Determination Date, the
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Company and
each Lender.
B. Inability to Determine Applicable Interest Rate. In the event that
the Administrative Agent shall have reasonably determined (which determination
shall be final and conclusive and binding upon all parties hereto), on any
Interest Rate Determination Date with respect to any Eurodollar Rate Loans, that
by reason of circumstances arising after the date of this Agreement affecting
the London interbank market, adequate and fair means do not exist for
ascertaining the interest rate applicable to such Loans on the basis provided
for in the definition of Reserve Adjusted Eurodollar Rate the Administrative
Agent shall on such date give notice (by telecopy or by telephone confirmed in
writing) to Company and each Lender of such determination, whereupon (i) no
Loans may be made or continued as, or converted to, Eurodollar Rate Loans, until
such time as the Administrative Agent notifies Company and the Lenders that the
circumstances giving rise to such notice no longer exist (such notification not
to be unreasonably withheld or delayed) and (ii) any Notice of Borrowing or
Notice of Conversion/Continuation given by Company with respect to the Loans in
respect of which such determination was made shall be deemed to be rescinded by
Company.
-63-
C. Illegality or Impracticability of Eurodollar Rate Loans. In the event
that on any date any Lender shall have reasonably determined (which
determination shall be final and conclusive and binding upon all parties hereto
but shall be made only after consultation with Company and the Administrative
Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans
(i) has become unlawful as a result of compliance by such Lender in good faith
with any law, treaty, governmental rule, regulation, guideline or order (or
would conflict with any such treaty, governmental rule, regulation, guideline or
order not having the force of law even though the failure to comply therewith
would not be unlawful) or (ii) has become impracticable, or would cause such
Lender material hardship, as a result of contingencies occurring after the date
of this Agreement which materially and adversely affect the London interbank
market, then, and in any such event, such Lender shall be an "Affected Lender"
---------------
and it shall on that day give notice (by telecopy or by telephone confirmed in
writing) to Company and the Administrative Agent of such determination (which
notice the Administrative Agent shall promptly transmit to each other Lender).
Thereafter (a) the obligation of the Affected Lender to make Loans as, or to
convert Loans to, Eurodollar Rate Loans, shall be suspended until such notice
shall be withdrawn by the Affected Lender, (b) to the extent such determination
by the Affected Lender relates to a Eurodollar Rate Loan then being requested by
Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding Eurodollar Rate Loans, as the case may be
(the "Affected Loans"), shall be terminated at the earlier to occur of the
--------------
expiration of the Interest Period then in effect with respect to the Affected
Loans or when required by law, and (d) the Affected Loans shall automatically
convert into Base Rate Loans on the date of such termination. Notwithstanding
the foregoing, to the extent a determination by an Affected Lender as described
above relates to a Eurodollar Rate Loan then being requested by Company pursuant
to a Notice of Borrowing or a Notice of Conversion/Continuation, Company shall
have the option, subject to the provisions of subsection 2.6D, to rescind such
Notice of Borrowing or Notice of Conversion/Continuation as to all Lenders by
giving notice (by telecopy or by telephone confirmed in writing) to the
Administrative Agent of such rescission on the date on which the Affected Lender
gives notice of its determination as described above (which notice of rescission
the Administrative Agent shall promptly transmit to each other Lender). Except
as provided in the immediately preceding sentence, nothing in this subsection
2.6C shall affect the obligation of any Lender other than an Affected Lender to
make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of Interest Periods.
Company shall compensate each Lender, upon written request by that Lender (which
request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including, without limitation, any
interest paid by that Lender to the Lenders of funds borrowed by it to make or
carry its Eurodollar Rate Loans and any loss, expense or liability sustained by
that Lender in connection with the liquidation or re-employment of such funds)
which that Lender may sustain: (i) if for any reason (other than a default by
that Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date
specified therefore in a Notice of
-64-
Borrowing or a telephonic request for borrowing, or a conversion to or
continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment (including any prepayment
pursuant to subsection 2.4B) or conversion of any of its Eurodollar Rate Loans
occurs on a date that is not the last day of an Interest Period applicable to
that Loan, (iii) if any prepayment of any of its Eurodollar Rate Loans is not
made on any date specified in a notice of prepayment given by Company, or (iv)
as a consequence of any other default by Company in the repayment of its
Eurodollar Rate Loans when required by the terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Subject to its obligations under
subsection 2.8, any Lender may make, carry or transfer Eurodollar Rate Loans at,
to, or for the account of any of its branch offices or the office of an
Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation
of all amounts payable to a Lender under this subsection 2.6 and under
subsection 2.7A shall be made as though that Lender had actually funded each of
its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Reserve Adjusted Eurodollar Rate in an amount equal to the amount of such
Eurodollar Rate Loan and having a maturity comparable to the relevant Interest
Period and, through the transfer of such Eurodollar deposit from an offshore
office of that Lender to a domestic office of that Lender in the United States
of America; provided, however, that each Lender may fund each of its Eurodollar
-------- -------
Rate Loans in any manner it sees fit and the foregoing assumptions shall be
utilized only for the purposes of calculating amounts payable under this
subsection 2.6 and under subsection 2.7A.
G. Eurodollar Rate Loans After Default. After the occurrence of and
during the continuation of an Event of Default, unless the Requisite Lenders
otherwise consent, (i) Company may not elect to have a Loan be made or
maintained as, or converted to, a Eurodollar Rate Loan after the expiration of
any Interest Period then in effect for that Loan and (ii) subject to the
provisions of subsection 2.6D, any Notice of Borrowing or Notice of Conversion/
Continuation given by Company with respect to a requested borrowing or
conversion/continuation that has not yet occurred shall be deemed to be
rescinded by Company.
19.7 Increased Costs; Taxes; Capital Adequacy.
----------------------------------------
A. Compensation for Increased Costs and Taxes. Subject to the provisions
of subsection 2.7B (which shall be controlling with respect to the matters
covered thereby), in the event that any Lender shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
governmental authority, in each case that becomes
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effective after the Closing Date, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any
central bank or other governmental or quasi-governmental authority (whether or
not having the force of law):
(i) results in a change in the basis of taxation of such Lender (or
its applicable lending office) (other than a change with respect to any Tax
on the overall net income of such Lender or franchise tax in lieu thereof)
with respect to this Agreement or any of its obligations hereunder or any
payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in or
for the account of, or advances or loans by, or other credit extended by,
or any other acquisition of funds by, any office of such Lender (other than
any such reserve or other requirements with respect to Eurodollar Rate
Loans that are reflected in the definition of Reserve Adjusted Eurodollar
Rate); or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable lending office) or
its obligations hereunder, or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Eurodollar Rate Loans hereunder or to
reduce any amount received or receivable by such Lender (or its applicable
lending office) with respect thereto; then, in any such case, the Lender shall
promptly notify Company and the Administrative Agent thereof and Company shall
promptly pay to such Lender, upon receipt of the statement referred to in the
next sentence, such additional amount or amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such
Lender shall reasonably determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder, provided that notwithstanding anything to the contrary contained in
--------
this subsection 2.7A, unless a Lender gives notice to Company that it is
obligated to pay an amount under this subsection within six months after the
later of (x) the date such Lender incurs such increased cost or suffers such
reduction in amounts received or receivable or (y) the date such Lender has
actual knowledge of such costs on reduction in amounts received or receivable,
then such Lender shall only be entitled to be compensated for such amount to the
extent of the increased cost or reduction in amounts received or receivable that
is incurred or suffered on or after the date which occurs six months prior to
such Lender giving notice to Company that it is obligated to repay the
respective amounts pursuant to this subsection 2.7A. Such Lender shall deliver
to Company (with a copy to the Administrative Agent) a written statement,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Lender under this subsection 2.7A, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
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B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Company under
-----------------------------
this Agreement and the other Loan Documents shall (except to the extent
required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than a Tax on the overall net
income of the Administrative Agent or any Lender and franchise taxes unpaid
in lieu thereof) imposed, levied, collected, withheld or assessed by or
within the United States of America or any political subdivision in or of
the United States of America or any other jurisdiction from which a payment
is made by or on behalf of Company.
(ii) Withholding of Taxes. Subject to the provisions of subsection
--------------------
2.7B(iii), if Company or any other Person is required by law to make any
deduction or withholding on account of any Tax (other than a Tax on the
overall net income of the Administrative Agent or any Lender and franchise
taxes imposed in lieu thereof) from any sum paid or payable by Company to
the Administrative Agent or any Lender under any of the Loan Documents:
(a) Company shall notify the Administrative Agent of any such
requirement or any change in any such requirement as soon as
practicable;
(b) Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to
pay is imposed on Company) for its own account or (if that liability
is imposed on the Administrative Agent or such Lender, as the case may
be) on behalf of and in the name of the Administrative Agent or such
Lender;
(c) the sum payable by Company in respect of which the relevant
deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that
deduction, withholding or payment, the Administrative Agent or such
Lender, as the case may be, receives on the due date a net sum equal
to what it would have received had no such deduction, withholding or
payment of such tax been required or made; and
(d) within 30 days after paying any sum from which it is required
by law to make any deduction or withholding, and within 30 days after
the due date of payment of any Tax which it is required by clause (b)
above to pay, Company shall deliver to the Administrative Agent
evidence satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the relevant
taxing or other authority;
provided that no such additional amount shall be required to be paid to any
--------
Lender under clause (c) above except to the extent that any change after the
Closing Date or after the date of the
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Assignment Agreement pursuant to which such Lender became a Lender (in the case
of each other Lender) in any such requirement for a deduction, withholding or
payment as is mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date of this
Agreement or at the date of such Assignment Agreement, as the case may be, in
respect of payments to such Lender.
(iii) Evidence of Exemption from U.S. Withholding Tax.
------------------------------------------------
(a) Each Lender that is not a United States Person (as such term
is defined in Section 7701(a)(30) of the Internal Revenue Code) for
U.S. federal income tax purposes (for purposes of this subsection
2.7B(iii), a "Non-US Lender") shall deliver to each of the
-------------
Administrative Agent and Company, on or prior to the Closing Date, or
in the case of a Lender that is an assignee or transferee of an
interest under this Agreement pursuant to Sections 10.1, on or prior
to the date of the Assignment Agreement pursuant to which it becomes a
Lender, and at such other times as may be necessary in the
determination of Company or the Administrative Agent (each in the
reasonable exercise of its discretion), (1) two original copies of
Internal Revenue Service Form 1001 or 4224 (or any successor forms),
accurately completed and duly executed by such Lender, together with
any other certificate or statement of exemption required under the
Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to deduction or withholding
of United States federal income tax with respect to any payments to
such Lender of principal, interest, fees or other amounts payable
under any of the Loan Documents or (2) if such Lender is not a "bank"
or other Person described in Section 881(c)(3) of the Internal Revenue
Code and cannot deliver either Internal Revenue Service Form 1001 or
4224 pursuant to clause (1) above, a Certificate of Non-Bank Status
together with an original copy of Internal Revenue Service Form W-8
(or any successor form), properly completed and duly executed by such
Lender, together with any other certificate or statement of exemption
required under the Internal Revenue Code or the regulations issued
thereunder to establish that such Lender is not subject to deduction
or withholding (including, without limitation, backup withholding) of
United States federal income tax with respect to any payments to such
Lender of interest payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters pursuant to subsection 2.7B(iii)(a) hereby agrees,
from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or
change in circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, such Lender
shall promptly (1) deliver to each of the Administrative Agent and
Company two new original copies of Internal Revenue Service Form 1001
or
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4224, or a Certificate of Non-Bank Status and an original copy of
Internal Revenue Service Form W-8, as the case may be, accurately
completed and duly executed by such Lender, together with any other
certificate or statement of exemption required in order to confirm or
establish that such Lender is not subject to deduction or withholding
of or is subject to a reduced rate of withholding of United States
federal income tax with respect to payments to such Lender under the
Loan Documents or (2) immediately notify the Administrative Agent and
Company of its inability to deliver any such forms, certificates or
other evidence.
(c) Company shall not be required to pay any additional amount to
any Non-US Lender under clause (c) of subsection 2.7B(ii) in respect
of deductions or withholdings of United States federal income taxes if
such Lender shall have failed to satisfy the requirements of
subsection 2.7B(iii)(a) or 2.7B(iii)(b); provided that if such Lender
--------
shall have satisfied such requirements on the Closing Date or on the
date of the Assignment Agreement pursuant to which it became a Lender
(in the case of each other Lender), nothing in this subsection
2.7B(iii)(c) shall relieve Company of its obligation to pay any
additional amounts pursuant to clause (c) of subsection 2.7B(ii) in
the event that, as a result of any change after the Closing Date in
any applicable law, treaty or governmental rule, regulation or order,
or any change in the interpretation, administration or application
thereof, such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described in
subsection 2.7B(iii)(a) or 2.7B(iii)(b).
C. Capital Adequacy Adjustment. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability after the Closing
Date of any law, rule or regulation (or any provision thereof) regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its applicable lending office)
with any guideline, request or directive regarding capital adequacy
(whether or not having the force of law) of any such governmental
authority, central bank or comparable agency, has or would have the effect
of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference
to, such Lender's Loans or Commitments or Letters of Credit or
participations therein or other obligations hereunder with respect to the
Loans or the Letters of Credit to a level below that which such Lender
reasonably determines such Lender or such controlling corporation could
have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies
of such Lender or such controlling corporation with regard to capital
adequacy), then from time to time, within fifteen Business Days after
receipt by Company from such Lender of the statement referred to in the
next sentence, Company shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling corporation on
an after-tax basis for such reduction. Such
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Lender shall deliver to Company (with a copy to the Administrative Agent) a
written statement, setting forth in reasonable detail the basis of the
calculation of such additional amounts, which statement shall be conclusive
and binding upon all parties hereto absent manifest error.
D. Substitute Lenders. In the event (i) Company is required under the
provisions of this subsection 2.7 or subsection 3.6 to make payments to any
Lender or in the event any Lender fails to lend to Company in accordance
with this Agreement, or (ii) any Lender fails to consent to a proposed
change, waiver, discharge or termination under the Loan Documents otherwise
approved by Requisite Lenders, then, in either case, Company may elect to
terminate such Lender as a party to this Agreement; provided that,
--------
concurrently with such termination, (i) Company shall pay that Lender all
principal, interest and fees and other amounts (including without
limitation amounts, if any, owed under this subsection 2.7) due to be paid
to such Lender with respect to all periods through such date of
termination, (ii) another financial institution satisfactory to Company and
the Administrative Agent (or, in the event the Administrative Agent is also
the Lender to be terminated, the successor Administrative Agent) shall
agree, as of such date, to become a Lender for all purposes under this
Agreement (whether by assignment or amendment) and to assume all
obligations of the Lender to be terminated as of such date, and (iii) all
documents and supporting materials necessary, in the reasonable judgment of
the Administrative Agent (or, in the event the Administrative Agent is also
the Lender to be terminated, the successor Administrative Agent) to
evidence the substitution of such Lender shall have been received and
approved by the Administrative Agent as of such date.
19.8 Obligation of Lenders and Issuing Bank to Mitigate.
--------------------------------------------------
Each Lender and the Issuing Bank agrees that, as promptly as practicable
after the officer of such Lender or the Issuing Bank responsible for
administering the Loans or Letters of Credit of such Lender or the Issuing Bank,
as the case may be, becomes aware of the occurrence of an event or the existence
of a condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender or the Issuing Bank to receive payments under
subsection 2.7 or subsection 3.6, it will, to the extent not inconsistent with
the internal policies of such Lender or the Issuing Bank and any applicable
legal or regulatory restrictions, use reasonable efforts (i) to make, issue,
fund or maintain the Commitments of such Lender or the affected Loans or Letters
of Credit of such Lender or the Issuing Bank through another lending or letter
of credit office of such Lender or the Issuing Bank, or (ii) take such other
measures as such Lender or the Issuing Bank may deem reasonable, if as a result
thereof the circumstances which would cause such Lender to be an Affected Lender
would cease to exist or the additional amounts which would otherwise be required
to be paid to such Lender or the Issuing Bank pursuant to subsection 2.7 or
subsection 3.6 would be reduced and if, as determined by such Lender or the
Issuing Bank in its reasonable discretion, the making, issuing, funding or
maintaining of such Commitments or Loans or Letters of Credit through such other
the lending or letter of credit office or in
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accordance with such other measures, as the case may be, would not otherwise
materially adversely affect such Commitments or Loans or Letters of Credit or
the interests of such Lender or the Issuing Bank; provided that such Lender or
--------
the Issuing Bank will not be obligated to utilize such other lending or letter
of credit office pursuant to this subsection 2.8 unless Company agrees to pay
all incremental expenses incurred by such Lender or the Issuing Bank as a result
of utilizing such other lending or letter of credit office. A certificate as to
the amount of any such expenses payable by Company pursuant to this subsection
2.8 (setting forth in reasonable detail the basis for requesting such amount)
submitted by such Lender or the Issuing Bank to Company (with a copy to the
Administrative Agent) shall be conclusive absent manifest error.
SECTION 20.
LETTERS OF CREDIT
20.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
---------------------------------------------------------------------
Therein.
-------
A. Letters of Credit. In addition to Company requesting that Lenders
make Revolving Loans pursuant to subsection 2.1A(iii) and that the Swing Line
Lender make Swing Line Loans pursuant to subsection 2.1A(iv), Company may
request, in accordance with the provisions of this subsection 3.1, from time to
time during the period from the Closing Date to but excluding the date which is
five (5) Business Days before the Revolving Loan Commitment Termination Date,
that the Issuing Bank issue Letters of Credit for the account of Company for the
purposes specified in the definitions of Commercial Letters of Credit and
Standby Letters of Credit. Subject to and upon the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Loan
Parties herein set forth, the Issuing Bank agrees to issue such Letters of
Credit in accordance with the provisions of this subsection 3.1; provided that
--------
Company shall not request that the Issuing Bank issue (and the Issuing Bank
shall not issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Revolving Loan Commitments would exceed the Revolving
Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance,
the Letter of Credit Usage would exceed the Letter of Credit Subfacility
Commitment;
(iii) any Standby Letter of Credit having an expiration date later
than the earlier of (a) five (5) Business Days prior to the Revolving Loan
Commitment Termination Date and (b) the date which is one year from the
date of issuance of such Standby Letter of Credit; provided, that the
--------
immediately preceding clause (b) shall not prevent the Issuing Bank from
agreeing that a Standby Letter of Credit will automatically be extended for
one or more successive periods absent a Default or Event of Default,
subject to the immediately preceding clause (a), not to exceed one year
each unless the Issuing Bank elects not to extend for any such additional
period; provided, further, that, unless the Requisite Lenders otherwise
-------- -------
consent, the Issuing Bank shall give notice that it will not
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extend such Standby Letter of Credit if it has knowledge that a Default or
Event of Default has occurred and is continuing (and has not been waived in
accordance with subsection 10.6) on the last day on which such Issuing Bank
may give notice to the beneficiary that it will not extend such Standby
Letter of Credit; or
(iv) any Commercial Letter of Credit (a) having an expiration date
later than the earlier of (x) thirty (30) days prior to the Revolving Loan
Commitment Termination Date and (y) the date which is one hundred eighty
(180) days from the date of issuance of such Commercial Letter of Credit or
(b) that is otherwise unacceptable to the Issuing Bank in its reasonable
discretion.
B. Mechanics of Issuance.
(i) Notice of Issuance. Whenever Company desires the issuance of a
------------------
Letter of Credit, it shall deliver to the Issuing Bank, at the Letter of
Credit Issuing Office, and the Administrative Agent, at the Funding and
Payment Office, a Notice of Issuance of Letter of Credit no later than
12:00 Noon (New York time) at least three (3) Business Days in the case of
Stand By Letters of Credit and five (5) Business Days (in the case of
Commercial Letters of Credit), or such shorter period as may be agreed to
by the Issuing Bank in any particular instance, in advance of the proposed
date of issuance. The Notice of Issuance of Letter of Credit shall specify
(a) the proposed date of issuance (which shall be a Business Day), (b) the
face amount of or maximum aggregate liability under, as applicable, the
Letter of Credit, (c) the expiration date of the Letter of Credit, (d) the
name and address of the beneficiary, and (e) either the verbatim text of
the proposed Letter of Credit or the proposed terms and conditions thereof,
including a precise description of any documents and the verbatim text of
any certificates to be presented by the beneficiary which, if presented by
the beneficiary prior to the expiration date of the Letter of Credit, would
require the Issuing Bank to make payment thereunder; and provided that the
--------
Issuing Bank, in its reasonable discretion, may require changes in the text
of the proposed Letter of Credit or any such documents or certificates;
provided further that no Letter of Credit shall require payment against a
-------- -------
conforming draft or other request for payment to be made thereunder on the
same business day (under the laws of the jurisdiction in which the office
of the Issuing Bank to which such draft or other request for payment is
required to be presented is located) that such draft or other request for
payment is presented if such presentation is made after 10:00 A.M. (in the
time zone of such office of the Issuing Bank) on such Business Day.
Company shall notify the Issuing Bank (and the Administrative Agent,
if not such Issuing Bank) prior to the issuance of any Letter of Credit in
the event that any of the matters to which Company is required to certify
in the applicable Notice of Issuance of Letter of Credit is no longer true
and correct as of the proposed date of issuance of such Letter of Credit,
and upon the issuance of any Letter of Credit, Company shall be deemed
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to have re-certified, as of the date of such issuance, as to the matters to
which Company is required to certify in the applicable Notice of Issuance
of Letter of Credit.
(ii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
-----------------------------
accordance with subsection 10.6) of the conditions set forth in subsection
4.3, the Issuing Bank shall issue the requested Letter of Credit in
accordance with the Issuing Lender's standard procedures, and upon its
issuance of such Letter of Credit the Issuing Bank shall promptly notify
the Administrative Agent and each Lender of such issuance, which notice
shall be accompanied by a copy of such Letter of Credit.
(iii) Reports to Lenders. Within thirty (30) days after the end of
------------------
each calendar quarter ending after the Closing Date, so long as any Letter
of Credit shall have been outstanding during such calendar quarter, the
Issuing Bank shall deliver to the Administrative Agent and the
Administrative Agent shall deliver to each Lender a report setting forth
for such calendar quarter the daily maximum amount available to be drawn
under the Letters of Credit that were outstanding during such calendar
quarter.
C. Lenders' Purchase of Participations in Letters of Credit. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Issuing Bank a
participation in such Letter of Credit and any drawings honored or payments made
thereunder in an amount equal to such Lender's Pro Rata Share (with respect to
the Revolving Loan Commitments) of the maximum amount which is or at any time
may become available to be drawn or required to be paid thereunder.
