CREDIT AGREEMENT
among
THE OFFICIAL INFORMATION COMPANY
as Borrower
THE LENDERS IDENTIFIED HEREIN,
AND
FIRST UNION NATIONAL BANK,
as Administrative Agent
Dated as of October 9, 1997 and amended as of __________, 2001
FIRST UNION SECURITIES, INC.,
as Lead Arranger and Book Manager
BNY CAPITAL MARKETS, INC.
as Co-Lead Arranger
TABLE OF CONTENTS
SECTION 1. DEFINITIONS.....................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Other Definitional Provisions..................................................................23
1.3 Accounting Terms...............................................................................23
SECTION 2. THE LOANS; AMOUNT AND TERMS....................................................................24
2.1 Revolving Loans................................................................................24
2.2 Letter of Credit Subfacility...................................................................26
2.3 Conversion Options.............................................................................29
2.4 Minimum Principal Amount of Tranches...........................................................30
2.5 Default Rate and Payment Dates.................................................................30
2.6 Reductions in Revolving Commitments and Prepayments............................................31
2.8 Computation of Interest and Fees...............................................................33
2.9 Pro Rata Treatment and Payments................................................................34
2.10 Non-Receipt of Funds by the Administrative Agent...............................................35
2.11 Inability to Determine Interest Rate...........................................................36
2.12 Illegality.....................................................................................36
2.13 Requirements of Law............................................................................37
2.14 Indemnity......................................................................................38
2.15 Taxes..........................................................................................39
2.16 Replacement of Agent...........................................................................41
2.17 Indemnification; Nature of Issuing Lender's Duties.............................................42
SECTION 3. REPRESENTATIONS AND WARRANTIES.................................................................43
3.1 Financial Condition............................................................................43
3.2 No Change......................................................................................43
3.3 Existence; Compliance with Law.................................................................43
3.4 Power; Authorization; Enforceable Obligations..................................................44
3.5 No Legal Bar; No Default.......................................................................44
3.6 No Material Litigation.........................................................................44
3.7 Investment Company Act.........................................................................45
3.8 Federal Regulations............................................................................45
3.9 ERISA..........................................................................................45
3.10 Environmental Matters..........................................................................45
3.11 Purpose of Loan................................................................................46
3.12 Subsidiaries...................................................................................46
3.13 Intellectual Property Rights...................................................................47
3.14 No Burdensome Restrictions.....................................................................48
3.15 Taxes..........................................................................................48
3.16 [Intentionally Omitted]........................................................................48
3.17 No Interest in Real Estate.....................................................................48
3.18 [intentionally omitted]........................................................................48
3.19 Unrestricted Subsidiaries......................................................................48
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SECTION 4. CONDITIONS PRECEDENT...........................................................................48
4.1 Conditions to Amendment Effective Date.........................................................48
4.2 Conditions to All Extensions of Credit.........................................................51
SECTION 5. AFFIRMATIVE COVENANTS................................................................................52
5.1 Financial Statements...........................................................................52
5.2 Certificates; Other Information................................................................53
5.3 Payment of Obligations.........................................................................54
5.4 Conduct of Business and Maintenance of Existence...............................................54
5.5 Maintenance of Property; Insurance.............................................................54
5.6 Inspection of Property; Books and Records; Discussions.........................................54
5.7 Notices........................................................................................55
5.8 Environmental Laws.............................................................................56
5.9 Financial Covenants............................................................................56
5.10 Covenants Regarding Patents, Trademarks and Copyrights.........................................57
5.11 Lender Fee, Etc................................................................................58
5.12 Subsidiaries...................................................................................58
5.13 Subsequently Acquired Real Property............................................................59
SECTION 6. NEGATIVE COVENANTS...................................................................................59
6.1 Indebtedness...................................................................................59
6.2 Liens..........................................................................................60
6.3 Guaranty Obligations...........................................................................60
6.4 Lines of Business..............................................................................61
6.5 Consolidation, Merger, Sale or Purchase of Assets, etc.........................................61
6.6 Advances, Investments and Loans................................................................62
6.7 Transactions with Affiliates...................................................................62
6.8 Ownership of Subsidiaries......................................................................63
6.9 Fiscal Year....................................................................................63
6.10 [intentionally left blank].....................................................................63
6.11 Prepayments of Indebtedness, etc...............................................................63
6.12 Restricted Payments............................................................................64
6.13 Organizational Documents; Subordinated Debt Documents; LLC Preferred Stock.....................64
6.14 [intentionally omitted]........................................................................64
6.15 Unrestricted Subsidiaries......................................................................64
SECTION 7. EVENTS OF DEFAULT....................................................................................65
SECTION 8. THE ADMINISTRATIVE AGENT.............................................................................68
8.1 Appointment....................................................................................68
8.2 Delegation of Duties...........................................................................69
8.3 Exculpatory Provisions.........................................................................69
8.4 Reliance by Administrative Agent...............................................................69
8.5 Notice of Default..............................................................................70
8.6 Non-Reliance on Administrative Agent and Other Lenders.........................................70
8.7 Indemnification................................................................................71
8.8 Administrative Agent in Its Individual Capacity................................................71
8.9 Successor Administrative Agent.................................................................71
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SECTION 9. MISCELLANEOUS........................................................................................72
9.1 Amendments, Waivers and Release of Collateral..................................................72
9.2 Notices........................................................................................73
9.3 No Waiver; Cumulative Remedies.................................................................74
9.4 Survival of Representations and Warranties.....................................................74
9.5 Payment of Expenses and Taxes..................................................................74
9.6 Successors and Assigns; Participations; Purchasing Lenders.....................................75
9.7 Adjustments; Set-off...........................................................................78
9.8 Table of Contents and Section Headings.........................................................79
9.9 Counterparts...................................................................................79
9.10 Severability...................................................................................79
9.11 Integration....................................................................................79
9.12 Governing Law; Waivers of Jury Trial...........................................................79
9.13 Arbitration; Consent to Jurisdiction and Service of Process....................................80
9.14 Confidentiality................................................................................81
9.15 Acknowledgments................................................................................81
9.16 Effectiveness; Binding Effect..................................................................82
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SCHEDULES
Schedule 1.1C Unrestricted Subsidiaries
Schedule 2.1 Lenders' Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(b)(iii) Form of Notice of Account Designation
Schedule 2.1(e) Form of Revolving Note
Schedule 2.3 Form of Notice of Conversion
Schedule 2.15 Form of Tax Certificate
Schedule 3.6 Material Litigation
Schedule 3.12 Subsidiaries
Schedule 3.13 Intellectual Property
Schedule 3.15 Taxes
Schedule 3.17 Real Estate
Schedule 4.1(d) Form of Secretary's Certificate
Schedule 4.1(f)(i) Form of Compliance Certificate
Schedule 4.1(f)(ii) Form of Solvency Certificate
Schedule 4.1(h) Capital and Ownership Structure
Schedule 6.1(b) Existing Indebtedness
Schedule 6.8 Form of Joinder Agreement
Schedule 9.2 Lending Offices
Schedule 9.6(c) Form of Commitment Transfer Supplement
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of October 9, 1997 and amended as of
__________, 2001 (the "Amendment Effective Date"), among THE OFFICIAL
INFORMATION COMPANY (formerly known as T/SF COMMUNICATIONS CORPORATION), a
Delaware corporation (hereinafter the "Borrower"), the several banks, financial
institutions and other investors from time to time parties to this Agreement
(the "Lenders"), and FIRST UNION NATIONAL BANK, as administrative agent for the
Lenders (in such capacity, the "Agent" or the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, First Union National Bank, as Administrative
Agent and certain lenders party thereto entered into that certain Credit
Agreement (the "Existing Credit Agreement") dated as of October 9, 1997, whereby
the Borrower was provided a credit facility in an amount up to $25,000,000 as
more particularly described therein;
WHEREAS, the Borrower wishes to amend and restate the terms and
conditions of the Existing Credit Agreement in order to, among other things,
increase the amount of the credit facility as set forth below;
WHEREAS, the Lenders have agreed to amend the terms and conditions of
the Existing Credit Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms.
As used in this Agreement, terms defined in the preamble to this
Agreement have the meanings therein indicated, and the following terms have the
following meanings:
"Adjusted EBITDA": of any Person for any period, EBITDA for
such period ("Unadjusted EBITDA") plus (i) if such Person made any
acquisition permitted by Section 6.5(b) during such period, EBITDA
generated from such acquired businesses ("Acquired EBITDA") as if such
acquisitions occurred at the beginning of the applicable period except
to the extent such Acquired EBITDA has already been included in the
calculation of Unadjusted EBITDA for such period, minus (ii) if such
Person has sold or otherwise divested any information or publishing or
information or publishing related businesses or business trade
show/exposition or business trade show/exposition related
businesses during such period, EBITDA generated from such sold or
divested information or publishing or information or publishing related
businesses as if such sales or divestitures occurred at the beginning
of the applicable period.
"Affiliate": as to any Person, any other Person (excluding any
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, a Person shall be deemed to be "controlled
by" a Person if such Person possesses, directly or indirectly, power
either (a) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) to direct or
cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Aggregate Revolving Committed Amount": the aggregate amount
of all of the Revolving Committed Amounts in effect from time to time,
as reduced from time to time as provided in Section 2.6.
"Agreement": this Credit Agreement, as amended, supplemented
or modified from time to time in accordance with its terms.
"Amendment Effective Date": has the meaning set forth in the
first paragraph of this Agreement.
"Applicable Interest Rate Percentage": for any day, the rate
per annum set forth below opposite the applicable Total Leverage Ratio
then in effect, it being understood that the Applicable Interest Rate
Percentage for (i) Base Rate Loans shall be the percentage set forth
under the column "Base Rate Margin", (ii) LIBOR Rate Loans shall be the
percentage set forth under the column "LIBOR Rate Margin", and (iii)
the Letter of Credit Fee shall be the percentage set forth under the
column "Letter of Credit Fee":
---------------------------------------------------------------------------------------------------------
Level Total Leverage Base Rate LIBOR Rate Letter of
Ratio Margin Margin Credit Fee
---------------------------------------------------------------------------------------------------------
I equal to or greater than 5.0 1.75% 3.00% 3.00%
---------------------------------------------------------------------------------------------------------
II equal to or greater than 4.5 but less than 5.0 1.50% 2.75% 2.75%
---------------------------------------------------------------------------------------------------------
III equal to or greater than 4.0 but less than 4.5 1.25% 2.50% 2.50%
---------------------------------------------------------------------------------------------------------
IV less than 4.0 1.00% 2.25% 2.25%
---------------------------------------------------------------------------------------------------------
The Applicable Interest Rate Percentage shall, in each case, be
determined and adjusted quarterly on the date five (5) Business Days
after the date of delivery of the quarterly compliance certificate and
financial information provided in accordance with Sections 5.1(b) and
5.2(b) (each an "Interest Determination Date"). Such Applicable
Interest Rate Percentage shall be effective from such Interest
Determination Date until the next such Interest Determination Date. If
the Borrower shall fail to provide its quarterly compliance certificate
and financial information provided in accordance with Sections 5.1(b)
and 5.2(b), the Applicable Interest Rate Percentage shall be determined
based on
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Level I until such time as the Borrower shall have delivered its
quarterly compliance certificate and financial information as provided
herein.
In addition, after the Amendment Effective Date, the Applicable
Interest Rate Percentage shall be redetermined and adjusted in
connection with any Permitted Acquisition hereunder. On the date five
(5) Business Days after the date on which the Permitted Acquisition has
occurred, based on the Total Leverage Ratio determined on a pro forma
basis after giving effect to such Permitted Acquisition (as certified
in writing by the Borrower in connection therewith), the Applicable
Interest Rate Percentage shall be adjusted based on the then-applicable
Level derived from such pro forma calculation. Such Applicable Interest
Rate Percentage shall be effective from such date (the "Permitted
Acquisition Date") until the next Interest Determination Date or
Permitted Acquisition Date, as the case may be.
"Asset Disposition": means any sale, lease, transfer or other
disposition (including any such transaction effected by way of merger,
amalgamation or consolidation) by the Borrower or any Restricted
Subsidiary subsequent to the Closing Date of any asset (including stock
or other equity interests in any Restricted Subsidiary), including
without limitation any sale leaseback transaction (whether or not
involving a Capital Lease), but excluding Specified Sales.
"Authorized Signatory": such senior personnel of the Borrower
as may be duly authorized and designated in writing by the Borrower
from time to time to execute documents, agreements and instruments on
the Borrower's behalf.
"Bankruptcy Code": the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Base Rate": for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes
hereof: "Prime Rate" shall mean, at any time, the rate of interest per
annum publicly announced from time to time by First Union at its
principal office in Charlotte, North Carolina as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of
business on the day such change in the Prime Rate occurs. The parties
hereto acknowledge that the rate announced publicly by First Union as
its Prime Rate is an index or base rate and shall not necessarily be
its lowest or best rate charged to its customers or other banks; and
"Federal Funds Effective Rate" shall mean, for any day, 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 on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
on the next succeeding Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it. If
for any reason the Administrative Agent shall have determined (which
determination shall be conclusive in the absence of manifest error)
that it is unable to
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ascertain the Federal Funds Effective Rate, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Base Rate shall be determined
without regard to clause (b) of the first sentence of this definition,
as appropriate, until the circumstances giving rise to such inability
no longer exist. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective on
the opening of business on the date of such change.
"Base Rate Loans": Revolving Loans that bear interest at an
interest rate based on the Base Rate.
"Borrower": as defined in the first paragraph of this
Agreement.
"Borrowing Date": in respect of any Revolving Loan, the date
such Revolving Loan is made.
"Business": as defined in subsection 3.10(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina or New York,
New York are authorized or required by law to close; provided, however,
that when used in connection with a rate determination, borrowing or
payment in respect of a LIBOR Rate Loan, the term "Business Day" shall
also exclude any day on which banks in London, England are not open for
dealings in Dollar deposits in the London interbank market.
"Capital Expenditures": all expenditures which in accordance
with GAAP would be classified as capital expenditures, including
without limitation, Capital Lease Obligations; but excluding for
purposes hereof the aggregate amount of Capital Expenditures financed
directly with the proceeds of capital contributions and identified in
the Borrower's compliance certificate provided in accordance with the
provisions of Section 5.2(b).
"Capital Lease": any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on a
balance sheet of the lessee in accordance with GAAP.
"Capital Lease Obligations": the capitalized lease obligations
relating to a Capital Lease determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests (including
partnership and limited liability company interests) in a Person (other
than a corporation) and any and all warrants or options to purchase any
of the foregoing.
4
"Cash Equivalents": means (i) securities issued or directly
and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition ("Government Obligations"), (ii) U.S. dollar denominated
(or foreign currency fully hedged) time deposits, certificates of
deposit, Eurodollar time deposits and Eurodollar certificates of
deposit of (y) any domestic commercial bank of recognized standing
having capital and surplus in excess of $250,000,000 or (z) any bank
whose short-term commercial paper rating from S&P is at least A-1 or
the equivalent thereof or from Xxxxx'x is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in each
case with maturities of not more than 364 days from the date of
acquisition, (iii) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing
within six months of the date of acquisition, (iv) repurchase
agreements with a bank or trust company (including a Lender) or a
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America, (v) obligations of any state of the
United States or any political subdivision thereof for the payment of
the principal and redemption price of and interest on which there shall
have been irrevocably deposited Government Obligations maturing as to
principal and interest at times and in amounts sufficient to provide
such payment, (vi) auction preferred stock rated in the highest
short-term credit rating category by S&P or Moody's and (vii) U.S.
dollar denominated time and demand deposit accounts or money market
accounts with those domestic banks meeting the requirements of item (y)
or (z) of clause (ii) above and any other domestic commercial banks
insured by the FDIC with an aggregate balance not to exceed $100,000 in
the aggregate at any time at any such bank.
"Cash Tax Liabilities": the cash tax liability for income
taxes paid by the Borrower or any Restricted Subsidiary or required to
be distributed to members or stockholders of the Borrower or any
Restricted Subsidiary.
"Closing Date": October 9, 1997.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitments": the Revolving Commitment and the LOC
Commitment, individually or collectively, as appropriate.
"Commitment Fee": such term as defined in Section 2.7.
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date.
5
"Commitment Transfer Supplement": a Commitment Transfer
Supplement, substantially in the form of Schedule 9.6(c).
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414(b) or (c) of the Code, or solely for purposes of Section
302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"Consolidated Adjusted EBITDA": Adjusted EBITDA of the
Borrower and the Restricted Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent basis;
provided, however, Adjusted EBITDA of any Non-Guarantor Restricted
Subsidiary shall be reduced by an amount equal to such Adjusted EBITDA
multiplied by the percentage ownership interests of any minority
stockholders in such Non-Guarantor Restricted Subsidiary.
"Consolidated Capital Expenditures": Capital Expenditures of
the Borrower and the Restricted Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
"Consolidated Cash Tax Liabilities": Cash Tax Liabilities of
the Borrower and the Restricted Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
"Consolidated Fixed Charges": at any date, the sum of (i)
Consolidated Interest Expense for the four (4) consecutive quarters
ending as of the date of computation plus (ii) the amount, if positive,
equal to the aggregate principal amount of Revolving Loans outstanding
on the first day of the period of four (4) consecutive quarters ending
as of the date of computation minus the Aggregate Revolving Committed
Amount existing on the date of computation (exclusive, for purposes
hereof, of any voluntary reductions in the Revolving Commitments
pursuant to Section 2.6(a) or any mandatory reduction on account of any
Asset Disposition pursuant to Section 2.6(b)(ii)), plus (iii) payments
of principal made on all Indebtedness of the Borrower and the
Restricted Subsidiaries (other than payments on the Revolving Loans)
during the four (4) consecutive quarters ending as of the date of
computation plus (iv) Consolidated Capital Expenditures made or
incurred during the four (4) consecutive quarters ending as of the date
of computation other than with the proceeds from equity contributions
made during such period, plus (v) Commitment Fees paid during the
period of four (4) consecutive quarters ending as of the date of
computation, plus (vi) Consolidated Cash Tax Liabilities paid or
distributed during the period of four (4) consecutive quarters ending
as of the date of computation, net of tax refunds during that period.
6
"Consolidated Interest Expense": Interest Expense of the
Borrower and the Restricted Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
"Consolidated Senior Funded Debt: Senior Funded Debt of the
Borrower and the Restricted Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
"Consolidated Total Funded Debt": Total Funded Debt of the
Borrower and the Restricted Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent basis.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any material agreement,
instrument or undertaking to which such Person is a party or by which
it or any of its material property is bound.
"Copyrights": (i) all copyrights in all works, now existing or
hereafter created or acquired, all registrations and recordings
thereof, and all applications in connection therewith, whether in the
United States Copyright Office or in any similar office or agency of
the United States, any State thereof or any other country or any
political subdivision thereof, or otherwise, including, without
limitation, any thereof referred to in Schedule 3.13 to the Agreement,
and (ii) all renewals thereof including, without limitation, any
thereof referred to in Schedule 3.13 to the Agreement.
"Credit Documents": this Agreement, each of the Revolving
Notes, any Letter of Credit, the LOC Documents, the Guaranty, any
Commitment Transfer Supplement and the Security Documents.
"Credit Parties": means, collectively, the Borrower,
VS&A-T/SF, Fir Tree and the Guarantors.
"Debt Issuance" means the issuance of any Indebtedness for
borrowed money by the Borrower.
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice or the lapse of time,
or both, or any other condition, has been satisfied.
"Defaulting Lender": at any time, any Lender that, at such
time (a) has failed to make a Revolving Loan required pursuant to the
terms of this Agreement, (b) has failed to pay to the Administrative
Agent or any Lender an amount owed by such Lender pursuant to the terms
of this Agreement, or (c) has been deemed insolvent or has become
subject to a bankruptcy or insolvency proceeding or to a receiver,
trustee or similar official.
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"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Lending Office": initially, the office of each
Lender designated as such Lender's Domestic Lending Office shown on
Schedule 9.2; and thereafter, such other office of such Lender as such
Lender may from time to time specify to the Administrative Agent and
the Borrower as the office of such Lender at which Base Rate Loans of
such Lender are to be made.
"EBITDA": of any Person for any period, net income for such
period, plus (i) Interest Expense to the extent deducted in determining
such net income, plus (ii) depreciation, amortization and all other
non-cash charges deducted in determining such net income, all
determined in accordance with GAAP consistently applied, minus (iii)
extraordinary income (including, for purposes hereof, gain from the
sale of assets in the ordinary course of business, such as obsolete
equipment), plus (iv) extraordinary expenses (including, for purposes
hereof, loss from the sale of the assets in the ordinary course of
business, such as obsolete equipment), plus (v) income taxes to the
extent deducted to determine net income; provided, however, so long as
such calculations are acceptable to the Agent, in its reasonable
discretion, with respect to ExpoEvent Services, a division of
ExpoExchange, LLC ("ExpoEvent"), (i) EBITDA attributable to ExpoEvent
("ExpoEvent EBITDA") for the four fiscal quarter period ending as of
March 31, 2001 shall be based on ExpoEvent EBITDA for the one
fiscal-quarter period then ended multiplied by 4, (ii) EBITDA
attributable to ExpoEvent for the four fiscal quarter period ending as
of June 30, 2001 shall be based on ExpoEvent EBITDA for the two
fiscal-quarter period then ended multiplied by 2 and (iii) EBITDA
attributable to ExpoEvent for the four fiscal quarter period ending as
of ending as of September 30, 2001 shall be based on ExpoEvent EBITDA
for the three fiscal-quarter period then ended multiplied by 1.33.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirement of Law (including common law) regulating, relating
to or imposing liability or standards of conduct concerning protection
of human health or the environment, as now or may at any time be in
effect during the term of this Agreement.
