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EXHIBIT 10.4
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AMENDED AND RESTATED
CREDIT AGREEMENT
among
HQ GLOBAL HOLDINGS, INC.,
VANTAS INCORPORATED (or, after the Acquisitions
referred to herein, HQ Merger Subsidiary, Inc. (to be
renamed "HQ Global Workplaces, Inc.")),
as Borrower,
VARIOUS BANKS,
ING CAPITAL (U.S.) LLC,
as Managing Agent,
BANKERS TRUST COMPANY,
as Syndication Agent and Co-Arranger,
CITICORP REAL ESTATE, INC.,
as Documentation Agent and Co-Arranger,
and
BNP PARIBAS,
as Administrative Agent and Arranger
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Dated as of January 16, 1997
and
Amended and Restated as of November 6, 1998
and
Amended and Restated as of August 3, 1999
and further
Amended and Restated as of May 31, 2000
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$275,000,000
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January 16, 1997,
amended and restated as of November 6, 1998, further amended and restated as of
August 3, 1999, and further amended and restated as of May 31, 2000, among HQ
GLOBAL HOLDINGS, INC., a corporation organized and existing under the laws of
the State of Delaware (the "Parent"), the Borrower, the Banks party hereto from
time to time, ING (U.S.) CAPITAL LLC, as Managing Agent (the "Managing Agent"),
BANKERS TRUST COMPANY, as syndication agent and co-arranger (the "Syndication
Agent"), CITICORP REAL ESTATE, INC., as documentation agent and co-arranger
(the "Documentation Agent"), and BNP PARIBAS (formerly known as Paribas), as
administrative agent and arranger (the "Administrative Agent"). Unless
otherwise defined herein, all capitalized terms used herein and defined in
Section 10 are used herein as therein defined.
WITNESSETH:
WHEREAS, Vantas, the Existing Banks and the Administrative Agent are
parties to a Credit Agreement, dated as of January 16, 1997, and amended and
restated as of November 6, 1998, and further amended and restated as of August
3, 1999 (as so amended and restated and as the same has been further amended,
modified or supplemented to, but not including, the Third Restatement Effective
Date, the "Second Amended and Restated Credit Agreement"); and
WHEREAS, Vantas has requested that the Second Amended and Restated
Credit Agreement be further amended and restated and the Banks and the
Administrative Agent are willing to amend and restate the same upon the terms
and conditions set forth below;
NOW, THEREFORE, the parties hereto agree that the Second Amended and
Restated Credit Agreement shall be and hereby is amended and restated in its
entirety as follows:
Section 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and conditions
set forth herein, each Existing A Term Loan Bank severally agrees to continue,
on the Third Restatement Effective Date, the Existing A Term Loans made by such
Existing A Term Loan Bank to the Borrower pursuant to the Second Amended and
Restated Credit Agreement and outstanding on the Third Restatement Effective
Date (immediately prior to giving effect thereto) (such Existing A Term Loans
continued as provided above, the "A Term Loans"), which A Term Loans:
(i) except as hereafter provided, shall, at the option of the
Borrower, be continued and maintained as, and/or converted into, Base
Rate Loans or Eurodollar Loans, provided that except as otherwise
specifically provided in Section 1.10(b), all A Term Loans made as
part of the same Borrowing shall at all times consist of A Term Loans
of the same Type; and
(ii) shall not exceed for any Existing A Term Loan Bank, in
initial principal amount, that amount which equals the aggregate
outstanding principal amount of the
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Existing A Term Loans, if any, made by such Existing A Term Loan Bank
and outstanding on the Third Restatement Effective Date (immediately
prior to giving effect thereto) as set forth on Schedule I hereto.
Once repaid, A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein,
each Existing B Term Loan Bank severally agrees to continue, on the Third
Restatement Effective Date, the Existing B Term Loans made by such Existing B
Term Loan Bank to the Borrower pursuant to the Second Amended and Restated
Credit Agreement and outstanding on the Third Restatement Effective Date
(immediately prior to giving effect thereto) (such Existing B Term Loans
continued as provided above, the "B Term Loans"), which B Term Loans:
(i) except as hereafter provided, shall, at the option of the
Borrower, be continued and maintained as, and/or converted into, Base
Rate Loans or Eurodollar Loans, provided that except as otherwise
specifically provided in Section 1.10(b), all B Term Loans made as
part of the same Borrowing shall at all times consist of B Term Loans
of the same Type; and
(ii) shall not exceed for any Existing B Term Loan Bank, in
initial principal amount, that amount which equals the aggregate
outstanding principal amount of the Existing B Term Loans, if any,
made by such Existing B Term Loan Bank and outstanding on the Third
Restatement Effective Date (immediately prior to giving effect
thereto) as set forth on Schedule I hereto.
Once repaid, B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein,
each Bank with a C Term Loan Commitment severally agrees to make, on the Third
Restatement Effective Date, a term loan (each, a "C Term Loan" and,
collectively, the "C Term Loans") to the Borrower, which C Term Loans (i)
except as hereafter provided, shall, at the option of the Borrower, be
continued and maintained as, and/or converted into, Base Rate Loans or
Eurodollar Loans, provided that (x) except as otherwise specifically provided
in Section 1.10(b), all C Term Loans made as part of the same Borrowing shall
at all times consist of C Term Loans of the same Type and (y) no C Term Loans
may be incurred as Eurodollar Loans prior to the Syndication Termination Date,
except to the extent incurred on the Initial Eurodollar Loan Borrowing Date and
then only so long as any such Eurodollar Loans have an Interest Period of one
month (or such shorter period as may be acceptable to the Borrower and the
Banks with outstanding C Term Loans) and (ii) shall not exceed for any Bank, in
initial aggregate principal amount, that amount which equals the C Term Loan
Commitment of such Bank on such date (before giving effect to any reductions
thereto on such date pursuant to Section 2.03(b)). Once repaid, C Term Loans
incurred hereunder may not be reborrowed.
(d) Subject to and upon the terms and conditions set forth herein,
each Bank with an Acquisition Loan Commitment severally agrees to make, on the
Third Restatement Effective Date, a loan or loans (each, an "Acquisition Loan"
and, collectively, the "Acquisition
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Loans") to the Borrower, which Acquisition Loans (i) shall, at the option of
the Borrower, be Base Rate Loans or Eurodollar Loans; provided that except as
otherwise specifically provided in Section 1.10(b), all Acquisition Loans
comprising the same Borrowing shall at all times be of the same Type and (ii)
shall not exceed for any Bank at any time outstanding that aggregate principal
amount which equals the Acquisition Loan Commitment of such Bank at such time
(after giving effect to any reductions thereto on or prior to such date
pursuant to Section 2.03(c)(ii)). Once repaid, Acquisition Loans incurred
hereunder may not be reborrowed.
(e) Subject to and upon the terms and conditions set forth herein,
each Bank with an A Revolving Loan Commitment severally agrees at any time and
from time to time after the Third Restatement Effective Date and prior to the A
Revolving Loan Maturity Date, to make a loan or loans (each, an "A Revolving
Loan" and, collectively, the "A Revolving Loans") to the Borrower, which A
Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or
Eurodollar Loans; provided that except as otherwise specifically provided in
Section 1.10(b), all A Revolving Loans comprising the same Borrowing shall at
all times be of the same Type, (ii) may be repaid and reborrowed in accordance
with the provisions hereof, and (iii) shall not exceed for any Bank at any time
outstanding that aggregate principal amount which, when added to the product of
(x) such Bank's A RL Percentage and (y) the aggregate amount of all A Letter of
Credit Outstandings (exclusive of A Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of A Revolving Loans), equals the Available A Revolving Loan
Commitment of such Bank at such time.
(f) Subject to and upon the terms and conditions set forth herein,
each Bank with a B Revolving Loan Commitment severally agrees at any time and
from time to time on and after the Third Restatement Effective Date and prior
to the B Revolving Loan Maturity Date, to make a loan or loans (each, a "B
Revolving Loan" and, collectively, the "B Revolving Loans") to the Borrower,
which B Revolving Loans (i) shall, at the option of the Borrower, be Base Rate
Loans or Eurodollar Loans; provided that (x) except as otherwise specifically
provided in Section 1.10(b), all B Revolving Loans comprising the same
Borrowing shall at all times be of the same Type and (y) no B Revolving Loans
may be incurred as Eurodollar Loans prior to the Syndication Termination Date,
except that Eurodollar Loans may be incurred on the Initial Eurodollar Loan
Borrowing Date so long as any Eurodollar Loans incurred on such date have an
Interest Period equal to one month (or such shorter period as may be acceptable
to the Borrower and the Banks with a B Revolving Loan Commitment), (ii) may be
repaid and reborrowed in accordance with the provisions hereof, and (iii) shall
not exceed for any Bank at any time outstanding that aggregate principal amount
which, when added to the product of (x) such Bank's B RL Percentage and (y) the
aggregate amount of all B Letter of Credit Outstandings (exclusive of B Unpaid
Drawings which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of B Revolving Loans), equals the B
Revolving Loan Commitment of such Bank at such time.