20.2 Letter of Credit Fees.
---------------------
Company agrees to pay the following amounts to the Issuing Bank with
respect to Letters of Credit issued by it for the account of Company:
(i) with respect to each Letter of Credit, (a) a fronting fee equal
to 0.250% per annum of the daily maximum amount available to be drawn under
such Letter of Credit and (b) a Letter of Credit fee equal to the product
of (x) the then Applicable Eurodollar Rate Margin with respect to Revolving
Loans and (y) the daily maximum amount available to be drawn under such
Letter of Credit, in each case payable in arrears on and to the last
Business Day in each of March, June, September and December of each year,
commencing June 1999, and on the Revolving Loan Commitment Termination Date
and computed on the basis of a 360-day year for the actual number of days
elapsed; and
(ii) with respect to the issuance, amendment or transfer of each
Letter of Credit (without duplication of the fees payable under clause (i)
above), documentary and processing charges in accordance with such Issuing
Lender's standard schedule for such charges in effect at the time of such
issuance, amendment or transfer, as the case may be.
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Promptly upon receipt by such Issuing Bank of any amount described in clause
(i)(b) of this subsection 3.2, such Issuing Bank shall distribute to each other
Lender having Revolving Loan Exposure its Pro Rata Share of such amount.
20.3 Drawings and Payments and Reimbursement of Amounts Drawn or Paid Under
----------------------------------------------------------------------
Letters of Credit.
-----------------
A. Responsibility of Issuing Bank With Respect to Requests For Drawings
and Payments. In determining whether to honor any drawing or request for
payment under any Letter of Credit by the beneficiary thereof, the Issuing Bank
shall be responsible only to determine that the documents and certificates
required to be delivered under such Letter of Credit have been delivered and to
use reasonable care so that they comply on their face with the requirements of
such Letter of Credit.
B. Reimbursement by Company of Amounts Drawn or Paid Under Letters of
Credit. In the event an Issuing Bank has determined to honor a drawing or
request for payment under a Letter of Credit issued by it, the Issuing Bank
shall immediately notify Company and the Administrative Agent, and Company shall
reimburse such Issuing Bank on or before the Business Day immediately following
the date on which such drawing is honored or such payment is made (the
applicable "Reimbursement Date") in an amount in same day funds equal to the
------------------
amount of such honored drawing; provided that, anything contained in this
--------
Agreement to the contrary notwithstanding, (i) unless Company shall have
notified the Administrative Agent and the Issuing Bank prior to 12:00 Noon (New
York time) on the date immediately following the date of such honored drawing or
request for payment that Company intends to reimburse such Issuing Bank for the
amount of such honored drawing or payment with funds other than the proceeds of
Revolving Loans, Company shall be deemed to have given a timely Notice of
Borrowing to the Administrative Agent requesting the Lenders to make Revolving
Loans which are Base Rate Loans on the applicable Reimbursement Date in an
amount equal to the amount of such honored drawing or payment and (ii) subject
to satisfaction or waiver of the conditions specified in subsection 4.2B, the
Lenders shall, on the applicable Reimbursement Date, make Revolving Loans in the
amount of such honored drawing or payment, the proceeds of which shall be
applied directly by the Administrative Agent to reimburse the Issuing Bank for
the amount of such honored drawing or payment; provided further that if for any
-------- -------
reason proceeds of Revolving Loans are not received by the Issuing Bank on the
applicable Reimbursement Date in an amount equal to the amount of such honored
drawing or payment, Company shall reimburse the Issuing Bank, on demand, in an
amount in same day funds equal to the excess of the amount of such honored
drawing or payment over the aggregate amount of such Revolving Loans, if any,
which are so received. Nothing in this subsection 3.3B shall be deemed to
relieve any Lender from its obligation to make Revolving Loans on the terms and
conditions set forth in this Agreement, and Company shall retain any and all
rights it may have against any Lender resulting from the failure of such Lender
to make such Revolving Loans under this subsection 3.3B.
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C. Payment by Lenders of Unreimbursed Drawings or Payments Under Letters
of Credit.
(i) Payment by Lenders. In the event that Company shall fail for
------------------
any reason to reimburse any Issuing Bank as provided in subsection 3.3B in
an amount equal to the amount of any honored drawing or payment made by
such Issuing Bank under a Letter of Credit issued by it, such Issuing Bank
shall promptly notify each other Lender of the unreimbursed amount of such
honored drawing or payment and of such other Lender's respective
participation therein based on such Lender's Pro Rata Share of the
Revolving Loan Commitments. Each Lender shall make available to such
Issuing Bank an amount equal to its respective participation, in same day
funds, at the office of such Issuing Bank specified in such notice, not
later than 2:00 P.M. (New York time) on the first business day (under the
laws of the jurisdiction in which such office of such Issuing Bank is
located) after the date notified by such Issuing Bank. In the event that
any Lender fails to make available to such Issuing Bank on such business
day the amount of such Lender's participation in such Letter of Credit as
provided in this subsection 3.3C, such Issuing Bank shall be entitled to
recover such amount on demand from such Lender together with interest
thereon at the rate customarily used by such Issuing Bank for the
correction of errors among banks for three Business Days and thereafter at
the Base Rate. Nothing in this subsection 3.3C shall be deemed to prejudice
the right of any Lender to recover from any Issuing Bank any amounts made
available by such Lender to such Issuing Bank pursuant to this subsection
3.3C in the event that it is determined by the final judgment of a court of
competent jurisdiction that the payment with respect to a Letter of Credit
by such Issuing Bank in respect of which payment was made by such Lender
constituted gross negligence or willful misconduct on the part of such
Issuing Bank.
(ii) Distribution to Lenders of Reimbursements Received From Company.
---------------------------------------------------------------
In the event any Issuing Bank shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of any honored
drawing or payment made by such Issuing Bank under a Letter of Credit
issued by it, such Issuing Bank shall distribute to each other Lender which
has paid all amounts payable by it under subsection 3.3C(i) with respect to
such honored drawing or payment such other Lender's Pro Rata Share of all
payments subsequently received by such Issuing Bank from Company in
reimbursement of such honored drawing or payment when such payments are
received. Any such distribution shall be made to a Lender at its primary
address set forth below its name on the appropriate signature page hereof
or at such other address as such Lender may request.
D. Interest on Amounts Drawn or Paid Under Letters of Credit.
(i) Payment of Interest by Company. Company agrees to pay to each
------------------------------
Issuing Bank, with respect to drawings or payments made under any Letters
of Credit issued by it, interest on the amount paid by such Issuing Bank in
respect of each such drawing or
-75-
payment from the date such drawing is honored or payment is made to but
excluding the date such amount is reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B) at a rate equal to (a) for the period from the date such drawing is
honored or payment is made to but excluding the applicable Reimbursement
Date, the Base Rate plus the Applicable Base Rate Margin with respect to
----
Revolving Loans, and (b) thereafter, at the written election of the Issuing
Bank, a rate which is 2% per annum in excess of the rate of interest
described in the foregoing clause (a). Interest payable pursuant to this
subsection 3.3D(i) shall be computed on the basis of a 360-day year for the
actual number of days elapsed in the period during which it accrues and
shall be payable on demand or, if no demand is made, on the date on which
the related drawing or payment under a Letter of Credit is reimbursed in
full.
(ii) Distribution of Interest Payments by Issuing Bank. Promptly
-------------------------------------------------
upon receipt by any Issuing Bank of any payment of interest pursuant to
subsection 3.3D(i), (a) such Issuing Bank shall distribute to each other
Lender, out of the interest received by such Issuing Bank in respect of the
period from the date of the applicable honored drawing or payment under a
Letter of Credit issued by such Issuing Bank to but excluding the date on
which such Issuing Bank is reimbursed for the amount of such drawing or
payment (including any such reimbursement out of the proceeds of Revolving
Loans pursuant to subsection 3.3B), the amount that such other Lender would
have been entitled to receive in respect of the Letter of Credit fee that
would have been payable in respect of such Letter of Credit for such period
pursuant to subsection 3.2 if no drawing had been honored or payment had
been made under such Letter of Credit, and (b) in the event such Issuing
Bank shall have been reimbursed by other Lenders pursuant to subsection
3.3C(i) for all or any portion of such drawing or payment, such Issuing
Bank shall distribute to each other Lender which has paid all amounts
payable by it under subsection 3.3C(i) with respect to such drawing or
payment such other Lender's Pro Rata Share of any interest received by such
Issuing Bank in respect of that portion of such drawing or payment so
reimbursed by other Lenders for the period from the date on which such
Issuing Bank was so reimbursed by other Lenders to and including the date
on which such portion of such drawing or payment is reimbursed by Company.
Any such distribution shall be made to a Lender at its Lending Office set
forth on Schedule 2.1 or at such other address as such Lender may request.
------------
20.4 Obligations Absolute.
--------------------
The obligation of Company to reimburse each Issuing Bank for drawings
honored or payments made under the Letters of Credit issued by it and to repay
any Revolving Loans made by the Lenders pursuant to subsection 3.3B and the
obligations of the Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including, without limitation, the following
circumstances:
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(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right
which Company or any Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Bank or other Lender or any other
Person or, in the case of a Lender, against Company whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Company or one of
its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft, demand, certificate or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) payment by the applicable Issuing Bank under any Letter of
Credit against presentation of a demand, draft or certificate or other
document which appears to substantially comply with the terms of such
Letter of Credit;
(v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company or any
of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any
party thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(viii) the fact that Default or Event of Default shall have occurred
and be continuing;
provided, in each case, that payment by the applicable Issuing Bank under the
--------
applicable Letter of Credit shall not have constituted bad faith, gross
negligence or willful misconduct of such Issuing Bank under the circumstances in
question.
20.5 Indemnification; Nature of Issuing Lender's Duties.
--------------------------------------------------
A. Indemnification. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Bank may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Bank, other than as a result of (a) the bad faith, gross negligence or willful
misconduct of such Issuing Bank or (b) subject to the
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following clause (ii), the wrongful dishonor by such Issuing Bank of a proper
demand for payment made under any Letter of Credit issued by it or (ii) the
failure of such Issuing Bank to honor a drawing or other request for payment
under any such Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein called
"Governmental Acts").
-----------------
B. Nature of Issuing Bank's Duties. As between Company and any Issuing
Bank, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Bank by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Bank shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing or
payment under such Letter of Credit; or (viii) any consequences arising from
causes beyond the control of such Issuing Bank, including without limitation any
Governmental Acts, and none of the above shall affect or impair, or prevent the
vesting of, any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Bank under or in connection with the Letters of
Credit issued by it or any documents and certificates delivered thereunder, if
taken or omitted in good faith, shall not put such Issuing Bank under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this subsection 3.5,
Company shall retain any and all rights it may have against any Issuing Bank for
any liability arising out of the bad faith, gross negligence or willful
misconduct of such Issuing Bank.
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20.6 Increased Costs and Taxes Relating to Letters of Credit.
-------------------------------------------------------
Subject to the provisions of subsection 2.7B (which shall be controlling
with respect to matters covered thereby), in the event that any Issuing Bank or
any Lender shall determine (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto) that any law, treaty
or governmental rule, regulation or order, or any change therein or in the
interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the Closing Date, or compliance by any Issuing Bank or
Lender with any guideline, request or directive issued or made after the Closing
Date by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subject to any additional Tax such Issuing Bank or any Lender
(or its applicable lending or letter of credit office) (other than a change
with respect to any Tax on the overall net income of such Issuing Bank or
Lender) with respect to the issuing or maintaining of any Letters of Credit
or the purchasing or maintaining of any participations therein or any other
obligations under this Section 3, whether directly or by such being imposed
on or suffered by any particular Issuing Bank;
(ii) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by any Issuing Bank
or participations therein purchased by any Lender; or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Issuing Bank or Lender (or its applicable
lending or letter of credit office) regarding this Section 3 or any Letter
of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Bank or Lender of agreeing to issue, issuing or maintaining any Letter of Credit
or agreeing to purchase, purchasing or maintaining any participation therein or
to reduce any amount received or receivable by such Issuing Bank or Lender (or
its applicable lending or letter of credit office) with respect thereto; then,
in any case, Company shall promptly pay to such Issuing Bank or Lender, upon
receipt of the statement referred to in the next sentence, such additional
amount or amounts (reasonably determined by such Issuing Bank or Lender) as may
be necessary to compensate such Issuing Bank or Lender for any such increased
cost or reduction in amounts received or receivable hereunder. Such Issuing
Bank or Lender shall deliver to Company a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to such
Issuing Bank or Lender under this subsection 3.6, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
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SECTION 21.
CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction (or waiver) of
the following conditions.
21.1 Conditions to Term Loans; Initial Revolving Loans.
-------------------------------------------------
The obligations of the Lenders to make the Term Loans and the Revolving
Loans to be made on the Closing Date are, in addition to the conditions
precedent specified in subsection 4.2, subject to prior or concurrent
satisfaction (or waiver) of the following conditions:
A. Company Documents. On or before the Closing Date, Company shall
deliver to the Administrative Agent the following, each, unless otherwise noted,
dated the Closing Date:
(i) Certified copies of its Certificate of Incorporation, together
with a good standing certificate from the Secretary of State of the
Commonwealth of Pennsylvania, and each other state in which it is qualified
as a foreign corporation to do business (except any such state in which
failure to be qualified could not reasonably be expected to have a Material
Adverse Effect), each dated a recent date prior to the Closing Date;
(ii) Copies of its Bylaws, certified as of the Closing Date by its
corporate secretary or an assistant secretary;
(iii) Resolutions of its Board of Directors approving and authorizing
the execution, delivery and performance of this Agreement and the other
Loan Documents and the Transaction Documents to which it is a party,
certified as of the Closing Date by its corporate secretary or an assistant
secretary as being in full force and effect without modification or
amendment;
(iv) Incumbency certificates of its officers executing this Agreement
and the other Loan Documents to which it is a party as of the Closing Date;
(v) Executed originals of this Agreement and the other Loan
Documents to which it is a party;
(vi) Certified copies of each of the Transaction Documents to which
it is a party; and
(vii) Such other documents as the Administrative Agent may reasonably
request.
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B. Subsidiary Documents. On or before the Closing Date, Company shall
deliver to the Administrative Agent for the Lenders the following for each
Subsidiary Guarantor (which may be waived by the Agents for any Subsidiaries of
Company with respect to the items described in clause (i) below) after giving
effect to the Recapitalization Transactions, each, unless otherwise noted, dated
the Closing Date:
(i) Certified copies of the Organizational Certificate, together
with a good standing certificate from the applicable Governmental Authority
of its jurisdiction of incorporation, organization or formation and each
other jurisdiction in which it is qualified as a foreign corporation or
other entity to do business (except any such state in which failure to be
qualified could not reasonably be expected to have a Material Adverse
Effect), each dated a recent date prior to the Closing Date;
(ii) Copies of the Organizational Documents of such Subsidiary
Guarantor, certified as of the Closing Date by its corporate secretary or
an assistant secretary;
(iii) Copies of the Organizational Authorizations of such Subsidiary
Guarantor approving and authorizing the execution, delivery and performance
of the Subsidiary Guaranty and the other Loan Documents and the Transaction
Documents to which such Subsidiary Guarantor is party, certified as of the
Closing Date by its corporate secretary or an assistant secretary as being
in full force and effect without modification or amendment;
(iv) Incumbency certificates of its officers executing the Subsidiary
Guaranty, and the other Loan Documents to which such Subsidiary is party;
(v) Executed originals of the Subsidiary Guaranty, and the other
Loan Documents to which such Subsidiary Guarantor is party;
(vi) Certified copies of each of the Transaction Documents to which
such Subsidiary Guarantor is a party; and
(vii) Such other documents as the Administrative Agent may reasonably
request.
C. Consummation of the Recapitalization Transactions.
(i) (a) Each of the material terms and conditions of the Transaction
Documents shall be in form and substance reasonably satisfactory to the
Administrative Agent and each such Transaction Document shall be in full
force and effect and (b) all conditions to the Recapitalization
Transactions set forth in the Transaction Documents shall have been
satisfied or the fulfillment of any such conditions shall have been waived
-81-
with the reasonable consent of the Administrative Agent (such consent not
to be unreasonably withheld);
(ii) on or before the Closing Date, the Investors shall have made
the Equity Contribution;
(iii) on or before the Closing Date, the Merger shall have been
consummated in accordance with the Merger Agreement and the Administrative
Agent shall have received evidence reasonably satisfactory to it of the
foregoing;
(iv) on or before the Closing Date, Company shall have issued and
sold for Cash not less than $47,500,000 in gross aggregate principal amount
of Subordinated Debt in accordance with the terms and conditions of the
Subordinated Debt Documents;
(v) on or before the Closing Date, Company and its Subsidiaries
shall have terminated any commitment to lend or make other extensions of
credit under the Existing Credit Agreement and the Administrative Agent
shall have received evidence reasonably satisfactory to it of the
foregoing; and
(vi) the Agents shall be reasonably satisfied with all material
legal, tax and accounting matters (other than a failure to receive
recapitalization accounting treatment with respect to the Recapitalization
Transactions) relating to the Recapitalization Transactions that could
reasonably be expected to have a Material Adverse Effect.
D. Necessary Consents. Company shall have obtained all consents of
Governmental Authorities and other Persons necessary in connection with the
Recapitalization Transactions, and each of the foregoing shall be in full force
and effect and in form and substance reasonably satisfactory to the
Administrative Agent (other than any such consents, the failure to obtain which,
either individually or in the aggregate, is not reasonably likely to have a
Material Adverse Effect). All applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority which
would restrain, prevent or otherwise impose adverse conditions on the
Recapitalization Transactions or the financing thereof and no action, request
for stay, petition for review or rehearing, reconsideration or appeal shall be
pending and any time for agency action to set aside its consent on its own
motion has expired.
E. Perfection of Security Interests. Company shall have taken or caused
to be taken such actions in such a manner so that the Collateral Agent upon
filing and recording has a valid and perfected First Priority security interest
in the entire personal property (both tangible and intangible) constituting
Collateral. Such actions shall include, without limitation: (i) the delivery
pursuant to the applicable Collateral Documents of (a) such certificates or
other instruments (each of which shall be registered in the name of the
Collateral Agent or properly endorsed in blank for transfer or accompanied by
irrevocable undated stock or equivalent powers duly endorsed in blank, all in
form and substance reasonably satisfactory to the Collateral Agent)
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representing all of the shares or other interests of Capital Stock required to
be pledged pursuant to the Collateral Documents and (b) all promissory notes or
other instruments (duly endorsed, where appropriate, in a manner reasonably
satisfactory to the Collateral Agent) evidencing any Collateral; (ii) the
delivery to the Collateral Agent of (a) the results of a recent search, by a
Person satisfactory to the Collateral Agent, of all effective UCC financing
statements and fixture filings and all judgment and tax lien filings which may
have been made with respect to any personal or mixed property of any Loan Party,
together with copies of all such filings disclosed by such search; (iii) the
delivery to the Collateral Agent of Uniform Commercial Code financing statements
executed by the applicable Loan Parties as to all such Collateral granted by
such Loan Parties for all jurisdictions as may be reasonably necessary to
perfect Administrative Agent's security interest in such Collateral; (iv) the
delivery to the Collateral Agent of evidence reasonably satisfactory to the
Collateral Agent that all other filings (including, without limitation, Uniform
Commercial Code termination statements and releases and filings with the PTO and
the United States Copyright Office with respect to Intellectual Property of
Company and its Subsidiaries), recordings and other actions the Collateral Agent
deems reasonably necessary to establish, preserve and perfect the First Priority
Liens granted to the Collateral Agent in personal (both tangible and intangible)
and mixed property shall have been made; and (v) such other filings,
registrations, recordings and other actions the Collateral Agent deems
reasonably necessary to establish, preserve and perfect the First Priority Liens
granted to the Collateral Agent in any Collateral, which by the nature, location
or pledgor thereof, should be made or taken in or with respect to any foreign
jurisdiction.
F. Real Property. The Administrative Agent and the Collateral Agent
shall have received from Company and each applicable Subsidiary Guarantor,
unless waived by the Administrative Agent (in which case, any waived items shall
be delivered pursuant to subsection 6.12D), in the case of each Leasehold
Property as so noted on Schedule 5.5B, a Landlord Consent and Estoppel with
respect thereto.
G. Financial Condition Certificate. Company shall have delivered to the
Administrative Agent a certificate from the chief financial officer of Company,
in form and substance reasonably satisfactory to the Administrative Agent,
confirming that after giving effect to the consummation of the Recapitalization
Transactions and the financing transactions contemplated hereby, Company and its
Subsidiaries are Solvent. In addition, the Administrative Agent shall have
received an opinion of Xxxxxx Xxxxxx & Co., in form and substance reasonably
satisfactory to the Administrative Agent, to the effect that, as of the Closing
Date and after giving effect to the Recapitalization Transactions and the
financing transactions contemplated hereby, Company and its Subsidiaries are
Solvent.
H. Transaction Costs. The Transaction Costs (other than fees payable to
any of the Agents) shall not exceed approximately $19,500,000.
I. Opinions of Loan Parties' Counsel. The Agent and its counsel shall
have received originally executed copies for each Agent and Lenders of one or
more favorable written
-83-
opinions of Xxxxxxxx & Xxxxx, special New York counsel for the Loan Parties, and
(ii) Xxxxxx Xxxxxxxx LLP, special Pennsylvania counsel for the Loan Parties,
setting forth substantially the opinions designated in Exhibit X annexed hereto
---------
and otherwise in form and substance reasonably satisfactory to the
Administrative Agent.
J. Opinions of Counsel in the Recapitalization Transactions. The
Administrative Agent and its counsel shall have received copies of each legal
opinion, if any, delivered by any counsel for any Loan Party pursuant to the
Transaction Documents, together with a letter from counsel rendering each such
opinion authorizing the Agents and the Lenders to rely upon the applicable
opinion to the same extent as though it were addressed to the Agents and the
Lenders.
K. Opinions of Administrative Agent's Counsel. The Administrative Agent
shall have received originally executed copies for each Agent and Lender of one
or more favorable written opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
special counsel to the Administrative Agent, dated as of the Closing Date,
substantially in the form of Exhibit XI annexed hereto and as to such other
----------
matters as the Administrative Agent acting on behalf of the Lenders may
reasonably request.
L. Fees and Expenses. Company shall have paid to the Administrative
Agent, for distribution (as appropriate) to the Agents and the Lenders, the fees
payable on the Closing Date referred to in subsection 2.3 and all reasonable
expenses owing to any such Person by Company as of the Closing Date for which
invoices have been presented prior to the Closing Date.
M. Financial Statements. On or before the Closing Date, the
Administrative Agent and the Lenders shall have received from Company, the
financial information and projections described in subsection 5.3 hereof, all in
form and substance reasonably satisfactory to the Administrative Agent.