"Equity Issuance" means any issuance by the Borrower to any
Person which is not a Credit Party of (a) any shares of its Capital
Stock, (b) any shares of its Capital Stock pursuant to the exercise of
options or warrants or (c) any shares of its Capital Stock pursuant to
the conversion of any debt securities to equity.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
8
"Eurodollar Reserve Percentage": for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next
higher 1/100th of 1%) which is in effect for such day as prescribed by
the Federal Reserve Board (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) in respect of Eurocurrency
liabilities, as defined in Regulation D of such Board as in effect from
time to time, or any similar category of liabilities for a member bank
of the Federal Reserve System in New York City.
"Event of Default": any of the events specified in Section 7;
provided, however, that any requirement for the giving of notice or the
lapse of time, or both, or any other condition, has been satisfied.
"Extension of Credit" shall mean, as to any Lender, the making
of a Revolving Loan by such Lender or the issuance of, or participation
in, a Letter of Credit by such Lender.
"Federal Funds Effective Rate": as defined in the definition
of "Base Rate".
"Fee Letter": the letter agreement dated as of February 1,
2001 between the Borrower and First Union.
"Fir Tree" means Fir Tree Value Fund L.P. and Fir Tree
Institutional Value Fund L.P.
"First Union": First Union National Bank, a national banking
association.
"Fixed Charge Coverage Ratio": at the end of any fiscal
quarter of the Borrower, the ratio of Consolidated Adjusted EBITDA
(computed for the four fiscal quarterly periods then ending) plus Cash
Equivalents in excess of $1,000,000 owned by the Borrower and the
Restricted Subsidiaries as of the first day of the four fiscal
quarterly periods then ending to Consolidated Fixed Charges (computed
for the four fiscal quarterly periods then ending).
"GAAP": generally accepted accounting principles in effect in
the United States of America applied on a consistent basis, subject,
however, in the case of determination of compliance with the financial
covenants set out in Section 5.9 to the provisions of Section 1.3.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the
9
guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "primary
obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether
or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities
or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in
respect thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection
in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for which such guaranteeing person may
be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good
faith.
"Guarantors": (i) each of the wholly owned Restricted
Subsidiaries of the Borrower existing as of the Closing Date, (ii) each
of the LLCs and (iii) any Subsidiary of the Borrower or any LLC
acquired or formed to acquire assets in connection with any Permitted
Acquisition.
"Guaranty": the Guaranty Agreement to be executed and
delivered by the Guarantors in favor of the Administrative Agent
relating to the Revolving Loans and obligations owing under this
Agreement, as amended, supplemented or otherwise modified from time to
time.
"Holdings LLC": TOIC Holdings, LLC.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities
and other normal accrued liabilities incurred in the ordinary course of
business and payable in accordance with customary practices), (b) any
other indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) all obligations of such Person
under Capital Leases, (d) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (e) all
liabilities secured by any Lien on any property owned by such Person
even though
10
such Person has not assumed or otherwise become liable for the payment
thereof (other than liabilities securing carriers', warehousemen's,
mechanics', repairmen's or other like nonconsensual statutory Liens
arising in the ordinary course of business), (f) all obligations of
such Person under conditional sale or other title retention agreements
relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (g) all obligations
of such Person under take-or-pay or similar arrangements or under
commodities agreements (other than supply agreements and other similar
arrangements entered into in the ordinary course of business), (h) all
Guarantee Obligations of such Person, (i) all obligations of such
Person in respect of interest rate protection agreements, foreign
currency exchange agreements, commodity purchase or option agreements
or other interest or exchange rate or commodity price hedging
agreements, and (j) the maximum amount of all letters of credit issued
for the account of such Person and, without duplication, all drafts
drawn thereunder (to the extent not theretofore reimbursed). For
purposes of this Agreement, Indebtedness shall not include any
Indebtedness owing by the Borrower to any of the Guarantors or by any
Guarantor to the Borrower or by any Guarantor to any other Guarantor or
any contingent obligation in respect thereof. It is understood and
agreed that the amount of any Indebtedness described in clause (e)
shall be the lower of the amount of the obligation or the fair market
value of the collateral securing such obligation, and the amount of any
obligation described in clause (i) shall be the termination payments
that would be required to be paid to a counterparty upon early
termination (in accordance with customary industry standards) rather
than any notional amount with regard to which payments may be
calculated.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term
as used in Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": such term as defined in Section 3.13.
"Interest Coverage Ratio": at the end of any fiscal quarter of
the Borrower, the ratio of Consolidated Adjusted EBITDA (computed for
the four fiscal quarters then ending) to Consolidated Interest Expense
for the four consecutive quarters ending as of the date of computation.
"Interest Expense": for any Person for any period, the sum of
all interest expense, including amortization of debt discount and
premium and the interest component under Capital Leases for such Person
but excluding the amortization of debt financing expenses; provided
that there shall be added to and included in Interest Expense for
purposes hereof the net amount payable (other than amounts payable in
respect of up-front or one-time fees, which shall be excluded from
Interest Expense) by such Person in respect of any Interest Protection
Agreement and Interest Expense shall be reduced by the
11
net amount receivable by such Person under any Interest Protection
Agreement in respect of such period.
"Interest Payment Date": (a) as to any Base Rate Loan, the
last Business Day of each March, June, September and December to occur
while such Loan is outstanding, (b) as to any LIBOR Rate Loan having an
Interest Period of three months or less, the last day of such Interest
Period and (c) as to any LIBOR Rate Loan having an Interest Period
longer than three months, each day which is three months after the
first day of such Interest Period and the last day of such Interest
Period.
"Interest Period": with respect to any LIBOR Rate Loan,
(i) initially, the period commencing on the
Borrowing Date or conversion date, as the case may be, with
respect to such LIBOR Rate Loan and ending one, two, three or
six months thereafter, as selected by the Borrower in the
notice of borrowing or notice of conversion given with respect
thereto; and
(ii) thereafter, each period commencing on
the last day of the immediately preceding Interest Period
applicable to such LIBOR Rate Loan and ending one, two, three
or six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than
three Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that the foregoing provisions are subject to the following:
(A) if any Interest Period pertaining to a
LIBOR Rate Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(B) any Interest Period pertaining to a
LIBOR Rate Loan 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 end on the last Business Day of the
relevant calendar month;
(C) if the Borrower shall fail to give
notice as provided above, the Borrower shall be deemed to have
selected a Base Rate Loan to replace the affected LIBOR Rate
Loan as provided in Section 2.3(b);
(D) any Interest Period in respect of any
Revolving Loan that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
12
(E) no more than 6 LIBOR Rate Loans may be
in effect at any time. For purposes hereof, LIBOR Rate Loans
with different Interest Periods shall be considered as
separate LIBOR Rate Loans, even if they shall begin on the
same date and have the same duration, although borrowings,
extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest
Periods to constitute a new LIBOR Rate Loan with a single
Interest Period.
"Interest Protection Agreement": any interest rate protection
agreement or interest rate future, option, cap, collar or other hedging
arrangement.
"Issuing Lender": First Union.
"Letter of Credit": any letter of credit issued by the Issuing
Lender pursuant to the terms hereof, as such Letter of Credit may be
amended, modified, extended, renewed or replaced from time to time.
"Letter of Credit Fee": shall have the meaning set forth in
Section 2.7(b).
"LIBOR": for any LIBOR Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on the display designated as page 3750
by Dow Xxxxx Telerate, Inc. (or such other page as may replace such
page on that service for the purpose of displaying the British Bankers
Association London interbank offered rates) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason
such rate is not available, the term "LIBOR" shall mean, for any LIBOR
Rate Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%). If, for any reason, neither of such rates is
available, then "LIBOR" shall mean the rate per annum at which, as
determined by the Administrative Agent, Dollars in an amount comparable
to the Loans then requested are being offered to leading banks at
approximately 11:00 A.M. (London time), two (2) Business Days prior to
the commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank
market for a period equal to the Interest Period selected.
"LIBOR Lending Office": initially, the office of each Lender
designated as such Lender's LIBOR Lending Office shown on Schedule 9.2;
and thereafter, such other office of such Lender as such Lender may
from time to time specify to the Administrative
13
Agent and the Borrower as the office of such Lender at which the LIBOR
Rate Loans of such Lender are to be made.
"LIBOR Rate": a rate per annum (rounded upwards, if necessary,
to the next higher 1/100th of 1%) determined by the Administrative
Agent pursuant to the following formula:
LIBOR Rate = LIBOR
-------------
1.00 - Eurodollar Reserve Percentage
"LIBOR Rate Loan": Revolving Loans the rate of interest
applicable to which is based on the LIBOR Rate.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Capital Lease having substantially the same
economic effect as any of the foregoing).
"LLC Preferred Stock": means the preferred interest of
Holdings LLC held in its entirety by the Borrower.
"LLCs": Holdings LLC and the Operating LLCs.
"LOC Commitment": the commitment of the Issuing Lender to
issue Letters of Credit and, with respect to each Lender, the
commitment of such Lender to purchase participation interests in the
Letters of Credit up to such Lender's LOC Commitment Percentage of the
LOC Committed Amount as specified in Schedule 2.1, as such amount may
be modified from time to time in accordance with the provisions hereof.
"LOC Commitment Percentage": for each Lender, the percentage
identified as its LOC Commitment Percentage on Schedule 2.1, as such
percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 9.6(c).
"LOC Committed Amount": collectively, the aggregate amount of
all of the LOC Commitments of the Lenders to issue and participate in
Letters of Credit as referenced in Section 2.4, as such amount may be
modified from time to time in accordance with the provisions hereof
and, individually, the amount of each Lender's LOC Commitment as
specified in Schedule 2.1.
"LOC Documents": with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents
14
(whether general in application or applicable only to such Letter of
Credit) governing or providing for (i) the rights and obligations of
the parties concerned or (ii) any collateral security for such
obligations.
"LOC Obligations": at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance
with all requirements for drawings referred to in such Letters of
Credit plus (ii) the aggregate amount of all drawings under Letters of
Credit honored by the Issuing Lender but not theretofore reimbursed.
"Majority Lenders": Lenders holding in the aggregate more than
66 2/3% of the sum of (i) all Revolving Loans and LOC Obligations then
outstanding at such time and (ii) the aggregate unused Revolving
Commitment at such time (treating for purposes hereof in the case of
LOC Obligations, in the case of the Issuing Lender, only the portion of
the LOC Obligations of the Issuing Lender which is not subject to the
Participation Interests of the other Lenders, and in the case of the
Lenders other than the Issuing Lender, the Participation Interests of
such Lenders in LOC Obligations hereunder as direct obligations);
provided, however, that if any Lender shall be a Defaulting Lender at
such time, then there shall be excluded from the determination of
Majority Lenders those Revolving Loans owing to such Defaulting Lender
and such Defaulting Lender's Revolving Commitment and LOC Commitment,
or after termination of the Revolving Commitment and the LOC
Commitment, the principal balance of the Revolving Loans and Letters of
Credit owing to such Defaulting Lender.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise)
or prospects of the Borrower and the Guarantors taken as a whole,
exclusive of events or occurrences affecting the economy generally, (b)
the ability of the Borrower and the Guarantors to perform their
obligations, when such obligations are required to be performed, under
this Agreement or any of the Revolving Notes or (c) the validity or
enforceability of this Agreement, any of the Revolving Notes or any of
the other Credit Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Moody's": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
15
"Net Sales Proceeds": the gross cash proceeds (including cash
by way of deferred payment pursuant to a promissory note, receivable or
otherwise, but only as and when received) received from the sale,
lease, conveyance, disposition or other transfer of assets or from a
Recovery Event (if and to the extent not used to repair or replace the
property which was the subject of the Recovery Event), net of (i)
reasonable transactions costs payable to third parties, (ii) the
estimated taxes payable with respect to such proceeds (based upon the
highest marginal federal and state tax rates), whether payable by the
Borrower or a Guarantor or its stockholders or direct or indirect
members (including, without duplication, withholding taxes), (iii)
Indebtedness (other than Indebtedness of the Lenders pursuant to this
Agreement and the other Credit Documents) which is secured by, or
otherwise related to, the assets which are the subject of such event to
the extent such Indebtedness is paid with a portion of the proceeds
therefrom, (iv) proceeds needed to pay liabilities directly related to
the assets which are the subject of such event to the extent such
liabilities are not assumed by a purchaser of the assets and are paid
with a portion of the proceeds received from the disposition of such
assets and (v) other costs which may occur as a result of, and are
reasonably associated with, discontinuing operations, shut-downs or
otherwise resulting from, the disposition of such assets; provided,
however, Net Sales Proceeds relating to any assets of a Non-Guarantor
Restricted Subsidiary or the stock of a Non-Guarantor Restricted
Subsidiary shall be reduced by an amount equal to such Net Sales
Proceeds multiplied by the percentage ownership interests of any
minority stockholder in such Non-Guarantor Restricted Subsidiary.
"Non-Guarantor Restricted Subsidiary": any non-wholly owned
Restricted Subsidiary of the Borrower.
"Notice of Account Designation": shall have the meaning
assigned thereto in Section 2.1(b)(iii).
"Notice of Borrowing": the written notice of borrowing as
referenced and defined in Section 2.1(b)(i).
"Notice of Conversion": the written notice of extension or
conversion as referenced and defined in Section 2.3.
"Operating LLCs": I.T.S. Information Services, LLC, Expo
Magazine, LLC, GEM Communications Holdings, LLC, Xxxxxx Publishing,
LLC, Gem Communications, LLC, and ExpoExchange, LLC.
"Participant": as defined in subsection 9.6(b).
"Participation Interest" shall mean a participation interest
purchased by a Lender in Letters of Credit as provided in Section 2.2.
16
"Patents": (i) all letters patent of the United States or any
other country, now existing or hereafter arising, and all improvement
patents, reissues, reexaminations, patents of additions, renewals and
extensions thereof, including, without limitation, any thereof referred
to in Schedule 3.13 to the Agreement, and (ii) all applications for
letters patent of the United States or any other country, now existing
or hereafter arising, and all provisionals, divisions, continuations
and continuations-in-part and substitutes thereof, including, without
limitation, any thereof referred to in Schedule 3.13 to the Agreement.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition" as defined in Section 6.5(b)(ii).
"Permitted Investments" means (i) cash and Cash Equivalents,
(ii) receivables owing to the Borrower or any of the Restricted
Subsidiaries or any receivables and advances to suppliers, in each case
if created, acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms,
(iii) investments in and to the Borrower or any of the Restricted
Subsidiaries; provided, however, the sum of (A) the aggregate amount of
such equity investments made to Non-Guarantor Restricted Subsidiaries
plus (B) the aggregate outstanding amount of Indebtedness incurred by
Non-Guarantor Restricted Subsidiaries pursuant to Section 6.1(c) plus
(C) the aggregate amount of all sales, transfers, leases or other
dispositions of property or assets to Non-Guarantor Restricted
Subsidiaries pursuant to Section 6.5(a)(iii) shall not exceed
$5,000,000 at any time, (iv) investments in entities in which there is
only an minority ownership interest position provided the aggregate
amount of such investments shall not exceed $2,000,000 at any time, (v)
loans and advances to officers, directors, employees and Affiliates in
an aggregate amount not to exceed $500,000 at any time outstanding, (v)
investments (including debt obligations, stock, securities or other
property) received in connection with the bankruptcy or reorganization
of suppliers and customers and in settlement of delinquent obligations
of, and other disputes with, customers and suppliers arising in the
ordinary course of business, and (vi) investments, acquisitions or
transactions permitted under Section 6.5(b). As used herein,
"investment" means all investments, in cash or by delivery of property
made, directly or indirectly in, to or from any Person, whether by
acquisition of shares of capital stock or partnership interest or other
equity interest, property, assets, indebtedness or other obligations or
securities or by loan advance, capital contribution or otherwise.
"Permitted Liens":
(i) Liens created by or otherwise existing under or
in connection with this Agreement or the other Credit
Documents in favor of the Lenders;
(ii) Liens in favor of a Lender hereunder as the
provider of interest rate protection relating to the Revolving
Loans hereunder, but only (A) to the extent such Liens secure
obligations under such interest rate protection agreements
17
permitted under Section 6.1, (B) to the extent such Liens are
on the same collateral as to which the Lenders also have a
Lien (or shall have been offered the opportunity to have a
Lien in such collateral) and (C) if such provider and the
Lenders shall share pari passu in the collateral subject to
such Liens;
(iii) Liens for taxes, assessments, charges or other
governmental levies not yet due or as to which the period of
grace (not to exceed 60 days), if any, related thereto has not
expired or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or
any of the Guarantors, as the case may be, in conformity with
GAAP (or, in the case of the Guarantors with significant
operations outside of the United States of America, generally
accepted accounting principles in effect from time to time in
their respective jurisdictions of incorporation);
(iv) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which are not overdue for a period
of more than 60 days or which are being contested in good
faith by appropriate proceedings;
(v) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;
(vi) deposits to secure the performance of bids,
trade contracts, (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the
ordinary course of business; and
(vii) Liens in connection with attachments or
judgments (including judgment or appeal bonds), provided that
the judgments secured shall, within 60 days after the entry
thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 60 days
after the expiration of any such stay;
(viii) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or
irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use
of the encumbered property for its intended purpose;
(ix) leases or subleases of real property granted to
others not interfering in any material respect with the
business of the Borrower or any of the Guarantors;
18
(x) purchase money Liens securing purchase money
indebtedness (and refinancing thereof) to the extent such
indebtedness is permitted under Section 6.1(f);
(xi) Liens on Unrestricted Margin Stock;
(xii) any extension, renewal or replacement (or
successive extensions, renewals or replacements) , in whole or
in part, of any Lien referred to in the foregoing clauses;
provided that such extension, renewal or replacement Lien
shall be limited to all or a part of the property which
secured the Lien so extended, renewed or replaced (plus
improvements on such property).
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at any particular time, any employee benefit plan
which is covered by Title IV of ERISA and in respect of which the
Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements": (i) the Pledge Agreement(s) to be
executed and delivered by VS&A-T/SF and FirTree as pledgors, pledging
all of the capital stock of the Borrower now or hereafter owned by such
pledgors, as such Pledge Agreement(s) are amended, supplemented or
otherwise modified from time to time, (ii) the Pledge Agreement(s) to
be executed and delivered by VS&A-T/SF and FirTree as pledgors,
pledging 100% of the common interests of Holdings LLC, as such Pledge
Agreement(s) are amended, supplemented or otherwise modified from time
to time, (iii) the Pledge Agreement to be executed and delivered by the
Borrower as pledgor, pledging the LLC Preferred Stock and all of the
capital stock of each of the Subsidiaries of the Borrower now or
hereafter owned by the Borrower, as such Pledge Agreement is amended,
supplemented or otherwise modified from time to time, and (iv) the
Pledge Agreement to be executed and delivered by Holdings LLC as
pledgor, pledging 100% of the interests owned by Holdings LLC of each
of the Subsidiaries of Holdings LLC, as such Pledge Agreement is
amended, supplemented or otherwise modified from time to time and (v)
the Pledge Agreement to be executed and delivered by the Subsidiaries
of the Borrower, as pledgors, pledging 100% of the interests owned by
such Subsidiaries of each of the other Subsidiaries of the Borrower, as
such Pledge Agreement is amended, supplemented, restated or otherwise
modified from time to time.
"Prime Rate": as defined in the definition of Base Rate.
"Properties": as defined in subsection 3.10(a).
"Purchasing Lenders": as defined in subsection 9.6(c).
19
"Recovery Event": the receipt by the Borrower or any of the
Guarantors of any cash insurance proceeds or condemnation award payable
by reason of theft, loss, physical destruction or damage, taking or
similar event with respect to any property or assets of the Borrower or
any of the Guarantors.
"Register": as defined in subsection 9.6(d).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty-day
notice period is waived under subsections .11, .12, .13, .14, .16, .18,
.19 or .20 of PBGC Reg.ss.4043.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws, partnership agreement, operating agreement
or other organizational or governing documents of such Person, and each
law, treaty, rule or regulation or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person
or any of its material property is subject.