1.02 Minimum Amount of Each Borrowing. The aggregate principal amount
of each Borrowing hereunder shall not be less than the Minimum Borrowing Amount
and, if greater, shall be in integral multiples of (i) in the case of a
Borrowing of Base Rate Loans, $100,000 and (ii) in the case of a Borrowing of
Eurodollar Loans, $500,000. More than one
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Borrowing may occur on the same date, but at no time shall there be outstanding
more than [twenty] Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to make a
Borrowing hereunder, it shall give the Administrative Agent at its Notice
Office, prior to 10:00 a.m. (New York time) at least one Business Day's prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Base Rate Loans and at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing
of Eurodollar Loans. Each such notice (each, a "Notice of Borrowing"), except
as otherwise expressly provided in Section 1.10, shall be irrevocable and shall
be given by the Borrower in the form of Exhibit A-1, appropriately completed to
specify (i) the aggregate principal amount of the Loans to be made pursuant to
such Borrowing, (ii) the date of such Borrowing (which shall be a Business
Day), (iii) whether the Loans being made pursuant to such Borrowing shall
constitute A Term Loans, B Term Loans, C Term Loans, A Revolving Loans, B
Revolving Loans or Acquisition Loans and (iv) whether the Loans being made
pursuant to such Borrowing are to be initially maintained as Base Rate Loans or
Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period to be
applicable thereto. Any notice received after 10:00 a.m. (New York time) shall
be deemed to be received on the next succeeding Business Day. The
Administrative Agent shall promptly give each Bank which is required to make
Loans of the Tranche specified in the respective Notice of Borrowing notice of
such proposed Borrowing, of such Bank's proportionate share thereof and of the
other matters specified in the Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or the respective Issuing Bank (in the case of Letters of
Credit) may, prior to receipt of written confirmation, act without liability
upon the basis of telephonic notice believed by the Administrative Agent or the
respective Issuing Bank (in the case of Letters of Credit) in good faith to be
from the President, Senior Vice President of Finance, the Chief Executive
Officer, Chief Financial Officer or Controller of the Borrower. In each such
case, the Administrative Agent's or such Issuing Bank's record of the terms of
such telephonic notice shall be conclusive absent manifest error.
1.04 Disbursement of Funds. No later than 12:00 Noon (New York time)
on the date specified in each Notice of Borrowing, each Bank with a Commitment
of the respective Tranche will make available its pro rata portion (determined
in accordance with Section 1.07) of each such Borrowing requested to be made on
such date. All such amounts shall be made available in Dollars and in
immediately available funds at the Payment Office of the Administrative Agent,
and the Administrative Agent will make available to the Borrower at the Payment
Office the aggregate of the amounts so made available by the Banks. Unless the
Administrative Agent shall have been notified in writing by any Bank prior to
the date of Borrowing that such Bank does not intend to make available to the
Administrative Agent such Bank's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent by such Bank, the
Administrative Agent shall be entitled to recover such
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corresponding amount on demand from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent.
The Administrative Agent shall also be entitled to recover on demand from such
Bank or the Borrower, as the case may be, interest on such corresponding amount
in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower, until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Bank, the cost to the Administrative
Agent of acquiring overnight federal funds and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Bank from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Bank as a result
of any failure by such Bank to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made by each Bank shall be evidenced (i) if A Term
Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-1 with blanks appropriately completed in
conformity herewith (each, an "A Term Note" and, collectively, the "A Term
Notes"), (ii) if B Term Loans, by a promissory note duly executed and delivered
by the Borrower substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (each, a "B Term Note" and,
collectively, the "B Term Notes"), (iii) if C Term Loans, by a promissory note
duly executed and delivered by the Borrower substantially in the form of
Exhibit B-3 with blanks appropriately completed in conformity herewith (each, a
"C Term Note" and, collectively, the "C Term Notes"), (iv) if Acquisition
Loans, by a promissory note duly executed and delivered by the Borrower
substantially in the form of Exhibit B-4, with blanks appropriately completed
in conformity herewith (each, an "Acquisition Note" and collectively, the
"Acquisition Notes"), (v) if A Revolving Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit
B-5, with blanks appropriately completed in conformity herewith (each, an "A
Revolving Note" and, collectively, the "A Revolving Notes") and (vi) if B
Revolving Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-6, with blanks appropriately
completed in conformity herewith (each, a "B Revolving Note" and, collectively,
the "B Revolving Notes").
(b) The A Term Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank or its registered assigns
and be dated the Third Restatement Effective Date, (iii) be in a stated
principal amount equal to the principal amount of the A Term Loans continued by
such Bank on the Third Restatement Effective Date (or, in the case of any A
Term Note issued after the Third Restatement Effective Date, in a stated
principal amount equal to the outstanding principal amount of the A Term Loans
of such Bank on the date of the issuance thereof) and be payable in the
principal amount of A Term Loans evidenced thereby from time to time, (iv)
mature on the A Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary repayment as provided in Section 3.01, and mandatory repayment as
provided in Section 3.02 and (vii)
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be entitled to the benefits of this Agreement and the Guaranties and be secured
by the Security Documents.
(c) The B Term Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank or its registered assigns
and be dated the Third Restatement Effective Date, (iii) be in a stated
principal amount equal to the principal amount of the B Term Loans continued by
such Bank on the Third Restatement Effective Date (or, in the case of any B
Term Note issued after the Third Restatement Effective Date, in a stated
principal amount equal to the outstanding principal amount of the B Term Loans
of such Bank on the date of the issuance thereof) and be payable in the
principal amount of B Term Loans evidenced thereby from time to time, (iv)
mature on the B Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary repayment as provided in Section 3.01, and mandatory repayment as
provided in Section 3.02 and (vii) be entitled to the benefits of this
Agreement and the Guaranties and be secured by the Security Documents.
(d) The C Term Note issued to each Bank shall (i) be executed by the
Borrower, (ii) be payable to the order of such Bank or its registered assigns
and be dated the Third Restatement Effective Date, (iii) be in a stated
principal amount equal to the C Term Loan Commitment of such Bank on the Third
Restatement Effective Date (or, in the case of any C Term Note issued after the
Third Restatement Effective Date, in a stated principal amount equal to the
outstanding principal amount of the C Term Loan of such Bank on the date of the
issuance thereof) and be payable in the principal amount of C Term Loans
evidenced thereby from time to time, (iv) mature on the C Term Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary repayment as provided in
Section 3.01, and mandatory repayment as provided in Section 3.02 and (vii) be
entitled to the benefits of this Agreement and the Guaranties and be secured by
the Security Documents.
(e) The Acquisition Note issued to each Bank with an Acquisition Loan
Commitment shall (i) be executed by the Borrower, (ii) be payable to the order
of such Bank or its registered assigns and be dated the Third Restatement
Effective Date, (iii) be in a stated principal amount equal to the Acquisition
Loan Commitment of such Bank (or, in the case of any Acquisition Note issued
after the Acquisition Loan Termination Date, in a stated principal amount equal
to the outstanding principal amount of the Acquisition Loans of such Bank on
the date of the issuance thereof) and be payable in the principal amount of the
Acquisition Loans evidenced thereby, (iv) mature on the Acquisition Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the
case may be, evidenced thereby, (vi) be subject to voluntary repayment as
provided in Section 3.01, and mandatory repayment as provided in Section 3.02
and (vii) be entitled to the benefits of this Agreement and the Guaranties and
be secured by the Security Documents.
(f) The A Revolving Note issued to each Bank with an A Revolving Loan
Commitment shall (i) be executed by the Borrower, (ii) be payable to the order
of such Bank or
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its registered assigns and be dated the Third Restatement Effective Date, (iii)
be in a stated principal amount equal to the A Revolving Loan Commitment of
such Bank and be payable in the principal amount of the A Revolving Loans
evidenced thereby, (iv) mature on the A Revolving Loan Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of
the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to voluntary repayment as provided in Section 3.01,
and mandatory repayment as provided in Section 3.02 and (vii) be entitled to
the benefits of this Agreement and the Guaranties and be secured by the
Security Documents.
(g) The B Revolving Note issued to each Bank with a B Revolving Loan
Commitment shall (i) be executed by the Borrower, (ii) be payable to the order
of such Bank or its registered assigns and be dated the Third Restatement
Effective Date, (iii) be in a stated principal amount equal to the B Revolving
Loan Commitment of such Bank and be payable in the principal amount of the B
Revolving Loans evidenced thereby, (iv) mature on the B Revolving Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08
in respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary repayment as provided in
Section 3.01, and mandatory repayment as provided in Section 3.02 and (vii) be
entitled to the benefits of this Agreement and the Guaranties and be secured by
the Security Documents.
(h) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or the making of an incorrect notation shall not affect the
Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert, on
any Business Day, all or a portion at least equal to the Minimum Borrowing
Amount of the outstanding principal amount of the Loans made pursuant to one or
more Borrowings (so long as of the same Tranche) of one Type of Loan into a
Borrowing or Borrowings (of the same Tranche) of the other Type of Loan;
provided that:
(i) except as otherwise provided in Section 1.10(b),
Eurodollar Loans may be converted into Base Rate Loans only on the
last day of an Interest Period applicable to the Loans being converted
and no such partial conversion of Eurodollar Loans shall reduce the
outstanding principal amount of such Eurodollar Loans made pursuant to
a single Borrowing to less than the Minimum Borrowing Amount
applicable thereto;
(ii) Base Rate Loans may only be converted into Eurodollar
Loans if no Default or Event of Default is in existence on the date of
the conversion;
(iii) no conversion pursuant to this Section 1.06 shall
result in a greater number of Borrowings than is permitted under
Section 1.02; and
(iv) prior to the Syndication Termination Date, no C Term
Loan or B Revolving Loan may be converted into a Eurodollar Loan,
except that on the Initial Eurodollar Loan
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Borrowing Date, C Term Loans and B Revolving Loans may be converted
into Eurodollar Loans with an Interest Period of one month (or such
shorter period as may be acceptable to the Borrower and the Banks with
Loans and/or Commitments under the respective Tranche).