N. Evidence of Insurance. The Administrative Agent shall have received
satisfactory certificates of insurance with respect to each of the insurance
policies required pursuant to subsection 6.4, and the Administrative Agent shall
be reasonably satisfied with the nature and scope of these insurance policies.
O. Environmental. The Administrative Agent shall have received such
environmental reports for each owned Real Property Asset of Company and its
Subsidiaries, if any, in form, scope and substance reasonably satisfactory to
the Administrative Agent.
P. No Material Adverse Effect. (i) Since June 27, 1998 no Material
Adverse Effect (in the reasonable opinion of the Administrative Agent) shall
have occurred.
Q. Corporate and Capital Structure, Ownership, Management, Etc.
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(i) Corporate Structure. The corporate organizational structure of
-------------------
Company and its Subsidiaries, both before and after giving effect to the
Recapitalization Transactions, shall be as set forth on Schedule 4.1Q
-------------
annexed hereto.
(ii) Capital Structure and Ownership. The capital structure and
-------------------------------
ownership of Company after giving effect to the Recapitalization
Transactions, shall be as set forth on Schedule 4.1Q annexed hereto.
-------------
R. Representations and Warranties. Company shall have delivered to the
Administrative Agent (with a sufficient number of originally executed
counterparts for the Lenders) an Officer's Certificate, in form and substance
reasonably satisfactory to the Administrative Agent, to the effect that the
representations and warranties in Section 5 hereof are true and correct in all
material respects on and as of the Closing Date, and both before and after
giving effect to the Recapitalization Transactions, to the same extent as though
made on and as of that date.
S. Completion of Proceedings. All corporate and other proceedings taken
or to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto shall be reasonably satisfactory in form and
substance to the Administrative Agent and its counsel, and the Administrative
Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents, instruments and legal opinions as the
Administrative Agent may reasonably request.
21.2 Conditions to All Loans.
------------------------
The obligations of the Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. The Administrative Agent shall have received before that Funding Date,
in accordance with the provisions of subsection 2.1B, an originally executed
Notice of Borrowing, in each case signed by a Responsible Officer on behalf of
Company and delivered to the Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true and correct in all material respects on
and as of that Funding Date to the same extent as though made on and as of
that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects on
and as of such earlier date;
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(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute a Default or Event of Default;
(iii) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it, on that Funding Date; and
(iv) The making of the Loans requested on such Funding Date shall not
violate any law including, without limitation, Regulation T, Regulation U
or Regulation X of the Board of Governors of the Federal Reserve System.
21.3 Conditions to Letters of Credit.
-------------------------------
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Bank is obligated to issue such Letter of Credit) is subject
to the following additional conditions precedent:
A. On or before the date of issuance of such Letter of Credit, the
Issuing Bank and the Administrative Agent shall have received, in accordance
with the provisions of subsection 3.1B(i), an originally executed Notice of
Issuance of Letter of Credit, signed by a Responsible Officer of Company on
behalf of Company and delivered to the Administrative Agent, together with all
other information specified in subsection 3.1B(i) and such other documents or
information as the applicable Issuing Bank may reasonably require in connection
with the issuance of such Letter of Credit.
B. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
SECTION 22.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to make the
Loans, to induce the Issuing Bank to issue Letters of Credit and to induce the
other Lenders to purchase participations therein, Company represents and
warrants to each Lender and the Issuing Bank, on the date of this Agreement, on
the Closing Date, on each Funding Date, and on the date of issuance of each
Letter of Credit, that the following statements are true and correct.
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22.1 Organization, Powers, Qualification, Good Standing, Business and
----------------------------------------------------------------
Subsidiaries.
------------
A. Organization and Powers. Company and each Subsidiary Guarantor which
is a corporation are duly organized, validly existing and in good standing under
the laws of their respective states of organization. Each Subsidiary Guarantor
which is a partnership or limited liability company is a duly organized and
validly existing limited partnership or limited liability company under the laws
of its jurisdiction of formation and is in good standing in such jurisdiction.
Company and each Subsidiary Guarantor has all requisite corporate, partnership
or limited liability company (as applicable) power and authority to own and
operate their respective properties, to carry on their respective business as
now conducted and as proposed to be conducted, to enter into the Loan Documents,
to carry out the transactions contemplated thereby and, in the case of Company,
to issue and pay the Notes.
B. Qualification and Good Standing. Company and each Subsidiary
Guarantor is qualified or authorized to do business and in good standing in
every jurisdiction where their respective assets are located and wherever
necessary to carry out their respective businesses and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and would not reasonably be expected to have a Material Adverse Effect.
C. Conduct of Business. Company and its Subsidiaries are engaged only in
the businesses permitted to be engaged in pursuant to subsection 7.13.
D. Company and Subsidiaries. All of the Subsidiaries of Company as of
the Closing Date (after giving effect to the Recapitalization Transactions) are
identified in Schedule 5.1 annexed hereto, as it may be supplemented from time
------------
to time in accordance with the provisions of subsection 6.9. The Capital Stock
or other equity interests of Company and each of the Subsidiaries identified in
Schedule 5.1 annexed hereto is duly authorized, validly issued, fully paid and
------------
nonassessable and none of such Capital Stock or other equity interests
constitutes Margin Stock. Schedule 5.1 annexed hereto correctly sets forth the
------------
ownership interest of Company in each of its Subsidiaries identified therein.
22.2 Authorization of Borrowing, etc.
--------------------------------
A. Authorization of Borrowing. The execution, delivery and performance
of the Loan Documents and the issuance, delivery and payment of the Notes have
been duly authorized by all necessary corporate and/or partnership (as
applicable) action on the part of each of the Loan Parties party thereto.
B. No Conflict. After giving effect to the consummation of the
transactions contemplated hereby to occur on the Closing Date, the execution,
delivery and performance by each of the applicable Loan Parties of the Loan
Documents, the issuance, delivery and payment of the Notes and the consummation
of the transactions contemplated by the Loan Documents do not and will not (i)
violate any provision of any law or any governmental rule or regulation
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applicable to any Loan Party, the Organizational Certificate or any other
Organizational Documents of any Loan Party or any order, judgment or decree of
any court or other agency of government binding on any Loan Party, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of any Loan Party, (iii) result
in or require the creation or imposition of any Lien upon any of the properties
or assets of any Loan Party (other than any Liens created under any of the Loan
Documents in favor of the Collateral Agent), or (iv) require any approval of
shareholders, partners or members or any approval or consent of any Person under
any Contractual Obligation of any Loan Party, except for such approvals or
consents which will be obtained on or before the Closing Date or where failure
to obtain or make foregoing would not reasonably be expected to have a Material
Adverse Effect.
C. Governmental Consents. The execution, delivery and performance by the
Loan Parties of the Loan Documents, the issuance, delivery and payment of the
Notes and the consummation of the transactions contemplated by the Loan
Documents do not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body except to the extent obtained on or
before the Closing Date or where the failure to obtain or make the foregoing
would not reasonably be expected to have a Material Adverse Effect.
D. Binding Obligation. Each of the Loan Documents has been duly executed
and delivered by each of the Loan Parties party thereto and is the legally valid
and binding obligation of each such Loan Party, enforceable against such Loan
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
E. Valid Issuance of the Subordinated Debt. Company has the power and
authority to issue the Subordinated Debt. The Subordinated Debt, when issued
and paid for, will be the legally valid and binding obligation of Company,
enforceable against Company in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability. The Subordinated Debt, when issued and sold in the
manner contemplated by the Transaction Documents on the Closing Date, will
either (a) have been registered or qualified under applicable federal and state
securities laws or (b) be exempt therefrom.
22.3 Financial Condition; Projections.
--------------------------------
A. Financial Statements. Company has heretofore delivered to the
Administrative Agent, the following financial statements and information:
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(i) pro forma consolidated balance sheet of Company and its
Subsidiaries as at (a) December 26, 1998, together with the related pro
forma consolidated statements of income for the twelve month period then
ended, (b) June 27, 1998, and (c) each of the six month periods ended
December 27, 1997, December 26, 1998 and June 27, 1998, in each case
reflecting pro forma adjustments that give effect to the consummation of
the Recapitalization Transactions and supplemental adjustments that give
effect to certain other transactions described therein; and
(ii) (a) unaudited consolidated balance sheet of Company and its
Subsidiaries as at December 26, 1998, together with the related
consolidated statements of income for the six month period then ended, and
(b) audited consolidated balance sheets for Company and its Subsidiaries as
at June 29, 1996, June 28, 1997 and June 27, 1998, together with the
related audited consolidated statements of operations and cash flows for
each Fiscal Year then ended;
All such statements in clause (ii) hereof were prepared in conformity with GAAP
and fairly present, in all material respects, the financial position (on a
consolidated basis) of the entities described in such financial statements as at
the respective dates thereof and the results of operations and cash flows (on a
consolidated basis) of the entities described therein for each of the periods
then ended, subject, in the case of any such unaudited financial statements, to
changes resulting from audit and normal year-end adjustments and the absence of
footnote disclosure required in accordance with GAAP. On the Closing Date,
neither Company nor any of its Subsidiaries has any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or unusual forward
or long-term commitment that is not reflected in the financial statements
referred to in the preceding clauses of this subsection, or the notes thereto
and which in any such case is material in relation to the business, results of
operations or financial condition of Company and its Subsidiaries taken as a
whole.
B. Projections. On and as of the Closing Date, the projections of
Company and its Subsidiaries for the period from the Saturday closest to June
30, 1998 through the Saturday closest to June 30, 2006 previously delivered to
the Lenders (the "Projections") are based on good faith estimates and
-----------
assumptions made by the management of Company, and on the Closing Date are
reasonable, it being recognized, however, that projections as to future events
are not to be viewed as facts and that the actual results during the period or
periods covered by the Projections may differ from the projected results and
that the differences may be material.
22.4 No Material Adverse Change.
--------------------------
Since June 27, 1998, no event or change has occurred that has caused or
evidences or could reasonably be expected to cause, either individually or in
the aggregate, a Material Adverse Effect.
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22.5 Title to Properties; Liens; Real Property; Intellectual Property.
----------------------------------------------------------------
A. Title to Properties; Liens. After giving effect to the transactions
contemplated hereby and by the other Transaction Documents to occur on the
Closing Date, Company and its Subsidiaries have good title to or a valid
leasehold interest in or license in all of their respective material properties
and assets reflected in the financial statements referred to in subsection 5.3
or in the most recent financial statements delivered pursuant to subsection 6.1
in each case subject to Permitted Encumbrances and Liens permitted under
subsection 7.2, except for assets disposed of since the date of such financial
statements or as otherwise permitted under subsection 7.7 and except for such
defects that neither individually nor in the aggregate could reasonably be
expected to have a Material Adverse Effect. Except as permitted by this
Agreement, all such properties and assets are free and clear of Liens.
B. Real Property. As of the Closing Date, Schedule 5.5B annexed hereto
-------------
contains a true, accurate and complete list of all fee interests and Leasehold
Properties of any Loan Party. Except as specified in Schedule 5.5B annexed
-------------
hereto, each lease or sublease, as applicable, for each such Leasehold Property
is in full force and effect and Company does not have knowledge of any material
default by any party thereto that has occurred and is continuing thereunder
(except where the consequences of any such default would not reasonably be
expected to have a Material Adverse Effect), and each such agreement constitutes
the legally valid and binding obligation of each applicable Loan Party,
enforceable against such Loan Party in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by
equitable principles.
C. Intellectual Property. Company and its Subsidiaries own or have the
valid right to use all trademarks and service marks, tradenames, patents,
copyrights, trade secrets and technology used in or necessary to conduct
Company's and its Subsidiaries' business (collectively, the "Intellectual
------------
Property"), free and clear of any and all Liens other than Permitted
--------
Encumbrances except where the failure to so own or have the right to use could
not reasonably be expected to have a Material Adverse Effect. All currently
existing registrations therefor are in full force and effect and are valid and
enforceable. The conduct of Company's and its Subsidiaries' business as
currently conducted, including, but not limited to, all products, processes or
services, made, offered or sold by Company and its Subsidiaries, does not
infringe upon, violate, misappropriate or dilute any intellectual property of
any third party which infringement, violation, misappropriation or dilution
could reasonably be expected to have a Material Adverse Effect. To the best of
Company's and its Subsidiaries' knowledge, no third party is infringing upon the
Intellectual Property in any material respect. Except as set forth in Schedule
--------
5.5C, there is no pending or to the best of Company's and its Subsidiaries'
----
knowledge, threatened claim or litigation contesting Company's right to own or
use any material Intellectual Property or the validity or enforceability
thereof.
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22.6 Litigation; Adverse Facts.
-------------------------
There is no action, suit, proceeding, arbitration or governmental
investigation (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, pending or, to the knowledge of Company or
any of its Subsidiaries (after due inquiry), threatened against or affecting
Company or any of Company's Subsidiaries or any property of Company or any of
Company's Subsidiaries that, individually or in the aggregate could reasonably
be expected to result in, a Material Adverse Effect. Neither Company nor any of
Company's Subsidiaries is (i) in violation of any applicable law that has had,
or could reasonably be expected to result in, a Material Adverse Effect or (ii)
subject to or in default with respect to any final judgment, writ, injunction,
decree, rule or regulation of any court or any federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, that has had, or could reasonably be
expected to result in, a Material Adverse Effect.
22.7 Payment of Taxes.
----------------
Except to the extent permitted by subsection 6.3, all material tax returns
and reports of Company and Company's Subsidiaries required to be filed by any of
them have been timely filed and all material taxes, assessments, fees and other
governmental charges upon Company and Company's Subsidiaries and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable. Neither Company nor any of
Company's Subsidiaries knows of any proposed material tax assessment against
Company or any of Company's Subsidiaries other than those which are being
actively contested by Company or such Subsidiary in good faith and by
appropriate proceedings and for which reserves or other appropriate provisions,
if any, as may be required in conformity with GAAP shall have been made or
provided therefor.
22.8 Performance of Agreements.
-------------------------
Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the material obligations,
covenants or conditions contained in any of its Contractual Obligations, and no
condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a material default, except, in each case, individually or
in the aggregate, where the consequences, direct or indirect, of such default or
defaults, if any, would not have a Material Adverse Effect.
22.9 Governmental Regulation.
-----------------------
Neither Company nor any of its Subsidiaries is subject to regulation under
the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation
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which may limit its ability to incur Indebtedness or which may otherwise render
all or any portion of the Obligations unenforceable.
22.10 Securities Activities.
---------------------
Neither Company nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock.
22.11 Employee Benefit Plans.
----------------------
A. Company and each of its ERISA Affiliates are in material compliance
with all applicable provisions and requirements of ERISA with respect to each
Employee Benefit Plan, and have performed in all material respects all their
obligations under each Employee Benefit Plan, except to the extent that any non-
compliance with ERISA or any such failure to perform would not have a Material
Adverse Effect on Company or any of its ERISA Affiliates. No material liability
to the PBGC (other than required premium payments), the Internal Revenue
Service, any Plan or any trust established under Title IV of ERISA has been, or
is expected by Company or any of its ERISA Affiliates to be, incurred by Company
or any of its ERISA Affiliates.
B. No ERISA Event has occurred which has resulted or to the knowledge of
Company or its ERISA Affiliates is reasonably expected to occur which has or
would reasonably be expected to have a Material Adverse Effect.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code and/or Section 601 of ERISA, neither Company nor any of its
Subsidiaries maintains or contributes to any employee welfare benefit plan (as
defined in Section 3(1) of ERISA) that provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employees of Company or any of its Subsidiaries that would be reasonably
expected to have a Material Adverse Effect.
22.12 Certain Fees.
------------
Except as set forth on Schedule 5.12, no broker's or finder's fee or
-------------
commission will be payable with respect to this Agreement or any of the
transactions contemplated hereby, and Company hereby indemnifies the Lenders
against, and agrees that it will hold the Lenders harmless from, any claim,
demand or liability for any such broker's or finder's fees alleged to have been
incurred in connection herewith or therewith and any expenses (including
reasonable fees, expenses and disbursements of counsel) arising in connection
with any such claim, demand or liability.
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22.13 Environmental Matters.
---------------------
(i) Company, each of its Subsidiaries (including without limitation,
all operations and conditions at or in the Facilities presently owned and
operated by Company or its Subsidiaries), and, to the knowledge of Company,
each of the tenants under any leases or occupancy agreements governing any
portion of any Facilities presently owned or operated by Company or its
Subsidiaries, are in compliance with all applicable Environmental Laws
(which compliance includes, but is not limited to, the possession by
Company, each of its Subsidiaries and each of such tenants of all permits
and other Governmental Authorizations required under applicable
Environmental Laws, and compliance with the terms and conditions thereof),
except where failure to be in compliance would not reasonably be expected
to have a Material Adverse Effect.
(ii) There is no Environmental Claim pending or to Company's
knowledge threatened against Company or any of its Subsidiaries or, to the
best knowledge of Company, against any Person whose liability for any
Environmental Claim Company or any of its Subsidiaries has retained or
assumed contractually in each such case which, individually or in the
aggregate, would have a Material Adverse Effect.
(iii) There are no past or present (or to the best knowledge of
Company, future) actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the Release or presence of any
Hazardous Material, which could reasonably be expected to form the basis of
any Environmental Claim against Company or any of its Subsidiaries, or to
the best knowledge of Company, against any Person whose liability for any
Environmental Claim Company or any of its Subsidiaries has or assumed
contractually in each such case which would have a Material Adverse Effect.
(iv) Except as would not reasonably be expected to have a Material
Adverse Effect, none of the Facilities contain any: underground storage
tanks; asbestos; polychlorinated biphenyls ("PCBS"); underground injection
----
xxxxx; radioactive materials; or septic tanks or waste disposal pits in
which process wastewater or any Hazardous Materials have been discharged or
disposed.
22.14 Employee Matters.
----------------
There is no strike or work stoppage in existence or threatened involving
Company or any of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
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22.15 Solvency.
--------
Company and its Subsidiaries, taken as a whole, are, and, upon the
incurrence of any Obligations by any Loan Party (including, without limitation,
the making of the Loans, the delivery of the Guaranties and the Liens created by
the Collateral Documents) on any date on which this representation is made, and
after giving effect to the Recapitalization Transactions and the incurrence of
Indebtedness in connection therewith, will be, Solvent.
22.16 Disclosure.
----------
The representations and warranties of Company and its Subsidiaries
contained in the Loan Documents and the information contained in the other
documents, certificates and written statements furnished to any of the Agents or
the Lenders (including, without limitation, the Information Memorandum) by or on
behalf of Company or any of its Subsidiaries for use in connection with the
transactions contemplated by this Agreement or any other Loan Document, when
taken together, do not contain any untrue statement of a material fact or omit
to state a material fact (known to Company or the applicable Subsidiary, in the
case of any document not furnished by it) necessary in order to make the
statements contained herein or therein not misleading in light of the
circumstances in which the same were made. Any projections and pro forma
financial information contained in such materials are based upon good faith
estimates and assumptions believed by Company to be reasonable at the time made,
it being recognized by the Agents and the Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected
results and that the differences may be material. There is no fact known to
Company (other than matters of a general economic nature) that has had, or could
reasonably be expected to result in, a Material Adverse Effect and that has not
been disclosed herein or in such other documents, certificates and statements
furnished to the Lenders for use in connection with the transactions
contemplated hereby.
22.17 Year 2000 Matters.
-----------------
Company reasonably believes that, as relating to Company and its
Subsidiaries, taken as a whole, (x) the assessment and correction of any Year
2000 Problems, in each case, which, individually or in the aggregate, if not
corrected could reasonably be expected to have a Material Adverse Effect, will
be substantially completed on or prior to September 30, 1999, (y) a Material
Adverse Effect will not occur as a result of any Year 2000 Problem, and (z) the
aggregate costs and expenses incurred and reasonably expected to be incurred in
connection with the assessment and correction of Year 2000 Problems, including,
without limitation, a plan of correction ("Plan of Correction"), with respect to
------------------
any Year 2000 problems, and the testing and monitoring of all Systems and the
correction of Year 2000 Problems, could not reasonably be expected to have a
Material Adverse Effect.
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SECTION 23.
AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations (other than indemnification obligations not due and
payable), and the cancellation or expiration of all Letters of Credit, unless
the Requisite Lenders shall otherwise give prior written consent, Company shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.