"Restricted Payment": (i) any payment by the Borrower or any
of the Restricted Subsidiaries of a payment, distribution or dividend
(other than a dividend or distribution payable solely in stock or
equity interest of the Borrower) on, or any payment on account of the
purchase, redemption, defeasance or retirement of, or any other
distribution on, any partnership interest, limited liability company
interest, share of any class of stock or other ownership interest in
the Borrower or any of the Restricted Subsidiaries (including any such
payment or distribution in cash or in property or obligations of a
Borrower or any of the Restricted Subsidiaries), (ii) any loan or
advance by the Borrower or any of the Restricted Subsidiaries to any
Affiliate of the Borrower or any of the Restricted Subsidiaries other
than as permitted by Sections 6.6 or 6.7, or (iii) the payment by the
Borrower or any of the Restricted Subsidiaries of any management or
administrative fee to any Affiliate of the Borrower or any of the
Restricted Subsidiaries or of any salary, bonus or other form of
compensation other than in the ordinary course of business to any
Person who is a significant partner, shareholder, member, owner or
executive officer of any such Affiliate other than as permitted by
Section 6.7.
"Restricted Subsidiaries": all Subsidiaries of the Borrower
other than Unrestricted Subsidiaries. "Restricted Subsidiaries"
includes the LLCs.
"Revolving Commitment": as to any Lender, the obligation of
such Lender to make Revolving Loans to the Borrower hereunder in an
aggregate principal amount at any one time outstanding not to exceed
the amount set forth opposite such Lender's name
20
on Schedule 2.1, as such amount may be reduced from time to time in
accordance with the provisions of this Agreement.
"Revolving Commitment Percentage": for each Lender, a fraction
(expressed as a percentage) the numerator of which is the Revolving
Commitment of such Lender at such time and the denominator of which is
the aggregate Revolving Commitment at such time. The initial Revolving
Commitment Percentages are set out on Schedule 2.1.
"Revolving Committed Amount": collectively, the aggregate
amount of all of the Revolving Commitments as referenced in Section
2.1(a) and, individually, the amount of each Lender's Revolving
Commitment as specified in Schedule 2.1.
"Revolving Loans": as defined in Section 2.1.
"Revolving Note" or "Revolving Notes": the promissory notes of
the Borrower in favor of each of the Lenders evidencing the Revolving
Loans provided pursuant to Section 2.1(e), individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to
time.
"S&P": Standard & Poor's Ratings Group, a division of The
McGraw Hill Companies, Inc.
"Security Agreement: the Security Agreement to be executed and
delivered on behalf of the Borrower and the Guarantors by authorized
signatories, as amended, supplemented or otherwise modified from time
to time.
"Security Documents": collectively, the Security Agreement,
the Pledge Agreements and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any asset or
assets of any Person to secure the obligations and obligations of the
Borrower and the Guarantors hereunder and under any of the other Credit
Documents, including UCC financing statements and other similar
instruments.
"Senior Funded Debt": Total Funded Debt less Subordinated Debt.
"Senior Leverage Ratio": at any time, the ratio of
Consolidated Senior Funded Debt at such time less Cash Equivalents in
excess of $1,000,000 owned by the Borrower and the Restricted
Subsidiaries as of the last day of the twelve month period then ending
to Consolidated Adjusted EBITDA for the twelve month period then
ending.
"Single Employer Plan": any Plan which is not a Multi-Employer
Plan.
"Specified Sales" means (i) the sale, transfer, lease or other
disposition of inventory and materials in the ordinary course of
business, (ii) the sale, transfer, lease or other disposition of
machinery, parts and equipment in the ordinary course of business,
(iii) the sale, transfer or other disposition of Permitted Investments,
(iv) the sale, transfer
21
or other disposition of articles in the ordinary course of business or
the granting of permission for reprints in the ordinary course of
business and (v) the sale, lease or disposition of space and related
property and assets in the ordinary course of business.
"Subordinated Debt": means the indebtedness of up to
$100,000,000 which is on terms satisfactory to the Agent and which has
been subordinated to the repayment of the indebtedness hereunder on
terms satisfactory to the Agent.
"Subordinated Debt Documents": means any and all documents now
or hereafter executed in connection with the Subordinated Debt.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, the LLCs shall be Subsidiaries
of the Borrower and all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Taxes": as defined in subsection 2.15.
"Termination Date": the earlier of (a) September 30, 2004 or
(b) the date on which the Revolving Commitments shall terminate in
accordance with the provisions of this Agreement.
"Total Funded Debt": of any Person at any date, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person under Capital Leases, (c) all Guarantee Obligations of such
Person, and (d) the maximum amount of all letters of credit issued or
bankers' acceptances created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent not
theretofore reimbursed).
"Total Leverage Ratio": at any time, the ratio of Consolidated
Total Funded Debt at such time less Cash Equivalents in excess of
$1,000,000 owned by the Borrower and the Restricted Subsidiaries as of
the last day of the twelve month period then ending to Consolidated
Adjusted EBITDA for the twelve month period then ending.
"Trademarks": (i) all trademarks, trade names, corporate
names, company names, business names, fictitious business names,
service marks, logos and other source or business identifiers, together
with the goodwill of the business symbolized by said marks, names,
logos and identifiers now existing or hereafter adopted or acquired,
all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision
thereof,
22
or otherwise, including, without limitation, any thereof referred to in
Schedule 3.13 to the Agreement, and (ii) all renewals thereof
including, without limitation, any thereof referred to in Schedule 3.13
to the Agreement.
"Tranche": the collective reference to LIBOR Rate Loans whose
Interest Periods begin and end on the same day. A Tranche may sometimes
be referred to as a "Eurodollar Tranche".
"Transfer Effective Date": as defined in each Commitment
Transfer Supplement.
"2.15 Certificate": as defined in Section 2.15.
"Type": as to any Loan, its nature as a Base Rate Loan or
LIBOR Rate Loan, as the case may be.
"Unrestricted Margin Stock": means the capital stock of the
Borrower which has been repurchased by the Borrower as of the Closing
Date which constitutes "margin stock" (as defined in Regulation U of
the Board of Governors of the Federal Reserve System as from time to
time in effect), if, and to the extent that the value of such margin
stock exceeds 25% of the total assets of the Borrower and the
Guarantors and their respective Subsidiaries.
"Unrestricted Subsidiaries": the Subsidiaries of the Borrower
set forth in Schedule 1.1C.
"VS&A-TS/F": VS&A-T/SF LLC, a Delaware limited liability
company.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in
this Agreement shall have the defined meanings when used in the Notes
or other Credit Documents or any certificate or other document made or
delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references are
to this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
1.3 Accounting Terms.
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to
23
be delivered hereunder shall be prepared in accordance with GAAP applied on a
basis consistent (except for changes concurred in by the Borrower's independent
public accountants) with the most recent reviewed or audited (as the case may
be) financial statements of the Borrower delivered to the Lenders; provided
that, if the Borrower notifies the Administrative Agent that it wishes to amend
any covenant in Section 5.9 to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Majority Lenders wish to amend Section 5.9 for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Majority Lenders.
The Borrower shall deliver to the Administrative Agent and each Lender
at the same time as the delivery of any annual or quarterly financial statements
given in accordance with the provisions of Section 5.1, (i) a description in
reasonable detail of any material change in the application of accounting
principles employed in the preparation of such financial statements from those
applied in the most recently preceding quarterly or annual financial statements
as to which no objection shall have been made in accordance with the provisions
above and (ii) a reasonable estimate of the effect on the financial statements
on account of such changes in application.
SECTION 2. THE LOANS; AMOUNT AND TERMS
2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment Period,
subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans ("Revolving Loans") to the
Borrower from time to time for the purposes hereinafter set forth;
provided, however, that (i) with regard to each Lender individually,
the sum of such Lender's share of outstanding Revolving Loans plus such
Lender's LOC Commitment Percentage of LOC Obligations shall not exceed
such Lender's Revolving Committed Amount, and (ii) with regard to the
Lenders collectively, the sum of the aggregate amount of outstanding
Revolving Loans plus LOC Obligations shall not exceed FORTY MILLION
DOLLARS ($40,000,000) (as such aggregate maximum amount may be reduced
from time to time as provided herein, the "Revolving Committed
Amount"). Revolving Loans may consist of Base Rate Loans or LIBOR Rate
Loans, or a combination thereof, as the Borrower may request, and may
be repaid and reborrowed in accordance with the provisions hereof.
LIBOR Rate Loans shall be made by each Lender at its LIBOR Lending
Office and Base Rate Loans at its Domestic Lending Office.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall
request a Revolving Loan borrowing by written notice (or
telephone notice promptly confirmed in writing which
confirmation may be by fax) to the Administrative
24
Agent not later than 11:00 A.M. (Charlotte, North Carolina
time) on the Business Day prior to the date of requested
borrowing in the case of Base Rate Loans, and on the third
Business Day prior to the date of the requested borrowing in
the case of LIBOR Rate Loans. Each such request for borrowing
shall be irrevocable and shall specify (A) that a Revolving
Loan is requested, (B) the date of the requested borrowing
(which shall be a Business Day), (C) the aggregate principal
amount to be borrowed, and (D) whether the borrowing shall be
comprised of Base Rate Loans, LIBOR Rate Loans or a
combination thereof, and if LIBOR Rate Loans are requested,
the Interest Period(s) therefor. A form of Notice of Borrowing
(a "Notice of Borrowing") is attached as Schedule 2.1(b)(i).
If the Borrower shall fail to specify in any such Notice of
Borrowing (I) an applicable Interest Period in the case of a
LIBOR Rate Loan, then such notice shall be deemed to be a
request for an Interest Period of one month, or (II) the type
of Revolving Loan requested, then such notice shall be deemed
to be a request for a Base Rate Loan hereunder. The
Administrative Agent shall give notice to each Lender promptly
upon receipt of each Notice of Borrowing, the contents thereof
and each such Lender's share thereof.
(ii) Minimum Amounts. Each Revolving Loan
borrowing shall be in a minimum aggregate amount of
$1,000,000, in the case of Base Rate Loans, and integral
multiples of $100,000 in excess thereof, and $1,000,000, in
the case of LIBOR Rate Loans and integral multiples of
$100,000 in excess thereof (or the remaining amount of the
Revolving Commitment, if less).
(iii) Advances. Each Lender will make its
Revolving Commitment Percentage of each Revolving Loan
borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative
Agent specified in Schedule 9.2, or at such other office as
the Administrative Agent may designate in writing, by 1:00
P.M. (Charlotte, North Carolina time) on the date specified in
the applicable Notice of Borrowing in Dollars and in funds
immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower
on the books of such office with the aggregate of the amounts
made available to the Administrative Agent by the Lenders and
in like funds as received by the Administrative Agent. The
Borrower hereby irrevocably authorizes the Administrative
Agent to disburse the proceeds of each Borrowing requested
pursuant to this Section 2.1 in immediately available funds by
crediting such proceeds to a deposit account of the Borrower
maintained with the Administrative Agent or by wire transfer
to any other account of the Borrower in each such case as may
be specified by the Borrower from time to time in a written
notice in the form attached hereto as Schedule 2.1(b)(iii) (a
"Notice of Account Designation"). Unless otherwise specified
by the Borrower, the Notice of Account Designation most
recently provided to the Administrative Agent shall control.
25
(c) Repayment. The principal amount of all Revolving Loans
shall be due and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 2.5,
Revolving Loans shall bear interest as follows:
(i) Base Rate Loans. During such periods as
Revolving Loans shall be comprised of Base Rate Loans, each
such Base Rate Loan shall bear interest at a per annum rate
equal to the sum of the Base Rate plus the Applicable Interest
Rate Percentage; and
(ii) LIBOR Rate Loans. During such periods
as Revolving Loans shall be comprised of LIBOR Rate Loans,
each such LIBOR Rate Loan shall bear interest at a per annum
rate equal to the sum of the LIBOR Rate plus the Applicable
Interest Rate Percentage.
Interest on Revolving Loans shall be payable in arrears on each
Interest Payment Date.
(e) Revolving Notes. The Revolving Loans shall be evidenced by
a duly executed promissory note of the Borrower to each Lender in
substantially the form of Schedule 2.1(e). Each Lender is hereby
authorized to record the date, Type and amount of each Revolving Loan
made by such Lender, each continuation thereof, each conversion of all
or a portion thereof to another Type, the date and amount of each
payment or prepayment of principal thereof and, in the case of LIBOR
Rate Loans, the length of each Interest Period with respect thereto, on
the schedule annexed to and constituting a part of its Revolving Note,
and any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded; provided that neither the
failure to make, nor any error in the making of, any such recordation
shall limit or otherwise affect the obligation of the Borrower
hereunder or under such Revolving Note with respect to any Revolving
Loan and payments of principal or interest on such Revolving Note. Each
Revolving Note shall be dated the Closing Date and provide for the
payment of interest in accordance with subsection 2.1(d).
2.2 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require, during the Commitment Period
the Issuing Lender shall issue, and the Lenders shall participate in,
Letters of Credit for the account of the Borrower from time to time
upon request in a form acceptable to the Issuing Lender; provided,
however, that (i) the aggregate amount of LOC Obligations shall not at
any time exceed FIVE MILLION DOLLARS ($5,000,000) (the "LOC Committed
Amount"), (ii) the sum of the aggregate amount of Revolving Loans plus
LOC Obligations shall not at any time exceed the aggregate Revolving
Committed Amount then in effect, (iii) all Letters of Credit shall be
denominated in Dollars and (iv) Letters of Credit shall be issued for
any
26
lawful corporate purposes and may be issued as standby letters of
credit, including in connection with workers' compensation and other
insurance programs, and trade letters of credit. Except as otherwise
expressly agreed upon by all the Lenders, no Letter of Credit shall
have an original expiry date more than twelve (12) months from the date
of issuance; provided, however, so long as no Default or Event of
Default has occurred and is continuing and subject to the other terms
and conditions to the issuance of Letters of Credit hereunder, the
expiry dates of Letters of Credit may be extended annually or
periodically from time to time on the request of the Borrower or by
operation of the terms of the applicable Letter of Credit to a date not
more than twelve (12) months from the date of extension; provided,
further, that no Letter of Credit, as originally issued or as extended,
shall have an expiry date extending beyond the fifth day before the
Termination Date. Each Letter of Credit shall comply with the related
LOC Documents. The issuance and expiry date of each Letter of Credit
shall be a Business Day. Any Letters of Credit issued hereunder shall
be in a minimum original face amount of $100,000. There will be no more
than ten (10) Letters of Credit outstanding at any time.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted to the Issuing Lender at least five
(5) Business Days prior to the requested date of issuance. The Issuing
Lender will promptly upon request provide to the Administrative Agent
for dissemination to the Lenders a detailed report specifying the
Letters of Credit which are then issued and outstanding and any
activity with respect thereto which may have occurred since the date of
any prior report, and including therein, among other things, the
account party, the beneficiary, the face amount, and the expiry date as
well as any payments or expirations which may have occurred. The
Issuing Lender will further provide to any Lender promptly upon request
copies of the Letters of Credit. The Issuing Lender will provide to any
Lender promptly upon request a summary report of the nature and extent
of LOC Obligations then outstanding.
(c) Participations. Each Lender upon issuance of a Letter of
Credit shall be deemed to have purchased without recourse a risk
participation from the Issuing Lender in such Letter of Credit and the
obligations arising thereunder and any collateral relating thereto, in
each case in an amount equal to its LOC Commitment Percentage of the
obligations under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as
surety, and be obligated to pay to the Issuing Lender therefor and
discharge when due, its LOC Commitment Percentage of the obligations
arising under such Letter of Credit. Without limiting the scope and
nature of each Lender's participation in any Letter of Credit, to the
extent that the Issuing Lender has not been reimbursed as required
hereunder or under any LOC Document, each such Lender shall pay to the
Issuing Lender its LOC Commitment Percentage of such unreimbursed
drawing in same day funds on the day of notification by the Issuing
Lender of an unreimbursed drawing pursuant to the provisions of
subsection (d) hereof. The obligation of each Lender to so reimburse
the Issuing Lender shall be absolute and unconditional and shall not be
affected by the occurrence of a Default, an Event of Default or any
other occurrence or event. Any such reimbursement shall not relieve or
27
otherwise impair the obligation of the Borrower to reimburse the
Issuing Lender under any Letter of Credit, together with interest as
hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify the Borrower
and the Administrative Agent. The Borrower shall reimburse the Issuing
Lender on the day of drawing under any Letter of Credit (either with
the proceeds of a Revolving Loan obtained hereunder or otherwise) in
same day funds as provided herein or in the LOC Documents. If the
Borrower shall fail to reimburse the Issuing Lender as provided herein,
the unreimbursed amount of such drawing shall bear interest at a per
annum rate equal to the Base Rate plus three percent (3%). Unless the
Borrower shall immediately notify the Issuing Lender and the
Administrative Agent of its intent to otherwise reimburse the Issuing
Lender, the Borrower shall be deemed to have requested a Revolving Loan
in the amount of the drawing as provided in subsection (e) hereof, the
proceeds of which will be used to satisfy the reimbursement
obligations. The Borrower's reimbursement obligations hereunder shall
be absolute and unconditional under all circumstances irrespective of
any rights of set-off, counterclaim or defense to payment the Borrower
may claim or have against the Issuing Lender, the Administrative Agent,
the Lenders, the beneficiary of the Letter of Credit drawn upon or any
other Person, including without limitation any defense based on any
failure of the Borrower to receive consideration or the legality,
validity, regularity or unenforceability of the Letter of Credit. The
Issuing Lender will promptly notify the other Lenders of the amount of
any unreimbursed drawing and each Lender shall promptly pay to the
Administrative Agent for the account of the Issuing Lender, in Dollars
and in immediately available funds, the amount of such Lender's LOC
Commitment Percentage of such unreimbursed drawing. Such payment shall
be made on the day such notice is received by such Lender from the
Issuing Lender if such notice is received at or before 2:00 P.M.
(Charlotte, North Carolina time), otherwise such payment shall be made
at or before 12:00 Noon (Charlotte, North Carolina time) on the
Business Day next succeeding the day such notice is received. If such
Lender does not pay such amount to the Issuing Lender in full upon such
request, such Lender shall, on demand, pay to the Administrative Agent
for the account of the Issuing Lender interest on the unpaid amount
during the period from the date of such request until such Lender pays
such amount to the Issuing Lender in full at a rate per annum equal to,
if paid within two (2) Business Days of the date of such request, the
Federal Funds Effective Rate and thereafter at a rate equal to the Base
Rate. Each Lender's obligation to make such payment to the Issuing
Lender, and the right of the Issuing Lender to receive the same, shall
be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this
Agreement or the Commitments hereunder, the existence of a Default or
Event of Default or the acceleration of the obligations hereunder and
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Repayment with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a
Revolving Loan to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the
28
Lenders that a Revolving Loan has been requested or deemed requested in
connection with a drawing under a Letter of Credit, in which case a
Revolving Loan borrowing comprised entirely of Base Rate Loans (each
such borrowing, a "Mandatory Borrowing") shall be immediately made
(without giving effect to any termination of the Commitments pursuant
to Section 7) pro rata based on each Lender's respective Revolving
Commitment Percentage (determined before giving effect to any
termination of the Commitments pursuant to Section 7) and the proceeds
thereof shall be paid directly to the Issuing Lender for application to
the respective LOC Obligations. Each Lender hereby irrevocably agrees
to make such Revolving Loans immediately upon any such request or
deemed request on account of each Mandatory Borrowing in the amount and
in the manner specified in the preceding sentence and on the same such
date notwithstanding (i) the amount of Mandatory Borrowing may not
comply with the minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in
Section 4.2 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure of any such request or deemed request
for Revolving Loan to be made by the time otherwise required in Section
2.1(b), (v) the date of such Mandatory Borrowing, or (vi) any reduction
in the Revolving Committed Amount after any such Letter of Credit may
have been drawn upon; provided, however, that in the event any such
Mandatory Borrowing should be less than the minimum amount for
borrowings of Revolving Loans otherwise provided in Section 2.1(b)(ii),
the Borrower shall pay to the Administrative Agent for its own account
an administrative fee of $500. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each such Lender hereby agrees that it shall forthwith
fund (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on
or after such date and prior to such purchase) its Participation
Interests in the outstanding unreimbursed drawings under Letters of
Credit; provided, further, that in the event any Lender shall fail to
fund its Participation Interest on the day the Mandatory Borrowing
would otherwise have occurred, then the amount of such Lender's
unfunded Participation Interest therein shall bear interest from such
day payable to the Issuing Lender upon demand, at the rate equal to, if
paid within two (2) Business Days of such date, the Federal Funds
Effective Rate, and thereafter at a rate equal to the Base Rate.
(f) Modification, Extension. The issuance of any supplement,
modification, amendment, renewal, or extension to any Letter of Credit
shall, for purposes hereof, be treated in all respects the same as the
issuance of a new Letter of Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender shall
have the Letters of Credit be subject to the Uniform Customs and
Practice for Documentary Credits, as published by the International
Chamber of Commerce (the "UCP"), in which case the UCP may be
incorporated therein and deemed in all respects to be a part thereof.