Each such conversion shall be effected by the Borrower by giving the
Administrative Agent at its Notice Office prior to 12:00 Noon (New York time)
at least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) (each, a "Notice of Conversion") which notice
shall be in the form of Exhibit A-2, appropriately completed to specify the
Loans to be so converted, the Borrowing(s) pursuant to which such Loans were
made and, if to be converted into Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Bank
prompt notice of any such proposed conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Loans under this Agreement
shall be incurred from the Banks pro rata on the basis of their respective C
Term Loan Commitments, Acquisition Loan Commitments, A Revolving Loan
Commitments or B Revolving Loan Commitments, as the case may be. It is
understood that no Bank shall be responsible for any default by any other Bank
of its obligation to make Loans hereunder and that each Bank shall be obligated
to make the Loans provided to be made by it hereunder regardless of the failure
of any other Bank to make its Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan made to it from the date of
the Borrowing thereof until the earlier of (i) the maturity thereof (whether by
acceleration or otherwise) of such Base Rate Loan and (ii) the conversion of
such Base Rate Loan to a Eurodollar Loan pursuant to Section 1.06, at a rate
per annum which shall at all times be equal to the sum of the Applicable Margin
plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan made to it from the date of the
Borrowing thereof until the earlier of (i) the maturity thereof (whether by
acceleration or otherwise) of such Eurodollar Loan and (ii) the conversion of
such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as applicable, at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the Applicable Margin plus
the Quoted Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and any other overdue amount payable hereunder
shall, in each case, bear interest at a rate per annum equal to the greater of
(x) 2% per annum in excess of the rate otherwise applicable to Base Rate Loans
of the respective Tranche of Loans from time to time and (y) the rate which is
2% in excess of the rate borne by such Loans. Interest which accrues under this
Section 1.08(c) shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each
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Eurodollar Loan on (x) the date of any prepayment or repayment thereof (on the
amount prepaid or repaid), (y) the date of any conversion into a Base Rate Loan
pursuant to Section 1.06, 1.09 or 1.10(b), as applicable (on the amount
converted) and (z) on the last day of each Interest Period applicable thereto
and, in the case of an Interest Period in excess of three months, on each date
occurring at three month intervals after the first day of such Interest Period
and (iii) in respect of each Loan, at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand. Notwithstanding anything to the
contrary in this Agreement or in the Second Amended and Restated Credit
Agreement, all accrued (but theretofore unpaid) interest with respect to Loans
under, and as defined in, the Second Amended and Restated Credit Agreement
which were outstanding prior to the Third Restatement Effective Date shall be
payable on the Third Restatement Effective Date.
(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Quoted Rate for the Interest Period applicable to
Eurodollar Loans and shall promptly notify the Borrower and the Banks thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
(f) All computations of interest hereunder shall be made in accordance
with Section 12.07(b).
1.09 Interest Periods. At the time it gives any Notice of Borrowing or
Notice of Conversion in respect of the making of, or conversion into, a
Eurodollar Loan (in the case of the initial Interest Period applicable thereto)
or prior to 10:00 a.m. (New York time) on the third Business Day prior to the
expiration of an Interest Period applicable to such Eurodollar Loan (in the
case of any subsequent Interest Period), the Borrower shall have the right to
elect, by giving the Administrative Agent notice thereof, the interest period
(each, an "Interest Period") applicable to such Eurodollar Loan, which Interest
Period shall, at the option of the Borrower, be a one, two, three or six-month
period (or, in the case of a Borrowing of Eurodollar Loans prior to the
Syndication Termination Date, such shorter period as may be acceptable to the
Borrower and the Banks with Loans and/or Commitments under the respective
Tranche); provided that:
(i) all Eurodollar Loans comprising a single Borrowing shall
at all times have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan
shall commence on the date of Borrowing of such Loan (including the
date of any conversion thereto from a Borrowing of Base Rate Loans)
and each Interest Period occurring thereafter in respect of such Loan
shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan
begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
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(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest
Period for a Eurodollar Loan would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(v) no Interest Period for a Borrowing under a Tranche shall
be selected which extends beyond the respective Maturity Date of such
Tranche;
(vi) no Interest Period may be selected at any time when any
Default or Event of Default is then in existence;
(vii) no Interest Period in respect of any Borrowing of A
Term Loans, B Term Loans, C Term Loans, or Acquisition Loans, as the
case may be, shall be selected which extends beyond any date upon
which a mandatory repayment of such A Term Loans, B Term Loans, C Term
Loans, or Acquisition Loans will be required to be made under Section
3.02(A)(b), (c), (d) or (e), as the case may be, if, after giving
effect to the selection of such Interest Period, the aggregate
principal amount of such A Term Loans, B Term Loans, C Term Loans, or
Acquisition Loans, as the case may be, maintained as Eurodollar Loans
which have Interest Periods expiring after such date will be in excess
of the aggregate principal amount of such A Term Loans, B Term Loans,
C Term Loans, or Acquisition Loans, as the case may be, then
outstanding less the aggregate amount of such required prepayment; and
(viii) no Interest Period in respect of any Borrowing of C
Term Loans or B Revolving Loans may be selected prior to the
Syndication Termination Date, except that Interest Periods of one
month (or such shorter period as may be acceptable to the Borrower and
the Banks with Loans and/or Commitments under the respective Tranche)
may be selected with respect to such Loans on the Initial Eurodollar
Loan Borrowing Date.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans the Borrower has failed to elect a new Interest Period to be
applicable to such Eurodollar Loans as provided above or a Default or Event of
Default then exists, the Borrower shall be deemed to have elected to convert
such Eurodollar Loans into Base Rate Loans effective as of the expiration date
of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any Bank
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the Original Effective Date affecting the
interbank Eurodollar market, adequate and
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fair means do not exist for ascertaining the applicable interest rate
on the basis provided for in the definition of Quoted Rate; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any change since the
Original Effective Date in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the
force of law) or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, order, guideline or request, such as, for example, but not
limited to: (A) a change in the basis of taxation of payments to any
Bank of the principal of or interest on the Notes or any other amounts
payable hereunder (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Bank
imposed by the jurisdiction in which its principal office or
applicable lending office is located) or (B) a change in official
reserve requirements (but, in all events, excluding reserves required
under Regulation D to the extent included in the computation of the
Quoted Rate) and/or (y) other circumstances since the Original
Effective Date affecting such Bank or the interbank Eurodollar market
or the position of such Bank in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Bank in
good faith with any governmental request (whether or not having the
force of law) or (z) impracticable as a result of a contingency
occurring after the Original Effective Date which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (if by telephone, promptly
confirmed in writing) to the Borrower, and, except in the case of clause (i)
above, to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Banks).
Thereafter (x) in the case of clause (i) above, Eurodollar Loans shall no
longer be available until such time as the Administrative Agent notifies the
Borrower and the Banks that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by the Borrower with respect to Eurodollar Loans which have
not yet been incurred (including by way of conversion) shall be deemed
rescinded by the Borrower, (y) in the case of clause (ii) above, the Borrower
shall pay to such Bank, upon written demand therefor, such additional amounts
(in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Bank in its sole discretion shall determine) as
shall be required to compensate such Bank for such increased costs or
reductions in amounts received or receivable hereunder (a written notice as to
the additional amounts owed to such Bank, showing in reasonable detail the
basis for the calculation thereof, submitted to the Borrower by such Bank
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, the Borrower shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law.
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(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (i) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, by giving the Administrative
Agent telephonic notice (confirmed in writing) on the same date that the
Borrower was notified by the affected Bank or the Administrative Agent pursuant
to Section 1.10(a)(ii) or (iii), cancel the respective Borrowing or conversion,
or (ii) if the affected Eurodollar Loan is then outstanding, upon at least
three Business Days' written notice to the Administrative Agent, require the
affected Bank to convert such Eurodollar Loan into a Base Rate Loan; provided
that if more than one Bank is affected at any time, then all affected Banks
must be treated the same pursuant to this Section 1.10(b).
(c) If at any time after the Original Effective Date hereof, any Bank
determines that the introduction of or any change in applicable law or
governmental rule, regulation, order, guideline or request (whether or not
having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank based on the existence of such Bank's Commitments
hereunder or its obligations hereunder, then the Borrower shall pay to such
Bank, upon its written demand therefor, such additional amounts as shall be
required to compensate such Bank for the increased cost to such Bank or such
other corporation or the reduction in the rate of return to such Bank or such
other corporation as a result of such increase of capital. In determining such
additional amounts, each Bank will act reasonably and in good faith and will
use averaging and attribution methods which are reasonable; provided that such
Bank's determination of compensation owing under this Section 1.10(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto. Each Bank, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to
the Borrower, which notice shall show in reasonable detail the basis for
calculation of such additional amounts, although the failure to give any such
notice shall not release or diminish any of the Borrower's obligations to pay
additional amounts pursuant to this Section 1.10(c).
1.11 Compensation. The Borrower shall compensate each Bank, upon its
written request (which request shall set forth in reasonable detail the basis
for requesting such compensation), for all losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required
by such Bank to fund its Eurodollar Loans) which such Bank may sustain: (i) if
for any reason (other than a default by such Bank or any Agent) a Borrowing of,
or conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any repayment (including any repayment made pursuant to Section 3.02 or
as a result of an acceleration of the Loans pursuant to Section 9 and including
any repayment of Loans under, and as defined in, the Second Amended and
Restated Credit Agreement on the Third Restatement Effective Date from the
proceeds of Loans) or conversion of any of its Eurodollar Loans occurs on a
date which is not the last day of an Interest Period with respect thereto;
(iii) if any prepayment of any of its Eurodollar Loans is not made on any date
specified
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in a notice of prepayment given by the Borrower; or (iv) as a consequence of
(x) any other default by the Borrower to repay its Loans when required by the
terms of this Agreement or any Note held by such Bank or (y) any election made
pursuant to Section 1.10(b). A Bank's basis for requesting compensation
pursuant to this Section, and a Bank's calculations of the amount thereof,
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto.