23.1 Financial Statements and Other Reports.
--------------------------------------
Company will maintain, and cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Company will deliver to the Administrative Agent (and the
Administrative Agent shall deliver to each Lender):
(i) Monthly Financials: as soon as available and in any event
------------------
within thirty (30) days after the end of each month, commencing July 1999
(but not, in any case, for any month in which a Fiscal Quarter ends), the
consolidated balance sheet of Company and its Subsidiaries as at the end of
such month and the related consolidated statements of income, stockholders'
equity and cash flows of Company for such month and for the period from the
beginning of the then current Fiscal Year to the end of such month, all in
reasonable detail and certified by a principal financial officer of Company
that they fairly present, in all material respects, the financial condition
of Company and its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods indicated, subject
to changes resulting from audit and normal year-end adjustments and the
absence of footnotes;
(ii) Quarterly Financials: as soon as available and in any event
--------------------
within forty-five (45) days after the end of each Fiscal Quarter commencing
with the Fiscal Quarter ending June, 1999, (a) the consolidated balance
sheets of Company and its Subsidiaries as at the end of such Fiscal Quarter
and the related consolidated statements of income and consolidated
statement of cash flows of Company and its Subsidiaries for such Fiscal
Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter, setting forth, in the case of
statements of income only, in comparative form the corresponding figures
for the corresponding periods of the previous Fiscal Year and the
corresponding figures from the consolidated plan and financial forecast for
the current Fiscal Year delivered pursuant to subsection 6.1(xiii), all
prepared in accordance with the GAAP and in reasonable detail and certified
by the chief executive officer or chief financial officer of Company that
they fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, subject to
-95-
changes resulting from audit and normal year-end adjustments and the
absence of footnotes; and (b) a narrative report;
(iii) Year-End Financials: as soon as available and in any event
-------------------
within ninety (90) days after the end of each Fiscal Year, (a) the
consolidated balance sheets of Company and its Subsidiaries as at the end
of such Fiscal Year and the related consolidated statements of income and
consolidated statement of cash flows of Company and its Subsidiaries for
such Fiscal Year, setting forth, in the case of statements of income only,
in comparative form the corresponding figures for the previous Fiscal Year
and the corresponding figures from the consolidated plan and financial
forecast delivered pursuant to subsection 6.1(xiii) for the Fiscal Year
covered by such financial statements, all prepared in accordance with the
GAAP and in reasonable detail and certified by the chief executive officer
or chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its Subsidiaries
as at the dates indicated and the results of their operations and their
cash flows for the periods indicated; (b) a narrative report describing the
operations of Company and its Subsidiaries in the form prepared for
presentation to senior management for such Fiscal Year; and (c) in the case
of such consolidated financial statements, a report thereon of independent
certified public accountants of recognized national standing selected by
Company and reasonably satisfactory to the Administrative Agent, which
report shall be unqualified as to going concern and scope of audit, and
shall state that such consolidated financial statements fairly present, in
all material respects, the consolidated financial position of Company and
its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the audit by
such accountants in connection with such consolidated financial statements
has been made in accordance with generally accepted auditing standards;
(iv) Officer's and Compliance Certificates: together with each
-------------------------------------
delivery of financial statements of Company and its Subsidiaries pursuant
to subdivisions (ii) and (iii) above, (a) an Officer's Certificate of
Company stating that the signer has reviewed the terms of this Agreement
and has made, or caused to be made under his or her supervision, a review
in reasonable detail of the transactions and condition of Company and its
Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during or
at the end of such accounting period, and that the signer did not have
knowledge of the existence as at the date of such Officer's Certificate, of
any condition or event that constitutes an Default or Event of Default, or,
if any such condition or event existed or exists, specifying the nature and
period of existence thereof and what action Company has taken, is taking
and proposes to take with respect thereto; and (b) a Compliance Certificate
(which may be delivered after the applicable Fiscal Quarter or Fiscal Year
end but prior to the date of delivery of such financial statements for
purposes of determining the Applicable Leverage Ratio) demonstrating in
reasonable detail compliance during and at the end of the
-96-
applicable accounting periods with the restrictions contained in Section 7
(but only to the extent compliance with such restrictions is required to be
tested at the end of the applicable accounting period); provided, that
Company shall deliver to Administrative Agent a Compliance Certificate and
an Officer's Certificate upon and together with the delivery of a Pricing
Certificate;
(v) Reconciliation Statements: if, as a result of any change in
-------------------------
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Company and its Subsidiaries delivered
pursuant to subdivisions (i), (ii), (iii) or (xiii) of this subsection 6.1
will differ in any material respect from the consolidated financial
statements that would have been delivered pursuant to such subdivisions had
no such change in accounting principles and policies been made, then (a)
together with the first delivery of financial statements pursuant to
subdivision (i), (ii), (iii) or (xiii) of this subsection 6.1 following
such change, consolidated financial statements of Company and its
Subsidiaries for (y) the current Fiscal Year to the effective date of such
change and (z) the full Fiscal Year immediately preceding the Fiscal Year
in which such change is made, in each case prepared on a pro forma basis as
if such change had been in effect during such periods, and (b) together
with each delivery of financial statements pursuant to subdivision (i),
(ii), (iii) or (xiii) of this subsection 6.1 following such change, a
written statement of the chief accounting officer or chief financial
officer of Company setting forth the differences which would have resulted
if such financial statements had been prepared without giving effect to
such change, if reasonably requested by the Administrative Agent;
(vi) Accountants' Certification: together with each delivery of
--------------------------
consolidated financial statements of Company and its Subsidiaries pursuant
to subdivision (iii) above, a written statement by the independent
certified public accountants giving the report thereon (a) stating that
their audit has included a reading of the terms of this Agreement and the
other Loan Documents as they relate to the covenants set forth in
subsection 7.6 and accounting matters, and (b) stating whether, in
connection with their audit examination, any condition or event, insofar as
such condition or event relates to the covenants set forth in subsection
7.6 or accounting matters, that constitutes an Default or Event of Default
has come to their attention and, if such a condition or event has come to
their attention, specifying the nature and period of existence thereof;
provided that such accountants shall not be liable by reason of any failure
--------
to obtain knowledge of any such Default or Event of Default that would not
be disclosed in the course of their audit examination;
(vii) Accountants' Reports: promptly upon receipt thereof (unless
--------------------
restricted by applicable professional standards), copies of all reports
submitted to Company by a national independent certified public accountants
in connection with each annual, interim or special audit of the financial
statements of Company and its Subsidiaries made by such
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accountants, including, without limitation, any comment letter submitted by
such accountants to management in connection with their annual audit;
(viii) SEC Filings and Press Releases: promptly upon their becoming
------------------------------
available, copies of (a) all financial statements, reports, notices and
proxy statements sent or made available generally by Company to its
security holders (but only in their capacity as security holders), (b) all
regular and periodic reports and all registration statements (other than on
Form S-8 or a similar form) and prospectuses, if any, filed by Company or
any of its Subsidiaries with any securities exchange or with the Securities
and Exchange Commission or any governmental or private regulatory
authority, and (c) all press releases and other statements made available
generally by Company or any of its Subsidiaries to the public concerning
material developments in the business of Company or any of its
Subsidiaries;
(ix) Events of Default, etc.: promptly upon any Responsible Officer
-----------------------
of Company obtaining knowledge (a) of any condition or event that
constitutes a Default or an Event of Default, or becoming aware that any
Lender has given any notice (other than to the Administrative Agent) or
taken any other action with respect to a claimed Default or Event of
Default, (b) that any Person has given any notice to Company or any of its
Subsidiaries or taken any other action with respect to a claimed default or
event or condition of the type referred to in subsection 8.2, or (c) of the
occurrence of any event or change that has caused or evidences or could be
reasonably expected to cause, either in any case or in the aggregate, a
Material Adverse Effect, an Officer's Certificate specifying the nature and
period of existence of such condition, event or change, or specifying the
notice given or action taken by any such Person and the nature of such
claimed Default, Event of Default, default, event or condition, and what
action Company (or applicable Subsidiary) has taken, is taking and proposes
to take with respect thereto;
(x) Litigation or Other Proceedings: promptly upon any Responsible
-------------------------------
Officer of Company obtaining knowledge of (X) the institution of, or
nonfrivolous threat of, any material action, suit, proceeding (whether
administrative, judicial or otherwise), Environmental Claim, governmental
investigation or arbitration against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries
(collectively, "Proceedings") not previously disclosed in writing by
-----------
Company to the Administrative Agent or (Y) any material development in any
Proceeding that, in any case:
(a) could reasonably be expected to have a Material Adverse
Effect; or
(b) seeks to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
-98-
written notice thereof together with such other information as may be
reasonably available to Company to enable the Lenders and their counsel to
evaluate such matters;
(xi) ERISA Events: promptly upon Company becoming aware of the
------------
occurrence of any ERISA Event that would reasonably be expected to result
in a material liability of Company or any of its ERISA Affiliates, a
written notice specifying the nature thereof, what action Company or any of
its ERISA Affiliates has taken, is taking or proposes to take with respect
thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a) all
-------------
written notices received by Company or any of its ERISA Affiliates from a
Multiemployer Plan sponsor concerning an ERISA Event which would reasonably
be expected to result in a material liability; and (b) such other documents
or governmental reports or filings relating to any Employee Benefit Plan as
the Administrative Agent shall reasonably request;
(xiii) Financial Plans: as soon as practicable and in any event no
---------------
later than 45 days after the beginning of each Fiscal Year, a consolidated
plan and financial forecast for the next succeeding Fiscal Year, including
without limitation (a) forecasted consolidated balance sheet and forecasted
consolidated statements of income and consolidated statement of cash flows
of Company and its Subsidiaries for such Fiscal Year, together with a pro
---
forma Compliance Certificate for such Fiscal Year and an explanation of the
-----
assumptions on which such forecasts are based, and (b) such other
information and projections as the Administrative Agent may reasonably
request:
(xiv) Insurance: as soon as practicable and in any event by the last
---------
day of each Fiscal Year, a report in form and substance reasonably
satisfactory to the Administrative Agent outlining all material changes
made to insurance coverage maintained as of the date of such report by
Company and its Subsidiaries;
(xv) Other Information: with reasonable promptness, such other
-----------------
information and data with respect to Company or any of Company's
Subsidiaries as from time to time may be reasonably requested by the
Administrative Agent or the Requisite Lenders.
23.2 Corporate Existence
-------------------
Except as otherwise permitted under subsection 7.7, Company will, and will
cause each of its Subsidiaries to, at all times preserve and keep in full force
and effect its corporate existence and all rights and franchises material to the
business of Company and its Subsidiaries (on a consolidated basis) or the Loan
Parties, taken as a whole; provided, however that neither Company nor any of its
-------- -------
Subsidiaries shall be required to preserve any such right or franchise if the
Board of Directors of Company or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of business of such
entity.
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23.3 Payment of Taxes and Claims; Tax Consolidation.
----------------------------------------------
A. Company will, and will cause each of its Subsidiaries to, pay all
material taxes, assessments and other governmental charges imposed upon it or
any of its properties or assets or in respect of any of its income, businesses
or franchises before any material penalty accrues thereon, and all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums that have become due and payable which, if unpaid, might
become a Lien (other than a Permitted Encumbrance) upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided that no such tax, charge or claim need be paid if
--------
being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted and if such reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its Subsidiaries to, file
or consent to the filing of any consolidated income tax return with any Person
(other than Company and Subsidiaries of Company).
23.4 Maintenance of Properties; Insurance.
------------------------------------
Company will, and will cause each of its Subsidiaries to, maintain or cause
to be maintained in good repair, working order and condition, ordinary wear and
tear and damage by casualty excepted, all material properties used or useful in
the business of Company and its Subsidiaries and from time to time will make or
cause to be made all appropriate repairs, renewals and replacements thereof.
Company will maintain or cause to be maintained, with financially sound and
reputable insurers, insurance with respect to its properties and business and
the properties and businesses of its Subsidiaries against loss or damage of the
kinds and with respect to liability customarily carried or maintained under
similar circumstances by corporations of established reputation engaged in
similar businesses. Each such policy of casualty insurance covering damage to
or loss of property shall name the Collateral Agent for the benefit of the
Lenders as additional insured and as the loss payee thereunder for all losses,
subject to application of proceeds as required by subsection 2.4B(iii)(d), each
such policy of liability insurance coverage shall name the Collateral Agent for
the benefit of the Lenders as additional insured, and all such policies of
insurance shall provide for at least thirty (30) days' prior written notice to
the Collateral Agent of any modification or cancellation of such policy.
23.5 Inspection; Lender Meeting.
--------------------------
Company shall, and shall cause each of its Subsidiaries to, permit the
Administrative Agent and any authorized representatives designated by any Lender
to visit and inspect any of the properties of Company or any of Company's
Subsidiaries, including its and their financial and accounting records, and to
make copies and take extracts therefrom, and to discuss its and their affairs,
finances and accounts with its and their officers and independent public
accountants provided Company may be present at these discussions upon reasonable
advance notice and at
-100-
such reasonable times during normal business hours and as often as may be
reasonably requested, provided, further, that each Lender shall coordinate with
--------
the Administrative Agent the frequency and timing of any such visits,
inspections and discussions so as to reasonably minimize the burden imposed on
Company and its Subsidiaries; provided still further that, unless an Event of
--------
Default has occurred, no single Lender shall be entitled to more than one
inspection during any twelve month period. Without in any way limiting the
foregoing, Company will, upon the reasonable request of the Administrative
Agent, participate in a meeting of the Administrative Agent and the Lenders once
during each Fiscal Year to be held at Company's corporate offices (or such other
location as may be agreed to by Company and the Administrative Agent) at such
time as may be agreed to by Company and the Administrative Agent.
23.6 Compliance with Laws, etc.
--------------------------
Company shall, and shall cause each of its Subsidiaries to, comply with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority, noncompliance with which, individually or in the
aggregate with other non-compliances, could reasonably be expected to cause a
Material Adverse Effect.
23.7 Environmental Disclosure and Inspection.
---------------------------------------
A. Company agrees that the Administrative Agent may retain, at Company's
expense, an independent professional consultant reasonably acceptable to Company
to review any report relating to Hazardous Materials prepared by or for Company
and to conduct its own investigation (reasonable in scope under the
circumstances) of any Facility currently owned, leased, operated or used by
Company or any of its Subsidiaries, if (x) a Default or an Event of Default
related to environmental matters shall have occurred and be continuing, or (y)
the Administrative Agent reasonably believes that a violation of an
Environmental Law on or around such Facility has occurred or is likely to occur,
which could, in either such case, reasonably be expected to result in a Material
Adverse Effect. In the event that the conditions specified in (x) or (y) above
exist, Company agrees to use commercially reasonable efforts to obtain
permission for the Administrative Agent's professional consultant to conduct its
own investigation of any such Facility previously owned, leased, operated or
used by Company or any of its Subsidiaries. In the event that the conditions
specified in (x) or (y) above exist, Company shall use its commercially
reasonable efforts to obtain for the Administrative Agent and its agents,
employees, consultants and contractors the right, upon reasonable notice to
Company, to enter into or on to the Facilities currently owned, leased, operated
or used by Company or any of its Subsidiaries to perform such tests on such
property as are reasonably necessary to conduct such a review and/or
investigation. Any such investigation of any Facility shall be conducted, unless
otherwise agreed to by Company and the Administrative Agent, during normal
business hours, shall be conducted so as not to interfere with the ongoing
operations at any such Facility or to cause any damage or loss to any property
at such Facility. Company and the Administrative Agent hereby acknowledge and
agree that any report of any investigation conducted at the request of the
Administrative Agent pursuant to this subsection 6.7A will be obtained and shall
be used by the Administrative Agent
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and the Lenders for the purposes of the Lenders' internal credit decisions, to
monitor and police the Loans and to protect the Lenders' security interests, if
any, created by the Loan Documents. The Administrative Agent agrees, upon
request by Company, to deliver a copy of any such report to Company with the
understanding that Company acknowledges and agrees that (i) consistent with the
terms of subsection 10.3 hereof, it will indemnify and hold harmless the
Administrative Agent and each Lender from any costs, losses or liabilities
relating to Company's use of or reliance on such report, (ii) neither Agent nor
any Lender makes any representation or warranty with respect to such report, and
(iii) by delivering such report to Company, neither the Administrative Agent nor
any Lender is requiring or recommending the implementation of any suggestions or
recommendations contained in such report.
B. Company shall promptly notify the Administrative Agent of (i) any
proposed acquisition of stock, assets, or property by Company or any of its
Subsidiaries that could reasonably be expected to expose Company or any of its
Subsidiaries to, or result in, Environmental Liability that could have a
Material Adverse Effect or that could reasonably be expected to have a material
adverse effect on any Governmental Authorization required under Environmental
Laws for the operations of Company or any of its Subsidiaries and (ii) any
proposed action to be taken by Company or any of its Subsidiaries to modify
current operations in a manner that could reasonably be expected to subject
Company or any of its Subsidiaries to material additional obligations under
Environmental Laws where such obligations would reasonably be expected to have
a Material Adverse Effect.
C. Company shall, at its own expense, provide copies of such documents or
information as the Administrative Agent may reasonably request in relation to
any matters disclosed pursuant to this subsection 6.7.
23.8 Company's Remedial Action Regarding Hazardous Materials.
--------------------------------------------------------
Company shall promptly take, and shall cause each of its Subsidiaries
promptly to take, any and all necessary remedial action in connection with the
presence, handling, storage, use, disposal, transportation or Release or
threatened Release of any Hazardous Materials on, under or affecting any
Facility in order to comply with all applicable Environmental Laws and
Governmental Authorizations unless the failure to so comply could not reasonably
be expected to have a Material Adverse Effect. In the event Company or any of
its Subsidiaries undertakes any Cleanup action with respect to the presence,
Release or threatened Release of any Hazardous Materials on or affecting any
Facility, Company or such Subsidiary shall conduct and complete such Cleanup
action in material compliance with all applicable Environmental Laws where
failure to do so would reasonably be expected to have a Material Adverse Effect.
-102-
23.9 Execution of Guaranty and Collateral Documents by Future Subsidiaries.
---------------------------------------------------------------------
In the event that any Person becomes a Subsidiary of Company (including,
without limitation, any Subsidiary created in accordance with subsection
7.7(vi)), Company will promptly notify the Administrative Agent of that fact and
cause such Subsidiary to execute and deliver to the Administrative Agent and the
Collateral Agent a counterpart of the Subsidiary Guaranty and the Pledge
Agreement and the Security Agreement, as the case may be, and to take all such
further action and execute all such further documents and instruments as may be
required to grant and perfect in favor of the Collateral Agent, for the benefit
of the Lenders, a First Priority Lien in all (subject to exceptions for assets
in which a security interest cannot be granted) of the real (to the extent
required pursuant to subsection 6.12C), mixed and personal property assets of
such Subsidiary; provided, that a Foreign Subsidiary shall not be required to
--------
enter into any Loan Document if either (x) the grant by such Foreign Subsidiary
of a Lien on all of its assets as security for the Obligations or (y) the
guaranteeing by such Foreign Subsidiary of the Obligations, or both, would in
the good faith reasonable judgment of Company, result in adverse tax
consequences to Company. In addition, Company shall pledge (if it is the direct
owner of Capital Stock of such Subsidiary) or shall cause each of its applicable
Subsidiaries (other than a Foreign Subsidiary) to pledge (if any of such other
Subsidiaries is the direct owner of Capital Stock of such Subsidiary, each such
owner, whether Company or any of its other Subsidiaries, the "Pledging Parent")
---------------
all of the Capital Stock of such Subsidiary (or 65% of such Capital Stock if
such Subsidiary is a first-tier Foreign Subsidiary) to the Collateral Agent
pursuant to the applicable Collateral Documents and to take all such further
action and execute all such further documents and instruments as may be
reasonably required to grant and perfect in favor of the Collateral Agent, for
the benefit of the Lenders, a First Priority security interest in such Capital
Stock. Company shall deliver to the Administrative Agent, together with such
Loan Documents, in the case of each such Subsidiary that is required to be a
party to any Loan Document: (i) (a) certified copies of such Subsidiary's
Organizational Certificate together, if applicable, with a good standing
certificate from the Secretary of State of the jurisdiction of its
incorporation, formation or organization, as applicable, each to be dated a
recent date prior to their delivery to the Administrative Agent, (b) a copy of
such Subsidiary's Organizational Documents, certified by its secretary or an
assistant corporate secretary (or Person holding an equivalent title or having
equivalent duties and responsibilities) as of a recent date prior to their
delivery to the Administrative Agent, (c) a certificate executed by the
secretary or an assistant secretary of such Subsidiary as to (x) the incumbency
and signatures of the officers of such Subsidiary executing such Guaranty, the
Collateral Documents and the other Loan Documents to which such Subsidiary is a
party and (y) the fact that the attached Organizational Authorizations of such
Subsidiary authorizing the execution, delivery and performance of such Guaranty,
such Collateral Documents and such other Loan Documents are in full force and
effect and have not been modified or rescinded, and (ii) to the extent
reasonably requested by the Administrative Agent, an opinion of counsel to such
Subsidiary, that is reasonably satisfactory to the Administrative Agent and its
counsel, as to (a) the due organization and good standing of such Subsidiary,
(b) the due authorization, execution and delivery by such Subsidiary of such
Guaranty, the Collateral Documents and any other Loan Documents to which it is a
party and (c) the enforceability of
-103-
such Guaranty and such Collateral Documents against such Subsidiary, (d) the
validity and perfection of the security interests granted by such Subsidiary
(and by the Pledging Parent of such Subsidiary in respect of the Capital Stock
of such Subsidiary) in favor of the Collateral Agent pursuant to the Collateral
Documents, and (e) such other matters as any Agent may reasonably request, all
of the foregoing to be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.
23.10 Interest Rate Protection.
-------------------------
Commencing three hundred sixty five (365) days after the Closing Date,
Company shall maintain in effect one or more Interest Rate Agreements in form
and substance reasonably satisfactory to the Administrative Agent to the extent
necessary so that, for a period of at least two (2) years, interest on the
portion of the outstanding principal amount of Term Loans equal to at least 40%
of the aggregate outstanding principal amount of the Term Loans is covered by
such Interest Rate Agreements.
23.11 Further Assurances.
------------------
At any time or from time to time upon the reasonable request of the
Administrative Agent or the Collateral Agent, Company will, at its expense,
promptly execute, acknowledge and deliver such further documents and do such
other acts and things as the Administrative Agent or the Collateral Agent may
reasonably request in order to effect fully the purposes of the Loan Documents
and to provide for payment of the Obligations in accordance with the terms of
this Agreement, the Notes and the other Loan Documents. In furtherance and not
in limitation of the foregoing, Company shall take, and cause each of its
Domestic Subsidiaries to take, such actions as the Administrative Agent or the
Collateral Agent may reasonably request from time to time (including, without
limitation, the execution and delivery of guaranties, security agreements,
pledge agreements, mortgages, deeds of trust, landlord's consents and estoppels,
stock powers, financing statements and other documents, the filing or recording
of any of the foregoing, title insurance with respect to any of the foregoing
that relates to an interest in real property, and the delivery of stock
certificates and other collateral with respect to which perfection is obtained
by possession) to ensure that the Obligations are guarantied by the Guarantors
and are secured by substantially all of the assets of Company and its Domestic
Subsidiaries and all of the outstanding Capital Stock of the Domestic
Subsidiaries and 65% of the Capital Stock of the first-tier Foreign Subsidiaries
of Company.
23.12 Conforming Leasehold Interests; Matters Relating to Additional and
------------------------------------------------------------------
Closing Real Property Collateral.
--------------------------------
A. Notice of Property Acquisition. As promptly as practicable after the
acquisition by Company or any of its Subsidiaries (other than Foreign
Subsidiaries) of any interest in real property (whether fee or leased) with
respect to which Company or its Subsidiaries is required to
-104-
deliver an Additional Mortgage, as applicable, Company shall deliver written
notice to the Administrative Agent and the Collateral Agent of such acquisition.
B. Conforming Leasehold Interests. If Company or any of its Subsidiaries
(other than Foreign Subsidiaries) acquires any Leasehold Property with respect
to which Company or any of its Subsidiaries is required to deliver an Additional
Mortgage, Company shall promptly notify the Administrative Agent and the
Collateral Agent and Company shall, or shall cause such Subsidiary to, use its
commercially reasonable efforts to cause such Leasehold Property to be a
Conforming Leasehold Interest.