29
2.3 Conversion Options.
(a) The Borrower may elect from time to time to convert Base
Rate Loans to LIBOR Rate Loans, by giving the Administrative Agent at
least three Business Days' prior irrevocable written notice of such
election and elect from time to time to convert LIBOR Rate Loans to
Base Rate Loans, by giving the Administrative Agent at least one
Business Day's prior irrevocable written notice of such election. A
form of Notice of Conversion is attached as Schedule 2.3. If the date
upon which a Base Rate Loan is to be converted to a LIBOR Rate Loan is
not a Business Day, then such conversion shall be made on the next
succeeding Business Day and during the period from such last day of an
Interest Period to such succeeding Business Day such Revolving Loan
shall bear interest as if it were a Base Rate Loan. All or any part of
outstanding LIBOR Rate Loans and Base Rate Loans may be converted as
provided herein, provided that (i) a Revolving Loan may be converted
into a LIBOR Rate Loan only if no Event of Default has occurred and is
continuing, (ii) partial conversions into a LIBOR Rate Loan shall be in
an aggregate principal amount of $1,000,000 or a whole multiple of
$100,000 in excess thereof and (iii) partial conversions into a Base
Rate Loan shall be in an aggregate principal amount of $1,000,000 or a
whole multiple of $100,000 in excess thereof.
(b) Any LIBOR Rate Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by
the Borrower with the notice provisions contained in subsection 2.3(a);
provided, that a LIBOR Rate Loan may be continued as such only if no
Event of Default has occurred and is continuing, in which case such
Loan shall be automatically converted to a Base Rate Loan at the end of
the applicable Interest Period with respect thereto. Where the Borrower
shall fail to give timely notice of an election to continue a LIBOR
Rate Loan, or where continuation of LIBOR Rate Loans is not permitted
hereunder, such LIBOR Rate Loans shall be automatically converted to
Base Rate Loans at the end of the applicable Interest Period with
respect thereto.
2.4 Minimum Principal Amount of Tranches.
All borrowings, payments and prepayments in respect of Revolving Loans
shall be in such amounts and be made pursuant to such elections so that after
giving effect thereto the aggregate principal amount of the Revolving Loans
comprising any Tranche shall not be less than $1,000,000, in the case of Base
Rate Loans, and integral multiples in excess of $500,000 in excess thereof, and
$1,000,000, in the case of LIBOR Rate Loans, and integral multiples of $100,000
in excess thereof.
2.5 Default Rate and Payment Dates.
(a) If all or a portion of the principal amount of any
Revolving Loan which is a LIBOR Rate Loan shall not be paid when due or
continued as a LIBOR Rate Loan in accordance with the provisions of
Section 2.3 (whether at the stated maturity, by acceleration or
otherwise), such overdue principal amount of such Revolving Loan shall
be converted to a Base Rate Loan at the end of the Interest Period
applicable thereto.
30
(b) If all or a portion of (i) the principal amount of any
Revolving Loan, (ii) any interest payable thereon or (iii) any fee or
other amount payable hereunder shall not be paid when due (whether at
the stated maturity, by acceleration or otherwise), such overdue amount
shall bear interest at a rate per annum which is in the case of overdue
principal, the rate that would otherwise be applicable thereto plus 2%
or in the case of overdue interest, fees or other amounts, the Base
Rate plus 2%, in each case from the date of such non-payment until such
amount is paid in full (as well after as before judgment).
(c) Interest on each Revolving Loan shall be payable in
arrears on each Interest Payment Date, provided that interest accruing
pursuant to paragraph (b) of this subsection shall be payable from time
to time on demand.
2.6 Reductions in Revolving Commitments and Prepayments.
(a) Voluntary Reduction in Revolving Commitments. The Borrower
may from time to time permanently reduce the aggregate amount of the
Revolving Commitments in whole or in part without premium or penalty
except as provided in Section 2.14 upon three (3) Business Days' prior
written notice to the Administrative Agent; provided that after giving
effect to any such voluntary reduction the sum of the Revolving Loans
then outstanding plus LOC Obligations shall not exceed the Aggregate
Revolving Committed Amount, as reduced. Partial reductions in the
aggregate Revolving Commitment shall in each case be in a minimum
aggregate amount of $1,000,000 and integral multiples of $500,000 in
excess thereof.
(b) Mandatory Reductions in Revolving Commitments and
Mandatory Prepayments.
(i) Net Sales Proceeds. The Borrower shall make a
prepayment of the Revolving Loans in an amount equal to 100%
of the Net Sales Proceeds from Asset Dispositions or any
Recovery Event in excess of $1,000,000, determined on a
cumulative basis beginning on the Amendment Effective Date and
continuing during the term of this Agreement, which are not
reinvested by the Borrower and the Restricted Subsidiaries,
with respect to Net Sales Proceeds of Asset Dispositions, in
businesses permitted to be engaged in by the Borrower and the
Restricted Subsidiaries pursuant to Section 6.4 and, with
respect to Net Sales Proceeds from Recovery Events, to repair
or replace the assets which gave rise to the Recovery Event,
within 270 days after the applicable date of disposition. Any
prepayment of Net Sales Proceeds required by this clause (i)
shall be made on or prior to the date 270 days from the date
of the applicable Asset Disposition or Recovery Event and
shall be applied to the outstanding principal balance of the
Revolving Loans. Notwithstanding the foregoing, upon the
occurrence and during the continuation of an Event of Default,
all such Net Sales Proceeds which have not been reinvested by
the Borrower and the Restricted Subsidiaries in businesses
permitted to be engaged in by the Borrower and the Restricted
Subsidiaries pursuant to Section 6.4 shall be prepaid
immediately.
31
(ii) Debt Issuances; Equity Issuances. Immediately
upon receipt by the Borrower of cash proceeds from any Debt
Issuance (other than any Debt Issuance relating to
Indebtedness permitted by Section 6.1) or Equity Issuance, the
Borrower shall make a prepayment of the Revolving Loans in an
amount equal to such proceeds.
(iii) Mandatory Prepayment on Revolving Loans. If at
any time the aggregate amount of Revolving Loans then
outstanding plus LOC Obligations shall exceed the Aggregate
Revolving Committed Amount, as reduced from time to time, the
Borrower shall immediately make payment on the Revolving Loans
and (after all Revolving Loans have been repaid) cash
collateralize the LOC Obligations in an amount sufficient to
eliminate the deficiency. Any such payments shall be applied
first to Base Rate Loans and then to LIBOR Rate Loans in
direct order of their Interest Period maturities.
(iv) Mandatory Reduction of Revolving Commitments.
The Revolving Committed Amount shall be automatically
permanently reduced by the amount of any mandatory prepayment
required pursuant to clause (i) or (ii) of this Section
2.6(b).
(c) Voluntary Prepayments. Revolving Loans may be prepaid in
whole or in part without premium or penalty; provided that (i) LIBOR
Rate Loans may be prepaid other than at the end of the Interest Period
applicable thereto only upon payment of amounts owing under Section
2.14 and only then on three (3) Business Days' prior written notice to
the Administrative Agent, (ii) Base Rate Loans may be prepaid on one
(1) Business Day's prior written notice to the Administrative Agent if
such notice is received by 11:00 A.M. (Charlotte, North Carolina time)
on the Business Day prior to the date of prepayment, and (iii) each
such partial prepayment shall be in a minimum aggregate principal
amount of $1,000,000, in the case of Base Rate Loans, and integral
multiples of $100,000 in excess thereof, and $1,000,000, in the case of
LIBOR Rate Loans, and integral multiples of $100,000 in excess thereof.
Amounts prepaid on the Revolving Loans may be reborrowed in accordance
with the provisions hereof.
(d) Notice. The Borrower will provide notice to the
Administrative Agent of any prepayment by 11:00 A.M. (Charlotte, North
Carolina time) one or three Business Days prior to the date of
prepayment as specified herein.
2.7 Fees.
(a) Commitment Fee. In consideration of the Revolving
Commitments, the Borrower agrees to pay to the Administrative Agent for
the ratable benefit of the Lenders a commitment fee (the "Commitment
Fee") for each calendar quarter (or portion thereof) during the
Commitment Period, computed at the rate of 0.50% per annum on the
average daily amount by which the Aggregate Revolving Committed Amount
exceeds the
32
aggregate principal amount of Revolving Loans outstanding and LOC
Obligations outstanding (for the subject calendar quarter).
Notwithstanding the foregoing, in the event that the aggregate
principal amount of Revolving Loans outstanding and LOC Obligations
outstanding constitutes less than 50% of the Aggregate Revolving
Committed Amount, then during the portion of the subject calendar
quarter that the aggregate principal amount of Revolving Loans
outstanding and LOC Obligations outstanding constitutes less than 50%
of the Aggregate Revolving Committed Amount, the Commitment Fee shall
be computed at the rate of 0.625% per annum on the average daily amount
by which the Aggregate Revolving Committed Amount exceeds the aggregate
principal amount of Revolving Loans outstanding and LOC Obligations
outstanding (for the subject calendar quarter). The Commitment Fee
shall be payable quarterly in arrears on the last Business Day of each
March, June, September and December (commencing March 31, 2001) and on
the Termination Date.
(b) Letter of Credit Fees. In consideration of the LOC
Commitments, the Borrower agrees to pay to the Issuing Lender a fee
(the "Letter of Credit Fee") equal to the Applicable Interest Rate
Percentage per annum on the average daily maximum amount available to
be drawn under each Letter of Credit from the date of issuance to the
date of expiration. In addition to such Letter of Credit Fee, the
Issuing Lender may charge, and retain for its own account without
sharing by the other Lenders, an additional facing fee of one-fourth of
one percent (1/4%) per annum on the average daily maximum amount
available to be drawn under each such Letter of Credit issued by it.
The Issuing Lender shall promptly pay over to the Administrative Agent
for the ratable benefit of the Lenders (including the Issuing Lender)
the Letter of Credit Fee. The Letter of Credit Fee shall be payable
quarterly in arrears not later than five (5) Business Days following
the last day of each calendar quarter for the prior calendar quarter.
(c) Issuing Lender Fees. In addition to the Letter of Credit
Fees payable pursuant to subsection (b) hereof, the Borrower shall pay
to the Issuing Lender for its own account without sharing by the other
Lenders the reasonable and customary charges from time to time of the
Issuing Lender with respect to the amendment, transfer, administration,
cancellation and conversion of, and drawings under, the Letters of
Credit (collectively, the "Issuing Lender Fees").
2.8 Computation of Interest and Fees.
(a) Interest payable hereunder with respect to LIBOR Rate
Loans shall be calculated on the basis of a year of 360 days for the
actual days elapsed. All other fees, interest and all other amounts
payable hereunder shall be calculated on the basis of a 365/6 day year
for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination
of a LIBOR Rate on the Business Day of the determination thereof. Any
change in the interest rate on a Revolving Loan resulting from a change
in the Base Rate shall become
33
effective as of the opening of business on the day on which such change
in the Base Rate shall become effective. The Administrative Agent shall
as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error.
2.9 Pro Rata Treatment and Payments.
Each borrowing of Revolving Loans and any reduction of the Revolving
Commitments shall be made pro rata according to the respective Revolving
Commitment Percentages of the Lenders. Each payment under this Agreement or any
Revolving Note shall be applied, first, in the case of a payment on the
Revolving Notes (or in respect of the Revolving Loans), to any fees then due and
owing by the Borrower pursuant to subsection 2.7, second, to interest then due
and owing in respect of the Revolving Notes of the Borrower and, third, to
principal then due and owing hereunder and under the Revolving Notes of the
Borrower. Except as otherwise provided herein, each payment on account of any
fees pursuant to subsection 2.7 shall be made pro rata to the Lenders in
accordance with the respective amounts due and owing (except as to the Issuing
Lender Fees). Each payment by the Borrower on account of principal of and
interest on the Revolving Loans shall be made pro rata according to the
respective amounts due and owing. Each prepayment on account of principal of the
Revolving Loans shall be applied to such of the Revolving Loans as the Borrower
may designate (to be applied pro rata among the Lenders); provided, that
prepayments made pursuant to subsection 2.10(a) or 2.12 shall be applied in
accordance with such subsection. All payments (including prepayments) to be made
by the Borrower on account of principal, interest and fees shall be made without
defense, set-off or counterclaim (except as provided in subsection 2.15(b)) and
shall be made to the Administrative Agent for the account of the Lenders at the
Administrative Agent's office specified in Schedule 9.2 in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders entitled thereto promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the LIBOR Rate Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a LIBOR Rate Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day.
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2.10 Non-Receipt of Funds by the Administrative Agent.
(a) Unless the Administrative Agent shall have been notified
by a Lender prior to the date a Revolving Loan is to be made by such
Lender (which notice shall be effective upon receipt) that such Lender
does not intend to make the proceeds of such Revolving Loan available
to the Administrative Agent, the Administrative Agent may assume that
such Lender has made such proceeds available to the Administrative
Agent on such date, and the Administrative Agent may in reliance upon
such assumption (but shall not be required to) make available to the
Borrower a corresponding amount. If such amount is made available to
the Administrative Agent on a date after such Borrowing Date, such
Lender shall pay to the Administrative Agent on demand an amount equal
to the product of (i) the daily average Federal Funds Effective Rate
during such period, times (ii) the amount of such Lender's Revolving
Commitment Percentage of such borrowing, times (iii) a fraction, the
numerator of which is the number of days that elapse from and including
such Borrowing Date to the date on which such Lender's Revolving
Commitment Percentage of such borrowing shall have become immediately
available to the Administrative Agent and the denominator of which is
360. If such Lender's Revolving Commitment Percentage is not in fact
made available to the Administrative Agent by such Lender within two
(2) Business Days of such Borrowing Date, the Administrative Agent
shall be entitled to recover such amount with interest thereon at the
rate per annum applicable to Base Rate Loans hereunder, on demand, from
the Borrower.
(b) Unless the Administrative Agent shall have been notified
by the Borrower, prior to the date on which any payment is due from it
hereunder (which notice shall be effective upon receipt) that the
Borrower does not intend to make such payment, the Administrative Agent
may assume that the Borrower has made such payment when due, and the
Administrative Agent may in reliance upon such assumption (but shall
not be required to) make available to each Lender on such payment date
an amount equal to the portion of such assumed payment to which such
Lender is entitled hereunder, and if the Borrower has not in fact made
such payment to the Administrative Agent, such Lender shall, on demand,
repay to the Administrative Agent the amount made available to such
Lender. If such amount is repaid to the Administrative Agent on a date
after the date such amount was made available to such Lender, such
Lender shall pay to the Administrative Agent on demand an amount equal
to the product of (i) the daily average Federal Funds Effective Rate
during such period, times (ii) the amount made available to such Lender
by the Administrative Agent pursuant to this paragraph (b), times (iii)
a fraction, the numerator of which is the number of days that elapse
from and including the date on which such amount was made available to
such Lender to the date on which such amount shall have been repaid to
the Administrative Agent by such Lender and become immediately
available to the Administrative Agent and the denominator of which is
360.
(c) A certificate of the Administrative Agent submitted to the
Borrower or any Lender with respect to any amount owing under this
subsection shall be conclusive in the absence of manifest error.
35
2.11 Inability to Determine Interest Rate.
Notwithstanding any other provision of this Agreement, if (i) the
Administrative Agent shall reasonably determine (which determination shall be
conclusive and binding absent manifest error) that, by reason of circumstances
affecting the relevant market, reasonable and adequate means do not exist for
ascertaining LIBOR for such Interest Period, or (ii) the Majority Lenders shall
reasonably determine (which determination shall be conclusive and binding absent
manifest error) that the LIBOR Rate does not adequately and fairly reflect the
cost to such Lenders of funding LIBOR Rate Loans that the Borrower has requested
be outstanding as a Eurodollar Tranche during such Interest Period, the
Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Borrower, and the Lenders at least
two Business Days prior to the first day of such Interest Period. Unless the
Borrower shall have notified the Administrative Agent upon receipt of such
telephone notice that it wishes to rescind or modify its request regarding such
LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate Loans
shall be made as Base Rate Loans and any Revolving Loans that were requested to
be converted into or continued as LIBOR Rate Loans shall be converted into Base
Rate Loans. Until any such notice has been withdrawn by the Administrative
Agent, no further Revolving Loans shall be made as, continued as, or converted
into, LIBOR Rate Loans for the Interest Periods so affected.
2.12 Illegality
Notwithstanding any other provision of this Agreement, if the adoption
of or any change in any Requirement of Law or in the interpretation or
application thereof, in each case occurring after the Closing Date, by the
relevant Governmental Authority to any Lender shall make it unlawful for such
Lender or its LIBOR Lending Office to make or maintain LIBOR Rate Loans as
contemplated by this Agreement or to obtain in the interbank eurodollar market
through its LIBOR Lending Office the funds with which to make such Loans, (a)
such Lender shall promptly notify the Administrative Agent and the Borrower
thereof, (b) the commitment of such Lender hereunder to make LIBOR Rate Loans or
continue LIBOR Rate Loans as such shall forthwith be suspended until the
Administrative Agent shall give notice that the condition or situation which
gave rise to the suspension shall no longer exist, and (c) such Lender's Loans
then outstanding as LIBOR Rate Loans, if any, shall be converted on the last day
of the Interest Period for such Loans or within such earlier period as required
by law to Base Rate Loans. The Borrower hereby agrees promptly to pay any
Lender, upon its demand, any additional amounts necessary to compensate such
Lender for actual and direct costs (but not including anticipated profits)
reasonably incurred by such Lender in making any repayment in accordance with
this subsection including, but not limited to, any interest or fees payable by
such Lender to lenders of funds obtained by it in order to make or maintain its
LIBOR Rate Loans hereunder. A certificate as to any additional amounts payable
pursuant to this subsection submitted by such Lender, through the Administrative
Agent, to the Borrower shall be conclusive in the absence of manifest error.
Each Lender agrees to use reasonable efforts (including reasonable efforts to
change its LIBOR Lending Office) to avoid or to minimize any amounts which may
otherwise be payable pursuant to this subsection; provided, however, that such
efforts shall not cause the imposition on
36
such Lender of any additional costs or legal or regulatory burdens deemed by
such Lender to be material.
2.13 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof or compliance by any
Lender with any request or directive (whether or not having the force
of law) from any central bank or other Governmental Authority, in each
case made subsequent to the date hereof:
(i) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any
participation therein or any application relating thereto, or
any LIBOR Rate Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except
for taxes covered by subsection 2.15 (including any taxes
imposed by reason of any failure of such Lender to comply with
its obligations under subsection 2.15(b)), or changes in the
rate of tax on the net income, or franchise tax, of such
Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by,
any office of such Lender which is not otherwise included in
the determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such
Lender of making or maintaining LIBOR Loans or the Letters of Credit or
the participations therein or to reduce any amount receivable hereunder
or under any Revolving Note, then, in any such case, the Borrower shall
promptly pay such Lender, within 15 days after its demand, any
additional amounts necessary to compensate such Lender for such
additional cost or reduced amount receivable which such Lender
reasonably deems to be material as determined by such Lender with
respect to its LIBOR Rate Loans or Letters of Credit or participations
therein. A certificate as to any additional amounts payable pursuant to
this subsection submitted by such Lender, through the Administrative
Agent, describing in reasonable detail the nature of such event and a
reasonably detailed explanation of the calculation thereof, to the
Borrower shall be conclusive in the absence of manifest error. Each
Lender agrees to use reasonable efforts (including reasonable efforts
to change its Domestic Lending Office or LIBOR Lending Office, as the
case may be) to avoid or to minimize any amounts which might otherwise
be payable pursuant to this paragraph of this subsection; provided,
however, that such efforts shall not cause the imposition on such
Lender of any additional costs or legal or regulatory burdens deemed by
such Lender to be material.
37
(b) If any Lender shall have reasonably determined that the
adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof as a
consequence of its obligations hereunder or compliance by such Lender
or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force
of law) from any central bank or Governmental Authority made subsequent
to the date hereof as a consequence of its obligations hereunder does
or shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount
reasonably deemed by such Lender to be material, then from time to
time, within 15 days after demand by such Lender, the Borrower shall
pay to such Lender such additional amount as shall be certified by such
Lender as being required to compensate it for such reduction. Such a
certificate as to any additional amounts payable under this subsection
submitted by a Lender (which certificate shall include a description in
reasonable detail of the basis for the computation), through the
Administrative Agent, to the Borrower shall be conclusive absent
manifest error.
(c) Notwithstanding anything to the contrary contained herein,
the Borrower shall not have any obligation to pay to any Lender amounts
owing under this subsection 2.13 for any period which is more than 180
days prior to the date (but not in any event prior to the Closing Date)
upon which the request for payment therefor is delivered to the
Borrower.
(d) The agreements in this subsection shall survive the
termination of this Agreement and payment of the Notes and all other
amounts payable hereunder.