1.12 Replacement of Banks. (x) If any Bank becomes a Defaulting Bank
or (y) if any Bank (other than the Administrative Agent) refuses to consent to
certain proposed changes, waivers, discharges or terminations with respect to
this Agreement which have been approved by the Required Banks as provided in
Sections 12.12(b) and 12.17(b), then the Borrower shall have the right, in
accordance with Section 12.04(b), if no Default or Event of Default then
exists, to replace such Bank (the "Replaced Bank") with any other Bank or with
one or more Eligible Transferee or Transferees, none of whom shall constitute a
Defaulting Bank at the time of such replacement (collectively, the "Replacement
Bank") reasonably acceptable to the Administrative Agent or, at the option of
the Borrower, to replace only (a) the A Revolving Loan Commitment (and A
Revolving Loans outstanding pursuant thereto), if any, and the B Revolving Loan
Commitment (and B Revolving Loans outstanding pursuant thereto), if any, of the
Replaced Bank with an identical A Revolving Loan Commitment (and A Revolving
Loans outstanding pursuant thereto) and/or an identical B Revolving Loan
Commitment (and B Revolving Loans outstanding pursuant thereto), in each case
provided by the Replacement Bank or (b) in the case of a replacement as
provided Section 12.12(b) and/or Section 12.17(b) when a consent of the
respective Bank is required with respect to less than all Tranches of its Loans
or Commitments, the Commitments and/or outstanding Loans of such Bank in
respect of each Tranche when a consent of such Bank would otherwise be
individually required, with identical Commitments and/or Loans of the
respective Tranche provided by the Replacement Bank; provided that:
(i) at the time of any replacement pursuant to this Section
1.12, the Replacement Bank shall enter into one or more assignment
agreements pursuant to Section 12.04(b) (and with all fees payable
pursuant to said Section 12.04(b) to be paid by the Replacement Bank)
pursuant to which the Replacement Bank shall acquire all of the
Commitments and outstanding Loans of (or, in the case of the
replacement of only (a) the A Revolving Loan Commitment, the A
Revolving Loan Commitment and outstanding A Revolving Loans and
participations in A Letter of Credit Outstandings, (b) the B Revolving
Loan Commitment, the B Revolving Loan Commitment and outstanding B
Revolving Loans and participations in B Letter of Credit Outstandings,
(c) the Acquisition Loan Commitment, prior to the Acquisition Loan
Termination Date, the Acquisition Loan Commitment and outstanding
Acquisition Loans and thereafter, the outstanding Acquisition Loans,
(d) the A Term Loans, the outstanding A Term Loans, (e) the B Term
Loans, the outstanding B Term Loans, and/or (f) the C Term Loans, the
outstanding C Term Loans), the Replaced Bank and in each case (except
for replacement of only the outstanding A Term Loans, B Term Loans, C
Term Loans, or Acquisition Loans of the respective Bank)
participations in relevant Letters of Credit by, the Replaced Bank and
in connection therewith, shall pay to (x) the Replaced Bank in respect
thereof an amount equal to the sum of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans (or,
in the case of the replacement of only (I) the A Revolving Loan
Commitment, the outstanding A Revolving Loans, (II) the B Revolving
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Loan Commitment, the outstanding B Revolving Loans, (III) prior to the
Acquisition Loan Termination Date, the Acquisition Loan Commitment,
the outstanding Acquisition Loans, (IV) after the Acquisition Loan
Termination Date, the outstanding Acquisition Loans of the Replaced
Bank, (V) the A Term Loans, the outstanding A Term Loans, (VI) the B
Term Loans, the outstanding B Term Loans, and (VII) the C Term Loans,
the outstanding C Term Loans), of the Replaced Bank and (B) except in
the case of the replacement of only the outstanding A Term Loans, B
Term Loans, C Term Loans and/or Acquisition Loan Commitment or
outstanding Acquisition Loans of the Replaced Bank, an amount equal to
such Replaced Bank's A RL Percentage of all A Unpaid Drawings (in a
case of any replacement of the A Revolving Loan Commitment of the
Replaced Bank) and/or an amount equal to such Replaced Bank's B RL
Percentage of all B Unpaid Drawings (in the case of any replacement of
the B Revolving Loan Commitment of the Replaced Bank), in each case
that have been funded by (and not reimbursed to) such Replaced Bank,
together with all then unpaid interest with respect thereto at such
time and (C) an amount equal to all accrued, but theretofore unpaid,
Fees owing to the Replaced Bank but only with respect to the relevant
Tranche, in the case of the replacement of less than all the Tranches
of Loans then held by the respective Replaced Bank) pursuant to
Section 2.01 hereof and (y) except in the case of the replacement of
only the outstanding A Term Loans, B Term Loans, C Term Loans,
Acquisition Loan Commitment or Acquisition Loans of the Replaced Bank,
the Issuing Bank or Issuing Banks, an amount equal to such Replaced
Bank's A RL Percentage of any A Unpaid Drawing (in the case of any
replacement of the A Revolving Loan Commitment of the Replaced Bank)
and/or an amount equal to such Replaced Bank's B RL Percentage of any
B Unpaid Drawing (in the case of any replacement of the B Revolving
Loan Commitment of the Replaced Bank) (in each case, to the extent any
such Unpaid Drawing remains an Unpaid Drawing at such time) with
respect to a Letter of Credit issued by such Issuing Bank to the
extent such amount was not theretofore funded by such Replaced Bank;
and
(ii) all obligations of the Borrower owing to the Replaced
Bank (other than those (a) specifically described in clause (i) above
in respect of which the assignment purchase price has been, or is
concurrently being, paid or (b) relating to any Tranche of Loans
and/or Commitments of the respective Replaced Bank which will remain
outstanding after giving effect to the respective replacement) shall
be paid in full by the Borrower to such Replaced Bank concurrently
with such replacement.
Upon the execution of the respective assignment documentation, the payment of
amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Administrative Agent pursuant to Section 7.16
and, if so requested by the Replacement Bank, delivery to the Replacement Bank
of the appropriate Note or Notes, executed by the Borrower, (x) the Replacement
Bank shall become a Bank hereunder, unless the respective Replaced Bank
continues to have outstanding A Term Loans, B Term Loans, C Term Loans, an
Acquisition Loan Commitment or Acquisition Loans, an A Revolving Loan
Commitment or a B Revolving Loan Commitment hereunder, the Replaced Bank shall
cease to constitute a Bank hereunder with respect to the Loans and Commitments
so transferred, except with respect to indemnification provisions under this
Agreement, which shall survive as to such Replaced Bank, and the RL
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Percentages and Acquisition Commitment Percentages of the Banks shall be
automatically adjusted at such time to give effect to such replacement.
Section 1A. A Letters of Credit.
1A.01 A Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request any A Issuing Bank at any
time and from time to time after the Third Restatement Effective Date and prior
to the third Business Day immediately preceding the A Revolving Loan Maturity
Date to issue, for the account of the Borrower or any of its Subsidiaries and
for the benefit of any holder (or any trustee, agent or other similar
representative for any such holders) of L/C Supportable Indebtedness, an
irrevocable standby letter of credit in a form customarily used by such A
Issuing Bank or in such other form as has been approved by such A Issuing Bank
in support of said L/C Supportable Indebtedness (each such letter of credit, an
"A Letter of Credit" and, collectively, the "A Letters of Credit"). All A
Letters of Credit shall be denominated in Dollars. In the event an A Letter of
Credit is issued for the account of a Subsidiary of the Borrower, the Borrower
agrees that it shall be obligated with respect to the A Letter of Credit
Outstandings related to such A Letter of Credit notwithstanding that such A
Letter of Credit was issued for the account of a Subsidiary of the Borrower.
(b) Each A Issuing Bank (other than Paribas) may agree in its sole
discretion and Paribas hereby agrees that it will (subject to the terms and
conditions contained herein), at any time and from time to time after the Third
Restatement Effective Date and prior to the A Revolving Loan Maturity Date,
following its receipt of the respective A Letter of Credit Request, issue for
the account of the Borrower or any of its Subsidiaries one or more A Letters of
Credit in support of such L/C Supportable Indebtedness as is permitted to
remain outstanding without giving rise to a Default or Event of Default
hereunder; provided that the respective A Issuing Bank shall be under no
obligation to issue any A Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such A Issuing Bank from issuing such A Letter of Credit or
any requirement of law applicable to such A Issuing Bank or any
request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over such A Issuing Bank
shall prohibit, or request that such A Issuing Bank refrain from, the
issuance of letters of credit generally or such A Letter of Credit in
particular or shall impose upon such A Issuing Bank with respect to
such A Letter of Credit any restriction or reserve or capital
requirement (for which such A Issuing Bank is not otherwise
compensated) not in effect on the date hereof, or any unreimbursed
loss, cost or expense which was not applicable, in effect or known to
such A Issuing Bank as of the date hereof and which such A Issuing
Bank in good xxxxx xxxxx material to it;
(ii) such A Issuing Bank shall have received a notice of the
type described in the second sentence of Section 1A.03(b) from any Bank
prior to the issuance of such A Letter of Credit; or
(iii) a Bank Default exists, unless such A Issuing Bank has
entered into arrangements satisfactory to it and the Borrower to
eliminate such A Issuing Bank's risk with
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respect to the Bank which is the subject of the Bank Default,
including by cash collateralizing such Bank's A RL Percentage of the A
Letter of Credit Outstandings.
(c) Notwithstanding the foregoing, (i) no A Letter of Credit shall be
issued the Stated Amount of which, when added to the A Letter of Credit
Outstandings (exclusive of A Unpaid Drawings which are repaid on the date of,
prior to the issuance of, the respective A Letter of Credit) at such time,
would exceed (x) $25,000,000 or (y) when added to the aggregate principal
amount of all A Revolving Loans then outstanding, an amount equal to the Total
Available A Revolving Loan Commitment then in effect (after giving effect to
any reductions to the Total A Revolving Loan Commitment on such date) and (ii)
each A Letter of Credit shall by its terms terminate on or before the earlier
of (x) the date which occurs 12 months after the date of the issuance thereof
(although any such A Letter of Credit may be renewable for successive periods
of up to 12 months, but not beyond the A Revolving Loan Maturity Date, on terms
acceptable to the A Issuing Bank) and (y) the third Business Day immediately
preceding the A Revolving Loan Maturity Date.