C. Additional Mortgages, Etc. From and after the Closing Date, in the
event that (i) Company or any of its Subsidiaries (other than Foreign
Subsidiaries which are not required to execute a Subsidiary Guaranty) acquires
any fee interest in real property, (ii) Company or any of its Subsidiaries
(other than Foreign Subsidiaries) acquires any leasehold interest in any real
property (other than any leased real property (a) with respect to which the
aggregate payments under the term of the lease are less than $1,000,000 per
annum, (b) that does not contain any financial records not contained elsewhere,
(c) that does not have any personal property located thereon with an aggregate
value in excess of $1,000,000 and (d) that is not otherwise material to the
operation of the business of Company or any of its Subsidiaries (each such
property meeting all of the foregoing requirements being an "Excluded Leased
---------------
Asset"), or (iii) at the time any Person becomes a Subsidiary Guarantor, such
-----
Person owns or holds any fee interest in real property or any leasehold interest
in real property (other than an Excluded Leased Asset) (any such real property
asset described in the foregoing clauses (i), (ii) or (iii) being an "Additional
----------
Mortgaged Property"), Company or such Subsidiary shall deliver to the Collateral
------------------
Agent, as soon as practicable after such Person acquires such Additional
Mortgaged Property the following:
(i) Additional Mortgage and Assignment of Rents and Leases. A fully
------------------------------------------------------
executed and notarized Mortgage (an "Additional Mortgage"), fully executed
-------------------
and notarized Assignment of Rents and Leases and fully executed Uniform
Commercial Code fixture filings and other financing statements, each in
proper form for recording in all appropriate places in all applicable
jurisdictions, encumbering the interest of such Loan Party in such
Additional Mortgaged Property;
(ii) Opinions of Counsel. (a) Upon the reasonable request of the
-------------------
Administrative Agent, an opinion of counsel to such Loan Party, in form and
substance reasonably satisfactory to the Collateral Agent and its counsel,
as to the due authorization, execution and delivery by such Loan Party of
such Additional Mortgage and additional Assignment of Rents and Leases and
fixture filings and other financing statements and such other matters as
the Administrative Agent may reasonably request, and (b) if required by the
Administrative Agent, an opinion of counsel (which counsel shall be
reasonably satisfactory to the Administrative Agent) in the state in which
such Additional Mortgaged Property is located with respect to the
enforceability of the Additional
-105-
Mortgage and Assignment of Rent and Leases to be recorded in such state and
such other matters (including without limitation any matters governed by
the laws of such state regarding personal property security interests in
respect of any Collateral) as the Collateral Agent may reasonably request,
in each case in form and substance reasonably satisfactory to the
Administrative Agent;
(iii) Landlord Consent and Estoppel. In the case of any Additional
-----------------------------
Mortgaged Property consisting of a Leasehold Property, Company will use
commercially reasonable efforts to obtain a Landlord Consent and Estoppel;
(iv) Title Insurance. (a) An ALTA standard form mortgagee title
---------------
insurance policy or an unconditional commitment therefor (an "Additional
----------
Mortgage Policy") issued by a title company with respect to such Additional
---------------
Mortgaged Property, in an amount reasonably satisfactory to the Collateral
Agent, insuring fee simple title to, or a valid leasehold interest in, such
Additional Mortgaged Property vested in such Loan Party and insuring the
Collateral Agent that such Additional Mortgage creates a valid and
enforceable First Priority mortgage Lien on such Additional Mortgaged
Property, subject (unless a survey is delivered pursuant to clause (vi)
below) only to a standard survey exception, which Additional Mortgage
Policy (1) shall include an endorsement for mechanics' liens, for future
advances under this Agreement and for any other matters reasonably
requested by the Collateral Agent to the extent available in the particular
jurisdiction and (2) shall provide for affirmative insurance and such
reinsurance as the Collateral Agent may reasonably request, all of the
foregoing in form and substance reasonably satisfactory to the Collateral
Agent; and (b) evidence satisfactory to the Administrative Agent that such
Loan Party has (i) delivered to a title company all certificates and
affidavits required by a title company in connection with the issuance of
the Additional Mortgage Policy and (ii) paid to a title company or to the
appropriate governmental authorities all expenses and premiums of a title
company in connection with the issuance of the Additional Mortgage Policy
and all recording and stamp taxes (including mortgage recording and
intangible taxes) payable in connection with recording the Additional
Mortgage in the appropriate real estate records, provided, however that the
-------- -------
Administrative Agent shall allow for such reasonable revisions to the
applicable Additional Mortgage and shall take such other steps as are
reasonable and customary to minimize recording, mortgage recording, stamp
documentary and intangible taxes;
(v) Surveys and Appraisals. A survey and appraisal with
----------------------
respect to such Additional Mortgaged Property, prepared by a Person and in
form and substance reasonably satisfactory to the Collateral Agent.
(vi) Copies of Documents Relating to Title Exceptions. Copies of
------------------------------------------------
all recorded documents listed as exceptions to title or otherwise referred
to in the Additional Mortgage Policy or title report delivered pursuant to
clause (iv) or (v) above;
-106-
(vii) Matters Relating to Flood Hazard Properties. (a) Evidence,
-------------------------------------------
which may be in the form of a letter from an insurance broker
or a municipal engineer or a surveyor's note on a survey report,
as to (1) whether such Additional Mortgaged Property is a Flood Hazard
Property and (2) if so, whether the community in which such Flood Hazard
Property is located is participating in the National Flood Insurance
Program, (b) if such Additional Mortgaged Property is a Flood Hazard
Property, such Loan Party's written acknowledgment of receipt of written
notification from the Collateral Agent (1) that such Additional Mortgaged
Property is a Flood Hazard Property and (2) as to whether the community
in which such Flood Hazard Property is located is participating in the
National Flood Insurance Program, and (c) in the event such Additional
Mortgaged Property is a Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program,
evidence that Company has obtained flood insurance in respect of such
Flood Hazard Property to the extent required under the applicable
regulations of the Board of Governors of the Federal Reserve System; and
(vii) Environmental Audit. If required by the Administration Agent,
-------------------
reports or other information, in form, scope and substance satisfactory to
the Administrative Agent in its reasonable discretion and prepared by
environmental consultants satisfactory to the Administrative Agent,
concerning any material or potentially material environmental hazards or
liabilities to which Company or any of its Subsidiaries may be subject with
respect to such Additional Mortgaged Property;
provided, that notwithstanding anything to the contrary contained in this
--------
subsection 6.12C, neither Company nor any of its Subsidiaries shall be required
to deliver any of the items (other than an Additional Mortgage and Additional
Mortgage Policy) set forth in this subsection 6.12C with respect to (x) any
property to the extent that the Administrative Agent or the Collateral Agent has
waived delivery of such items (which waiver the Administrative Agent or
Collateral Agent may grant or withhold in its reasonable discretion), and (y)
any property owned or leased by any Foreign Subsidiary of Company that is not
required to be a Foreign Subsidiary Guarantor.
D. Landlord Consents and Estoppel. Company shall, at its sole cost and
expense, cause to be delivered to the Collateral Agent to the extent reasonably
requested from time to time by the Administrative Agent or the Collateral Agent
in respect of any Leasehold Property of any Loan Party noted on Schedule 5.5B as
requiring a Landlord Consent and Estoppel, any instrument, agreement or other
document (including, without limitation, a Mortgage) described in subsection
6.12C in respect of Additional Mortgaged Properties, but only to the extent
obtainable with respect to each such Leasehold Property after using
commercially reasonable efforts, all such documents and items to be in form and
substance reasonably satisfactory to the Administrative Agent and the Collateral
Agent. In addition, Company shall (a) cause to be made, executed and delivered
such adjustments, modifications and replacements to any documents delivered
pursuant to this subsection 6.12D or subsection 4.1F that may from time to time
be reasonably requested by either such Agent, and (b) cause all of the
Collateral Agent's reasonable costs and expenses (including attorneys' fees)
related to such deliveries, and title insurance costs,
-107-
expenses and premiums, recording fees, mortgage recording and similar taxes, and
all related reasonable fees, costs and expenses to be paid promptly following
presentation of invoices (or other similar evidence of the amount due) with
respect to the deliveries under the preceding clause (iii), and on demand with
respect to deliveries under the other provisions of this subsection 6.12D.
23.13 Year 2000 Matters.
-----------------
Company shall (i) promptly advise the Administrative Agent of any material
(A) disruption or delay in the implementation of the Plan of Correction, as the
same may be updated from time to time; and (ii) periodically report to the
Administrative Agent, in such form as the Administrative Agent may reasonably
request but in no event none frequently than one per calendar quarter, on (a)
the progress of Company and its Subsidiaries in implementing the Plan of
Correction, (b) the budget for, and actual financial performance with respect
to, implementation of the Plan of Correction and (c) the assessment of Company,
any senior manager of Company or any Subsidiary of Company, or any consultant of
the adequacy of the Plan of Correction or the related implementation budget.
SECTION 24.
NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations (other than indemnification obligations not due and
payable) and the cancellation or expiration of all Letters of Credit, unless the
Requisite Lenders shall otherwise give prior written consent, Company shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 7.
24.1 Indebtedness.
------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness
except:
(i) Each of the Loan Parties may become and remain liable with
respect to its respective Obligations;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness evidenced by, and with respect to guaranties of,
Subordinated Debt;
(iii) Company and its Subsidiaries, as applicable, may remain liable
with respect to Indebtedness described in Schedule 7.1 annexed hereto, and
------------
any refinancing, modification replacement or renewal thereof;
-108-
(iv) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations permitted by subsection 7.4 and, upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(v) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness under Capital Leases and other Indebtedness secured
by Liens permitted under subsection 7.2A(iii); provided, that the aggregate
--------
amount of all Indebtedness outstanding under this clause (v) at any time
shall not exceed $5,000,000;
(vi) Company may become and remain liable with respect to
Indebtedness owed to (on an intercompany basis) any of its Domestic
Subsidiaries, and any Domestic Subsidiary may become and remain liable with
respect to Indebtedness to (on an intercompany basis) Company or any other
Domestic Subsidiary, provided that, in each case, (a) all intercompany
--------
Indebtedness shall be evidenced by promissory notes which shall have been
pledged to the Collateral Agent pursuant to the Collateral Documents, (b)
all intercompany Indebtedness owed by Company to any of its respective
Domestic Subsidiaries shall be unsecured and subordinated in right of
payment to the payment in full of the Obligations pursuant to the terms of
the applicable promissory notes or an intercompany subordination agreement
that in any such case, are reasonably satisfactory to the Administrative
Agent, and (c) any payment by any Domestic Subsidiary of Company under any
Guaranty shall result in a pro tanto reduction of the amount of any
--- -----
intercompany Indebtedness owed by such Domestic Subsidiary to Company or to
any of its Domestic Subsidiaries for whose benefit such payment is made;
(vii) Company and its Subsidiaries may become and remain liable with
respect to Permitted Seller Paper; provided that any cash payments of
--------
principal, interest or other amounts with respect thereto required to be
made prior to the payment in full of the Obligations shall not exceed the
difference between (a) $15,000,000 and (b) the aggregate amount of
Indebtedness outstanding pursuant to subsection 7.1(xv); provided further,
-------- -------
that no more than $1,000,000 aggregate principal amount of the Indebtedness
permitted to be incurred under this clause (vii) shall be incurred by
Subsidiaries of Company;
(viii) Any Foreign Subsidiary may become and remain liable with
respect to Indebtedness to Company or to any of the Subsidiary Guarantors
so long as the aggregate principal amount of all such Indebtedness
outstanding at any time, plus the aggregate amount of Investments of the
----
type permitted under subsection 7.3(xiv), does not exceed $15,000,000,
plus the amount of intercompany Indebtedness owed by Foreign Subsidiaries
to Company or any of its Domestic Subsidiaries as of the Closing Date as
listed on Schedule 7.1 annexed hereto; provided that, all such
------------ -------- ----
intercompany Indebtedness shall be evidenced by promissory notes which
shall have been pledged to the Collateral Agent pursuant to the
Collateral Documents;
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(ix) Company and any wholly-owned Subsidiary of Company may become
and remain liable with respect to Indebtedness to any wholly-owned Foreign
Subsidiary; provided, that (1) all intercompany Indebtedness shall be
--------
evidenced by promissory notes, and (2) all such intercompany Indebtedness
owed by Company or any Subsidiary Guarantor to any wholly-owned Foreign
Subsidiary shall be subordinated in right of payment to the payment in full
of the Obligations pursuant to the terms of the applicable promissory notes
or an intercompany subordination agreement;
(x) Company may become and remain liable with respect to
Indebtedness owed to former members of management of Company incurred by
Company in connection with the repurchase of the capital stock of Company
held by such members of management; provided that after giving effect to
--------
each such incurrence of Indebtedness Company shall be in Pro Forma
Compliance with the provisions of subsection 7.6;
(xi) Foreign Subsidiaries of Company may become and remain liable
with respect to Indebtedness under lines of credit extended to any such
Foreign Subsidiary by Persons other than Company or any or its
Subsidiaries, the proceeds of which Indebtedness are used for such Foreign
Subsidiary's working capital purposes; provided that the aggregate
--------
principal amount of all such Indebtedness outstanding at any time for all
such Foreign Subsidiaries shall not exceed $7,500,000;
(xii) Any Subsidiary of Company acquired pursuant to a Permitted
Acquisition may become and remain liable with respect to Indebtedness
existing at the time of consummation of the Permitted Acquisition; provided
--------
that (a) such Indebtedness was not incurred in connection with or in
anticipation of such Permitted Acquisition, (b) such Indebtedness does not
constitute debt for borrowed money (other than debt for borrowed money
incurred in connection with industrial revenue or industrial development
bond or similar financings), it being understood and agreed that Capital
Lease obligations shall not constitute debt for borrowed money for purposes
of this clause (xii), and (c) at the time of such Permitted Acquisition
such Indebtedness does not exceed 50% of the total purchase price paid
(including, for purposes of determining the total purchase price paid,
Indebtedness assumed in connection with such Permitted Acquisition) with
respect to the assets acquired in the related Permitted Acquisition;
(xiii) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness consisting of the financing in the ordinary course
of business of insurance premiums with respect to coverage required to be
maintained under subsection 6.4; and
(xiv) Subsidiaries of Company may become and remain liable with
respect to Indebtedness consisting of a converted equity Investment by
Company or another Subsidiary of Company in such Subsidiaries, provided
--------
that the underlying equity Investment was permitted hereunder at the time
of such conversion; and
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(xv) Company and its Subsidiaries may become and remain liable with
respect to other Indebtedness in an aggregate principal amount not to
exceed at any time outstanding the difference of (a) $15,000,000, and (b)
the aggregate amount of cash payments made with respect to Permitted Seller
Paper pursuant to subsection 7.1(vii) provided, that no more than
--------
$1,000,000 in aggregate principal amount of the Indebtedness permitted to
be incurred under this clause (xv) may be incurred by Subsidiaries of
Company.
24.2 Liens and Related Matters.
-------------------------
A. Prohibition on Liens. Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement, or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any state or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens described in Schedule 7.2A annexed hereto;
-------------
(iii) Purchase money security interests (including mortgages,
conditional sales, Capital Leases and any other title retention or deferred
purchase devices) in real or tangible personal property of Company or any
of its Subsidiaries acquired after the Closing Date and existing or created
at the time of acquisition thereof or within one hundred eighty (180) days
thereafter, and the renewal, extension and refunding of any such security
interest in an amount not exceeding the amount thereof remaining unpaid
immediately prior to such renewal, extension or refunding; provided, that
--------
the Indebtedness secured by such Lien is permitted by subsection 7.1(v);
provided, further, that such Liens do not at any time (including, without
-------- -------
limitation, in connection with any renewal, extension and refunding) cover
or encumber any assets or property other than the assets or property
financed by such Indebtedness;
(iv) Liens on the assets of any Foreign Subsidiary that secure only
the Indebtedness permitted pursuant to Section 7.1(xi);
(v) Liens on assets of Company and its Subsidiaries not otherwise
permitted under this subsection 7.2A, securing obligations in an aggregate
amount not to exceed $5,000,000 at any time outstanding;
-111-
(vi) Liens securing any Indebtedness permitted pursuant to Section
7.1(xii); provided that such Liens only encumber the assets acquired in the
--------
related Permitted Acquisition and; provided further that such Liens were
-------- -------
not granted in contemplation of the related Permitted Acquisition; and
(vii) Liens in favor of the Collateral Agent granted pursuant to the
Collateral Documents or granted in favor of any Agent or Lender pursuant to
subsection 10.4 hereof.
B. No Further Negative Pledges. Except with respect to specific property
encumbered by a Lien permitted under this Agreement or to secure payment of
particular Indebtedness or to be sold pursuant to an executed agreement with
respect to an Asset Sale or the sale of all or substantially all of the stock
(or assets) of a Subsidiary permitted under this Agreement, neither Company nor
any of its Subsidiaries shall enter into any agreement (other than any documents
of a type described in subdivisions (c) through (g) of subsection 7.2C, the Loan
Documents and the Subordinated Debt Documents) prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired.
C. No Restrictions on Subsidiary Distributions to Company or Other
Subsidiaries. Except as otherwise provided herein, Company will not, and will
not permit any of its Subsidiaries to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance, limitation or restriction
of any kind on the ability of any such Subsidiary to (i) pay dividends or make
any other distributions on any of such Subsidiary's Capital Stock owned by
Company or any other Subsidiary of Company, (ii) repay or prepay any
Indebtedness owed by such Subsidiary to Company or any other Subsidiary of
Company, (iii) make loans or advances to Company or any other Subsidiary of
Company, or (iv) transfer any of its property or assets to Company or any other
Subsidiary of Company, except for such encumbrances or restrictions existing
under or by reason of (a) applicable law, (b) this Agreement and the other Loan
Documents, (c) customary provisions restricting subletting or assignment of any
lease governing a leasehold interest of Company or any of its Subsidiaries, (d)
customary provisions restricting assignment of any licensing agreement entered
into by Company or any of its Subsidiaries in the ordinary course of business,
(e) customary provisions restricting the transfer of assets subject to Liens
permitted under subsection 7.2A(iii), (f) joint ventures entered into pursuant
to subsection 7.3, (g) any document or instrument evidencing Foreign Subsidiary
working capital Indebtedness permitted under subsection 7.1(xi) so long as such
encumbrance or restriction only applies to the Foreign Subsidiary of Company
incurring such Indebtedness, and (h) the Subordinated Debt Documents.
24.3 Investments; Joint Ventures.
---------------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment except:
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(i) (a) Company and its Subsidiaries may (x) continue to own the
Investments owned by them as of the Closing Date in any Subsidiaries of
Company, and (y) make and own additional Investments in any Subsidiary
Guarantor;
(ii) Company and its Subsidiaries may make and own intercompany
loans to the extent permitted by subsections 7.1(vi), 7.1(viii) and
7.1(ix);
(iii) Company and its Subsidiaries may make and own Investments in
Cash Equivalents;
(iv) Company and its Subsidiaries may make and own Consolidated
Capital Expenditures permitted by subsection 7.6D;
(v) Company and its Subsidiaries may make and own Investments
consisting of notes received in connection with any Asset Sale permitted
under subsection 7.7(iv);
(vi) Company and its Subsidiaries may make loans to officers,
employees, directors, executives or consultants of Company and its
Subsidiaries (a) in the ordinary course of business for travel, moving,
entertainment or similar expenses, or (b) otherwise in an aggregate amount
not to exceed $1,000,000 outstanding at any time;
(vii) Company and its Subsidiaries may make and own Permitted
Acquisitions;
(viii) Company and its Subsidiaries may continue to own the
Investments described in Schedule 7.3 annexed hereto;
------------
(ix) Company and its Subsidiaries may make loans and advances to
employees, officers, executives or consultants to Company and its
Subsidiaries in the ordinary course of business of Company and its
Subsidiaries as presently conducted for the purpose of purchasing capital
stock of Company so long as the proceeds of such loans or advances are used
in their entirety to purchase such capital stock;
(x) Company and its Subsidiaries may make and own Investments in
Subsidiaries pursuant to Permitted Acquisitions under subsection 7.7(v) and
other Investments owned by entities acquired pursuant to such Permitted
Acquisitions to the extent owned as at the time of consummation of such
Permitted Acquisitions;
(xi) Company and its Subsidiaries may make and own Investments in
wholly-owned Subsidiaries of Company consisting of intercompany
Indebtedness of such Subsidiaries converted to equity Investments, provided
--------
that the underlying intercompany Indebtedness was permitted hereunder at
the time of such conversion;
-113-
(xii) Company and its Subsidiaries may make and own Investments not
otherwise permitted under this subsection 7.3 in an aggregate amount not in
excess of $5,000,000, plus, with respect to Investments made by Company and
----
its Domestic Subsidiaries only, the Excess Proceeds Amount; and
(xiii) Company and its Subsidiaries may make and own Investments in
Foreign Subsidiaries of Company; provided that the sum of (y) aggregate
--------
amount of all such Investments, plus (z) the aggregate outstanding
----
principal amount of Indebtedness of the type permitted under subsection
7.1(viii), shall not exceed the sum of (a) $15,000,000 plus, (b) an amount
----
equal to the amount of intercompany Indebtedness owed by Foreign
Subsidiaries to Company or any of its Domestic Subsidiaries as of the
Closing Date and listed on Schedule 7.1 annexed hereto.
------------
24.4 Contingent Obligations.
----------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to any
Contingent Obligation, except:
(i) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations in respect of Letters of Credit; the
Subsidiary Guarantors may become and remain liable with respect to
Contingent Obligations arising under the Guaranties;
(ii) Company and the Subsidiary Guarantors may become and remain
liable with respect to Contingent Obligations arising under their
guaranties of the Subordinated Debt as are required under the Subordinated
Debt Documents;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations in respect of customary indemnification
and purchase price adjustment obligations of any such Person incurred in
connection with Asset Sales or other sales of assets;
(iv) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations under guarantees in the ordinary course
of business of the obligations of suppliers, landlords, customers,
franchisees, workers' compensation providers and licensees of Company and
its Subsidiaries;
(v) Company and its Subsidiaries, as applicable, may remain liable
with respect to Contingent Obligations described in Schedule 7.4 annexed
hereto and any modifications, extensions or renewal of such Contingent
Obligations;
(vi) Company and its Subsidiaries may become and remain liable with
respect to other Contingent Obligations; provided, that the maximum
--------
aggregate liability,
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contingent or otherwise, of Company and its Subsidiaries in respect of all
such Contingent Obligations shall at no time exceed $5,000,000; provided
--------
further, that no more than $1,000,000 of the Contingent Obligations
-------
permitted to be incurred under this clause (vi) may be incurred by
Subsidiaries of Company;
(vii) Company and its Subsidiaries may become and remain liable with
respect to Hedge Agreements entered into pursuant to this Agreement or
otherwise in the ordinary course of business, and not for speculative
purposes;
(viii) Company's Foreign Subsidiaries may become and remain liable
with respect to guaranties of Indebtedness permitted to be incurred by
another Foreign Subsidiary; and
(ix) Company and its Subsidiaries may become and remain liable with
respect to guaranties of Indebtedness assumed in connection with a
Permitted Acquisition pursuant to subsection 7.1(xii), provided, that, such
--------
guaranties were existing at the time of consummation of the Permitted
Acquisition and not incurred in connection with, or in an anticipation of,
such Permitted Acquisition.