2.14 Indemnity.
The Borrower hereby agrees to indemnify each Lender and to hold such
Lender harmless from any funding loss or expense which such Lender may sustain
or incur (other than as a result of such Lender's gross negligence or willful
misconduct) as a consequence of (a) default by the Borrower in payment of the
principal amount of or interest on any LIBOR Rate Loan by such Lender in
accordance with the terms hereof, (b) default by the Borrower in accepting a
LIBOR Rate Loan after the Borrower has given a notice in accordance with the
terms hereof, (c) default by the Borrower in making any prepayment of a LIBOR
Rate Loan after the Borrower has given a notice in accordance with the terms
hereof, and/or (d) the making by the Borrower of a prepayment of a LIBOR Rate
Loan, or the conversion thereof, on a day which is not the last day of the
Interest Period with respect thereto, in each case equal to (i) the amount of
interest which would have accrued on the amount so prepaid, or not so paid,
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to pay, borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure), in each case at the applicable rate of interest for such Loans
provided for herein (excluding the
38
Applicable Interest Rate Percentage included therein), over (ii) the amount of
interest (as reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for a comparable
period with leading banks in the interbank eurodollar market. A certificate as
to any additional amounts payable pursuant to this subsection submitted by any
Lender, through the Administrative Agent, to the Borrower (which certificate
must be delivered to the Administrative Agent within thirty days following such
default, prepayment or conversion) shall be conclusive in the absence of
manifest error. The agreements in this subsection shall survive termination of
this Agreement and payment of the Revolving Notes and all other amounts payable
hereunder.
2.15 Taxes.
(a) All payments made by the Borrower hereunder or under any
Revolving Note will be, except as provided in Section 2.15(b), made
free and clear of, and without deduction or withholding for, any
present or future taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature now or hereafter imposed by any
Governmental Authority or by any political subdivision or taxing
authority thereof or therein with respect to such payments (but
excluding (i) any tax imposed on or measured by the net income or
profits of a Lender pursuant to the laws of the jurisdiction in which
it is organized or the jurisdiction in which the principal office or
applicable lending office of such Lender is located or any subdivision
thereof or therein and (ii) any franchise taxes, branch taxes, taxes on
doing business or taxes on the overall capital or net worth of any
Lender pursuant to the laws of the jurisdiction in which it is
organized or the jurisdiction in which the principal office or its
applicable lending office is located or any subdivision thereof or
therein) and all interest, penalties or similar liabilities with
respect thereto (all such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges being referred to collectively as
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to
pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this
Agreement or under any Note, after withholding or deduction for or on
account of any such Taxes, will not be less than the amount provided
for herein or in such Note. The Borrower will furnish to the
Administrative Agent as soon as practicable after the date the payment
of any Taxes is due pursuant to applicable law certified copies (to the
extent reasonably available and required by law) of tax receipts
evidencing such payment by the Borrower. Except as provided in this
Section 2.l5, the Borrower agrees to indemnify and hold harmless each
Lender, and reimburse such Lender upon its written request, for the
amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender or Participant that is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code)
agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Closing Date, or in the case of a Lender or Participant
that is an assignee or transferee of an interest under this Agreement
pursuant to Section 9.6 (unless the respective Lender or Participant
was already a Lender or Participant hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to
such Lender, (i) if the Lender or Participant is a "bank"
39
within the meaning of Section 881(c)(3)(A) of the Code, two accurate
and complete original signed copies of Internal Revenue Service Form
4224 or 1001 (or successor forms) certifying such Lender's or
Participant's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this
Agreement and under any Note, or (ii) if the Lender or Participant is
not a "bank" within the meaning of Section 881(c)(3)(A) of the Code,
either Internal Revenue Service Form 1001 or 4224 as set forth in
clause (i) above, or (x) a certificate substantially in the form of
Schedule 2.15 (any such certificate, a "2.15 Certificate") and (y) two
accurate and complete original signed copies of Internal Revenue
Service Form W-8 (or successor form) certifying such Lender's or
Participant's entitlement to an exemption from United States
withholding tax with respect to payments of interest to be made under
this Agreement and under any Note. In addition, each Lender and
Participant agrees that it will deliver upon the Borrower's request (or
upon such Lender's or Participant's becoming aware that any version is
no longer accurate) updated versions of the foregoing, as applicable,
whenever the previous certification has become obsolete or inaccurate
in any material respect, together with such other forms as may be
required in order to confirm or establish the entitlement of such
Lender or Participant to a continued exemption from or reduction in
United States withholding tax with respect to payments under this
Agreement and any Note. Notwithstanding anything to the contrary
contained in Section 2.15(a), but subject to the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is
required to do so by law, to deduct or withhold Taxes imposed by the
United States (or any political subdivision or taxing authority thereof
or therein) from interest, fees or other amounts payable hereunder for
the account of any Lender or Participant which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for
U.S. Federal income tax purposes to the extent that such Lender or
Participant has not provided to the Borrower U.S. Internal Revenue
Service Forms that establish a complete exemption from such deduction
or withholding and (y) the Borrower shall not be obligated pursuant to
Section 2.15(a) hereof to gross-up payments to be made to a Lender or
Participant or otherwise indemnify such Lender or Participant in
respect of Taxes imposed by the United States if (I) such Lender or
Participant has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant to this
Section 2.15(b) or (II) in the case of a payment, other than interest,
to a Lender or Participant described in clause (ii) above, to the
extent that such Forms do not establish a complete exemption from
withholding of such Taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 2.15
but subject in any event to clause (y)(I) in the immediately preceding
sentence, the Borrower agrees to pay additional amounts and to
indemnify each Lender in the manner set forth in Section 2.15(a)
(without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any amounts deducted or
withheld by them as described in the immediately preceding sentence as
a result of any changes after the Closing Date (or, in the case of an
assignee or transferee, after the date such assignee or transferee
became a Lender or Participant hereunder) in any applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of
Taxes.
40
(c) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its Domestic Lending Office or LIBOR
Lending Office, as the case may be) to avoid or to minimize any amounts
which might otherwise be payable pursuant to this subsection; provided,
however, that such efforts shall not cause the imposition on such
Lender of any additional costs or legal or regulatory burdens deemed by
such Lender to be material unless in the case of costs the Borrower has
agreed to reimburse such Lender for such costs.
(d) If the Borrower pays any additional amount pursuant to
this subsection 2.15 with respect to a Lender or Participant, such
Lender or Participant shall use reasonable efforts to obtain a refund
of tax or credit against its tax liabilities on account of such
payment; provided that such Lender or Participant shall have no
obligation to use such reasonable efforts if either (i) it is in an
excess foreign tax credit position or (ii) it believes in good faith,
in its sole discretion, that claiming a refund or credit would cause
adverse tax consequences to it. In the event that such Lender or
Participant receives such a refund or credit, such Lender or
Participant shall pay to the Borrower an amount that such Lender
reasonably determines is equal to the net tax benefit obtained by such
Lender or Participant as a result of such payment by the Borrower. In
the event that no refund or credit is obtained with respect to the
Borrower's payments to such Lender pursuant to this subsection 2.15,
then such Lender or Participant shall upon request provide a
certification that such Lender or Participant has not received a refund
or credit for such payments. Nothing contained in this subsection 2.15
shall require a Lender or Participant to disclose or detail the basis
of its calculation of the amount of any tax benefit or any other amount
or the basis of its determination referred to in the proviso to the
first sentence of this subsection 2.15 to the Borrower or any other
party.
(e) The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Revolving Notes
and all other amounts payable hereunder.
2.16 Replacement of Agent.
If any Lender becomes a Defaulting Lender, if any Lender delivers a
notice pursuant to Section 2.12, 2.13 or 2.15 or if any Lender fails to consent
to a waiver or amendment which requires the consent of each of the Lenders
(hereinafter any such Lender shall be referred to as a "Replaced Lender"), then
in such case, the Borrower may, upon at least five (5) Business Days' notice to
the Administrative Agent and such Replaced Lender, designate a replacement
lender (a "Replacement Lender") acceptable to the Administrative Agent in its
reasonable discretion, to which such Replaced Lender shall, subject to its
receipt (unless a later date for the remittance thereof shall be agreed upon by
the Borrower and the Replaced Lender) of all amounts owed to such Replaced
Lender hereunder, assign all (but not less than all) of its rights and
obligations hereunder. Upon any assignment by any Lender pursuant to this
Section 2.16 becoming effective, the Replacement Lender shall thereupon be
deemed to be a "Lender" for all purposes of this Agreement and such Replaced
Lender shall thereupon cease to be a "Lender" for all
41
purposes of this Agreement and shall have no further rights or obligations
hereunder (other than pursuant to Sections 2.12, 2.13, 2.15 and 9.5 while such
Replaced Lender was a Lender).
2.17 Indemnification; Nature of Issuing Lender's Duties.
(a) In addition to its other obligations under Section 2.2,
the Borrower hereby agrees to protect, indemnify, pay and save the
Issuing Lender harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of
any Letter of Credit or (ii) the failure of the Issuing Lender to honor
a drawing under a 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 "Government Acts").
(b) As between the Borrower and the Issuing Lender, the
Borrower shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuing Lender shall
not be responsible: (i) for 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, or any drawing
under, any Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (iii) for failure of the beneficiary of a
Letter of Credit to comply fully with conditions required in order to
draw upon a Letter of Credit; (iv) for 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)
for errors in interpretation of technical terms; (vi) for any loss or
delay in the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the proceeds
thereof; and (vii) for any consequences arising from causes beyond the
control of the Issuing Lender, including, without limitation, any
Government Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by the Issuing Lender under or in connection with any Letter of Credit
or the related certificates, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not put the Issuing
Lender under any resulting liability to the Borrower. It is the
intention of the parties that this Agreement shall be construed and
applied to protect and indemnify the Issuing Lender against any and all
risks involved in the issuance of the Letters of Credit, all of which
risks are hereby assumed by the Borrower, including, without
limitation, any and all risks of the acts or omissions, whether
rightful or wrongful, of any Governmental Authority. The Issuing Lender
shall not, in any way, be liable for any failure by the Issuing Lender
42
or anyone else to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond the control of
the Issuing Lender.
(d) Nothing in this Section 2.17 is intended to limit the
reimbursement obligation of the Borrower contained in Section 2.2(d)
hereof. The obligations of the Borrower under this Section 2.17 shall
survive the termination of this Agreement. No act or omissions of any
current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the Issuing Lender to enforce any right,
power or benefit under this Agreement.
(e) Notwithstanding anything to the contrary contained in this
Section 2.17, the Borrower shall have no obligation to indemnify the
Issuing Lender in respect of any liability incurred by the Issuing
Lender arising out of the gross negligence or willful misconduct of the
Issuing Lender, as determined by a court of competent jurisdiction.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the
Extensions of Credit herein provided for, the Borrower hereby represents and
warrants to the Administrative Agent and to each Lender that:
3.1 Financial Condition.
The financial statements provided to the Administrative Agent and the
Lenders, consisting of, an audited balance sheet of the Borrower dated as of
December 31, 2000, together with related statements of income and retained
earnings and statements of cash flows, audited by KPMG, LLP, copies of which
have heretofore been provided to each of the Lenders, are complete and correct
in all material respects and present fairly in all material respects the
financial condition and results from operations of the entities and for the
periods specified, except as noted therein and in the report of the accountants.
3.2 No Change.
Since December 31, 2000 there has been no development or event which
has had a Material Adverse Effect.
3.3 Existence; Compliance with Law.
Each of the Borrower and each Restricted Subsidiary (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the limited liability company,
corporate or partnership power and authority and the legal right to own and
operate all its material property, to lease the material property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign limited liability company, corporation or partnership and
in good standing under the laws of each
43
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except to the extent that the
failure to so qualify or be in good standing would not, in the aggregate, have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations.
Each of the Borrower and each Guarantor has full power and authority
and the legal right to make, deliver and perform the Credit Documents to which
it is party and has taken all necessary limited liability company, corporate or
partnership action to authorize the execution, delivery and performance by it of
the Credit Documents to which it is party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery or performance of any Credit Document
by the Borrower or any Guarantor (other than those which have been obtained) or
with the validity or enforceability of any Credit Document against the Borrower
or any Guarantor (except such filings as are necessary in connection with the
perfection of the Liens created by such Credit Documents). Each Credit Document
to which the Borrower or any Guarantor is a party has been duly executed and
delivered on behalf of the Borrower or any Guarantor. Each Credit Document to
which it is a party constitutes a legal, valid and binding obligation of the
Borrower or any Guarantor enforceable against the Borrower or any Guarantor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar; No Default.
The execution, delivery and performance of the Credit Documents, the
borrowings thereunder and the use of the proceeds of the Revolving Loans and of
the Letters of Credit will not violate any Requirement of Law or any Contractual
Obligation of the Borrower or any Guarantor (except those as to which waivers or
consents have been obtained), and will not result in, or require, the creation
or imposition of any Lien on any of the properties or revenues of the Borrower
or any Guarantor pursuant to any Requirement of Law or Contractual Obligation
other than the Liens arising under or contemplated in connection with the Credit
Documents. Neither the Borrower nor any Restricted Subsidiary is in default
under or with respect to any of its Contractual Obligations in any respect which
would reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
3.6 No Material Litigation.
Except as set forth in Schedule 3.6, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge of the Borrower, threatened by or against Borrower or any
Restricted Subsidiary or against any of the respective properties or revenues of
the Borrower or any Restricted Subsidiary (a) with respect to the Credit
44
Documents, any Revolving Loan or any Letter of Credit or any of the transactions
contemplated hereby, or (b) which could reasonably be expected to have a
Material Adverse Effect.
3.7 Investment Company Act.
Neither the Borrower nor any Restricted Subsidiary is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
3.8 Federal Regulations.
No part of the proceeds of any Revolving Loan hereunder will be used
directly or indirectly for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect.
3.9 ERISA.
Neither a Reportable Event nor an "accumulated funding deficiency"
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code, except to the extent that any such occurrence or failure to comply
would not reasonably be expected to have a Material Adverse Effect. No
termination of a Single Employer Plan has occurred resulting in any liability
that has remained underfunded, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period which would reasonably be expected to have
a Material Adverse Effect. The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by an amount which, as determined in
accordance with GAAP, would reasonably be expected to have a Material Adverse
Effect. Neither the Borrower, any Restricted Subsidiary nor any Commonly
Controlled Entity is currently subject to any liability for a complete or
partial withdrawal from a Multiemployer Plan which would reasonably be expected
to have a Material Adverse Effect.
3.10 Environmental Matters.
Except to the extent that all of the following, in the aggregate, would
not reasonably be expected to have a Material Adverse Effect:
(a) To the best knowledge of the Borrower, the facilities and
properties owned, leased or operated by the Borrower and the Restricted
Subsidiaries (the "Properties") do not use, store, generate, dispose of
or handle any Materials of Environmental Concern in amounts or
concentrations which (i) constitute a violation of or (ii) could give
rise to liability under, any Environmental Law.
45
(b) To the best knowledge of the Borrower, the Properties and
all operations at the Properties are in compliance, and have in the
last five years been in compliance, in all material respects with all
applicable Environmental Laws, and there is no contamination at, under
or about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the Borrower (the
"Business").
(c) Neither the Borrower nor any Restricted Subsidiary has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties
or the Business, nor does the Borrower have knowledge that any such
notice is being threatened.
(d) To the best knowledge of the Borrower, all Materials of
Environmental Concern have been generated, treated, stored or disposed
of at, on or under any of the Properties in accordance with applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the best of the knowledge of the Borrower,
threatened, under any Environmental Law to which the Borrower or any
Restricted Subsidiary is or will be named as a party with respect to
the Properties or the Business or any facility that has received
materials of environmental concern generated by the Borrower, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business.
(f) To the best knowledge of the Borrower, there has been no
release or threat of release of Materials of Environmental Concern at
or from the Properties arising from or related to the operations of the
Borrower or any Restricted Subsidiary in connection with the Properties
or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could give rise to liability under
Environmental Laws.
3.11 Purpose of Loan.
The proceeds of the Revolving Loans will be used for general corporate
and working capital purposes (including Capital Expenditures and acquisitions
permitted pursuant to the terms hereof).
3.12 Subsidiaries.
Set forth on Schedule 3.12 is a complete and accurate list of all
Subsidiaries of the Borrower and of Holdings LLC as of the Amendment Effective
Date. As of the Amendment Effective Date, information on the attached Schedule
includes state of organization; the number of shares of each class of capital
stock or partnership or other equity interests (identified by type) outstanding;
the number and percentage of outstanding shares of each class of stock or
46
percentage of ownership interest; and the number and effect, if exercised, of
all outstanding options, warrants, rights of conversion or purchase and similar
rights. The outstanding capital stock and partnership and other equity interests
of all such Subsidiaries are validly issued, fully paid and non-assessable and
are owned, free and clear of all Liens (other than those arising under or
contemplated in connection with the Credit Documents). As of the Amendment
Effective Date, except as set forth on Schedule 3.12, there are no outstanding
options or other rights pertaining to the partnership or other equity interests
of the Borrower or Holdings LLC, and no voting trusts, shareholders' or
partners' agreements (other than the operating or partnership agreements
relating to the formation, organization, operation and governance of the
partnerships or limited liability companies, copies of which have been provided
to the Administrative Agent and the Lenders) or similar agreement affecting
either ownership of or the right to vote such partnership interests.
3.13 Intellectual Property Rights.
The Borrower and the Restricted Subsidiaries own or have the right to
use, subject to any of their obligations under any valid and binding license
agreement, the Intellectual Property (as defined below) disclosed in Schedule
3.13 hereto, which represents all Intellectual Property individually or in the
aggregate material to the conduct of the businesses of the Borrower and the
Restricted Subsidiaries taken as a whole on the Amendment Effective Date. Except
as disclosed in Schedule 3.13 hereto or where the failure shall not have a
Material Adverse Effect, (i) the Borrower or a Restricted Subsidiary has the
right to use the Intellectual Property disclosed in Schedule 3.13 hereto in
perpetuity and without payment of royalties, (ii) all registrations with and
applications to Governmental or Regulatory Authorities in respect of such
Intellectual Property are valid and in full force and effect and are not subject
to the payment of any taxes or maintenance fees or the taking of any other
actions by the Borrower or a Restricted Subsidiary to maintain their validity or
effectiveness, and (iii) there are no restrictions on the direct or indirect
transfer of any Contractual Obligation, or any interest therein, held by the
Borrower or any Restricted Subsidiary in respect of such Intellectual Property.
Neither the Borrower nor any Restricted Subsidiary is in default (or with the
giving of notice or lapse of time or both, would be in default) under any
license to use such Intellectual Property the loss of which would reasonably be
expected to have a Material Adverse Effect, to the best of the Borrower's and
the Restricted Subsidiaries' knowledge such Intellectual Property is not being
infringed by any third party the loss of which may have a Material Adverse
Effect, and to the best of the Borrower and its Subsidiaries' knowledge neither
the Borrower nor any Restricted Subsidiary is infringing any Intellectual
Property of any third party the infringement of which would reasonably be
expected to have a Material Adverse Effect. For purposes of this Section 3.13,
"Intellectual Property" means patents and patent rights, trademarks and
trademark rights, trade names and trade name rights, service marks and service
xxxx rights, copyrights and copyright rights, including the right to xxx for
past infringement, licenses, proprietary information, designs, processes,
inventions, software and related intellectual property rights and all pending
applications for and registrations of any of the foregoing.
47
3.14 No Burdensome Restrictions.
No Requirement of Law or Contractual Obligation of the Borrower or any
Restricted Subsidiary could reasonably be expected to have a Material Adverse
Effect.
3.15 Taxes.
Except as set forth on Schedule 3.15 hereto, the Borrower and the
Restricted Subsidiaries have filed, or caused to be filed, all material tax
returns (Federal, state, local and foreign) required to be filed and paid all
taxes shown thereon to be due (including interest and penalties) and have paid
all other taxes, fees, assessments and other governmental charges (including
mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing
(or necessary to preserve any Liens in favor of the Lenders) by them, except for
such taxes (i) which are not yet delinquent or (ii) as are being contested in
good faith and by proper proceedings, and against which adequate reserves are
being maintained in accordance with GAAP. The Borrower is not aware of any
proposed material tax assessments against it or any of the Restricted
Subsidiaries.
3.16 [Intentionally Omitted]
3.17 No Interest in Real Estate.
Other than the leasehold interests reflected on Schedule 3.17 and the
ownership by the Borrower of certain real property in Tulsa, Oklahoma and Simi
Valley, California, neither Borrower nor any Restricted Subsidiary has any
interest in any real property.
3.18 [intentionally omitted].
3.19 Unrestricted Subsidiaries.
No Unrestricted Subsidiary owns assets having a value of more than
$100,000 and no Unrestricted Subsidiary engages in any active business
activities.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Amendment Effective Date.
This Agreement shall become effective upon the satisfaction of the
following conditions precedent:
(a) Execution of Agreement. The Administrative Agent shall
have received (i) multiple counterparts of this Agreement for each
Lender, executed by a duly authorized officer of each party hereto,
(ii) for the account of each Lender a Revolving Note, (iii) multiple
counterparts of the Guaranty for each Lender executed by each
Guarantor, and (iv) multiple counterparts of the Security Agreement,
the Pledge
48
Agreements and other Security Documents for each Lender and UCC
financing statements relating thereto executed by a duly authorized
officer of each party thereto, in each case conforming to the
requirements of this Agreement and executed by a duly authorized
officer of the Borrower and the Guarantors, as applicable.