(d) Schedule XVI hereto contains a description of all letters of
credit issued by (x) any Issuing Bank (as defined in the Second Amended and
Restated Credit Agreement) pursuant to, or existing under, the Second Amended
and Restated Credit Agreement and outstanding on the Third Restatement
Effective Date, (y) Xxxxxx Guaranty pursuant to, or existing under, the
Existing HQ Credit Agreement and outstanding on the Third Restatement Effective
Date and (z) First Union pursuant to, or existing under, the Existing HQ Credit
Agreement and outstanding on the Third Restatement Effective Date and sets
forth, with respect to each such letter of credit, (i) the name of the issuing
bank, (ii) the letter of credit number, (iii) the stated amount, (iv) the name
of the beneficiary and (v) the expiry date. Each such letter of credit,
including any extension or renewal thereof (each, as amended, extended or
replaced from time to time in accordance with the terms thereof and the L/C
Reimbursement Agreement governing same, an "Existing Letter of Credit") shall
(x) upon the delivery of an A Revolving Facility Borrowing Certificate to the
issuing bank thereunder, the Administrative Agent and each Bank designating
such Existing Letter of Credit as an "A Letter of Credit" hereunder and (y) so
long as the issuing bank thereunder is an A Issuing Bank with respect to such
Existing Letter of Credit at the time of the delivery of such certificate as
contemplated by the definition of A Issuing Bank, constitute an "A Letter of
Credit" for all purposes of this Agreement, issued, for purposes of Section
1A.04(a), on such date of designation and the respective issuer thereof shall
constitute the "A Issuing Bank" with respect to such A Letter of Credit for all
purposes of this Agreement.
1A.02 Minimum Stated Amount. The Stated Amount of each A Letter of
Credit shall be not less than $25,000 or such lesser amount as is acceptable to
the A Issuing Bank but in no event shall there be more than 75 A Letters of
Credit outstanding at any one time.
1A.03 A Letter of Credit Requests. (a) Whenever the Borrower desires
that an A Letter of Credit be issued for its account, the Borrower shall give
the Administrative Agent and the respective A Issuing Bank at least 7 Business
Days' (or such shorter period as is acceptable to the respective A Issuing Bank
in any given case) written notice prior to the proposed date of
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issuance (which shall be a Business Day). Each notice shall be in the form of
Exhibit B-7 (each, a "Letter of Credit Request").
(b) The making of each Letter of Credit Request with respect to an A
Letter of Credit shall be deemed to be a representation and warranty by the
Borrower that such A Letter of Credit may be issued in accordance with, and
will not violate the requirements of, Section 1A.01(c). Unless the A Issuing
Bank has received notice from any Bank before it issues an A Letter of Credit
that one or more of the conditions specified in Section 5 are not then
satisfied, or that the issuance of such A Letter of Credit would violate
Section 1A.01(c), then such A Issuing Bank may issue the requested A Letter of
Credit for the account of the Borrower in accordance with the A Issuing Bank's
usual and customary practices.
1A.04 A Letter of Credit Participations. (a) Immediately upon the
issuance by the respective A Issuing Bank of any A Letter of Credit (or, in the
case of an Existing Letter of Credit, upon the incorporation of such Existing
Letter of Credit as an A Letter of Credit hereunder as contemplated by Section
1A.01(d)), such A Issuing Bank shall be deemed to have sold and transferred to
each Bank with an A Revolving Loan Commitment, other than such A Issuing Bank
(each such Bank, in its capacity under this Section 1A.04, an "A Participant"),
and each such A Participant shall be deemed irrevocably and unconditionally to
have purchased and received from such A Issuing Bank, without recourse or
warranty, an undivided interest and participation, to the extent of such A
Participant's A RL Percentage in such A Letter of Credit, each substitute
letter of credit, each drawing made thereunder and the obligations of the
Borrower under this Agreement with respect thereto, and any security therefor
or guaranty pertaining thereto. Upon any change in the A Revolving Loan
Commitments of the Banks pursuant to Section 12.04, it is hereby agreed that,
with respect to all outstanding A Letters of Credit and A Unpaid Drawings,
there shall be an automatic adjustment to the participations pursuant to this
Section 1A.04 to reflect the new A RL Percentages of the assignor and assignee
Bank or of all Banks with A Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any A Letter of Credit, the A
Issuing Bank shall not have any obligation relative to the other Banks other
than to confirm that any documents required to be delivered under such A Letter
of Credit appear to have been delivered and that they appear to comply on their
face with the requirements of such A Letter of Credit. Any action taken or
omitted to be taken by any A Issuing Bank under or in connection with any A
Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for such A Issuing Bank any resulting
liability to the Borrower or any Bank.
(c) In the event that any A Issuing Bank makes any payment under any A
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to the A Issuing Bank pursuant to Section 1A.05(a), such A Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each A
Participant of such failure, and each A Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such A
Issuing Bank the amount of such A Participant's A RL Percentage of such
unreimbursed payment in Dollars and in same day funds. If the Administrative
Agent so notifies, prior to 11:00 a.m. (New York time) on any Business Day, any
A Participant required to fund a payment under an A Letter of Credit, such A
Participant shall make available to the Administrative Agent at the
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Payment Office of the Administrative Agent for the account of such A Issuing
Bank in Dollars such A Participant's A RL Percentage of the amount of such
payment on such Business Day in same day funds. If and to the extent such A
Participant shall not have so made its A RL Percentage of the amount of such
payment available to the Administrative Agent for the account of such A Issuing
Bank, such A Participant agrees to pay to the Administrative Agent for the
account of such A Issuing Bank, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is
paid to the Administrative Agent for the account of such A Issuing Bank at the
overnight Federal Funds Rate. The failure of any A Participant to make
available to the Administrative Agent for the account of such A Issuing Bank
its A RL Percentage of any payment under any A Letter of Credit shall not
relieve any other A Participant of its obligation hereunder to make available
to the Administrative Agent for the account of such A Issuing Bank its A RL
Percentage of any A Letter of Credit on the date required, as specified above,
but no A Participant shall be responsible for the failure of any other A
Participant to make available to the Administrative Agent for the account of
such A Issuing Bank such other A Participant's A RL Percentage of any such
payment.
(d) Whenever any A Issuing Bank receives a payment of a reimbursement
obligation as to which the Administrative Agent has received for the account of
such A Issuing Bank any payments from the A Participants pursuant to clause (c)
above, such A Issuing Bank shall pay to the Administrative Agent and the
Administrative Agent shall promptly pay each A Participant which has paid its A
RL Percentage thereof, in Dollars and in same day funds, an amount equal to
such A Participant's share (based on the proportionate aggregate amount funded
by such A Participant to the aggregate amount funded by all A Participants) of
the principal amount of such reimbursement obligation and interest thereon
accruing after the purchase of the respective participations.
(e) The obligations of the A Participants to make payments to the
Administrative Agent for the account of each A Issuing Bank with respect to A
Letters of Credit issued shall be irrevocable and not subject to any
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary
named in an A Letter of Credit, any transferee of any A Letter of
Credit (or any Person for whom any such transferee may be acting), any
Agent, any A Participant, or any other Person, whether in connection
with this Agreement, any A Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transaction between the Borrower and the beneficiary named
in any such A Letter of Credit);
(iii) any draft, certificate or any other document presented
under any A Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
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(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
1A.05 Agreement to Repay A Letter of Credit Drawings. (a) The Borrower
hereby agrees to reimburse the respective A Issuing Bank, by making payment to
the Administrative Agent in immediately available funds at the Payment Office
(or by making the payment directly to such A Issuing Bank at such location as
may otherwise have been agreed upon by the Borrower and such A Issuing Bank),
for any payment or disbursement made by such A Issuing Bank under any A Letter
of Credit (each such amount so paid until reimbursed, an "A Unpaid Drawing"),
immediately after, and in any event on the date of, such payment or
disbursement, with interest on the amount so paid or disbursed by such A
Issuing Bank, to the extent not reimbursed prior to 12:00 Noon (New York time)
on the date of such payment or disbursement, from and including the date paid
or disbursed to but excluding the date such A Issuing Bank is reimbursed by the
Borrower therefor at a rate per annum which shall be the Base Rate in effect
from time to time plus 4.25%, in each case with such interest to be payable on
demand (it being understood that the Borrower may, subject to Section 1.01(e)
and the other relevant requirements of this Agreement, incur A Revolving Loans
and apply the proceeds thereof to repay any A Unpaid Drawing).
(b) The obligations of the Borrower under this Section 1A.05 to
reimburse the respective A Issuing Bank with respect to A Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower may have or have had against any Bank
(including in its capacity as A Issuing Bank or as A Participant), including,
without limitation, any defense based upon the failure of any drawing under an
A Letter of Credit (each an "A Drawing") to conform to the terms of the A
Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such A Drawing; provided, however, that the Borrower shall not
be obligated to reimburse any A Issuing Bank for any wrongful payment made by
such A Issuing Bank under an A Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such A Issuing Bank.
1A.06 Increased Costs. If at any time after the Original Effective
Date hereof any A Issuing Bank or any A Participant determines that the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by such A Issuing Bank or any A Participant, or any
corporation controlling such Person, with any request or directive by any such
authority (whether or not having the force of law), shall either (i) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by such A Issuing Bank or
participated in by any A Participant, or (ii) impose on such A Issuing Bank or
any A Participant, or any corporation controlling such Person, any other
conditions relating, directly or indirectly, to this Agreement or any A Letter
of Credit; and the result of any of the foregoing is to increase the cost to
such A Issuing Bank
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or any A Participant of issuing, maintaining or participating in any A Letter
of Credit, or reduce the amount of any sum received or receivable by such A
Issuing Bank or any A Participant hereunder or reduce the rate of return on its
capital with respect to A Letters of Credit, then, upon demand to the Borrower
by such A Issuing Bank or any A Participant (a copy of which demand shall be
sent by such A Issuing Bank or such A Participant to the Administrative Agent),
the Borrower shall pay to such A Issuing Bank or such A Participant such
additional amount or amounts as will compensate such A Issuing Bank or A
Participant for such increased cost or reduction in the amount receivable or
reduction on the rate of return on its capital. Such A Issuing Bank or such A
Participant, upon determining that any additional amounts will be payable
pursuant to this Section 1A.06, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such A Issuing Bank or such A Participant (a copy of which certificate shall be
sent by such A Issuing Bank or such A Participant to the Administrative Agent),
setting forth in reasonable detail the basis for the calculation of such
additional amount or amounts necessary to compensate such A Issuing Bank or
such A Participant, although failure to give any such notice shall not release
or diminish the Borrower's obligations to pay additional amounts pursuant to
this Section 1A.06. The certificate required to be delivered pursuant to this
Section 1A.06 shall, absent manifest error, be final, conclusive and binding on
the Borrower.