24.5 Restricted Payments.
-------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Payment; provided that Company and its Subsidiaries may make the
--------
following the Restricted Payments:
(i) any Subsidiary of Company may pay dividends to Company or a
Subsidiary of Company;
(ii) Company may make regularly scheduled payments (but not
prepayments) of principal and interest in respect of the Subordinated Debt
in accordance with the terms of, and subject to the subordination provision
contained in, the Subordinated Debt Documents;
(iii) Company or any Subsidiary may make regularly scheduled
principal and interest payments in respect of Permitted Seller Paper to the
extent permitted under subsection 7.1(vii) in accordance with the terms of,
and subject to the subordination provisions contained in, such Permitted
Seller Paper;
(iv) Company may make cash Restricted Payments (including cash
payments made on Indebtedness incurred pursuant to subsection 7.1(x)) in an
aggregate amount not to exceed $2,500,000 in any Fiscal Year, plus an
----
amount equal to any cash Restricted Payments permitted to be made during
one or more preceding Fiscal Years under this clause (iv) but not made
during such preceding Fiscal Year(s) in an aggregate amount not
-115-
in excess of $5,000,000, plus an additional amount, if any, otherwise
----
reasonably acceptable to the Administrative Agent, to the extent necessary
to make repurchases of Securities (and options or warrants to purchase such
Securities) of Company from employees, officers or directors (a) upon
termination (including by reason of death, disability or retirement) of
such employees officers or directors or (b) pursuant to a contractual
obligation of Company or any of its Subsidiaries;
(v) Company may make Restricted Payments in connection with
repurchases of equity Securities, including the Common Stock, deemed to
occur upon the exercise of stock options if such Securities represent a
portion of the exercise price thereof;
(vi) Company may make Restricted Payments contemplated by the
Recapitalization Transactions; and
(vii) Company may make Restricted Payments in the form of
Indebtedness incurred pursuant to subsection 7.1(x) and payments made
pursuant to subdivisions (iii) and (vii) of subsection 7.9.
24.6 Financial Covenants.
-------------------
A. Minimum Interest Coverage Ratio. The ratio (the "Interest Coverage
-----------------
Ratio") of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Interest
-----
Expense payable in cash (excluding, to the extent otherwise included in
Consolidated Interest Expense, (i) fees paid to the Administrative Agent after
the Closing Date; (ii) cash payments made under consulting agreements; and (iii)
cash payments made under Hedge Agreements or Interest Rate Agreements) for any
four-Fiscal Quarter period ending during or at the end of any of the periods set
forth below (each applicable four-Fiscal Quarter period being a "Calculation
-----------
Period") shall not be less than the correlative ratio indicated below:
------
Period During Which Minimum Interest
Calculation Period Ends Coverage Ratio
========================================================================
First Fiscal Quarter of Fiscal Year 2000 through the 1.70:1.00
Third Fiscal Quarter of Fiscal Year 2000
------------------------------------------------------------------------
Fourth Fiscal Quarter of Fiscal Year 2000 through 1.80:1.00
Second Fiscal Quarter of Fiscal Year 2001
------------------------------------------------------------------------
Third Fiscal Quarter of Fiscal Year 2001 1.90:1.00
------------------------------------------------------------------------
Fourth Fiscal Quarter of Fiscal Year 2001 through 2.00:1.00
the Third Fiscal Quarter of Fiscal Year 2002
------------------------------------------------------------------------
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Period During Which Minimum Interest
Calculation Period Ends Coverage Ratio
========================================================================
Fourth Fiscal Quarter of Fiscal Year 2002 through 2.10:1.00
the First Fiscal Quarter of Fiscal Year 2003
------------------------------------------------------------------------
Second Fiscal Quarter of Fiscal Year 2003 through 2.20:1.00
the Third Fiscal Quarter of Fiscal Year 2003
------------------------------------------------------------------------
Fourth Fiscal Quarter of Fiscal Year 2003 through 2.30:1.00
the Second Fiscal Quarter of Fiscal Year 2004
------------------------------------------------------------------------
Third Fiscal Quarter of Fiscal Year 2004 through 2.40:1.00
First Fiscal Quarter of Fiscal Year 2005
------------------------------------------------------------------------
Thereafter 2.50:1.00
========================================================================
B. Maximum Leverage Ratio. The ratio (the "Leverage Ratio") of (i)
--------------
Consolidated Total Debt as of the last day (any such day being a
"Calculation Date") of any Fiscal Quarter ending during any of the periods
----------------
set forth below, to (ii) Consolidated Adjusted EBITDA for the four-Fiscal
Quarter period ending on such Calculation Date shall not exceed the
correlative ratio indicated below:
Period During Which Maximum
Calculation Date Occurs Leverage Ratio
========================================================================
First Fiscal Quarter of Fiscal Year 2000 through 5.50:1.00
the Third Fiscal Quarter of Fiscal Year 2000
-------------------------------------------------------------------
Fourth Fiscal Quarter of Fiscal Year 2000 through 5.3:1.0
the First Fiscal Quarter of Fiscal Year 2001
-------------------------------------------------------------------
Second Fiscal Quarter of Fiscal Year 2001 5.1:1.0
-------------------------------------------------------------------
Third Fiscal Quarter of Fiscal Year 2001 4.8:1.0
-------------------------------------------------------------------
Fourth Fiscal Quarter of Fiscal Year 2001 4.7:1.0
-------------------------------------------------------------------
First Fiscal Quarter of Fiscal Year 2002 4.6:1.0
-------------------------------------------------------------------
Second Fiscal Quarter of Fiscal Year 2002 4.5:1.0
-------------------------------------------------------------------
Third Fiscal Quarter of Fiscal Year 2002 4.4:1.0
-------------------------------------------------------------------
Fourth Fiscal Quarter of Fiscal Year 2002 4.3:1.0
-------------------------------------------------------------------
First Fiscal Quarter of Fiscal Year 2003 4.2:1.0
-117-
Period During Which Maximum
Calculation Date Occurs Leverage Ratio
===================================================================
-------------------------------------------------------------------
Second Fiscal Quarter of Fiscal Year 2003 4.0:1.0
-------------------------------------------------------------------
Third Fiscal Quarter of Fiscal Year 2003 3.9:1.0
-------------------------------------------------------------------
Fourth Fiscal Quarter of Fiscal Year 2003 3.8:1.0
-------------------------------------------------------------------
First Fiscal Quarter of Fiscal Year 2004 3.7:1.0
-------------------------------------------------------------------
Second Fiscal Quarter of Fiscal Year 2004 3.6:1.0
-------------------------------------------------------------------
Third Fiscal Quarter of Fiscal Year 2004 through 3.5:1.0
Fourth Fiscal Quarter of Fiscal Year 2004
-------------------------------------------------------------------
First Fiscal Quarter of Fiscal Year 2005 3.4:1.0
-------------------------------------------------------------------
Second Fiscal Quarter of Fiscal Year 2005 through 3.3:1.0
Fourth Fiscal Quarter of Fiscal Year 2005
-------------------------------------------------------------------
First Fiscal Quarter of Fiscal Year 2006 3.2:1.0
-------------------------------------------------------------------
Second Fiscal Quarter of Fiscal Year 2006 through 3.1.:1.0
the Third Fiscal Quarter of Fiscal Year 2006
-------------------------------------------------------------------
Fourth Fiscal Quarter of Fiscal Year 2006 3.0:1.0
===================================================================
C. Minimum Consolidated Adjusted EBITDA. Consolidated Adjusted EBITDA
for any four Fiscal Quarter period ending on the last day of any Fiscal
Quarter specified below shall not be less than the correlative amount
indicated below:
Minimum
Fiscal Quarter During Which Consolidated
Calculation Period Ends Adjusted
EBITDA
===================================================================
The First Fiscal Quarter of Fiscal Year 2000 $32,500,000
-------------------------------------------------------------------
The Second Fiscal Quarter of Fiscal Year 2000 $32,500,000
-------------------------------------------------------------------
The Third Fiscal Quarter of Fiscal Year 2000 $32,500,000
-------------------------------------------------------------------
The Fourth Fiscal Quarter of Fiscal Year 2000 $32,500,000
-------------------------------------------------------------------
The First Fiscal Quarter of Fiscal Year 2001 $33,100,000
-------------------------------------------------------------------
The Second Fiscal Quarter of Fiscal Year 2001 $33,900,000
-------------------------------------------------------------------
-118-
Minimum
Fiscal Quarter During Which Consolidated
Calculation Period Ends Adjusted
EBITDA
===================================================================
The Third Fiscal Quarter of Fiscal Year 2001 $34,400,000
-------------------------------------------------------------------
The Fourth Fiscal Quarter of Fiscal Year 2001 $35,000,000
-------------------------------------------------------------------
The First Fiscal Quarter of Fiscal Year 2002 $35,500,000
-------------------------------------------------------------------
The Second Fiscal Quarter of Fiscal Year 2002 $36,100,000
-------------------------------------------------------------------
The Third Fiscal Quarter of Fiscal Year 2002 $36,600,000
-------------------------------------------------------------------
The Fourth Fiscal Quarter of Fiscal Year 2002 $37,000,000
-------------------------------------------------------------------
The First Fiscal Quarter of Fiscal Year 2003 $37,500,000
-------------------------------------------------------------------
The Second Fiscal Quarter of Fiscal Year 2003 $38,100,000
-------------------------------------------------------------------
The Third Fiscal Quarter of Fiscal Year 2003 $38,600,000
-------------------------------------------------------------------
The Fourth Fiscal Quarter of Fiscal Year 2003 $39,000,000
-------------------------------------------------------------------
The First Fiscal Quarter of Fiscal Year 2004 $39,300,000
-------------------------------------------------------------------
The Second Fiscal Quarter of Fiscal Year 2004 $39,500,000
-------------------------------------------------------------------
The Third Fiscal Quarter of Fiscal Year 2004 $39,800,000
-------------------------------------------------------------------
The Fourth Fiscal Quarter of Fiscal Year 2004 $40,000,000
-------------------------------------------------------------------
Each Fiscal Quarter of Each Fiscal Year thereafter $40,000,000
===================================================================
D. Consolidated Capital Expenditures.
(i) Except as provided below, Company shall not, and shall not permit
its Subsidiaries to, make or incur Consolidated Capital Expenditures in any
Fiscal Year (or specified portion thereof) in an aggregate amount in excess
of the corresponding amount (the "Maximum Consolidated Capital Expenditures
-----------------------------------------
Amount") set forth below opposite such Fiscal Year (or such portion
------
thereof) as indicated below; provided, that the Maximum Consolidated
--------
Capital Expenditures Amount for any Fiscal Year shall be increased by an
amount equal to the excess, if any, of (x) the Maximum Consolidated Capital
Expenditures Amount (excluding, and without giving effect to, any increases
thereto from any prior carry over of amounts pursuant to this clause for
the previous Fiscal Year (or specified portion thereof)) over (y) the
actual amount of Consolidated Capital Expenditures for such previous Fiscal
Year (or specified portion thereof) (the
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amount of such increase described in this proviso being the "Carryforward"
------------
from such preceding Fiscal Year):
Fiscal Year Maximum Consolidated
(or Portion Thereof) Capital Expenditures Amount
==============================================================
Fiscal Year 2000 $7,000,000
--------------------------------------------------------------
Fiscal Year 2001 $7,000,000
--------------------------------------------------------------
Fiscal Year 2002 $7,000,000
--------------------------------------------------------------
Fiscal Year 2003 and thereafter $8,000,000
==============================================================
; provided that, the Maximum Consolidated Capital Expenditure Amount for
--------
each period during or after a Permitted Acquisition occurs shall be
increased by an amount equal to the greatest of (x) historical capital
expenditures made with respect to the person or assets acquired (the
"Acquired Business") during the twelve-month period most recently ended
prior to consummation of the related Permitted Acquisition, (y) the average
historical capital expenditures made with respect to the Acquired Business
for the last two fiscal years applicable to such person or assets ending
prior to consummation of the related Permitted Acquisition and (z) 25% of
the expenditures made with respect to research and development for the
Acquired Business for the twelve-month period most recently ended prior to
consummation of the Permitted Acquisition.
(ii) In addition to the Consolidated Capital Expenditures made
pursuant to the foregoing clause (i) of the subsection 7.6D, Company and
its Subsidiaries may make additional Consolidated Capital Expenditures not
in excess of the Excess Proceeds Amount.
E. Certain Calculations.
With respect to any period during which any Permitted Acquisition
occurs or any business of any other Person is acquired by Company or any of
its Subsidiaries as permitted pursuant to the terms hereof, for purposes of
determining compliance or Pro Forma Compliance with the financial covenants
set forth in this subsection 7.6, Consolidated Adjusted EBITDA and
Consolidated Interest Expense shall be calculated with respect to such
periods and such Permitted Acquisition or business on a Pro Forma Basis.
-120-
24.7 Restriction on Fundamental Changes; Asset Sales.
-----------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to, alter
the corporate, capital or legal structure of Company or any of its Subsidiaries
or enter into any transaction of merger or consolidation, or liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, sub-lease, transfer or otherwise dispose of all or any portion of its
business or assets, whether now owned or hereafter acquired, or acquire by
purchase or otherwise all or a substantial part of the business or assets of, or
Capital Stock or other evidence of beneficial ownership of, any Person or any
unit or division thereof, except:
(i) Any Subsidiary of Company may be merged with or into Company
or any wholly-owned Subsidiary, or be liquidated, wound up or dissolved, or
all or any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a
series of transactions, to Company or any wholly-owned Subsidiary; provided
--------
that, in the case of such a merger involving Company, Company shall be the
continuing or surviving corporation, in the case of any such merger of
Domestic Subsidiaries (not involving Company), or of any merger of a
Domestic Subsidiary and a Foreign Subsidiary, a Domestic Subsidiary shall
be the continuing or surviving corporation and in the case of any other
merger involving a Subsidiary Guarantor, a Subsidiary Guarantor shall be
the continuing or surviving corporation;
(ii) Company and its Subsidiaries may acquire inventory, equipment
and other assets in the ordinary course of business;
(iii) Company and its Subsidiaries may sell or otherwise dispose of
assets in transactions that do not constitute Asset Sales; provided that
--------
the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof (determined in good faith by the
board of directors of Company);
(iv) Company and its Subsidiaries may make Asset Sales of assets
having a fair market value (determined in good faith by the board of
directors of Company) not in excess of $5,000,000 (or $10,000,000 if, after
giving effect to such Asset Sale, the Leverage Ratio determined on a Pro
Forma Basis is less than 3.50:1.00) for any Fiscal Year; provided that, in
--------
each such case, (x) the consideration received for such assets shall be in
an amount at least equal to the fair market value thereof (determined in
good faith by the board of directors of Company); and (y) the proceeds of
such Asset Sales shall be applied as required by subsection 2.4B(iii)(a);
(v) Company and its Subsidiaries may acquire the stock or other
equity Securities of any Person that, as a result of such acquisition,
becomes a wholly-owned Subsidiary of Company or any of its Subsidiaries or
is merged into Company or its Subsidiaries, or may acquire the business,
property or assets of any Person; provided, that (x) on a Pro Forma Basis,
--------
the aggregate principal amount of all Indebtedness incurred by
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Company or its Subsidiaries to finance such acquisition, plus the aggregate
----
amount of Indebtedness of such acquired business existing at the time of
such acquisition for which Company or any of its Subsidiaries (including,
without limitation such acquired business) shall be liable following such
acquisition shall be less than 90% of the aggregate amount of consideration
paid by Company and its Subsidiaries for such acquired business (y) no
Default or Event of Default shall have occurred and be continuing or result
therefrom (z) if, after giving effect to such Acquisition, the Leverage
Ratio determined on a Pro Forma Basis is greater than 5.00:1.00 the
aggregate cash consideration paid in connection with all such acquisitions
made pursuant to this clause (z); shall not exceed $10,000,000, plus the
----
Excess Proceeds Amount;
(vi) Company may create or acquire new Subsidiaries; provided that,
--------
(a) promptly after the formation or acquisition of each such Subsidiary,
Company or such Subsidiary, as applicable, shall deliver or cause to be
delivered each of the items and execute each of the documents, if any,
required pursuant to subsection 6.9; and
(vii) Company may consummate the Recapitalization Transactions.
24.8 Sales and Lease-Backs.
---------------------
Except for the transactions described on Schedule 7.8, Company shall not,
------------
and shall not permit any of its Subsidiaries to, directly or indirectly, become
or remain liable as lessee or as a guarantor or other surety with respect to any
lease, whether an Operating Lease or a Capital Lease, of any property (whether
real, personal or mixed), whether now owned or hereafter acquired, (i) which
Company or any of its Subsidiaries has sold or transferred or is to sell or
transfer to any other Person (other than Company or any of its Subsidiaries) or
(ii) which Company or any of its Subsidiaries intends to use for substantially
the same purpose as any other property which has been or is to be sold or
transferred by Company or any of its Subsidiaries to any Person (other than
Company or any of its Subsidiaries) in connection with such lease.
24.9 Transactions with Shareholders and Affiliates.
---------------------------------------------
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any holder of 5% or more of any
class of equity Securities of Company or such Subsidiary or with any Affiliate
of Company or of any such Subsidiary or holder, on terms that are less favorable
to Company or that Subsidiary, as the case may be, than those that might be
obtained at the time from Persons who are not such a holder or Affiliate;
provided that the foregoing restriction shall not apply to (i) transactions
--------
between Company and any Subsidiary or between Subsidiaries, (ii) reasonable and
customary fees paid to members of the boards of directors of Company and its
Subsidiaries, (iii) management and one-time transaction (acquisitions,
divestitures and financings) fees paid by Company pursuant to the Xxxx Advisory
Services Agreement, plus reasonable out-of-pocket
----
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expenses related thereto; provided, in no event shall any management fees be
--------
paid (but may accrue) under the Xxxx Advisory Services Agreement at any time an
Event of Default under any of subsection 8.1, 8.6, or 8.7 has occurred and is
continuing; (iv) loans and advances permitted to be made under subsections
7.3(vi) or (ix), (v) Restricted Payments permitted to be made under subsection
7.5, (vi) issuance of capital stock to employees and consultants of Company
pursuant to employment or consulting arrangements, (vii) employment and
consulting arrangements entered into in the ordinary course of business and
(viii) the Recapitalization Transactions.
24.10 Ownership of Subsidiary Stock.
-----------------------------
Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise
encumber or dispose of any shares of Capital Stock or other equity
Securities of any of its Subsidiaries, except as permitted under this
Agreement and the Collateral Documents or to qualify directors if required
by applicable law; or
(ii) except as a result of a sale permitted hereby of all of the
outstanding Capital Stock of a Subsidiary Guarantor to a third-party,
permit any Capital Stock of any Subsidiary Guarantor to be directly or
indirectly owned by any person other than a Subsidiary Guarantor or
Company;
(iii) permit any of its Subsidiaries directly or indirectly to sell,
assign, pledge or otherwise encumber or dispose of any shares of Capital
Stock or other equity Securities of any of its Subsidiaries (including such
Subsidiary), except as permitted under this Agreement and the Collateral
Documents, to Company or another Subsidiary of Company or to qualify
directors or for nominee holders, if required by applicable law.
24.11 Amendments or Waivers of Certain Agreements.
-------------------------------------------
A. Amendments or Waivers of Certain Agreements and Documents. None of
Company nor any of its respective Subsidiaries shall terminate or agree to any
amendment, restatement, supplement or other modification to, or waive any of its
rights under, any Transaction Document (other than any document relating to the
Subordinated Debt), or any document relating to CSM Deposits, if such
termination, amendment, restatement, supplement, modification or waiver would
reasonably be expected to be materially adverse to the Lenders without obtaining
the prior written consent of the Requisite Lenders to such amendment or waiver.
B. Amendments of Documents Relating to Subordinated Debt. Company shall
not, and shall not permit any of its Subsidiaries to, amend or otherwise change
the terms of any Subordinated Debt, or make any payment consistent with an
amendment thereof or change thereto, if the effect of such amendment or change
is to increase the interest rate on such
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Subordinated Debt, change (to earlier dates) any dates upon which payments of
principal or interest are due thereon, change any event of default or condition
to an event of default with respect thereto (other than to eliminate any such
event of default or increase any grace period related thereto), change the
redemption, prepayment or defeasance provisions thereof, change the
subordination provisions of such Subordinated Debt or any guaranty of any
Subordinated Debt), or if the effect of such amendment or change, together with
all other amendments or changes made, is to increase materially the obligations
of the obligor thereunder or to confer any additional rights on the holders of
such Subordinated Debt (or a trustee or other representative on their behalf)
which would reasonably be expected to be materially adverse to the Lenders
without obtaining the prior written consent of the Requisite Lenders to such
amendment or waiver.
24.12 Fiscal Year.
-----------
Neither Company nor any of its Subsidiaries shall change its Fiscal Year-
end from the Saturday occurring closest to June 30 of each calendar year.
24.13 Conduct of Business.
-------------------
Company shall not, nor shall it permit any of its Subsidiaries to, engage
in any business or activities other than of the type engaged in as of the
Closing Date or similar, related or supportive businesses or those consented to
by the Requisite Lenders, including the performance of its obligations
hereunder, under the other Loan Documents and under the Transaction Documents.
SECTION 25.