(b) Liability and Casualty Insurance. The Administrative Agent
shall have received copies of insurance policies or certificates of
insurance evidencing liability and casualty insurance meeting the
requirements set forth herein or in the Security Agreement.
(c) Operating Company and Corporate Documents. The
Administrative Agent shall have received the following:
(i) Articles of Incorporation.
Copies of the certificate of formation, articles of
organization, articles of incorporation or charter documents
of the Borrower and each Guarantor certified to be true and
complete as of a recent date by the appropriate governmental
authority of the state of its organization or incorporation.
(ii) Resolutions. Copies of the
certified corporate resolutions and certificates of action of
the action of the Borrower and the Guarantors approving and
adopting the Credit Documents, the transactions contemplated
therein and authorizing execution and delivery thereof,
certified by a manager, secretary or assistant secretary as of
the Amendment Effective Date to be true and correct and in
full force and effect as of such date.
(iii) Operating Agreement and
Bylaws. A copy of the operating agreement or the bylaws of the
Borrower and the Guarantors certified by a manager, secretary
or assistant secretary as of the Amendment Effective Date to
be true and correct and in full force and effect as of such
date.
(iv) Good Standing. Copies of (i)
certificates of good standing, existence or its equivalent
with respect to the Borrower and the Guarantors certified as
of a recent date by the appropriate governmental authorities
of the state of incorporation and each other state in which
the failure to so qualify and be in good standing would have a
material adverse effect on the business or operations of the
Borrower and the Guarantors in such state and (ii) a
certificate indicating payment of all corporate franchise
taxes certified as of a recent date by the appropriate
governmental taxing authorities.
(d) Secretary's Certificate. The Administrative Agent shall
have received a certificate of a duly authorized secretary, assistant
secretary, managing member or officer
49
of each of the Borrower and the Guarantors dated the Amendment
Effective Date, substantially in the form of Schedule 4.1(d) with
appropriate insertions and attachments.
(e) Legal Opinion of Counsel. The Administrative Agent shall
have received, with a copy for each Lender, opinions of various counsel
for the Credit Parties, dated the Amendment Effective Date and
addressed to the Administrative Agent and the Lenders, in form and
substance satisfactory to Administrative Agent and the Lenders.
(f) Compliance and Solvency Certificates. The Administrative
Agent shall have received from an Authorized Signatory (i) a compliance
certificate substantially the form of Schedule 4.1(f)(i) demonstrating,
among other things, the Borrower's compliance on a pro forma basis with
the financial covenants set forth in Section 5.9 hereof and (ii) a
solvency certificate substantially in the form of Schedule 4.1(f)(ii)
demonstrating the solvency of the Borrower and the Guarantors.
(g) Fees. The Administrative Agent shall have received all
fees, if any, owing pursuant to the Fee Letter.
(h) Corporate Structure. The company capital and ownership
structure of the Borrower and the Guarantors shall be as described in
Schedule 4.1(h).
(i) Government Consent. Receipt by the Administrative Agent of
evidence that all governmental, shareholder and material third party
consents (including Xxxx-Xxxxx-Xxxxxx clearance, to the extent
necessary) and approvals necessary in connection with the transactions
contemplated hereby and expiration of all applicable waiting periods
without any action being taken by any authority that could reasonably
be likely to restrain, prevent or impose any material adverse
conditions on such transactions or that could reasonably be likely to
seek or threaten any of the foregoing, and no law or regulation shall
be applicable which in the judgment of the Administrative Agent could
reasonably be likely to have such effect.
(j) Litigation. There shall not exist any (i) order, decree,
judgment, ruling or injunction which restrains the consummation of the
transactions contemplated hereby or (ii) any pending or threatened
action, suit, investigation or proceeding against a Credit Party that
would have or would reasonably be expected to have a Material Adverse
Effect.
(k) [intentionally omitted].
(l) Financial Projections. The Borrower shall have furnished
to the Lenders a five-year financial projection model in form and
substance satisfactory to the Administrative Agent.
(m) [intentionally omitted].
50
(n) Notice of Account Designation. The Borrower shall have
executed and delivered to the Administrative Agent a Notice of Account
Designation.
(o) Subsection 4.2 Conditions. The conditions specified in
subsections 4.2(a) and (b) shall be satisfied on the Amendment
Effective Date as if Loans were to be made on such date.
(p) Additional Matters. All other documents and legal matters
in connection with the transactions contemplated by this Agreement
shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.
4.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
The obligation of each Lender to make any Extension of Credit hereunder
(including the initial Revolving Loans to be made hereunder) is subject to the
satisfaction of the following conditions precedent on the date of making such
Extension of Credit:
(a) Representations and Warranties. The representations and
warranties made by the Credit Parties in the Credit Documents or which
are contained in any certificate furnished at any time under or in
connection herewith shall be true and correct in all material respects
on and as of the date of such Extension of Credit as if made on and as
of such date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date or after
giving effect to the Extension of Credit to be made on such date unless
such Default or Event of Default shall have been waived in accordance
with this Agreement.
(c) Additional Conditions to Letters of Credit. If such
Extension of Credit is made pursuant to Section 2.2, all conditions set
forth in such section shall have been satisfied.
Each request for an Extension of Credit and each acceptance by the
Borrower of an Extension of Credit shall be deemed to constitute a
representation and warranty by the Borrower as of the date of such Extension of
Credit that the applicable conditions in paragraphs (a) and (b) have been
satisfied.
51
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Closing Date, and
thereafter for so long as this Agreement is in effect and until the Revolving
Commitments have terminated, no Revolving Note remains outstanding and unpaid,
no Letter of Credit remains outstanding and the Revolving Loans, together with
interest, Commitment Fees, Letter of Credit Fees and all other amounts owing to
the Administrative Agent, the Issuing Lender or any Lender hereunder, are paid
in full, the Borrower shall, and in the case of subsections 5.3, 5.4, 5.5, 5.6,
5.7 and 5.8 shall cause each of the Restricted Subsidiaries, to:
5.1 Financial Statements.
Furnish to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, but in
any event within 90 days after the end of each fiscal year of the
Borrower, a copy of the consolidated and consolidating balance sheet of
the Borrower and the Restricted Subsidiaries as at the end of such
fiscal year and the related consolidated and consolidating statements
of income and retained earnings and of cash flows of the Borrower and
the Restricted Subsidiaries for such year, audited (as to the
consolidated statements) by KPMG, LLP or other firm of independent
certified public accountants of nationally recognized standing
reasonably acceptable to the Majority Lenders, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification indicating that the scope of the audit was inadequate to
permit such independent certified public accountants to certify such
financial statements without such qualification; and
(b) Quarterly Financial Statements. As soon as available and
in any event within 45 days after the end of each of the first three
fiscal quarters of the Borrower, a company-prepared consolidated and
consolidating balance sheet of the Borrower and the Restricted
Subsidiaries as at the end of such period and related company-prepared
statements of income and retained earnings and of cash flows for the
Borrower and the Restricted Subsidiaries for such quarterly period and
for the portion of the fiscal year ending with such period, in each
case setting forth in comparative form consolidated and consolidating
figures for the corresponding period or periods of (i) the preceding
fiscal year and (ii) the annual budget plan (subject in each case to
normal recurring year-end audit adjustments);
(c) Monthly Financial Statements. As soon as available and in
any event within 45 days after the end of each month, a
company-prepared consolidated and consolidating balance sheet of the
Borrower and the Restricted Subsidiaries as at the end of such month
and related company-prepared statements of income and retained earnings
and of cash flows for the Borrower and the Restricted Subsidiaries for
such monthly period and for the portion of the fiscal year ending with
such period, in each case in summary form and in each case setting
forth in comparative form consolidated and
52
consolidating figures for the corresponding period or periods of (i)
the preceding fiscal year and (ii) the annual budget plan (subject in
each case to normal recurring year-end audit adjustments);
(d) Annual Budget Plan. As soon as available, but in any event
no more than 45 days after the end of each fiscal year, a copy of the
detailed annual budget or plan for the next fiscal year set out by
month, in form and detail reasonably acceptable to the Administrative
Agent and the Majority Lenders, together with a summary of the material
assumptions made in the preparation of the budget or plan;
all such consolidating statements to be as to the four operating divisions of
the Borrowers and all such monthly and quarterly financial statements to fairly
present in all material respects the financial condition and results from
operations of the entities and for the periods specified (subject, in the case
of interim statements, to normal recurring year-end audit adjustments) and to be
prepared in reasonable detail and, in the case of the annual and quarterly
financial statements provided in accordance with subsections (a) and (b) above,
in accordance with GAAP applied consistently throughout the periods reflected
therein (except as approved by such accountants or Authorized Signatory, as the
case may be, and disclosed therein) and further accompanied by a description of,
and an estimation of the effect on the financial statements on account of, a
change in the application of accounting principles as provided in Section 1.3.
5.2 Certificates; Other Information.
Furnish to the Administrative Agent and each of the Lenders:
(a) Accountant's Certificate. Concurrently with the delivery
of the financial statements referred to in subsection 5.1(a) above, a
certificate of the independent certified public accountants reporting
on such financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or Event of
Default, except as specified in such certificate;
(b) Compliance Certificate. Concurrently with the delivery of
the financial statements referred to in Sections 5.1(a) and 5.1(b)
above, a certificate of a Authorized Signatory stating that, to the
best of such Authorized Signatory's knowledge, the Borrower and the
Restricted Subsidiaries during such period observed or performed in all
material respects all of their covenants and other agreements, and
satisfied in all material respects every material condition, contained
in this Agreement to be observed, performed or satisfied by them, and
that such Authorized Signatory has obtained no knowledge of any Default
or Event of Default except as specified in such certificate and such
certificate shall include the calculations required to indicate
compliance with Section 5.9 and information as to Restricted Payments
made in the applicable period in accordance with Section 6.12;
(c) Public Notices. Within thirty days after the same are
sent, copies of all reports (other than those otherwise provided
pursuant to subsection 5.1 and those which
53
are of a promotional nature) and other financial information which the
Borrower sends to its public stockholders or to the holders of any
public Subordinated Debt, and within thirty days after the same are
filed, copies of all financial statements and non-confidential reports
which the Borrower may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental
Authority;
(d) Other Information. Promptly, such additional financial and
other information as the Administrative Agent, on behalf of any Lender,
may from time to time reasonably request.
5.3 Payment of Obligations.
Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, in accordance with industry practice
(subject, where applicable, to specified grace periods) all its material
obligations of whatever nature and any additional costs that are imposed as a
result of any failure to so pay, discharge or otherwise satisfy such
obligations, except when the amount or validity of such obligations and costs is
currently being contested in good faith by appropriate proceedings and reserves,
if applicable, in conformity with GAAP with respect thereto have been provided
on the books of the Borrower or any Restricted Subsidiary, as the case may be.
5.4 Conduct of Business and Maintenance of Existence.
Preserve, renew and keep in full force and effect its company,
corporate or partnership existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business; comply with all Contractual Obligations and
Requirements of Law applicable to it except to the extent that failure to comply
therewith would not, in the aggregate, have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance.
Keep all material property useful and necessary in its business in
reasonably good working order and condition (ordinary wear and tear excepted);
maintain with financially sound and reputable insurance companies insurance on
all its material property in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to the Administrative
Agent, upon written request, full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its businesses and
activities; and permit, during regular business hours and upon reasonable notice
by the Administrative Agent or any Lender, the Administrative Agent at the
Borrower's expense or any Lender at such Lender's expense to visit and inspect
any
54
of its properties and examine and make abstracts from any of its books and
records (other than materials protected by the attorney-client privilege and
materials which the Borrower may not disclose without violation of a
confidentiality obligation binding upon it) at any reasonable time and as often
as may reasonably be desired, and to discuss the business, operations,
properties and financial and other condition of the Borrower and the Restricted
Subsidiaries with officers and employees of the Borrower and the Restricted
Subsidiaries and with their independent certified public accountants.
5.7 Notices.
Give notice to the Administrative Agent (which shall promptly transmit
such notice to each Lender) of:
(a) within five Business Days after the Borrower knows of the
occurrence of any material Default or Event of Default;
(b) promptly, any default or event of default under any
Contractual Obligation of the Borrower or any Restricted Subsidiary
which would reasonably be expected to have a Material Adverse Effect;
(c) promptly, any litigation, or any investigation or
proceeding known to the Borrower, affecting the Borrower or any
Restricted Subsidiary which, if adversely determined, would reasonably
be expected to have a Material Adverse Effect;
(d) as soon as possible and in any event within 30 days after
the Borrower knows: (i) the occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower, any Restricted
Subsidiary or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the terminating, Reorganization
or Insolvency of, any Plan, provided that in each case in clause (i)
and (ii) above, such event or condition could have a Material Adverse
Effect; and
(e) promptly, any other development or event which would
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Authorized Signatory setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
55
5.8 Environmental Laws.
(a) Comply in all material respects with, and take reasonable
actions to ensure compliance in all material respects by all tenants
and subtenants, if any, with, all applicable Environmental Laws and
obtain and comply in all material respects with and maintain, and take
reasonable actions to ensure that all tenants and subtenants obtain and
comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required
by applicable Environmental Laws except to the extent that failure to
do so would not reasonably be expected to have a Material Adverse
Effect;
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and the
failure to do or the pendency of such proceedings would not reasonably
be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective employees, agents, officers
and directors, from and against any and all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise,
arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable
to the operations of the Borrower, any Restricted Subsidiary or the
Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the
extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. The
agreements in this paragraph shall survive repayment of the Revolving
Notes and all other amounts payable hereunder.
5.9 Financial Covenants.
(a) Total Leverage Ratio. The Borrower will maintain, as of the end of
each fiscal quarter to occur during the periods shown, a Total Leverage Ratio of
not greater than:
Period Maximum Total Leverage Ratio
------ ----------------------------
Amendment Effective Date through December 31, 2001 5.0 to 1.0
January 1, 2002 and thereafter 4.5 to 1.0
56
(b) Senior Leverage Ratio. The Borrower will maintain, as of the end of
each fiscal quarter to occur during the periods shown, a Senior Leverage Ratio
of not greater than:
Amendment Effective Date through December 31, 2000 3.0 to 1.0
January 1, 2002 and thereafter 2.5 to 1.0
(c) Interest Coverage Ratio. The Borrower will maintain, as of the end
of each fiscal quarter, an Interest Coverage Ratio of at least 2.0 to 1.0.
(d) Fixed Charge Coverage Ratio. The Borrower will maintain, as of the
end of each fiscal quarter, a Fixed Charge Coverage Ratio of at least 1.05 to
1.0.
5.10 Covenants Regarding Patents, Trademarks and Copyrights.
(a) The Borrower shall notify the Administrative Agent promptly if it
knows or has reason to know that any application, letters patent or registration
relating to any Patent or Trademark which is material to the business of the
Borrower and the Restricted Subsidiaries taken as a whole may become abandoned,
or of any adverse determination or development (including, without limitation,
the institution of, or any such determination or development in, any proceeding
in the United States Patent and Trademark Office or any court) regarding the
Borrower's or such Restricted Subsidiary's ownership of any Patent or Trademark
which is material to the business of the Borrower and the Restricted
Subsidiaries taken as a whole, its right to patent or register the same, or to
enforce, keep and maintain the same.
(b) The Borrower shall notify the Administrative Agent promptly after
it knows or has reason to know of any adverse determination or development
(including, without limitation, the institution of, or any such determination or
development in, any proceeding in any court) regarding any Copyright which is
material to the business of the Borrower and the Restricted Subsidiaries taken
as a whole, whether (i) such Copyright may become invalid or unenforceable prior
to its expiration or termination, or (ii) the Borrower's or such Restricted
Subsidiary's ownership of such Copyright, its right to register the same or to
enforce, keep and maintain the same may become affected.
(c)(i) The Borrower shall promptly notify the Administrative Agent of
any filing by the Borrower or any Restricted Subsidiary, either itself or
through any agent, employee, licensee or designee (but in no event later than
the fifteenth day following such filing), of any application for the
registration of any Copyright, Trademark or Patent with the United States
Copyright Office or United States Patent and Trademark Office or any similar
office or agency in any other country or any political subdivision thereof.
57
(ii) Concurrently with the delivery of quarterly and annual financial
statements of the Borrower pursuant to Section 5.1 hereof, the Borrower shall
provide the Administrative Agent and its counsel a complete and correct list of
all Copyrights, Patents and Trademarks owned by the Borrower or any of the
Restricted Subsidiaries that have not been set forth as annexes of such
documents and instruments showing all filings and recordings for the protection
of the security interest of the Administration Agent therein pursuant to the
agreements of the United States Patent and Trademark Office or the United States
Copyright Office.
(iii) Upon request of the Administrative Agent, the Borrower shall
execute and deliver any and all agreements, instruments, documents, and papers
as the Administrative Agent may reasonably request to evidence the
Administrative Agent's security interest in the Copyrights, Patents, Trademarks
and the General Intangibles referred to in clauses (i) and (ii), including,
without limitation, the goodwill of the Borrower or such Restricted Subsidiary,
relating thereto or represented thereby (or such other Copyrights, Trademarks,
Patents or the General Intangibles relating thereto or represented thereby as
the Administrative Agent may reasonably request).
(d) The Borrower will take all necessary actions, including, without
limitation, in any proceeding before the United States Patent and Trademark
Office or the United States Copyright Office, to maintain each letters patent
for the Patents or registration of the Trademarks and Copyrights which are
material to the business of the Borrower and the Restricted Subsidiaries taken
as a whole, including, without limitation, payment of maintenance fees, filing
of applications for renewal, affidavits of use, affidavits of incontestability
and opposition, interference and cancellation proceedings.
(e) In the event that any Trademark, Copyright or Patent is infringed,
misappropriated or diluted by a third party, the Borrower shall notify the
Administrative Agent promptly after it learns thereof and shall, unless the
Borrower or the relevant Restricted Subsidiary, as the case may be, shall
reasonably determine that such Trademark, Copyright or Patent is not material to
the business of the Borrower and the Restricted Subsidiaries taken as a whole,
promptly xxx for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as the Borrower or such Restricted Subsidiary, as the case
may be, shall reasonably deem appropriate under the circumstances to protect
such Trademark , Copyright or Patent.
5.11 Lender Fee, Etc.
Pay to the Administrative Agent the annual Lender Fee and comply with
the other agreements provided for in the Commitment Letter.
5.12 Subsidiaries.
In the event the Borrower or any Guarantor shall acquire or otherwise
obtain any Subsidiary on or after the Closing Date, the Borrower shall promptly
notify the Administrative Agent of the existence of such Subsidiary, shall
provide the Administrative Agent with the
58
information required by Section 3.12 with respect thereto, shall cause the
ownership interests in such Subsidiary to be pledged to the Agent pursuant to a
pledge agreement in form and substance similar to the Pledge Agreement and shall
cause such Subsidiary to enter into and deliver to the Administrative Agent on
behalf of the Lenders (i) a guaranty agreement with respect to the obligations
of the Borrower under the Credit Documents, such guaranty agreement to be in
form and substance reasonably acceptable to the Administrative Agent, and (ii) a
security agreement in form and substance similar to the Security Agreement
pursuant to which the Subsidiary shall pledge, assign and transfer, and grant to
the Administrative Agent on behalf of the Lenders a first priority perfected
security interest in all of its tangible and intangible properties and (iii) a
pledge agreement pursuant to which such Subsidiary shall pledge all of the
Capital Stock of each of the Subsidiaries now or hereafter owned by such
Subsidiary. In connection therewith, the Borrower shall cause the Subsidiary to
deliver to the Administrative Agent on behalf of the Lenders certified
organizational documents, evidences of authority and opinion letters and to take
such other action in connection therewith, including without limitation the
filing of appropriate financing statements, as the Administrative Agent may
reasonably require.
5.13 Subsequently Acquired Real Property.
In the event the Borrower or any Guarantor shall acquire any interest
in real property on or after the Closing Date (other than the fee and leasehold
interests set forth on Schedule 3.17 and the fee interest of the Borrower in the
property located in Simi Valley referred to in Section 3.17), the Borrower or
such Guarantor, as the case may be, shall enter into and deliver to the
Administrative Agent on behalf of the Lenders a deed of trust or mortgage,
together with evidences of authority and opinion letters, in form and substance
reasonably acceptable to the Administrative Agent pursuant to which the Borrower
or such Guarantor grants a deed of trust or mortgage to the Administrative Agent
(or its trustee) on behalf of the Lenders in such real property interest free
and clear of all Liens other than Permitted Liens. In connection therewith, the
Borrower or such Guarantor shall deliver to the Administrative Agent such
surveys, environmental reports and title insurance policies and take such other
action in connection therewith, including without limitation the filing of
appropriate fixture filings, as shall be reasonably required by the
Administrative Agent.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that on the Closing Date, and
thereafter for so long as this Agreement is in effect and until the Revolving
Commitments have terminated, no Revolving Note remains outstanding and unpaid,
no Letter of Credit remains outstanding and the Revolving Loans, together with
interest, Commitment Fees, Letter of Credit Fees and all other amounts owing to
the Administrative Agent, the Issuing Lender or any Lender hereunder, are paid
in full.