Section 1B. B Letters of Credit.
1B.01 B Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request any B Issuing Bank at any
time and from time to time on and after the Third Restatement Effective Date
and prior to the third Business Day immediately preceding the B Revolving Loan
Maturity Date to issue, for the account of the Borrower or any of its
Subsidiaries and for the benefit of any holder (or any trustee, agent or other
similar representative for any such holders) of L/C Supportable Indebtedness,
an irrevocable standby letter of credit in a form customarily used by such B
Issuing Bank or in such other form as has been approved by such B Issuing Bank
in support of said L/C Supportable Indebtedness (each such letter of credit, a
"B Letter of Credit" and, collectively, the "B Letters of Credit"). All B
Letters of Credit shall be denominated in Dollars. In the event a B Letter of
Credit is issued for the account of a Subsidiary of the Borrower, the Borrower
agrees that it shall be obligated with respect to the B Letter of Credit
Outstandings related to such B Letter of Credit notwithstanding that such B
Letter of Credit was issued for the account of a Subsidiary of the Borrower.
(b) Each B Issuing Bank (other than Paribas) may agree in its sole
discretion and Paribas hereby agrees that it will (subject to the terms and
conditions contained herein), at any time and from time to time after the Third
Restatement Effective Date and prior to the B Revolving Loan Maturity Date,
following its receipt of the respective B Letter of Credit Request, issue for
the account of the Borrower or any of its Subsidiaries one or more B Letters of
Credit in support of such L/C Supportable Indebtedness as is permitted to
remain outstanding without giving rise to a Default or Event of Default
hereunder; provided that the respective B Issuing Bank shall be under no
obligation to issue any B Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to enjoin or
restrain such B Issuing Bank from issuing such B Letter of Credit or
any requirement of law applicable to such B Issuing Bank or any
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request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over such B Issuing Bank
shall prohibit, or request that such B Issuing Bank refrain from, the
issuance of letters of credit generally or such B Letter of Credit in
particular or shall impose upon such B Issuing Bank with respect to
such B Letter of Credit any restriction or reserve or capital
requirement (for which such B Issuing Bank is not otherwise
compensated) not in effect on the date hereof, or any unreimbursed
loss, cost or expense which was not applicable, in effect or known to
such B Issuing Bank as of the date hereof and which such B Issuing
Bank in good xxxxx xxxxx material to it;
(ii) such B Issuing Bank shall have received a notice of the
type described in the second sentence of Section 1B.03(b) from any
Bank prior to the issuance of such B Letter of Credit; or
(iii) a Bank Default exists, unless such B Issuing Bank has
entered into arrangements satisfactory to it and the Borrower to
eliminate such B Issuing Bank's risk with respect to the Bank which is
the subject of the Bank Default, including by cash collateralizing
such Bank's B RL Percentage of the B Letter of Credit Outstandings.
(c) Notwithstanding the foregoing, (i) no B Letter of Credit shall be
issued the Stated Amount of which, when added to the B Letter of Credit
Outstandings (exclusive of B Unpaid Drawings which are repaid on the date of,
prior to the issuance of, the respective B Letter of Credit) at such time,
would exceed (x) $15,000,000 or (y) when added to the aggregate principal
amount of all B Revolving Loans then outstanding, an amount equal to the Total
B Revolving Loan Commitment then in effect (after giving effect to any
reductions to the Total B Revolving Loan Commitment on such date) and (ii) each
B Letter of Credit shall by its terms terminate on or before the earlier of (x)
the date which occurs 12 months after the date of the issuance thereof
(although any such B Letter of Credit may be renewable for successive periods
of up to 12 months, but not beyond the B Revolving Loan Maturity Date, on terms
acceptable to the B Issuing Bank) and (y) the third Business Day immediately
preceding the B Revolving Loan Maturity Date.
1B.02 Minimum Stated Amount. The Stated Amount of each B Letter of
Credit shall be not less than $25,000 or such lesser amount as is acceptable to
the B Issuing Bank but in no event shall there be more than 50 B Letters of
Credit outstanding at any one time.
1B.03 B Letter of Credit Requests. (a) Whenever the Borrower desires
that a B Letter of Credit be issued for its account, the Borrower shall give
the Administrative Agent and the respective B Issuing Bank at least 7 Business
Days' (or such shorter period as is acceptable to the respective B Issuing Bank
in any given case) written notice prior to the proposed date of issuance (which
shall be a Business Day). Each notice shall be in the form of a Letter of
Credit Request.
(b) The making of each Letter of Credit Request with respect to a B
Letter of Credit shall be deemed to be a representation and warranty by the
Borrower that such B Letter of Credit may be issued in accordance with, and
will not violate the requirements of, Section 1B.01(c). Unless the B Issuing
Bank has received notice from any Bank before it issues a B
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Letter of Credit that one or more of the conditions specified in Section 5 are
not then satisfied, or that the issuance of such B Letter of Credit would
violate Section 1B.01(c), then such B Issuing Bank may issue the requested B
Letter of Credit for the account of the Borrower in accordance with the B
Issuing Bank's usual and customary practices.
1B.04 B Letter of Credit Participations. (a) Immediately upon the
issuance by the respective B Issuing Bank of any B Letter of Credit, such B
Issuing Bank shall be deemed to have sold and transferred to each Bank with a B
Revolving Loan Commitment, other than such B Issuing Bank (each such Bank, in
its capacity under this Section 1B.04, a "B Participant"), and each such B
Participant shall be deemed irrevocably and unconditionally to have purchased
and received from such B Issuing Bank, without recourse or warranty, an
undivided interest and participation, to the extent of such B Participant's B
RL Percentage in such B Letter of Credit, each substitute letter of credit,
each drawing made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any security therefor or guaranty
pertaining thereto. Upon any change in the B Revolving Loan Commitments of the
Banks pursuant to Section 12.04, it is hereby agreed that, with respect to all
outstanding B Letters of Credit and B Unpaid Drawings, there shall be an
automatic adjustment to the participations pursuant to this Section 1B.04 to
reflect the new B RL Percentages of the assignor and assignee Bank or of all
Banks with B Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any B Letter of Credit, the B
Issuing Bank shall not have any obligation relative to the other Banks other
than to confirm that any documents required to be delivered under such B Letter
of Credit appear to have been delivered and that they appear to comply on their
face with the requirements of such B Letter of Credit. Any action taken or
omitted to be taken by any B Issuing Bank under or in connection with any B
Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for such B Issuing Bank any resulting
liability to the Borrower or any Bank.
(c) In the event that any B Issuing Bank makes any payment under any B
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to the B Issuing Bank pursuant to Section 1B.05(a), such B Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each B
Participant of such failure, and each B Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such B
Issuing Bank the amount of such B Participant's B RL Percentage of such
unreimbursed payment in Dollars and in same day funds. If the Administrative
Agent so notifies, prior to 11:00 a.m. (New York time) on any Business Day, any
B Participant required to fund a payment under a B Letter of Credit, such B
Participant shall make available to the Administrative Agent at the Payment
Office of the Administrative Agent for the account of such B Issuing Bank in
Dollars such B Participant's B RL Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such B Participant
shall not have so made its B RL Percentage of the amount of such payment
available to the Administrative Agent for the account of such B Issuing Bank,
such B Participant agrees to pay to the Administrative Agent for the account of
such B Issuing Bank, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to the
Administrative Agent for the account of such B Issuing Bank at the overnight
Federal Funds Rate. The failure of any B Participant to make available to the
Administrative Agent for the account of such B
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Issuing Bank its B RL Percentage of any payment under any B Letter of Credit
shall not relieve any other B Participant of its obligation hereunder to make
available to the Administrative Agent for the account of such B Issuing Bank
its B RL Percentage of any B Letter of Credit on the date required, as
specified above, but no B Participant shall be responsible for the failure of
any other B Participant to make available to the Administrative Agent for the
account of such B Issuing Bank such other B Participant's B RL Percentage of
any such payment.
(d) Whenever any B Issuing Bank receives a payment of a reimbursement
obligation as to which the Administrative Agent has received for the account of
such B Issuing Bank any payments from the B Participants pursuant to clause (c)
above, such B Issuing Bank shall pay to the Administrative Agent and the
Administrative Agent shall promptly pay each B Participant which has paid its B
RL Percentage thereof, in Dollars and in same day funds, an amount equal to
such B Participant's share (based on the proportionate aggregate amount funded
by such B Participant to the aggregate amount funded by all B Participants) of
the principal amount of such reimbursement obligation and interest thereon
accruing after the purchase of the respective participations.
(e) The obligations of the B Participants to make payments to
the Administrative Agent for the account of each B Issuing Bank with respect to
B Letters of Credit issued shall be irrevocable and not subject to any
qualification or exception whatsoever and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the Credit Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary
named in a B Letter of Credit, any transferee of any B Letter of
Credit (or any Person for whom any such transferee may be acting), any
Agent, any B Participant, or any other Person, whether in connection
with this Agreement, any B Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transaction between the Borrower and the beneficiary named
in any such B Letter of Credit);
(iii) any draft, certificate or any other document presented
under any B Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
1B.05 Agreement to Repay B Letter of Credit Drawings. (a) The Borrower
hereby agrees to reimburse the respective B Issuing Bank, by making payment to
the Administrative Agent in immediately available funds at the Payment Office
(or by making the
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payment directly to such B Issuing Bank at such location as may otherwise have
been agreed upon by the Borrower and such B Issuing Bank), for any payment or
disbursement made by such B Issuing Bank under any B Letter of Credit (each
such amount so paid until reimbursed, a "B Unpaid Drawing"), immediately after,
and in any event on the date of, such payment or disbursement, with interest on
the amount so paid or disbursed by such B Issuing Bank, to the extent not
reimbursed prior to 12:00 Noon (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but excluding
the date such B Issuing Bank is reimbursed by the Borrower therefor at a rate
per annum which shall be the Base Rate in effect from time to time plus 4.50%,
in each case with such interest to be payable on demand (it being understood
that the Borrower may, subject to Section 1.01(f) and the other relevant
requirements of this Agreement, incur B Revolving Loans and apply the proceeds
thereof to repay any B Unpaid Drawing).