EVENTS OF DEFAULT
IF any of the following conditions or events ("Events of Default") shall
-----------------
occur:
25.1 Failure to Make Payments When Due.
---------------------------------
Failure by Company to pay any installment of principal of any Loan when
due, whether at stated maturity, by acceleration, by notice of prepayment or
otherwise; failure by Company to pay when due any amount payable to an Issuing
Bank in reimbursement of any drawing honored or payment made under a Letter of
Credit; or failure by Company to pay any interest on any Loan or any fee or any
other amount due under this Agreement or any other Loan Document within five (5)
Business Days after the date due; or
25.2 Default in Other Agreements.
---------------------------
(i) Failure of Company or any of its Subsidiaries to pay when due (a) any
principal of or interest on any Indebtedness (other than Indebtedness referred
to in subsection 8.1) in an individual principal amount of $1,500,000 or more or
any items of Indebtedness with an
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aggregate principal amount of $3,500,000 or more, in each case beyond the end of
any grace period provided therefor; or (b) any Contingent Obligation in an
individual principal amount of $1,500,000 or more or any Contingent Obligations
with an aggregate principal amount of $3,500,000 or more, in each case beyond
the end of any grace period provided therefor; or (ii) breach or default by
Company or any of its Subsidiaries with respect to any other material term of
(a) any evidence of any Indebtedness in an individual principal amount of
$1,500,000 or more or any items of Indebtedness with an aggregate principal
amount of $3,500,000 or more or any Contingent Obligation in an individual
principal amount of $1,500,000 or more or any Contingent Obligations with an
aggregate principal amount of $3,500,000 or more, in each case beyond the end of
any grace period provided thereof; or (b) any loan agreement, mortgage,
indenture or other agreement relating to such Indebtedness or Contingent
Obligation(s), or the occurrence of any other event, condition or circumstance
in respect of any such Indebtedness or Contingent Obligations if in any case
under this clause (ii) the effect of such breach or default or event, condition
or circumstance is to cause, or to permit the holder or holders of that
Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such holder
or holders) to cause, that Indebtedness or Contingent Obligation(s) to become or
be declared due and payable (or redeemable) prior to its stated maturity or the
stated maturity of any underlying obligation, as the case may be (upon the
giving or receiving of notice, lapse of time, both, or otherwise); or
25.3 Breach of Certain Covenants.
---------------------------
Failure of any Loan Party to perform or comply with any term or condition
contained in subsection 2.5, 6.2, or Section 7 of this Agreement; provided,
--------
however, that such failure with respect to the covenants contained in
-------
subsections 7.1 through 7.5 shall not constitute an Event of Default for ten
(10) days after such failure so long as such Loan Party is diligently pursuing
the cure of such failure;
25.4 Breach of Warranty.
------------------
Any representation, warranty, certification or other statement made by
Company or any of its Subsidiaries in any Loan Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false
in any material respect on the date as of which made; or
25.5 Other Defaults Under Loan Documents.
-----------------------------------
Any Loan Party shall default in the performance of or compliance with any
term contained in this Agreement or any of the other Loan Documents, other than
any such term referred to in any other subsection of this Section 8, and such
default shall not have been remedied or waived within thirty (30) days after the
earlier of (i) a Responsible Officer of Company becoming aware of the occurrence
of such default or (ii) receipt by Company of notice from the Administrative
Agent of such default; or
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25.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
-----------------------------------------------------
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of Company or any of its Subsidiaries (other than
Immaterial Subsidiaries) in an involuntary case under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, which decree or order is not stayed; or any other similar
relief shall be granted under any applicable federal or state law; or (ii) an
involuntary case shall be commenced against Company or any of its Subsidiaries
(other than Immaterial Subsidiaries) under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Company or any of its Subsidiaries
(other than Immaterial Subsidiaries), or over all or a substantial part of its
property, shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee or other custodian of Company or any
of its Subsidiaries (other than Immaterial Subsidiaries) for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Company or any of its Subsidiaries (other than Immaterial
Subsidiaries), and any such event described in this clause (ii) shall continue
for sixty (60) days unless dismissed, bonded or discharged; or
25.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
---------------------------------------------------
(i) Company or any of its Subsidiaries (other than Immaterial Subsidiaries)
shall have an order for relief entered with respect to it or commence a
voluntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, or
shall consent to the appointment of or taking possession by a receiver, trustee
or other custodian for all or a substantial part of its property; or Company or
any of its Subsidiaries (other than Immaterial Subsidiaries) shall make any
assignment for the benefit of creditors; or (ii) Company or any of its
Subsidiaries (other than Immaterial Subsidiaries) shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as such
debts become due; or the Board of Directors of Company or any of its
Subsidiaries (other than Immaterial Subsidiaries) (or any committee thereof)
shall adopt any resolution or otherwise authorize any action to approve any of
the actions referred to in clause (i) above or this clause (ii); or
25.8 Judgments and Attachments.
-------------------------
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $1,500,000 or (ii)
in the aggregate at any time an amount in excess of $3,500,000 (in either case
not adequately covered by insurance) shall be entered or filed against Company
or any of its Subsidiaries or any of their respective assets and
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shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty
(60) days (or in any event later than five days prior to the date of any
proposed sale thereunder); or
25.9 Dissolution.
-----------
Any order, judgment or decree shall be entered against Company or any of
its Subsidiaries decreeing the dissolution or split up of Company or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of thirty (30) days; or
25.10 Employee Benefit Plans.
----------------------
There shall occur one or more of the following: (i) ERISA Events which
individually or in the aggregate results or (ii) Company or one of its ERISA
Affiliates shall have engaged in a transaction which is prohibited under Section
4975 of the Code of Section 406 of ERISA which results in the imposition of a
liability which has a Material Adverse Effect on Company or any of its ERISA
Affiliates; or
25.11 Change in Control.
-----------------
(i) Xxxx and the Other Investors shall beneficially own less than, in the
aggregate, any other Person or "group" (within meaning of 13d-3 or 13d-5 of the
Exchange Act) of all issued and outstanding equity securities of Company
representing economic and voting interests in Company; (ii) Xxxx shall cease to
beneficially own less than 35% of the outstanding equity securities of Company
(excluding (a) equity securities issued to management pursuant to management
stock option plans or similar arrangements; and (b) any equity securities,
including warrants with respect thereto, issued to any financial institution in
connection with the refinancing of the Loans) representing economic interests in
Company; (iii) a majority of the members of the Board of Directors of Company
shall not be Continuing Directors; or (iv) any "Change of Control" shall occur
under the Subordinated Debt Documents; or
25.12 Invalidity of Guaranties.
------------------------
At any time after the execution and delivery thereof, any Guaranty of the
Obligations of Company for any reason, other than the satisfaction in full of
all Obligations (other than indemnification obligations not due and payable),
ceases to be in full force and effect (other than in accordance with its terms)
or is declared to be null and void, or any Loan Party denies in writing that it
has any further liability, including without limitation with respect to future
advances by the Lenders, under any Loan Document to which it is a party; or
25.13 Failure of Security.
-------------------
Any Collateral Document shall, at any time, cease to be in full force and
effect (other than by reason of a release of Collateral thereunder in accordance
with the terms hereof or thereof, the
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satisfaction in full of the Obligations (other than indemnification obligations
not due and payable) or any other termination of such Collateral Document in
accordance with the terms hereof or thereof) or shall be declared null and void,
or the validity or enforceability thereof shall be contested in writing by any
Loan Party, or the Collateral Agent shall not have or shall cease to have a
valid security interest in any Collateral purported to be covered thereby having
a fair market value exceeding $750,000, perfected and with the priority required
by the relevant Collateral Document, for any reason other than the failure of
the Collateral Agent, the Administrative Agent or any Lender to take any action
within its control, subject only to Liens permitted under the applicable
Collateral Documents;
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit) and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Company, and the obligation of each Lender to make any Loan, the
obligation of the Issuing Bank to issue any Letter of Credit shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any other
Event of Default, the Administrative Agent shall, upon the written request of
the Requisite Lenders, by written notice to Company, declare all or any portion
of the amounts described in clauses (a) through (c) above to be, and the same
shall forthwith become, immediately due and payable, and the obligation of each
Lender to make any Loan and the obligation of the Issuing Bank to issue any
Letter of Credit shall thereupon terminate; provided that the foregoing shall
--------
not affect in any way the obligations of the Lenders under subsection 3.3C(i).
Any amounts described in clause (i)(b) above, when received by the
Administrative Agent or the Collateral Agent, shall be held by the Collateral
Agent pursuant to the terms of the Collateral Account Agreement and shall be
applied as therein provided.
Notwithstanding anything contained in the second preceding paragraph, if at
any time within sixty (60) days after an acceleration of the Loans pursuant to
such paragraph Company shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than as a result of
such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all
Defaults and Events of Default (other than non-payment of the principal of and
accrued interest on the Loans, in each case which is due and payable solely by
virtue of acceleration) shall be remedied or waived pursuant to subsection 10.6,
then the Requisite Lenders, by written notice to Company, may at their option
rescind and annul such acceleration and its consequences; but such action shall
not affect any subsequent Default or Event of Default or impair any right
consequent thereon. The provisions of this paragraph are intended merely to
bind the Lenders to a decision which may be made at the election of the
Requisite Lenders and are not intended to benefit
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Company and do not grant Company the right to require the Lenders to rescind or
annul any acceleration hereunder or preclude the Agents or the Lenders from
exercising any of the rights or remedies available to them under any of the Loan
Documents, even if the conditions set forth in this paragraph are met.
SECTION 26.
AGENTS
26.1 Appointment.
-----------
A. CSFB is hereby appointed the Administrative Agent and Sole Lead
Arranger hereunder and under the other Loan Documents. CSFB is also hereby
appointed the Collateral Agent hereunder and under the Collateral Documents.
Each Lender hereby authorizes each Agent to act as its agent in accordance with
the terms of this Agreement and the other Loan Documents. Each Agent agrees to
act upon the express conditions contained in this Agreement and the other Loan
Documents, as applicable. The provisions of this Section 9 are solely for the
benefit of the Agents and the Lenders and Company shall have no rights as a
third party beneficiary of any of the provisions thereof. In performing its
functions and duties under this Agreement, each Agent shall act solely as an
agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for Company or
any of its Subsidiaries. Upon the conclusion of the Initial Period, all
obligations of the Sole Lead Arranger hereunder shall terminate and thereafter,
the Sole Lead Arranger shall have no obligations or liabilities under any of the
Loan Documents.
B. Appointment of Supplemental Collateral Agents. It is the purpose of
this Agreement and the other Loan Documents that there shall be no violation of
any law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or trustee in such
jurisdiction. It is recognized that in case of litigation under this Agreement
or any of the other Loan Documents, and in particular in case of the enforcement
of any of the Loan Documents, or in case the Administrative Agent or the
Collateral Agent deems that by reason of any present or future law of any
jurisdiction the Administrative Agent or the Collateral Agent may not exercise
any of the rights, powers or remedies granted herein or in any of the other Loan
Documents or take any other action which may be desirable or necessary in
connection therewith, it may be necessary that the Administrative Agent or the
Collateral Agent appoint an additional individual or institution as a separate
trustee, co-trustee, collateral agent or collateral co-agent (any such
additional individual or institution being referred to herein individually as a
"Supplemental Collateral Agent" and collectively as "Supplemental Collateral
----------------------------- -----------------------
Agents").
------
In the event that the Administrative Agent or the Collateral Agent appoints
a Supplemental Collateral Agent with respect to any Collateral, (i) each and
every right, power, privilege or duty expressed or intended by this Agreement or
any of the other Loan Documents to
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be exercised by or vested in or conveyed to the Administrative Agent or the
Collateral Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either the Administrative Agent or the Collateral Agent or such Supplemental
Collateral Agent, and (ii) the provisions of this Section 9 and of subsections
10.2 and 10.3 that refer to the Administrative Agent or the Collateral Agent
shall inure to the benefit of such Supplemental Collateral Agent and all
references therein to the Administrative Agent or the Collateral Agent shall be
deemed to be references to the Administrative Agent or the Collateral Agent
and/or such Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from Company or any other Loan Party be
required by any Supplemental Collateral Agent so appointed by the Administrative
Agent or the Collateral Agent for more fully and certainly vesting in and
confirming to him or it such rights, powers, privileges and duties, Company
shall, or shall cause such Loan Party to, execute, acknowledge and deliver any
and all such instruments promptly upon request by the Administrative Agent or
the Collateral Agent. In case any Supplemental Collateral Agent, or a successor
thereto, shall die, become incapable of acting, resign or be removed, all the
rights, powers, privileges and duties of such Supplemental Collateral Agent, to
the extent permitted by law, shall vest in and be exercised by the
Administrative Agent or the Collateral Agent until the appointment of a new
Supplemental Collateral Agent.
26.2 POWERS; GENERAL IMMUNITY.
------------------------
A. DUTIES SPECIFIED. Each Lender irrevocably authorizes each Agent to
take such action on such Lender's behalf and to exercise such powers hereunder
and under the other Loan Documents as are specifically delegated to such Agent
by the terms hereof and thereof, together with such powers as are reasonably
incidental thereto. Each Agent shall have only those duties and
responsibilities that are expressly specified in this Agreement and the other
Loan Documents and it may perform such duties by or through its agents or
employees. No Agent shall have, by reason of this Agreement or any of the other
Loan Documents, a fiduciary relationship in respect of any Lender; and nothing
in this Agreement or any of the other Loan Documents, expressed or implied, is
intended to or shall be so construed as to impose upon any Agent any obligations
in respect of this Agreement or any of the other Loan Documents except as
expressly set forth herein or therein.
B. No Responsibility for Certain Matters. No Agent shall be responsible
to any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statement or in any
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financial or other statements, instruments, reports or certificates or any other
documents furnished by any Agent to the Lenders or by or on behalf of Company
and/or its Subsidiaries to any Agent or any Lender in connection with the Loan
Documents and the transactions contemplated thereby or for the financial
condition or business affairs of Company or any other Person liable for the
payment of any Obligations, nor shall any Agent be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Default or Event of Default.
Anything contained in this Agreement to the contrary notwithstanding, the
Administrative Agent shall not have any liability arising from confirmations of
the amount of outstanding Loans or the Total Utilization of Revolving Loan
Commitments or the component amounts thereof.
C. Exculpatory Provisions. Neither any Agent nor any of such Agent's
respective officers, directors, employees or agents shall be liable to the
Lenders for any action taken or omitted by such Agent under or in connection
with any of the Loan Documents except to the extent caused by such Agent's gross
negligence or willful misconduct. If any Agent shall request instructions from
the Lenders with respect to any act or action (including the failure to take an
action) in connection with this Agreement or any of the other Loan Documents,
such Agent shall be entitled to refrain from such act or taking such action
unless and until such Agent shall have received instructions from the Requisite
Lenders (or such other Lenders as may be required to give such instructions
under subsection 10.6). Without prejudice to the generality of the foregoing,
(i) such Agent shall be entitled to rely, and shall be fully protected in
relying, upon any communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and shall be entitled to rely and shall be protected in relying on
opinions and judgments of attorneys (who may be attorneys for Company and its
Subsidiaries), accountants, experts and other professional advisors selected by
it; and (ii) no Lender shall have any right of action whatsoever against such
Agent as a result of such Agent acting or (where so instructed) refraining from
acting under this Agreement or any of the other Loan Documents in accordance
with the instructions of the Requisite Lenders (or such other Lenders as may be
required to give such instructions under subsection 10.6). Such Agent shall be
entitled to refrain from exercising any power, discretion or authority vested in
it under this Agreement or any of the other Loan Documents unless and until it
has obtained the instructions of the Requisite Lenders (or such other Lenders as
may be required to give such instructions under subsection 10.6).
D. Agents Entitled to Act as the Lender. The agency hereby created shall
in no way impair or affect any of the rights and powers of, or impose any duties
or obligations upon, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, each
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include such Agent
in its individual capacity.
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Each Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial advisory or other
business with Company or any of its Affiliates as if it were not performing the
duties specified herein, and may accept fees and other consideration from
Company and/or its Subsidiaries for services in connection with this Agreement
and otherwise without having to account for the same to the Lenders.
26.3 Representations and Warranties; No Responsibility For Appraisal of
------------------------------------------------------------------
Creditworthiness.
----------------
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of the
Lenders or, except as expressly provided elsewhere in this Agreement, to provide
any Lender with any credit or other information with respect thereto (except as
provided in Section 4 or subsection 6.1), whether coming into its possession
before the making of the Loans or at any time or times thereafter, and no Agent
shall have any responsibility with respect to the accuracy of or the
completeness of any information provided to the lenders.
26.4 Right to Indemnity.
------------------
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been
reimbursed by Company, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, reasonable counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against such Agent in performing its duties hereunder or under
the other Loan Documents or otherwise in its capacity as such Agent in any way
relating to or arising out of this Agreement or the other Loan Documents;
provided that no Lender shall be liable for any portion of such liabilities,
--------
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct. If any indemnity furnished to any Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished.
26.5 Successor Administrative Agent and Swing Line Lender.
----------------------------------------------------
A. Successor Administrative Agent. The Administrative Agent may resign
at any time by giving thirty (30) days' prior written notice thereof to the
Lenders and Company Upon any such notice of resignation, the Requisite Lenders
shall have the right, upon five (5) Business Days' notice to Company, to appoint
a successor Administrative Agent with the consent of
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Company. Upon the acceptance of any appointment as the Administrative Agent
hereunder by a successor Administrative Agent, that successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring the Administrative Agent and the retiring
the Administrative Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring the Administrative Agent's resignation
hereunder as the Administrative Agent, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was the Administrative Agent under this Agreement.
B. Successor Swing Line Lender. Any resignation of the Administrative
Agent pursuant to subsection 9.5A shall also constitute the resignation of CSFB
or its successor as the Swing Line Lender, and any successor Administrative
Agent appointed pursuant to subsection 9.5A shall, upon its acceptance of such
appointment, become the successor Swing Line Lender for all purposes hereunder.
In such event (i) any outstanding Swing Line Loans made by the retiring
Administrative Agent in its capacity as Swing Line Lender shall be transferred
to the successor Swing Line Lender, (ii) the retiring Administrative Agent and
Swing Line Lender shall surrender the Swing Line Note held by it to Company for
cancellation, and (iii) Company shall issue a new Swing Line Note to the
successor Administrative Agent and Swing Line Lender substantially in the form
of Exhibit V-B annexed hereto, in the principal amount of the Swing Line Loan
-----------
Commitment then in effect and with other appropriate insertions.
26.6 Collateral Documents; Successor Collateral Agent.
-------------------------------------------------
Each Lender hereby further authorizes the Collateral Agent to enter into
each Collateral Document as secured party on behalf of and for the benefit of
the Lenders and the other beneficiaries named therein and agrees to be bound by
the terms of each Collateral Document; provided that the Collateral Agent shall
--------
not enter into or consent to any material amendment, modification, termination
or waiver of any provision contained in any Collateral Document without the
prior consent of the Requisite Lenders (or, if required pursuant to subsection
10.6, all the Lenders); provided further, however, that, without further written
-------- ------- -------
consent or authorization from any Lender, the Collateral Agent may execute any
documents or instruments necessary to effect the release of any asset
constituting Collateral from the Lien of the applicable Collateral Document in
the event that such asset is sold in a transaction to which the Requisite
Lenders have consented or otherwise disposed of in a transaction permitted by
this Agreement, or to the extent otherwise permitted or required by any
Collateral Document. Anything contained in any of the Loan Documents to the
contrary notwithstanding, each Lender agrees that no Lender shall have any right
individually to realize upon any of the Collateral under any Collateral Document
(including without limitation through the exercise of a right of set-off against
call deposits of such Lender in which any funds on deposit in the Collateral
Account may from time to time be invested), it being understood and agreed that
all rights and remedies under the Collateral Documents may be exercised solely
by the Collateral Agent for the benefit of the Lenders and the other
beneficiaries named therein in accordance with the terms thereof. The
Collateral Agent may resign at any time, and a successor Collateral Agent may be
appointed, in accordance with
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subsection 9.5 as if such subsection 9.5 applied to the Collateral Agent in lieu
of the Administrative Agent.
SECTION 27.
MISCELLANEOUS
27.1 Assignments and Participations in Loans, Letters of Credit.
----------------------------------------------------------
A. General. Subject to subsection 10.1B or 10.1C, as applicable, each
Lender shall have the right at any time to (i) sell, assign, transfer or
negotiate to any Eligible Assignee, or (ii) sell participations to any Person
in, all or any part of its Commitments (together with its Letters of Credit or
participations therein made or arising pursuant to its Revolving Loan
Commitment) or any Loan or Loans made by it or any other interest herein or in
any other Obligations owed to it; provided that no such sale, assignment,
--------
transfer or participation shall, without the consent of Company, require Company
to file a registration statement with the Securities and Exchange Commission or
apply to qualify such sale, assignment, transfer or participation under the
securities laws of any state; provided further that no such sale, assignment or
-------- -------
transfer described in clause (i) above shall be effective unless and until an
Assignment Agreement effecting such sale, assignment or transfer shall have been
accepted by the Administrative Agent and recorded in the Register as provided in
subsection 10.1B(ii); provided, further that no such sale, assignment, transfer
-------- -------
or participation of any Letter of Credit or any participation therein may be
made separately from a sale, assignment, transfer or participation of a
corresponding interest in the Revolving Loan Commitment and the Revolving Loans
of the Lender effecting such sale, assignment, transfer or participation.
Except as otherwise provided in this subsection 10.1, no Lender shall, as
between Company and such Lender, be relieved of any of its obligations hereunder
as a result of any sale, assignment, transfer or negotiation of, or any granting
of participations in, all or any part of its Commitments or the Loans, the
Letters of Credit or participations therein or the other Obligations owed to
such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter
--------------------------------
of Credit, or participation therein or other Obligation may (a) be assigned
in any amount to another Lender who is a Non-Defaulting Lender, or to an
Approved Fund or an Affiliate of the assigning Lender or another Lender
who, in either such case, is a Non-Defaulting Lender, with the giving of
notice to Company and the Administrative Agent or (b) be assigned in an
aggregate amount of not less than $5,000,000 (or such lesser amount (1) as
shall constitute the aggregate amount of the Commitments, Loans, Letters of
Credit, and participations therein and other Obligations of the assigning
Lender, or (2) as may be agreed to by Company and the Administrative Agent)
to any other Eligible Assignee with the consent of the Administrative Agent
(such consent not to be unreasonably withheld) and, so long as no Event of
Default shall have occurred and be continuing with the
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consent of Company (such consent not to be unreasonably withheld). To the
extent of any such assignment in accordance with either clause (a) or (b)
above, the assigning Lender shall be relieved of its obligations with
respect to its Commitments, Loans, Letters of Credit, or participations
therein or other Obligations or the portion thereof so assigned. The
parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment Agreement, together with a processing fee of $3,500 payable by
the assigning Lender, such certificates, documents or other evidence, if
any, with respect to United States federal income tax withholding matters
as the assignee under such Assignment Agreement may be required to deliver
to the Administrative Agent pursuant to subsection 2.7B(iii) and, if
requested by the Administrative Agent, a completed administrative
questionnaire in the Administrative Agent's customary form with respect to
the assignee under such Assignment Agreement. Upon such execution,
delivery, acceptance and recordation, from and after the effective date
specified in such Assignment Agreement, (y) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment Agreement, shall have
the rights and obligations of a Lender hereunder and (z) the assigning
Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment Agreement,
relinquish its rights and be released from its obligations under this
Agreement (and, in the case of an Assignment Agreement covering all or the
remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto); provided
--------
that, anything contained in any of the Loan Documents to the contrary
notwithstanding, if such Lender is the Issuing Bank such Lender shall
continue to have all rights and obligations of the Issuing Bank with
respect to outstanding Letters of Credit until the cancellation or
expiration of such Letters of Credit and the reimbursement of any amounts
drawn thereunder. The Commitments hereunder shall be modified to reflect
the Commitments of such assignee and any remaining Commitments of such
assigning Lender and, if any such assignment occurs after the issuance of
the Notes hereunder, the assigning Lender shall surrender its applicable
Notes and, upon such surrender, new Notes shall be issued to the assignee
and, if applicable, to the assigning Lender, substantially in the form of
Exhibit IV-A or B or Exhibit V-A annexed hereto, as the case may be, with
------------ - -----------
appropriate insertions, to reflect the new Commitments and/or outstanding
Term Loans of the assignee and the assigning Lender.
(ii) Acceptance by the Administrative Agent; Recordation in Register.