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6.1 Indebtedness.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Agreement and
the other Credit Documents;
(b) Indebtedness existing as of the Amendment Effective Date
as referenced in the financial statements referenced in Section 3.1
(and set out more specifically in Schedule 6.1(b)) and renewals,
refinancings or extensions thereof in a principal amount not in excess
of that outstanding as of the date of such renewal, refinancing or
extension;
(c) unsecured intercompany Indebtedness among the Borrower and
the Restricted Subsidiaries; provided, however, the sum of (A) the
aggregate outstanding amount of such Indebtedness incurred by
Non-Guarantor Restricted Subsidiaries pursuant to Section 6.1(c) plus
(B) the aggregate amount of all sales, transfers, leases or other
dispositions of property or assets to Non-Guarantor Restricted
Subsidiaries pursuant to Section 6.5(a)(iii) plus (C) the aggregate
amount of equity investments made in Non-Guarantor Restricted
Subsidiaries pursuant to subsection (iii) of the definition of
"Permitted Investments" shall not exceed $5,000,000 at any time;
(d) Subordinated Debt;
(e) other unsecured Indebtedness of up to $10,000,000 at any
time outstanding incurred in connection with Permitted Acquisitions so
long as the Borrower demonstrates to the reasonable satisfaction of the
Administrative Agent that the Borrower will be in pro forma compliance
with all of the terms and provisions of this Agreement after incurring
any such Indebtedness; and
(f) other Indebtedness (including purchase money indebtedness)
which does not exceed $5,000,000 in the aggregate at any time
outstanding.
6.2 Liens.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of their respective property or assets of any kind (whether real or personal,
tangible or intangible), whether now owned or hereafter acquired, except for
Permitted Liens.
6.3 Guaranty Obligations.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
enter into or otherwise become or be liable in respect of any Guaranty
Obligations (excluding specifically therefrom endorsements in the ordinary
course of business of negotiable instruments for deposit
60
or collection) other than (i) those in favor of the Lenders in connection
herewith, (ii) Guaranty Obligations by the Borrower or any Restricted Subsidiary
of other Indebtedness permitted under Section 6.1 (except, as regards
Indebtedness under subsection (b) thereof, only if and to the extent such
Indebtedness was guaranteed on the Closing Date) and (iii) other Guaranty
Obligations which do not exceed $5,000,000 at any time outstanding.
6.4 Lines of Business.
The Borrower will not, nor will it permit any of the Restricted
Subsidiaries to, alter its line or lines of business activity if as a result
thereof the Borrower and the Restricted Subsidiaries would not be predominantly
engaged in the business of publishing through print and electronic media trade
and business magazines, operating or providing services to trade and business
expositions and conferences and providing marketing and information services and
similar or related businesses.
6.5 Consolidation, Merger, Sale or Purchase of Assets, etc.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, sell,
transfer, lease or otherwise dispose of all or any substantial part of
its property or assets outside of the ordinary course of business or
agree to do so at a future time except the following, without
duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition
of property or assets not in the ordinary course of business (other
than Specified Sales), where and to the extent that they are the result
of a Recovery Event or otherwise and the net proceeds therefrom are
used to repair or replace damaged property or to purchase or otherwise
acquire new assets or property;
(iii) the sale, transfer, lease or other disposition
of property or assets to the Borrower or any Restricted Subsidiary;
provided, however, the sum of (A) the aggregate amount of such sales,
transfers, leases or other dispositions to Non-Guarantor Restricted
Subsidiaries plus (B) the aggregate outstanding amount of Indebtedness
incurred by Non-Guarantor Restricted Subsidiaries pursuant to Section
6.1(c) plus (C) the aggregate amount of equity investments made in
Non-Guarantor Restricted Subsidiaries pursuant to subsection (iii) of
the definition of "Permitted Investments" shall not exceed $5,000,000
at any time; and
(iv) sales of Unrestricted Margin Stock for fair
market value in cash (provided that notwithstanding anything contained
herein to the contrary, the proceeds of such sales may only be invested
in cash and Cash Equivalents).
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Provided no Default or Event of Default then exists, the Administrative
Agent shall, without obtaining the consent of any Lender, release its
lien on any collateral sold or otherwise transferred in accordance with
this Section upon the consummation of such sale or transfer and upon
the performance by the Borrower of all of its obligations hereunder on
account of such sale or transfer.
As used herein, "substantial part" shall mean business, property or
assets which have contributed
(i) 10% or more, in any instance, or
(ii) 15% or more, when aggregated with all other such
sales or dispositions which have occurred within a
period of one year,
of Consolidated Adjusted EBITDA for the four (4) consecutive fiscal
quarters most recently ending prior to the date thereof; or
(b) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) all or any substantial
part of the property or assets of any Person (other than purchases or
other acquisitions of inventory, leases, materials, property and
equipment in the ordinary course of business, except as otherwise
limited or prohibited herein), or enter into any merger or
consolidation, except for (i) investments or acquisitions permitted
pursuant to Section 6.6, (ii) acquisitions of types of businesses
permitted to be engaged in by the Borrower and the Restricted
Subsidiaries pursuant to Section 6.4 (the "Permitted Acquisitions") so
long as with respect to the acquisition of each such business, (A) no
Default or Event of Default then exists or would exist after giving
effect thereto and (B) the Borrower demonstrates to the reasonable
satisfaction of the Administrative Agent that the Borrower will be in
pro forma compliance with all of the terms and provisions of this
Agreement after giving effect thereto, (iii) the merger or
consolidation of the Borrower or a Restricted Subsidiary into the
Borrower or a Guarantor, or a sale, transfer or lease of all or a
substantial part of the properties of the Borrower or any Restricted
Subsidiary (at fair value) to, the Borrower or any Guarantor and (iv)
the merger of any Person into the Borrower or any Guarantor, provided
that the Borrower or any Guarantor shall be the surviving entity, and
in any such case no Default or Event of Default would exist after
giving effect thereto.
6.6 Advances, Investments and Loans.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
lend money or extend credit or make advances to any Person, or purchase or
acquire any stock, obligations or securities of, or any other interest in, or
make any capital contribution to, any Person except for Permitted Investments.
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6.7 Transactions with Affiliates.
Except (i) as permitted in subsection (iv) of the definition of
Permitted Investments, and (ii) for the payments and issuances permitted by
Section 6.8 or 6.12, the Borrower will not, nor will it permit any Restricted
Subsidiary to, enter into any transaction or series of transactions, whether or
not in the ordinary course of business, with any officer, director, shareholder
or Affiliate other than on terms and conditions substantially as favorable as
would be obtainable in a comparable arm's-length transaction with a Person other
than an officer, director, shareholder or Affiliate.
6.8 Ownership of Subsidiaries.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
create, form or acquire a Subsidiary other than any Subsidiary acquired or
formed to acquire assets in connection with any Permitted Acquisition, provided
such Subsidiary guarantees all of the obligations of the Borrower hereunder and
pledges substantially all of its assets to secure such guarantee by way of
execution of a Joinder Agreement in the form attached hereto as Schedule 6.8,
and has its stock or other equity interests pledged to the Administrative Agent,
all on terms reasonably satisfactory to the Administrative Agent. Further, the
Borrower will not, nor will it permit any of the Restricted Subsidiaries to,
issue, sell, transfer, pledge or otherwise dispose of any partnership interests,
limited liability company interest, shares of capital stock or other equity or
ownership interests ("Equity Interests") in themselves or in any of their
Subsidiaries, except (i) Equity Interests that are issued, sold or transferred
to the Borrower or a wholly-owned Subsidiary of the Borrower and (ii) in
connection with a transaction permitted under Section 6.5.
6.9 Fiscal Year.
The Borrower will not, nor will it permit any Restricted Subsidiary to,
change its fiscal year.
6.10 [intentionally left blank].
6.11 Prepayments of Indebtedness, etc.
Neither the Borrower nor any of the Restricted Subsidiaries will (i)
after the issuance thereof, amend or modify (or permit the amendment or
modification of), if reasonably and materially adverse to the interests of the
Lenders (including, without limitation, any acceleration or shortening of
amortization of principal thereof, or modification of the terms of subordination
relating thereto), any of the terms of any Total Funded Debt (other than any
Indebtedness permitted by Section 6.1(e) or (f) or any Indebtedness hereunder),
(ii) make (or give any notice with respect thereto) any voluntary or optional
payment or prepayment or redemption or acquisition for value of (including
without limitation, by way of depositing money or securities with the trustee
with respect thereto before due for the purpose of paying when due) or exchange
of any Total Funded Debt (other than any Indebtedness permitted by Section
6.1(e) or (f), any Indebtedness hereunder, any prepayment of Subordinated Debt
with Net Sales Proceeds remaining after the Borrower has made all required
prepayments hereunder or any refinancing of any issue of Subordinated Debt with
any subsequent issue of Subordinated Debt and other than
63
the redemption or repurchase of up to $10,000,000 of the Subordinated Debt) or
(iii) make any regularly scheduled payment of Subordinated Debt in violation of
the subordination provisions contained in the Subordinated Debt Documents.
6.12 Restricted Payments.
The Borrower will not, nor will it permit any of the Restricted
Subsidiaries to, make any Restricted Payment; provided, however, Holdings LLC or
any Subsidiary of the Borrower may make Restricted Payments to the Borrower and
any Subsidiary of Holdings LLC may make Restricted Payments to Holdings LLC;
provided further, that notwithstanding any other restriction in this Section
6.12, (i) the Borrower may pay an annual monitoring fee of $90,000.00 to
Veronis, Suhler & Associates Inc. or its Affiliates so long as no Event of
Default shall then exist, (ii) the Borrower may reimburse Veronis, Suhler &
Associates Inc. or its Affiliates, for out-of-pocket expenses incurred by
Veronis, Suhler & Associates Inc. or its Affiliates in connection with its
monitoring of the Borrower so long as no Event of Default shall then exist,
(iii) the Borrower may pay reasonable and customary investment banking fees to
Veronis, Suhler & Associates, Inc. in connection with investment banking
services rendered to the Borrower in connection with any sale or Permitted
Acquisition or proposed sale or Permitted Acquisition which does not close and
(iv) so long as no Event of Default under Section 7(a) shall then exist,
Holdings LLC may distribute from time to time such amounts to enable each direct
or indirect member of Holdings LLC to pay any Federal, state or local income tax
liability (based upon the maximum applicable tax rates) attributable to the
inclusion in such member's individual income of his or its distributive share of
the income and gain of Holdings LLC (irrespective of any losses any such member
may otherwise have). The Borrower shall be permitted to pay to Fir Tree all or
any portion of the amounts otherwise payable to Veronis, Suhler & Associates
Inc. in accordance with subsections (i), (ii) and (iii) above. The compliance
certificate provided pursuant to Section 5.2(b) will include a detailed
computation of the portion of Restricted Payments relating to income taxes and a
summary of the Restricted Payments made in the applicable period.
6.13 Organizational Documents; Subordinated Debt Documents;
LLC Preferred Stock.
The Borrower will not, nor will it permit any of the Restricted
Subsidiaries to, amend or otherwise modify their articles of limited
partnership, limited liability limited partnership, incorporation, limited
liability company or other similar organizational or charter document, or their
limited partnership agreement, limited liability limited partnership agreement,
limited liability company agreement, bylaws, operating agreement or other
similar governing document or any of the Subordinated Debt Documents or the LLC
Preferred Stock in a manner which is adverse to the interest of the Lenders,
without the prior written consent of the Administrative Agent and the Majority
Lenders, which consent will not be unreasonably withheld.
6.14 [intentionally omitted].
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6.15 Unrestricted Subsidiaries.
The Borrower shall not permit any Unrestricted Subsidiary to acquire
any additional assets or to undertake any additional business activities
(including the incurring of any Indebtedness).
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) (i) The Borrower shall fail to pay any principal on any
Revolving Note when due in accordance with the terms thereof or hereof;
(ii) the Borrower shall fail to reimburse the Issuing Lender for any
LOC Obligations when due in accordance with the terms hereof or (iii)
the Borrower shall fail to pay any interest on any Revolving Note or
LOC Obligation or any fee or other amount payable hereunder when due in
accordance with the terms thereof or hereof and such failure shall
continue unremedied for three (3) days; or
(b) Any representation or warranty made or deemed made by the
Borrower or any Guarantor herein, in the Security Agreement or in any
of the other Credit Documents or which is contained in any certificate,
document or financial or other statement furnished at any time under or
in connection with this Agreement shall prove to have been incorrect,
false or misleading in any material respect on or as of the date made
or deemed made; or
(c) The Borrower or other Credit Party shall
(i) default in the due
performance or observance of subsections 5.7(a) or
(b) or Section 5.9, or
(ii) default in any
material respect in the observance or performance of
any other term, covenant or agreement contained in
this Agreement (other than as described in
subsections 7(a) or 7(c)(i) above) or any of the
other Credit Documents, and such default shall
continue unremedied for a period of 30 days or more
after the earlier of any executive officer of the
Borrower becoming aware of such default or the
receipt by the Borrower or such Credit Party of
written notice from the Administrative Agent thereof;
or
(d) The Borrower or any of the Restricted Subsidiaries shall
(i) default in any payment of principal of or interest on any
Indebtedness (other than the Revolving Notes and the LOC Obligations)
in a principal amount outstanding of at least $1,000,000 in the
aggregate for the Borrower and the Restricted Subsidiaries or in the
payment of any matured Guarantee Obligation in a principal amount
outstanding of at least $1,000,000 in the aggregate for the Borrower
and the Restricted Subsidiaries beyond the period of grace (not to
exceed 30 days), if any, provided in the instrument or agreement under
which
65
such Indebtedness or Guarantee Obligation was created; or (ii) default
in the observance or performance of any other agreement or condition
relating to any such Indebtedness in a principal amount outstanding of
at least $1,000,000 in the aggregate for the Borrower and the
Restricted Subsidiaries or Guarantee Obligation in a principal amount
outstanding of at least $1,000,000 in the aggregate for the Borrower
and the Restricted Subsidiaries or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; or
(e) (i) The Borrower or any of the Restricted Subsidiaries
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of the
Restricted Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower
or any of the Restricted Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against the
Borrower or any of the Restricted Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Borrower or
any of the Restricted Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any
of the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower or any of the Restricted Subsidiaries shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(f) One or more judgments or decrees shall be entered against
the Borrower or any of the Restricted Subsidiaries involving in the
aggregate a liability (to the extent not paid when due or covered by
insurance) of $1,000,000 or more and all such judgments or decrees
shall not have been paid and satisfied, vacated, discharged, stayed or
bonded pending appeal within 45 days from the entry thereof; or
(g) (i) The Borrower, any Restricted Subsidiary or any
Commonly Controlled Entity shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA
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or Section 4975 of the Code) involving any Plan, other than a
transaction for which a statutory exemption is available or an
administrative exemption has been obtained, (ii) any "accumulated
funding deficiency" (as defined in Section 302 of ERISA), whether or
not waived, shall exist with respect to any Single-Employer Plan or any
Lien in favor of the PBGC or a Single-Employer Plan shall arise on the
assets of the Borrower, any Restricted Subsidiary or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a Trustee is, in the reasonable opinion of the Majority
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, or (v) the Borrower, any Restricted
Subsidiary or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Majority Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, any Multiemployer Plan; and in each case in clauses
(i) through (v) above, such event or condition, together with all other
such events or conditions, if any, could have a Material Adverse
Effect; or
(h) (i) VS&A Communications Partners II, L.P., a Delaware
limited partnership, together with its Affiliates shall fail at any
time to own at least 51% of the voting interests in VS&A-T/SF, (ii)
VS&A-T/SF together with its Affiliates, shall fail at any time to own
at least 51% of the voting interests of the Borrower and at least 51%
of the common interests of Holdings LLC, (iii) the Borrower shall fail
to own the LLC Preferred Stock, (iv) the Borrower shall at any time
fail to own 100% of the capital stock of each of its Subsidiaries which
are Guarantors (with the exception that 5.052% of the capital stock of
TISI Holdings, Inc. may be owned by certain of the former stockholders
of TISI Holdings, Inc., United States Mutual Association, Inc.,
formerly USMA Holdings, Inc., Business Mutual Association of Mass.,
Inc., Stores Protective Association, Inc., Employers Screening Service,
Inc. and Stores Mutual Association of Illinois, Inc.), (v) the Borrower
shall at any time fail to own at least 51% of the voting interests in
each Non-Guarantor Restricted Subsidiary, (vi) Holdings LLC shall at
any time fail to own 100% of the capital stock or voting interests of
each of its Subsidiaries, with the exception that that (A)
approximately 7% of the membership interests in Galaxy Information
Services, LLC, may be owned, in the aggregate, by two individual
members, (B) 49% of the membership interests in Vegas People, LLC may
be owned by Publishers Advisers International, Inc., and (C) 10% of the
membership in GEM Communications, LLC may be owned by Casino Journal
Publishing Group, Inc. or (vii) the occurrence of a Change of Control
under any of the Subordinated Debt Documents; or
(i) Any other Credit Document shall fail to be in full force
and effect or to give the Administrative Agent and/or the Lenders the
security interests, liens, rights, powers and privileges purported to
be created thereby and such failure shall have a material adverse
effect on the rights and remedies of the Administrative Agent or the
Lenders thereunder (except to the extent any such failure is caused by
the Administrative Agent and except as such documents may be terminated
or no longer in force and effect
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in accordance with the terms thereof, other than those indemnities and
provisions which by their terms shall survive);
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (e) above, automatically the Revolving Commitments and LOC
Commitments shall immediately terminate and the Revolving Loans (with accrued
interest thereon), and all other amounts under the Credit Documents (including,
without limitation the maximum amount of all contingent liabilities under
Letters of Credit) shall immediately become due and payable, and the Borrower
shall immediately pay to the Administrative Agent cash collateral as security
for the LOC Obligations for subsequent drawings under then outstanding Letters
of Credit in an amount equal to the maximum amount which may be drawn under
Letters of Credit then outstanding and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
written consent of the Majority Lenders, the Administrative Agent may, or upon
the written request of the Majority Lenders, the Administrative Agent shall, by
notice to the Borrower declare the Revolving Commitments to be terminated
forthwith, whereupon the Revolving Commitments and the LOC Commitment shall
immediately terminate; and (ii) with the written consent of the Majority
Lenders, the Administrative Agent may, or upon the written request of the
Majority Lenders, the Administrative Agent shall, by notice of default to the
Borrower, declare the Revolving Loans (with accrued interest thereon) and all
other amounts owing under this Agreement and the Revolving Notes to be due and
payable forthwith, and direct the Borrower to pay to the Administrative Agent
cash collateral as security for the LOC Obligations for subsequent drawings
under then outstanding Letters of Credit in an amount equal to the maximum
amount of which may be drawn under Letters of Credit then outstanding, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section 7, presentment, demand, protest and all other notices of
any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment.
Each Lender hereby irrevocably designates and appoints First Union
National Bank as the Administrative Agent of such Lender under this Agreement,
and each such Lender irrevocably authorizes First Union National Bank, as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein and in the other
Credit Documents, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent.
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8.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement by or through agents or attorneys-in-fact and shall be entitled to
rely on advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care. Without
limiting the foregoing, the Administrative Agent may appoint an Affiliate as its
agent to perform the functions of the Administrative Agent hereunder relating to
the advancing of funds to the Borrower and distribution of funds to the Lenders
and to perform such other related functions of the Administrative Agent
hereunder as are reasonably incidental to such functions. No such appointment
shall relieve the Administrative Agent of its responsibilities hereunder.
8.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in this Agreement or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any of the Credit Documents or for any failure of the Borrower
to perform its obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance by the Borrower of any of the agreements contained
in, or conditions of, this Agreement, or to inspect the properties, books or
records of the Borrower.
8.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Revolving Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation reasonably
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Revolving Note as the
owner thereof for all purposes unless (a) a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent and (b) the Administrative Agent shall have received the written agreement
of such assignee to be bound hereby as fully and to the same extent as if such
assignee were an original Lender party hereto, in each case in form satisfactory
to the Administrative Agent. The Administrative Agent shall be fully justified
in failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and
69
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under any of the Credit Documents in
accordance with a request of the Majority Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Revolving Notes.
8.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to each of the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be directed by the
Majority Lenders, including, without limitation, exercise of remedies and
initiation of litigation; provided, however, that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representation or warranty to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Revolving Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
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8.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity
hereunder (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Revolving Commitment Percentages in effect on the date on which indemnification
is sought under this subsection, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Revolving Notes) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of any Credit
Document or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting from
the Administrative Agent's gross negligence or willful misconduct. The
agreements in this subsection shall survive the termination of this Agreement
and payment of the Revolving Notes and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent were not the Administrative Agent hereunder.
With respect to its Revolving Loans made or renewed by it and any Revolving Note
issued to it, the Administrative Agent shall have the same rights and powers
under this Agreement as any Lender and may exercise the same as though it were
not the Administrative Agent, and the terms "Lender" and "Lenders" shall include
the Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent.