(b) The obligations of the Borrower under this Section 1B.05 to
reimburse the respective B Issuing Bank with respect to B Unpaid Drawings
(including, in each case, interest thereon) shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower may have or have had against any Bank
(including in its capacity as B Issuing Bank or as B Participant), including,
without limitation, any defense based upon the failure of any drawing under a B
Letter of Credit (each, a "B Drawing") to conform to the terms of the B Letter
of Credit or any nonapplication or misapplication by the beneficiary of the
proceeds of such B Drawing; provided, however, that the Borrower shall not be
obligated to reimburse any B Issuing Bank for any wrongful payment made by such
B Issuing Bank under a B Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such B
Issuing Bank.
1B.06 Increased Costs. If at any time after the Third Restatement
Effective Date hereof any B Issuing Bank or any B Participant determines that
the introduction of or any change in any applicable law, rule, regulation,
order, guideline or request or in the interpretation or administration thereof
by any governmental authority charged with the interpretation or administration
thereof, or compliance by such B Issuing Bank or any B Participant, or any
corporation controlling such Person, with any request or directive by any such
authority (whether or not having the force of law), shall either (i) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by such B Issuing Bank or
participated in by any B Participant, or (ii) impose on such B Issuing Bank or
any B Participant, or any corporation controlling such Person, any other
conditions relating, directly or indirectly, to this Agreement or any B Letter
of Credit; and the result of any of the foregoing is to increase the cost to
such B Issuing Bank or any B Participant of issuing, maintaining or
participating in any B Letter of Credit, or reduce the amount of any sum
received or receivable by such B Issuing Bank or any B Participant hereunder or
reduce the rate of return on its capital with respect to B Letters of Credit,
then, upon demand to the Borrower by such B Issuing Bank or any B Participant
(a copy of which demand shall be sent by such B Issuing Bank or such B
Participant to the Administrative Agent), the Borrower shall pay to such B
Issuing Bank or such B Participant such additional amount or amounts as will
compensate such B Issuing Bank or B Participant for such increased cost or
reduction in the amount receivable or reduction on the rate of return on its
capital. Such B Issuing Bank or such B Participant, upon determining that any
additional amounts will be payable pursuant to this Section 1B.06, will give
prompt written
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notice thereof to the Borrower, which notice shall include a certificate
submitted to the Borrower by such B Issuing Bank or such B Participant (a copy
of which certificate shall be sent by such B Issuing Bank or such B Participant
to the Administrative Agent), setting forth in reasonable detail the basis for
the calculation of such additional amount or amounts necessary to compensate
such B Issuing Bank or such B Participant, although failure to give any such
notice shall not release or diminish the Borrower's obligations to pay
additional amounts pursuant to this Section 1B.06. The certificate required to
be delivered pursuant to this Section 1B.06 shall, absent manifest error, be
final, conclusive and binding on the Borrower.
Section 2. Commitment Commission; Fees; Reductions of Commitment.
2.01 Fees. (a) The Borrower agrees to pay to the Administrative Agent
for distribution to each Bank with a Revolving Loan Commitment or an
Acquisition Loan Commitment a commitment commission (the "Commitment
Commission") for the period from and including the Third Restatement Effective
Date to and excluding the later of the Acquisition Loan Termination Date and
the B Revolving Loan Maturity Date (or such earlier date as the Total
Commitment shall have been terminated) computed at a rate for each day equal to
1/2 of 1% per annum on the daily Aggregate Unutilized Commitment of such Bank.
Accrued Commitment Commission shall be due and payable quarterly in arrears on
each Quarterly Payment Date and on the later of the Acquisition Loan
Termination Date and the B Revolving Loan Maturity Date or such earlier date
upon which the Total Commitment is terminated.
(b) The Borrower agrees to pay to each (x) A Issuing Bank, for its own
account, a facing fee in respect of each A Letter of Credit issued by such A
Issuing Bank hereunder, for the period from and including the date of issuance
of such A Letter of Credit (which, in the case of an Existing Letter of Credit,
shall be deemed to be the date such Existing Letter of Credit is incorporated
hereunder as an "A Letter of Credit" in accordance with the requirements of
Section 1A.01(d)) to and including the date of termination of such A Letter of
Credit, equal to 1/4 of 1% per annum of the daily Stated Amount of such A
Letter of Credit and (y) B Issuing Bank, for its own account, a facing fee in
respect of each B Letter of Credit issued by such B Issuing Bank hereunder, for
the period from and including the date of issuance of such B Letter of Credit
to and including the date of termination of such B Letter of Credit, equal to
1/4 of 1% per annum of the daily Stated Amount of such B Letter of Credit (with
all facing fees payable as provided in this clause (b) being herein called
"Facing Fees"); provided that in no event shall the annual Facing Fee with
respect to each Letter of Credit be less than $500. Accrued Facing Fees shall
be due and payable quarterly in arrears to the respective Issuing Bank in
respect of each Letter of Credit issued by it on each Quarterly Payment Date
and (i) in the case of a Facing Fee payable pursuant to the preceding clause
(x) above, the date of the termination of the Total A Revolving Loan Commitment
on which no A Letters of Credit remain outstanding and (ii) in the case of a
Facing Fee payable pursuant to the preceding clause (y) above, the date of the
termination of the Total B Revolving Loan Commitment on which no B Letters of
Credit remain outstanding.
(c) The Borrower agrees to pay to the Administrative Agent for
distribution to each Bank (x) with an A Revolving Loan Commitment, a letter of
credit fee in respect of each A Letter of Credit issued hereunder, for the
period from and including the date of issuance of such
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A Letter of Credit (which, in the case of an Existing Letter of Credit, shall
be deemed to be the date such Existing Letter of Credit is incorporated
hereunder as an "A Letter of Credit" in accordance with the requirements of
Section 1A.01(d)) to and including the date of termination of such A Letter of
Credit, computed at a rate per annum equal to the product of (i) the Applicable
Margin for A Revolving Loans which are maintained as Eurodollar Loans and (ii)
the daily Stated Amount of such A Letter of Credit and (y) with a B Revolving
Loan Commitment, a letter of credit fee in respect of each B Letter of Credit
issued hereunder, for the period from and including the date of issuance of
such B Letter of Credit to and including the date of termination of such B
Letter of Credit, computed at a rate per annum equal to the product of (i) the
Applicable Margin for B Revolving Loans which are maintained as Eurodollar
Loans and (ii) the daily Stated Amount of such B Letter of Credit (with all
letter of credit fees payable as provided in this clause (c) being herein
called "Letter of Credit Fees"). Letter of Credit Fees shall be distributed by
the Administrative Agent to the Banks on the basis of their respective A RL
Percentage and/or B RL Percentage, as the case may be, as in effect from time
to time. Accrued Letter of Credit Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and (A) in the case of the Letter of
Credit Fees payable pursuant to preceding clause (x) above, on the date of the
termination of the Total A Revolving Loan Commitment on which no A Letters of
Credit remain outstanding and (B) in the case of the Letter of Credit Fees
payable pursuant to the preceding clause (y) above, on the date of the
termination of the Total B Revolving Loan Commitment on which no B Letters of
Credit remain outstanding.
(d) The Borrower hereby agrees to pay in immediately available funds
directly to the Issuing Bank upon each issuance of, drawing under, and/or
amendment of, a Letter of Credit issued by the Issuing Bank such amount as
shall at the time of such issuance, drawing or amendment be the administrative
charge which the Issuing Bank is customarily charging for issuances of,
drawings under (including wire charges) or amendments of, letters of credit
issued by it or such alternative amounts as may have been agreed upon in
writing by the Borrower and the Issuing Bank.
(e) Notwithstanding anything to the contrary contained in this
Agreement or in the Second Amended and Restated Credit Agreement, all unpaid
Fees included, and as defined in, the Second Amended and Restated Credit
Agreement (including, without limitation, Commitment Commissions, Facing Fees,
and Letter of Credit Fees (each as defined in the Second Amended and Restated
Credit Agreement) accrued prior to the Third Restatement Effective Date) shall
be payable on the Third Restatement Effective Date.
(f) The Borrower shall pay to each Bank and each Agent, for its
account, such other fees and other consideration as have been agreed to in
writing by Vantas, the Parent and/or any of their respective Subsidiaries or
Affiliates and such Bank or such Agent, when and as due.
2.02 Voluntary Termination of Unutilized Commitments. (a) Upon at
least three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent at its Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Banks),
the Borrower shall have the right, without premium or penalty, to terminate the
Total Unutilized Acquisition Loan Commitment at such time or the Total
Unutilized Revolving Loan Commitment at such time, in whole or in part;
provided that (I) any
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partial reduction pursuant to this Section 2.02 shall be in integral multiples
of at least $100,000 and (II) any reduction to the Total Unutilized Revolving
Loan Commitment pursuant to this Section 2.02(a) shall be applied on a pro rata
basis to reduce the Total A Revolving Loan Commitment and the Total B Revolving
Loan Commitment (based upon the relative amounts of the Total A Revolving Loan
Commitment and the Total B Revolving Loan Commitment, in each case as in effect
before giving effect to the respective reduction), provided however that no
such reduction to the Total Unutilized Revolving Loan Commitment shall be
permitted to be made pursuant to this Section 2.02(a) if the effect thereof is
to cause either (x) the sum of (x) the aggregate principal amount of all A
Revolving Loans then outstanding plus (y) the aggregate amount of all A Letter
of Credit Outstandings at such time to exceed the Total Available A Revolving
Loan Commitment after giving effect to the reduction thereto pursuant to this
Section 2.02(a) or (y) the sum of (x) the aggregate principal amount of all B
Revolving Loans then outstanding plus (y) the aggregate amount of all B Letter
of Credit Outstandings at such time to exceed the Total B Revolving Loan
Commitment after giving effect to the reduction thereto pursuant to this
Section 2.02(a). Each reduction to (x) the Total Acquisition Loan Commitment
pursuant to this Section 2.02(a) shall apply to proportionately and permanently
reduce the Acquisition Loan Commitment of each Bank with such a Commitment
(based on their respective Acquisition Commitment Percentages), (y) the Total A
Revolving Loan Commitment pursuant to this Section 2.02(a) shall apply to
proportionately and permanently reduce the A Revolving Loan Commitment of each
Bank with such a Commitment (based on their respective A RL Percentages) and
(z) the Total B Revolving Loan Commitment pursuant to this Section 2.02(a)
shall apply to proportionally and permanently reduce the B Revolving Loan
Commitment of each Bank with such a Commitment (based on their respective B RL
Percentages).
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
12.12(b) and/or Section 12.17(b), the Borrower shall have the right, upon five
Business Days' prior written notice to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to each
of the Banks), to terminate all of the Acquisition Loan Commitment (if any),
the A Revolving Loan Commitment (if any) and/or the B Revolving Loan Commitment
(if any) of such Bank, so long as all Loans, together with accrued and unpaid
interest, Fees and all other amounts, owing to such Bank (other than amounts
owing in respect of A Term Loans, B Term Loans, C Term Loans, Acquisition
Loans, A Revolving Loans or B Revolving Loans maintained by such Bank, if such
A Term Loans, B Term Loans, C Term Loans, Acquisition Loans, A Revolving Loans
or B Revolving Loans are not being repaid pursuant to Section 12.12(b) and/or
Section 12.17(b)), are repaid concurrently with the effectiveness of such
termination pursuant to Section 3.01(b) and the Borrower shall pay to the
Administrative Agent at such time an amount in cash and/or Cash Equivalents
equal to such Bank's applicable RL Percentage of the outstanding Letters of
Credit (which cash and/or Cash Equivalents shall be held by the Administrative
Agent as security for the obligations of the Borrower hereunder in respect of
the outstanding Letters of Credit pursuant to a cash collateral agreement to be
entered into in form and substance reasonably satisfactory to the
Administrative Agent (at which time Annex I shall be deemed modified to reflect
such changed amounts)), and at such time, unless the respective Bank continues
to act as a Bank with respect to A Term Loans, B Term Loans, C Term Loans, or
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Acquisition Loans or has an A Revolving Loan Commitment, B Revolving Loan
Commitment or Acquisition Loan Commitment hereunder, such Bank shall no longer
constitute a "Bank" for purposes of this Agreement, except with respect to
indemnifications and similar provisions under this Agreement (including,
without limitation, 1.10, 1.11, 1A.06, 2A.06, 3.04, 12.01 and 12.06), which
shall survive as to such repaid Bank. In the case of any termination of the A
Revolving Loan Commitment, the B Revolving Loan Commitment and/or the
Acquisition Loan Commitment of any Bank pursuant to this Section 2.02(b), there
shall occur automatic adjustments (as determined by the Administrative Agent)
in the A RL Percentages, B RL Percentages and/or Acquisition Commitment
Percentages, as the case may be, of the remaining Banks.
2.03 Mandatory Reduction of Commitments. (a) The Total Commitment (and
the C Term Loan Commitment and B Revolving Loan Commitment of each Bank with
such a Commitment) shall terminate in its entirety on June 15, 2000 and the
Second Amended and Restated Credit Agreement shall continue in effect unless
the Third Restatement Effective Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 2.03, the Total C Term Loan Commitment (and the C Term Loan
Commitment of each Bank with such a Commitment) shall terminate in its entirety
on the Third Restatement Effective Date (after giving effect to the making of
the C Term Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 2.03, the Total Acquisition Loan Commitment (and the
Acquisition Loan Commitment of each Bank with such a Commitment) shall (i)
terminate in its entirety on the Acquisition Loan Termination Date, and (ii)
prior to the termination of the Total Acquisition Loan Commitment as provided
in clause (i) above, be permanently reduced from time to time to the extent
required by Section 3.02.
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 2.03, the Total A Revolving Loan Commitment (and the A
Revolving Loan Commitment of each Bank with such a Commitment) shall terminate
on the A Revolving Loan Maturity Date.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 2.03, the Total B Revolving Loan Commitment (and the B
Revolving Loan Commitment of each Bank with such a Commitment) shall terminate
on the B Revolving Loan Maturity Date.
(f) In addition to any other mandatory commitment reductions pursuant
to this Section 2.03, the Total A Revolving Loan Commitment and the Total B
Revolving Loan Commitment shall be permanently reduced from time to time to the
extent required by Section 3.02.
(g) Each reduction to the Total C Term Loan Commitment, the Total
Acquisition Loan Commitment, the Total A Revolving Loan Commitment and the
Total B Revolving Loan Commitment pursuant to this Section 2.03 shall be
applied proportionately to reduce C Term Loan Commitment, Acquisition Loan
Commitment, A Revolving Loan
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Commitment or B Revolving Loan Commitment, as the case may be, of each Bank
with such a Commitment.
Section 3. Prepayments; Payments; Taxes.
3.01 Voluntary Prepayments. (a) The Borrower shall have the right to
prepay Loans, without premium or penalty, in whole or in part from time to time
on the following terms and conditions:
(i) The Borrower shall give the Administrative Agent prior to
10:00 a.m. (New York time) at its Notice Office at least three
Business Days' prior written notice in the case of Eurodollar Loans
and one Business Day's prior written notice in the case of Base Rate
Loans of its intent to prepay the Loans, whether A Term Loans, B Term
Loans, C Term Loans, Acquisition Loans, A Revolving Loans or B
Revolving Loans shall be prepaid (which Loans may be selected at the
discretion of the Borrower subject to any limitations contained in
clauses (ii) through (vi) below), the amount of such prepayment and
the Types of Loans to be prepaid and, in the case of Eurodollar Loans,
the specific Borrowing or Borrowings pursuant to which made, which
notice the Administrative Agent shall promptly transmit to each of the
Banks;
(ii) each prepayment shall be in an aggregate principal
amount of at least the applicable Minimum Borrowing Amount and, if
greater, in integral multiples of $100,000; provided that no partial
prepayment of Eurodollar Loans made pursuant to any Borrowing shall
reduce the outstanding Loans made pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount;
(iii) no prepayments of Eurodollar Loans made pursuant to
this Section 3.01 may be made on a day other than the last day of an
Interest Period applicable thereto;
(iv) each prepayment in respect of any Loans made pursuant to
a Borrowing shall be applied pro rata among such Loans;
(v) each prepayment of Term Loans or Acquisition Loans
pursuant to this Section 3.01 must consist of a prepayment of A Term
Loans (in an amount equal to the A TL Percentage of such prepayment),
B Term Loans (in an amount equal to the B TL Percentage of such
prepayment), C Term Loans (in an amount equal to the C TL Percentage
of such prepayment) and Acquisition Loans (in an amount equal to the
Acquisition TL Percentage of such prepayment); provided, however,
prior to the Acquisition Loan Termination Date, a prepayment of
Acquisition Loans shall not be required to be accompanied by a
prepayment of Term Loans and a prepayment of Term Loans shall not be
required to be accompanied by a prepayment of Acquisition Loans; and
(vi) each prepayment of Acquisition Loans after the
Acquisition Loan Termination Date and each prepayment of Term Loans
pursuant to this Section 3.01 shall be applied to reduce the then
remaining Scheduled Repayments of the respective Tranche
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being repaid on a pro rata basis (based upon the then remaining
principal amount of each such Scheduled Repayment).
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
12.12(b) and/or Section 12.17(b), the Borrower shall have the right, upon five
Business Days' prior written notice to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to each
of the Banks) to repay all Loans, together with accrued and unpaid interest,
Fees and all other amounts owing to such Bank (or owing to such Bank with
respect to each Tranche which gave rise to the need to obtain such Bank's
individual consent) in accordance with said Section 12.12(b) and/or Section
12.17(b) so long as (A) in the case of the repayment of A Revolving Loans, B
Revolving Loans and/or Acquisition Loans prior to the Acquisition Loan
Termination Date pursuant to this clause (b), the A Revolving Loan Commitment,
B Revolving Loan Commitment and/or Acquisition Loan Commitment, as the case may
be, of such Bank is terminated concurrently with such repayment pursuant to
Section 2.02(b) (at which time Schedule I shall be deemed modified to reflect
the changed A Revolving Loan Commitments, B Revolving Loan Commitments and/or
Acquisition Loan Commitments), and (B) in the case of the repayment of Loans of
any Bank, the consents required by Section 12.12(b) and/or Section 12.17(b) in
connection with the repayment pursuant to this clause (b) shall have been
obtained.
3.02 Mandatory Repayments and Commitment Reductions.
(A) Requirements:
(a) (i) On any day on which the sum of the aggregate outstanding
principal amount of the A Revolving Loans and the A Letter of Credit
Outstandings at such time exceeds the Total A Revolving Loan Commitment as then
in effect, the Borrower shall prepay the principal of A Revolving Loans in an
amount equal to such excess. If, after giving effect to the prepayment of all
outstanding A Revolving Loans, the aggregate amount of the A Letter of Credit
Outstandings exceeds the Total A Revolving Loan Commitment as then in effect,
the Borrower shall pay to the Administrative Agent at its Payment Office on
such date an amount of cash or Cash Equivalents equal to the amount of such
excess, such cash or Cash Equivalents to be held as security for all
Obligations of the Borrower hereunder in a manner satisfactory to the
Collateral Agent.
(ii) On any day on which the sum of the aggregate outstanding
principal amount of the B Revolving Loans and the B Letter of