---------------------------------------------------------------
Upon its receipt of an Assignment Agreement executed by an assigning Lender
and an assignee representing that it is an Eligible Assignee, together with
the processing fee referred to in subsection 10.1B(i) and any certificates,
documents or other evidence with respect to United States federal income
tax withholding matters that such assignee may be required to deliver to
the Administrative Agent pursuant to subsection 2.7B(iii), the
Administrative Agent shall, if such Assignment Agreement has been completed
and is in substantially the form of Exhibit XII hereto and if the
-----------
Administrative Agent has
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consented to the assignment evidenced thereby (to the extent such consent
is required pursuant to subsection 10.1B(i)), (a) accept such Assignment
Agreement by executing a counterpart thereof as provided therein (which
acceptance shall evidence any required consent of the Administrative Agent
to such assignment), (b) record the information contained therein in the
Register, and (c) give prompt notice thereof to Company. The Administrative
Agent shall maintain a copy of each Assignment Agreement delivered to and
accepted by it as provided in this subsection 10.1B(ii).
C. Participations. The holder of any participation, other than an
Affiliate of the Lender granting such participation, shall not be entitled to
require such Lender to take or omit to take any action hereunder except action
(i) effecting the extension of the final maturity of the Loan allocated to such
participation or (ii) effecting a reduction of the principal amount of or
affecting the rate of interest payable on any Loan or any fee allocated to such
participation. Company and each Lender hereby acknowledge and agree that, solely
for purposes of subsections 2.6D, 2.7, 3.6, 10.2, 10.3, 10.4 and 10.5, (a) any
participation will give rise to a direct obligation of Company to the
participant and (b) the participant shall be considered to be a "Lender".
D. Assignments to Federal Reserve Banks. In addition to the assignments
and participations permitted under the foregoing provisions of this subsection
10.1, any Lender may assign and pledge all or any portion of its Loans, the
other Obligations owed to such Lender and its Notes to any Federal Reserve Bank
as collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such Federal Reserve
Bank; and any Lender which is an investment fund may pledge all or any portion
of its Notes or Loans to its trustee in support of its obligations to such
trustee, provided that (i) no Lender shall, as between Company and such Lender,
--------
be relieved of any of its obligations hereunder as a result of any such
assignment and pledge and (ii) in no event shall such Federal Reserve Bank be
considered to be a "Lender" or be entitled to require the assigning Lender to
take or omit to take any action hereunder.
E. Information. Each Lender may furnish any information concerning
Company and its Subsidiaries in the possession of that Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject to subsection 10.20.
F. Special Purpose Funding Vehicle. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Bank") may grant to a special
-------------
purpose funding vehicle (a "SPC"), identified as such in writing from time to
---
time by the Granting Bank to the Administrative Agent and Company, the option to
provide to Company all or any part of any Loan that such Granting Bank would
otherwise be obligated to make to Company pursuant to this Agreement; provided
--------
that (i) nothing herein shall constitute a commitment by any SPC to make any
----
Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Loan, the Granting Bank shall be obligated to
make such Loan pursuant to the terms hereof. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Bank to the same extent,
and as if, such Loan were made by such Granting Bank. Each
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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 Bank). 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 subsection 10.1F, any SPC may (i) with notice to, but without the prior
written consent of, Company and the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to the Granting Bank or to any financial institutions (consented to by Company
and Administrative Agent) providing liquidity and/or credit support to or for
the account of such SPC to support the funding or maintenance if 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.
G. Limitation. No assignee, participant or other transferee or any
Lender's rights shall be entitled to receive any greater payment under
subsection 2.7 than such Lender would have been entitled to receive with respect
to the rights transferred, unless such transfer is made with Company's prior
written consent or at a time when the circumstances giving rise to such greater
payment did not exist.
27.2 Expenses.
--------
Company agrees to pay promptly (i) all the actual and reasonable costs and
out-of-pocket expenses of the Agents in connection with the preparation of the
Loan Documents; (ii) all costs of furnishing all opinions by counsel for Company
(including without limitation any opinions requested by the Lenders or Agents as
to any legal matters arising hereunder) and of Company's performance of and
compliance with all agreements and conditions on its part to be performed or
complied with under this Agreement and the other Loan Documents including,
without limitation, with respect to confirming compliance with environmental and
insurance requirements; (iii) the reasonable fees, expenses and disbursements of
counsel to the Agents (including allocated costs of internal counsel) in
connection with the negotiation, preparation, execution and administration of
the Loan Documents and the Loans and any consents, amendments, waivers or other
modifications hereto or thereto, in each case, requested by or for the benefit
of Company and any other documents or matters requested by Company; (iv) all
other reasonable costs and expenses incurred by the Agents in connection with
the negotiation, preparation and execution of the Loan Documents and the
transactions contemplated hereby and thereby and the syndication of the Loans
and Commitments; and (v) after the occurrence of a Default or Event of Default,
all the respective reasonable costs and expenses, including reasonable
attorneys' fees (including allocated costs of internal counsel) and costs of
settlement,
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incurred by the Agents and the Lenders in enforcing any Obligations of or in
collecting any payments due from Company hereunder or under the other Loan
Documents by reason of such Default or Event of Default or in connection with
any refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
27.3 Indemnity.
---------
In addition to the payment of expenses pursuant to subsection 10.2, whether
or not the transactions contemplated hereby shall be consummated, Company agrees
to defend (subject to Indemnitees' selection of counsel), indemnify, pay and
hold harmless on an after-tax basis the Agents and the Lenders, and the
officers, directors, employees, agents, attorneys and affiliates of the Agents
and the Lenders (collectively called the "Indemnitees") from and against any and
-----------
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
nature whatsoever (including without limitation the reasonable fees and
disbursements of counsel for such Indemnitees, and all such fees and
disbursements, as well as other costs and expenses, incurred by Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including without limitation securities and
commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed
on, incurred by, or asserted against any such Indemnitee, in any manner relating
to or arising out of this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including without limitation the
Lenders' agreement to make the Loans hereunder or the use or intended use of the
proceeds of any of the Loans or the issuance of Letters of Credit hereunder or
the use or intended use of any of the Letters of Credit) or any Environmental
Liabilities that arise from or relate to the management, use, control,
ownership, occupancy or operation of any Facility or assets of any Loan Party or
its subsidiaries (including without limitation, all on-site and off-site
activities involving Hazardous Materials), or the Release or threatened Release
of any Hazardous Materials (or allegations of the same) on or from any of the
Facilities or on or from any other property where Hazardous Materials are or
were (or are or were alleged to be) Released or threatened to be Released in
connection with any of the Facilities or the business of any of the Loan
Parties, their subsidiaries, or any predecessor in interest to the Loan Parties
or their subsidiaries (collectively called the "Indemnified Liabilities");
-----------------------
provided that Company shall not have any obligation to any Indemnitee hereunder
--------
with respect to any Indemnified Liabilities to the extent that such Indemnified
Liabilities arose from the bad faith, gross negligence or willful misconduct of
that Indemnitee. To the extent that the undertaking to defend, indemnify, pay
and hold harmless set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, Company shall contribute
the maximum portion that it is permitted to pay and satisfy under applicable law
to the payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them.
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27.4 Set-Off; Security Interest in Deposit Accounts.
----------------------------------------------
In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence and during the
continuance of any Event of Default, each Lender is hereby authorized by Company
at any time or from time to time, without notice to Company or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts or payroll accounts) and
any other Indebtedness at any time held or owing by that Lender (at any office
of that Lender wherever located) to or for the credit or the account of Company
against and on account of the obligations and liabilities of Company to that
Lender under this Agreement, the Notes, the Letters of Credit and participations
therein, including, but not limited to, all claims of any nature or description
arising out of or connected with this Agreement, the Notes, the Letters of
Credit and participations therein or any other Loan Document, irrespective of
whether or not (i) that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder shall have become due and
payable pursuant to Section 8 and although said obligations and liabilities, or
any of them, may be contingent or unmatured. Company hereby further grants to
the Administrative Agent and each Lender a security interest in all deposits and
accounts maintained with the Administrative Agent or such Lender as security for
the Obligations.
27.5 Ratable Sharing.
---------------
The Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "Aggregate
---------
Amounts Due" to such Lender) which is greater than the proportion received by
-----------
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
the Administrative Agent and each other Lender of the receipt of such payment
and (ii) apply a portion of such payment to purchase participations (which it
shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment)
in the Aggregate Amounts Due to the other Lenders so that all such recoveries of
Aggregate Amounts Due shall be shared by all the Lenders in proportion to the
Aggregate Amounts Due to them; provided that if all or part of such
--------
proportionately greater payment received by such purchasing the Lender is
thereafter recovered from such Lender upon the bankruptcy, reorganization or
insolvency proceeding of Company or otherwise, those purchases
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shall be rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. Company expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all
rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by Company to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
27.6 Amendments and Waivers.
----------------------
A. No amendment, modification, termination or waiver of any provision of
this Agreement or of the Notes, or consent to any departure by Company or any
other Loan Party therefrom, shall in any event be effective without the written
consent of the Requisite Lenders; provided that any such amendment,
--------
modification, termination, waiver or consent which: (a) reduces the principal
amount of any of the Loans; (b) changes in any manner any provision of this
Agreement which, by its terms, expressly requires the approval or consent of all
the Lenders; (c) postpones the scheduled final maturity date of any of the
Loans; (d) reduces the percentage specified in the definition of the "Requisite
Lenders" (it being understood that, with the consent of the Requisite Lenders,
additional extensions of credit pursuant to this Agreement may be included in
the definition of the "Requisite Lenders" on substantially the same basis as the
Term A Loans, Term A Loan Commitments, Term B Loans, Term B Loan Commitments,
Revolving Loans and Revolving Loan Commitments are included on the Closing
Date); (e) postpones the date or reduces the amount of any scheduled payment
(but not prepayment) of principal of any of the Loans or of any scheduled
reduction of the Revolving Credit Commitments; (f) postpones the date on which
any interest or any fees are payable; (g) decreases the interest rate borne by
any of the Loans (other than any waiver of any increase in the interest rate
applicable to any of the Loans pursuant to subsection 2.2E) or the amount of any
fees payable hereunder; (h) releases all or substantially all of the Collateral;
(i) except as permitted by this Agreement (subsection 7.7) or any Guaranty,
releases any of the Guarantors from their obligations under the Guaranties; (j)
reduces the amount or postpones the due date of any amount payable in respect
of, or extends the required expiration date of, any Letter of Credit; or (k)
changes in any manner the provisions contained in this subsection 10.6; shall be
effective only if evidenced by a writing signed by or on behalf of all the
Lenders to whom Obligations are owed or who have Commitments outstanding being
directly affected by such amendment, modification, termination, waiver or
consent. In addition, (i) any amendment, modification, termination or waiver of
any of the provisions contained in Section 4 shall be effective only if
evidenced by a writing signed by or on behalf of the Administrative Agent, (ii)
no amendment, modification, termination or waiver of any provision of any Note
shall be effective without the written concurrence of the Lender which is the
holder of that Note, (iii) no increase in the Commitments of any Lender over the
amount thereof then in effect shall be effective without the written concurrence
of that Lender, it being understood and agreed that in no event shall waivers or
modifications of conditions precedent, covenants, Defaults, Events of Default or
of a mandatory prepayment or a reduction of any or all of the Commitments be
deemed to
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constitute an increase of the Commitment of any Lender and that an increase in
the available portion of any Commitment of any Lender shall not be deemed to
constitute an increase in the Commitment of such Lender, (iv) no amendment,
modification, termination or waiver of any provision of subsection 2.1A(iv) or
any other provision of this Agreement relating to the Swing Line Loan Commitment
or the Swing Line Loans shall be effective without the written concurrence of
the Swing Line Lender, (v) no amendment, modification, termination or waiver of
any provision of Section 3 relating to the rights or obligations of the Issuing
Bank shall be effective without the written concurrence of the Issuing Bank with
respect to any Letter of Credit then outstanding, and (vi) no amendment,
modification, termination or waiver of any provision of Section 9 or of any
other provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of any Agent shall be effective without the written
concurrence of such Agent. The Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of that Lender and no amendment,
modification, termination or waiver of any provision of subsection 2.4 which has
the effect of changing any voluntary or mandatory prepayments or Commitment
reductions applicable to any Class (the "Affected Class") in a manner that
--------------
disproportionately disadvantages such Class relative to the other Class shall be
effective without the written concurrence of the Requisite Class Lenders of the
Affected Class (it being understood and agreed that any amendment, modification,
termination or waiver of any such provision which only postpones or reduces any
voluntary or mandatory prepayment or Commitment reduction from those set forth
in subsection 2.4 with respect to one Class but not the other Classes shall be
deemed to disproportionately disadvantage such one Class but not to
disproportionately disadvantage such other Classes for purposes of this clause).
Any waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it was given. No notice to or demand on Company
in any case shall entitle Company to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this subsection 10.6 shall be binding
upon each Lender at the time outstanding, each future Lender and, if signed by
Company, on Company.
27.7 Independence of Covenants.
-------------------------
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another such covenant shall not avoid the occurrence of an
Default or Event of Default if such action is taken or condition exists.
27.8 Notices.
-------
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telecopied, telexed or sent by United States mail or
courier service and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telecopy or telex, or four Business Days
after depositing it in the United States mail, registered or certified, with
postage prepaid and properly addressed. For the purposes hereof, the address of
each party hereto shall be as set
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forth on the signature pages hereof attached hereto, or such other address as
shall be designated by such party in a written notice delivered to the
Administrative Agent and Company.
27.9 Survival of Representations, Warranties and Agreements.
------------------------------------------------------
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.6D, 2.7, 3.5A,
3.6, 10.2, 10.3 and 10.4 and the agreements of the Lenders set forth in
subsections 9.2C, 9.4, 10.4, 10.5 and 10.20 shall survive the payment of the
Loans, the cancellation or expiration of the Letters of Credit and the
reimbursement of any amounts drawn or paid thereunder, and the termination of
this Agreement.
27.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
-----------------------------------------------------
No failure or delay on the part of any Agent or any Lender in the exercise
of any power, right or privilege hereunder or under any other Loan Document
shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of
any such power, right or privilege preclude other or further exercise thereof or
of any other power, right or privilege. All rights and remedies existing under
this Agreement and the other Loan Documents are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
27.11 Marshalling; Payments Set Aside.
-------------------------------
Neither any Agent nor any Lender shall be under any obligation to marshal
any assets in favor of Company or any other party or against or in payment of
any or all of the Obligations. To the extent that Company makes a payment or
payments to the Administrative Agent or the Lenders (or to the Administrative
Agent or Collateral Agent for the benefit of the Lenders), or any Agent or the
Lenders enforce any security interests or exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law, common
law or any equitable cause, then, to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
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27.12 Severability.
------------
In case any provision in or obligation under this Agreement or the Notes
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
27.13 Obligations Several; Independent Nature of the Lenders' Rights.
--------------------------------------------------------------
The obligations of the Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
the Lenders pursuant hereto or thereto, shall be deemed to constitute the
Lenders as a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be entitled to protect and
enforce its rights arising out of this Agreement and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
27.14 Maximum Amount.
--------------
A. It is the intention of Company and the Lenders to conform strictly to
the usury and similar laws relating to interest from time to time in force, and
all agreements between the Loan Parties and their respective Subsidiaries and
the Lenders, whether now existing or hereafter arising and whether oral or
written, are hereby expressly limited so that in no contingency or event
whatsoever, whether by acceleration of maturity hereof or otherwise, shall the
amount paid or agreed to be paid in the aggregate to the Lenders as interest
(whether or not designated as interest, and including any amount otherwise
designated but deemed to constitute interest by a court of competent
jurisdiction) hereunder or under the other Loan Documents or in any other
agreement given to secure the Indebtedness or obligations of Company to the
Lenders, or in any other document evidencing, securing or pertaining to the
Indebtedness evidenced hereby, exceed the maximum amount permissible under
applicable usury or such other laws (the "Maximum Amount"). If under any
--------------
circumstances whatsoever fulfillment of any provision hereof, or any of the
other Loan Documents, at the time performance of such provision shall be due,
shall involve exceeding the Maximum Amount, then, ipso facto, the obligation to
be fulfilled shall be reduced to the Maximum Amount. For the purposes of
calculating the actual amount of interest paid and/or payable hereunder in
respect of laws pertaining to usury or such other laws, all sums paid or agreed
to be paid to the holder hereof for the use, forbearance or detention of the
Indebtedness of Company evidenced hereby, outstanding from time to time shall,
to the extent permitted by Applicable Law, be amortized, pro-rated, allocated
and spread from the date of disbursement of the proceeds of the Notes until
payment in full of all of such Indebtedness, so that the actual rate of interest
on account of such Indebtedness is uniform through the term hereof. The terms
and provisions of this subsection shall control and supersede every other
provision of all agreements between Company or any endorser of the Notes and the
Lenders.
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B. If under any circumstances any Lender shall ever receive an amount
which would exceed the Maximum Amount, such amount shall be deemed a payment in
reduction of the principal amount of the Loans and shall be treated as a
voluntary prepayment under subsection 2.4B(i) and shall be so applied in
accordance with subsection 2.4 hereof or if such excessive interest exceeds the
unpaid balance of the Loans and any other Indebtedness of Company in favor of
such Lender, the excess shall be deemed to have been a payment made by mistake
and shall be refunded to Company.
27.15 Headings.
--------
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
27.16 Applicable Law.
--------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
27.17 Successors and Assigns.
----------------------
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of the Lenders (it being understood that
the Lenders' rights of assignment are subject to subsection 10.1). Company's
rights or obligations hereunder nor any interest therein may not be assigned or
delegated by Company without the prior written consent of all Lenders.
27.18 Consent to Jurisdiction and Service of Process.
----------------------------------------------
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX,
XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND DELIVERING THIS AGREEMENT,
COMPANY FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
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(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION
10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.18 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.
27.19 Waiver of Jury Trial.
--------------------
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP OR OTHER RELATIONSHIP THAT IS BEING ESTABLISHED.
The scope of this waiver is intended to be all-encompassing of any and all
disputes that may be filed in any court and that relate to the subject matter of
this transaction, including, without limitation, contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. Each party
hereto acknowledges that this waiver is a material inducement to enter into a
business relationship, that each has already relied on this waiver in entering
into this Agreement, and that each will continue to rely on this waiver in their
related future dealings. Each party hereto further warrants and represents that
it has reviewed this waiver with its legal counsel and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal
counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SUBSECTION 10.19 AND EXECUTED BY EACH OF THE PARTIES HERETO),
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT OR
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ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING
TO THE LOANS MADE HEREUNDER. In the event of litigation, this Agreement may be
filed as a written consent to a trial by the court.
27.20 Confidentiality.
---------------
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking and investing practices, it being
understood and agreed by Company that in any event a Lender may make disclosures
reasonably required by any bona fide assignee, transferee or participant in
connection with the contemplated assignment or transfer by such Lender of any
Loans or any participation therein or as required or requested by any
governmental agency or representative thereof or pursuant to legal process;
provided that nothing herein shall prevent any Agent or any Lender from
--------
disclosing any such information (i) to the Administrative Agent or any other
Lender, (ii) any of its employees, directors, officers, agents or affiliates who
need to know such information in accordance with customary safe and sound
banking or commercial lending practices who receive such information having been
made aware of the confidential nature thereof, (iii) upon the request or demand
of any Governmental Authority having jurisdiction over it, (iv) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Applicable Laws, (v) if required to do so in connection
with any litigation or similar proceeding, (vi) which has been publicly
disclosed other than in breach of this subsection 10.20 or (vii) to the National
Association of Insurance Commissioners or any securities exchange or any similar
organization, or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender. In the event that any Lender discloses any
information pursuant to clauses (iv) or (v) of the preceding sentence, such
Lender will, before such disclosure, give notice thereof to Company if such
Lender is lawfully permitted to do so; and provided, further that in no event
-------- -------
shall any Lender be obligated or required to return any materials furnished by
Company or any of its Subsidiaries unless requested by Company or any of its
Subsidiaries to do so.
27.21 Counterparts; Effectiveness.
---------------------------
This Agreement and any amendments, waivers, consents or supplements hereto
or in connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
COMPANY: INTEGRATED CIRCUIT SYSTEMS, INC.
By: /s/Xxxxxx X. Xxxxxxx
_________________________________________
Name: Xxxxxx X. Xxxxxxx
Title:Chairman of the Board
Notice Address:
Integrated Circuit Systems, Inc.
0000 Xxxxxxxxx xx xxx Xxxxxxxx
Xxxxxx Xxxxx, XX 00000
Attn: Xxxx Tan
Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxx Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Yoo Xxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-1
AGENTS AND LENDERS: CREDIT SUISSE FIRST BOSTON,
individually and as the Administrative Agent,
Sole Lead Arranger and the Collateral Agent
By: /s/Xxxxxx Xxxx
________________________________________
Name: Xxxxxx Xxxx
Title:Vice President
By: /s/WM. Xxxxxxx Xxxxxx
________________________________________
Name:WM. Xxxxxxx Xxxxxx
Title:Assistant Vice Prestident
S-2
SCHEDULE 1.1(I)
Certain Adjustments to EBITDA/Consolidated Interest Expense
-----------------------------
A. Without duplication and to the extent otherwise deducted in determining
Consolidated Net Income:
(i) items classified as unusual or nonrecurring gains and losses
(including restructuring costs, severance and relocation costs,
any one-time expenses related to (or resulting from) any merger,
recapitalization or Permitted Acquisition);
(ii) one-time compensation charges, including any arising from any
recapitalization of Company's bonus program or existing stock
options, performance share or restricted stock plans resulting
from any merger or recapitalization transaction or expended in
any period prior to the consummation of the transactions
contemplated by the Transaction Documents;
(iii) non-recurring cash charges and transaction expenses incurred
in connection with the transactions contemplated by the
Transaction Documents and related transactions to the extent
deducted in determining Consolidated Net Income;
(iv) non-recurring cash charges and transaction expenses incurred in
connection with Permitted Acquisitions to the extent deducted in
determining Consolidated Net Income;
(v) management and other fees paid to Xxxx during such period
under the Xxxx Advisory Services Agreement;
(vi) cash items relating to the sale by Company of the Datacom
business; and
(vii) any gain or expense incurred or recognized in connection
with the sale and lease-back of Company's facilities in
Valley Forge, Pennsylvania.
B. Consolidated Adjusted EBITDA for the Second Fiscal Question and Third
Fiscal Quarter of Fiscal Year 1999 shall be deemed to be the following
amounts:
Second Fiscal Quarter: $10,600,000
Third Fiscal Quarter: $12,700,000
Consolidated Interest expense for each of the second, third and fourth
Fiscal Quarter of Fiscal Year 1999 shall be deemed to be $4,370,000.