The Administrative Agent may resign or be removed as Administrative
Agent upon 30 days' prior notice to the Borrower and the Lenders. The
Administrative Agent may be removed by the written consent of the Majority
Lenders. If the Administrative Agent shall resign or be removed as
Administrative Agent under this Agreement and the Revolving Notes, then the
Majority Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent shall be approved by the Borrower, or if the
Majority Lenders cannot agree on a successor within 30 days from the notice of
resignation by the Administrative Agent, the Administrative Agent may appoint a
bank or trust company with capital and surplus of at least $500,000,000 as
successor Administrative Agent within 30 days thereafter, whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the
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Notes. After any retiring Administrative Agent's resignation or renewal as
Administrative Agent, the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. Resignation by the Administrative
Agent shall become effective upon appointment of, and acceptance by, a successor
Administrative Agent, or the passage of the applicable periods without
appointment of a successor.
SECTION 9. MISCELLANEOUS
9.1 Amendments, Waivers and Release of Collateral.
Neither this Agreement, nor any of the Revolving Notes, nor any of the
other Credit Documents, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection nor may Collateral be released except as specifically provided
herein or in the Security Agreement or in accordance with the provisions of this
subsection. The Majority Lenders affected thereby may, or, with the written
consent of the Majority Lenders affected thereby, the Administrative Agent may,
from time to time, (a) enter into with the Borrower written amendments,
supplements or modifications hereto and to the other Credit Documents for the
purpose of adding any provisions to this Agreement or the other Credit Documents
or (b) waive, on such terms and conditions as the Majority Lenders may specify
in such instrument, any of the requirements of this Agreement or the other
Credit Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, waiver,
supplement, modification or release shall (i) reduce the amount or extend the
scheduled final date of maturity of any Revolving Loan, LOC Obligation or
Revolving Note or any installment thereon, or reduce the stated rate of any
interest or fee payable hereunder (other than interest at the increased
post-default rate) or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's Revolving
Commitment, in each case without the written consent of each Lender directly
affected thereby, or (ii) amend, modify or waive any provision of this
subsection or reduce the percentage specified in the definition of Majority
Lenders, or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement, in each case without the written
consent of all the Lenders, or (iii) amend, modify or waive any provision of
Section 8 without the written consent of the then Administrative Agent, (iv)
release all or substantially all of the collateral without the written consent
of all of the Lenders except to the extent such releases are provided for in
this Agreement or the other Credit Documents, or (v) release all or
substantially all of the Guarantors from their obligations under the Guaranty
without the written consent of all of the Lenders, except to the extent that
such releases are provided for in this Agreement or the other Credit Documents;
provided further, that no such amendment, waiver, supplement, modification or
release affecting the rights or duties of the Issuing Lender under any Credit
Document shall in any event be effective unless in writing and signed by the
Issuing Lender, in addition to the Lenders required hereinabove to take such
action. Any such waiver, any such amendment, supplement or modification and any
such release shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Administrative Agent, the Issuing Lender and
all future holders of the Revolving Notes. In
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the case of any waiver, the Borrower, the Lenders, the Issuing Lender and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the outstanding Loans and Revolving Notes and other Credit
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
9.2 Notices.
Except as otherwise provided in Section 2, all notices, requests and
demands to or upon the respective parties hereto to be effective shall be in
writing (including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made (i) when delivered by
hand, (ii) when transmitted via telecopy (or other facsimile device) on a
Business Day between the hours of 10:00 A.M. and 7:00 P.M. (EST or EDT, as
appropriate) (or on the following Business Day if sent after 7:00 P.M.) to the
number set out herein, (iii) the day following the day on which the same has
been delivered prepaid to a reputable national overnight air courier service, or
(iv) the third Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in each case, addressed as
follows in the case of the Borrower and the Administrative Agent, and as set
forth on Schedule 9.2 in the case of the Lenders, or to such other address as
may be hereafter notified by the respective parties hereto and any future
holders of the Notes:
To the Borrower:
The Official Information Company
000 Xxxx 00xx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
Tel: 000-000-0000
To the Administrative Agent:
First Union National Bank
000 X. Xxxxxxx Xx., 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Agency Services
Fax: 000-000-0000
Tel: 000-000-0000
with a copy to:
First Union Securities, Inc.
000 X. Xxxxxxx Xx., XX-0
Xxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxx
Fax: 000-000-0000
Tel: 000-000-0000
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9.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Revolving
Notes and the making of the Revolving Loans, provided that all such
representations and warranties shall terminate on the date upon which the
Revolving Commitments have been terminated and all amounts owing hereunder and
under any Revolving Notes have been paid in full.
9.5 Payment of Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the Administrative Agent
for all its reasonable out-of-pocket costs and expenses incurred in connection
with the preparation and execution of, and any amendment, supplement or
modification to, the Credit Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, together with the reasonable fees
and disbursements of counsel to the Administrative Agent, (b) to pay or
reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Revolving Notes and any such other documents,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent and to the Lenders (including reasonable allocated
costs of in-house legal counsel), and (c) on demand, to pay, indemnify, and hold
each Lender and the Administrative Agent harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, the Credit Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent and their Affiliates harmless from and against, any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of the Credit Documents and any such other Documents and the use, or proposed
use, of proceeds of the Loans (all the foregoing, collectively, the "indemnified
liabilities"); provided, however, that the Borrower shall not have any
obligation hereunder to the Administrative Agent or any Lender
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with respect to indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the Administrative Agent or any such Lender, (ii) legal
proceedings commenced against the Administrative Agent or any such Lender by any
security holder or creditor thereof arising out of and based upon rights
afforded such security holder or creditor solely in its capacity as such, (iii)
legal proceedings commenced against the Administrative Agent or any Lender by
any other Lender or the Administrative Agent or its participants or (iv) a
breach of any of the Credit Documents by the Lenders. The agreements in this
subsection shall survive repayment of the Revolving Loans, Revolving Notes and
all other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, all
future holders of the Revolving Notes and their respective successors
and assigns, except that the Borrower may not assign or transfer any of
its rights or obligations under this Agreement or the other Credit
Documents without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants")
participating interests in any Revolving Loan owing to such Lender, any
Revolving Note held by such Lender, any Revolving Commitment or LOC
Commitment of such Lender, or any other interest of such Lender
hereunder. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such
Revolving Note for all purposes under this Agreement, and the Borrower
and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement. No Lender shall transfer or grant any
participation under which the Participant shall have rights to approve
any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend
the final maturity of any Revolving Loan or Revolving Note in which
such Participant is participating, or reduce the stated rate or extend
the time of payment of interest or Fees thereon (except in connection
with a waiver of interest at the increased post-default rate) or reduce
the principal amount thereof, or increase the amount of the
Participant's participation over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default shall
not constitute a change in the terms of such participation, and that an
increase in any Revolving Commitment, LOC Commitment, Revolving Loan or
Letter of Credit shall be permitted without consent of any Participant
if the Participant's participation is not increased as a result
thereof), (ii) except as otherwise expressly provided in a Credit
Document, release all or substantially all of the collateral, or (iii)
consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement. In the case of any such
participation, the Participant shall not have any rights under this
Agreement or any of the other Credit Documents (the Participant's
rights against such Lender in respect of
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such participation to be those set forth in the agreement executed by
such Lender in favor of the Participant relating thereto) and all
amounts payable by the Borrower hereunder shall be determined as if
such Lender had not sold such participation, provided that each
Participant shall be entitled to the benefits of subsections 2.13,
2.14, 2.15 and 9.5 with respect to its participation in the Revolving
Commitments and the Revolving Loans outstanding from time to time;
provided, that no Participant shall be entitled to receive any greater
amount pursuant to such subsections than the transferor Lender would
have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time
sell or assign to any Lender or any affiliate thereof with the consent
of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower (in each case, which consent
shall not be unreasonably withheld), to one or more additional banks or
financial institutions ("Purchasing Lenders"), all or any part of its
rights and obligations under this Agreement and the Revolving Notes in
minimum amounts of $5,000,000 (or, if less, the entire amount of such
Lender's obligations) if the Purchasing Lender is not a Lender
hereunder, or with no minimum amount if the Purchasing Lender is a
Lender hereunder, pursuant to a Commitment Transfer Supplement,
executed by such Purchasing Lender, such transferor Lender (and, in the
case of a Purchasing Lender that is not then a Lender or an affiliate
thereof so long as no Event of Default has occurred and is continuing,
by the Borrower and the Administrative Agent), and delivered to the
Administrative Agent for its acceptance and recording in the Register.
Each such assignment must be of a constant, not varying, percentage of
all of such Lender's rights and obligations hereunder. Upon such
execution, delivery, acceptance and recording, from and after the
Transfer Effective Date specified in such Commitment Transfer
Supplement, (x) the Purchasing Lender thereunder shall be a party
hereto and, to the extent provided in such Commitment Transfer
Supplement, have the rights and obligations of a Lender hereunder with
a Revolving Commitment or LOC Commitment as set forth therein, and (y)
the transferor Lender thereunder shall, to the extent provided in such
Commitment Transfer Supplement, be released from its obligations under
this Agreement (and, in the case of a Commitment Transfer Supplement
covering all or the remaining portion of a transferor Lender's rights
and obligations under this Agreement, such transferor Lender shall
cease to be a party hereto). Such Commitment Transfer Supplement shall
be deemed to amend this Agreement to the extent, and only to the
extent, necessary to reflect the addition of such Purchasing Lender and
the resulting adjustment of Revolving Commitment Percentages arising
from the purchase by such Purchasing Lender of all or a portion of the
rights and obligations of such transferor Lender under this Agreement
and the Revolving Notes. On or prior to the Transfer Effective Date
specified in such Commitment Transfer Supplement, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in
exchange for the Revolving Note delivered to the Administrative Agent
pursuant to such Commitment Transfer Supplement a new Revolving Note to
the order of such Purchasing Lender in an amount equal to the Revolving
Commitment assumed by it pursuant to such Commitment Transfer
76
Supplement and, unless the transferor Lender has not retained a
Revolving Commitment hereunder, a new Revolving Note to the order of
the transferor Lender in an amount equal to the Revolving Commitment
retained by it hereunder. Such new Revolving Note shall be dated the
Closing Date and shall otherwise be in the form of the Revolving Note
replaced thereby. The Revolving Note surrendered by the transferor
Lender shall be returned by the Administrative Agent to the Borrower
marked "canceled".
(d) The Administrative Agent shall maintain at its address
referred to in subsection 9.2 a copy of each Commitment Transfer
Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Revolving
Commitment of, and principal amount of the Revolving Loans owing to,
each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name
is recorded in the Register as the owner of the Revolving Loan recorded
therein for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement
executed by a transferor Lender and a Purchasing Lender (and, in the
case of a Purchasing Lender that is not then a Lender or an affiliate
thereof, by the Borrower and the Administrative Agent) together with
payment to the Administrative Agent (by the transferor Lender or the
Purchasing Lender, as agreed between them) of a registration and
processing fee of $3,500 for each Purchasing Lender listed in such
Commitment Transfer Supplement, and the Revolving Notes subject to such
Commitment Transfer Supplement, the Administrative Agent shall (i)
accept such Commitment Transfer Supplement, (ii) record the information
contained therein in the Register and (iii) give prompt notice of such
acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and any
prospective Transferee any and all financial information in such
Lender's possession concerning the Borrower and its Affiliates which
has been delivered to such Lender by or on behalf of the Borrower
pursuant to this Agreement or which has been delivered to such Lender
by or on behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Affiliates prior to becoming a party
to this Agreement; in each case subject to subsection 9.14.
(g) At the time of each assignment pursuant to this subsection
9.6 to a Person which is not already a Lender hereunder and which is
not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Lender shall provide to the Borrower and the
Administrative Agent the appropriate Internal Revenue Service Forms
(and, if applicable, a 2.15 Certificate) described in subsection 2.15.
77
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any of its rights under this Agreement (including, without
limitation, any right to payment of principal and interest under any
Revolving Note) to any Federal Reserve Agent in accordance with
applicable laws.
9.7 Adjustments; Set-off.
(a) Each Lender agrees that if any Lender (a "benefited
Lender") shall at any time receive any payment of all or part of its
Revolving Loans, or interest thereon, or receive any collateral in
respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in clause
(e) of Section 7, or otherwise) in a greater proportion than any such
payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Revolving Loans, or interest thereon,
such benefited Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's
Revolving Loan, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary
to cause such benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. The
Borrower agrees that each Lender so purchasing a portion of another
Lender's Loans may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as
if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law (including, without limitation, other rights of
set-off), each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the
extent permitted by applicable law, upon the occurrence of any Event of
Default, to setoff and appropriate and apply any and all deposits
(general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such
Lender or any branch or agency thereof to or for the credit or the
account of the Borrower, or any part thereof in such amounts as such
Lender may elect, against and on account of the obligations and
liabilities of the Borrower to such Lender hereunder and claims of
every nature and description of such Lender against the Borrower, in
any currency, whether arising hereunder, under the Revolving Notes or
under any documents contemplated by or referred to herein or therein,
as such Lender may elect, whether or not such Lender has made any
demand for payment and although such obligations, liabilities and
claims may be contingent or unmatured. The aforesaid right of set-off
may be exercised by such Lender against the Borrower or against any
trustee in bankruptcy, debtor in possession, assignee for the benefit
of creditors, receiver or execution, judgment or attachment creditor of
the Borrower, or against anyone else claiming through or against the
Borrower or any such trustee in bankruptcy, debtor in possession,
assignee for the benefit of
78
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the occurrence of any Event of
Default. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by
such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application.
9.8 Table of Contents and Section Headings.
The table of contents and the Section and subsection headings herein
are intended for convenience only and shall be ignored in construing this
Agreement.
9.9 Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged with
the Borrower and the Administrative Agent.
9.10 Severability.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.11 Integration.
This Agreement and the Revolving Notes represent the agreement of the
Borrower, the Administrative Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Administrative Agent, the Borrower or any Lender relative to
the subject matter hereof not expressly set forth or referred to herein or in
the Notes.
9.12 Governing Law; Waivers of Jury Trial.
(a) This Agreement and the Notes and the rights and
obligations of the parties under this Agreement and the Revolving Notes
shall be governed by, and construed and interpreted in accordance with,
the law of the State of North Carolina.
(b) THE BORROWER, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
TRIAL BY JURY IN ANY LEGAL ACTION
79
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
9.13 Arbitration; Consent to Jurisdiction and Service of Process.
(a) Upon demand of any party hereto, whether made before or
after institution of any judicial action, any dispute, claim or
controversy arising out of or connected herewith or with the Credit
Documents ("Disputes") shall be resolved by binding arbitration as
provided herein. Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions and claims arising
herefrom or from Credit Documents executed in the future. Arbitration
shall be conducted under the Commercial Financial Disputes Arbitration
Rules (the "Arbitration Rules") of the American Arbitration Association
and Title 9 of the U.S. Code. All arbitration hearings shall be
conducted in Charlotte, Mecklenburg County, North Carolina, or such
other place as agreed to in writing by the parties. A judgment upon the
award may be entered in any court having jurisdiction, and all
decisions shall be in writing. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys having at least ten
years' experience representing parties in secured lending transactions.
Notwithstanding the foregoing, this arbitration provision does not
apply to disputes under or related to Interest Protection Agreements.
(b) Notwithstanding the preceding binding arbitration
provision, the Administrative Agent, on behalf of the Lenders,
preserves certain remedies that may be exercised during a Dispute. The
Administrative Agent, on behalf of the Lenders, shall have the right to
proceed in any court of proper jurisdiction or by self help to exercise
or prosecute the following remedies, as applicable: (i) all rights to
foreclose against any real or personal property or other security by
exercising a power of sale granted in the Credit Documents or under
applicable law, (ii) all rights of self help including peaceful
occupation of real property and collection of rents, set-off and
peaceful possession of personal property, (iii) obtaining provisional
or ancillary remedies including injunctive relief, sequestration,
garnishment, attachment and appointment of receiver, (iv) when
applicable, a judgment by confession of judgment and (v) other
remedies. Preservation of these remedies does not limit the power of an
arbitrator to grant similar remedies that may be requested by a party
in a Dispute.
(c) By execution and delivery of this Agreement, each of the
parties hereto accepts, for itself and in connection with its
properties, generally and unconditionally, the non-exclusive
jurisdiction relating to any arbitration proceedings conducted under
the Arbitration Rules in Charlotte, Mecklenburg County, North Carolina
and irrevocably agrees to be bound by any final judgment rendered
thereby in connection with this Agreement from which no appeal has been
taken or is available. Each of the parties hereto irrevocably agrees
that all process in any such arbitration proceedings or otherwise may
be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to it at
its address set forth herein) or at such other address of which such
party shall have been notified pursuant thereto, such
80
service being hereby acknowledged by each party hereto to be effective
and binding service in every respect. Each party hereto irrevocably
waives any objection, including, without limitation, any objection to
the laying of venue or based on the grounds of forum non conveniens
which it may now or hereafter have to the bringing of any such action
or proceeding in any such jurisdiction. Nothing herein shall affect the
right to serve process in any other manner permitted by law.
9.14 Confidentiality.
The Administrative Agent and each of the Lenders agrees that it will
use reasonable and customary efforts not to disclose without the prior consent
of the Borrower (other than to its employees, Subsidiaries, Affiliates, auditors
or counsel or to another Lender) any information with respect to the Borrower
and its Subsidiaries which is furnished pursuant to this Agreement, any other
Credit Document or any documents contemplated by or referred to herein or
therein and which is designated by the Borrower to the Lenders in writing as
confidential or as to which it is otherwise reasonably clear such information is
not public, except that any Lender may disclose any such information (a) as has
become generally available to the public other than by a breach of this
subsection 9.14, (b) as may be required or appropriate in any report, statement
or testimony submitted to any municipal, state or federal regulatory body having
or claiming to have jurisdiction over such Lender or to the Federal Reserve
Board or the Federal Deposit Insurance Corporation or the OCC or similar
organizations (whether in the United States or elsewhere) or their successors or
the National Association of Insurance Commissioners, (c) as may be required or
appropriate in response to any summons or subpoena or any law, order, regulation
or ruling applicable to such Lender, or (d) to any prospective Participant or
assignee in connection with any contemplated transfer pursuant to Section 9.6,
provided that such prospective transferee shall have been made aware of this
Section 9.14 and shall have agreed to be bound by its provisions as if it were a
party to this Agreement.
9.15 Acknowledgments.
The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or
in connection with this Agreement and the relationship between
Administrative Agent and Lenders, on one hand, and the Borrower, on the
other hand, in connection herewith is solely that of debtor and
creditor; and
(c) no joint venture exists among the Lenders or among the
Borrower and the Lenders.
81
9.16 Effectiveness; Binding Effect.
(a) This Agreement shall become effective when it shall have
been executed by the Borrower, each of the Lenders and the
Administrative Agent and thereafter this Agreement shall be binding
upon and inure to the benefit of the Borrower, each of the Lenders and
the Administrative Agent, together with their respective successors and
assigns.
(b) This Agreement shall be a continuing agreement and shall
remain in full force and effect until all Revolving Loans, Letters of
Credit, interest, fees and other obligations have been paid in full and
the Revolving Commitment and the LOC Commitment has been terminated.
Upon termination, the Borrower shall have no further obligations (other
than the indemnification provisions that survive) under the Credit
Documents; provided that should any payment, in whole or in part, of
the obligations be rescinded or otherwise required to be restored or
returned by the Administrative Agent or any of the Lenders, whether as
a result of any proceedings in bankruptcy or reorganization or
otherwise, then the Credit Documents shall automatically be reinstated
and all amounts required to be restored or returned and all costs and
expenses incurred by the Administrative Agent or any of the Lenders in
connection therewith shall be deemed included as part of the
obligations.
[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 proper and duly authorized officers as of
the day and year first above written.
BORROWER: THE OFFICIAL INFORMATION COMPANY
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
SUBSIDIARY GUARANTORS:..... I.T.S. INFORMATION SERVICES, LLC
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
TOIC HOLDINGS, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
TOIC HOLDINGS, LLC
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
EXPO MAGAZINE, LLC
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
VEGAS PEOPLE, LLC
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
XXXXXX PUBLISHING, LLC
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
GEM COMMUNICATIONS, LLC
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
GEM COMMUNICATIONS HOLDINGS, LLC
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
CRIMESEARCH, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
EXPOEXCHANGE, LLC
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
RECORDS SEARCH, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
TISI HOLDINGS, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
UNITED STATES MUTUAL
ASSOCIATION, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
BUSINESS MUTUAL ASSOCIATION OF
MASS., INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
STORES PROTECTIVE ASSOCIATION, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
EMPLOYERS SCREENING SERVICE, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
STORES MUTUAL ASSOCIATION OF
ILLINOIS, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
STA UNITED, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
TOTAL INFORMATION SERVICES, INC
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
TOIC NEVADA, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
[Signatures continued on the following page]
AGENT AND LENDERS: FIRST UNION NATIONAL BANK, individually
in its capacity as a Lender and in its
capacity as Agent
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
THE BANK OF NEW YORK, as a Lender
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
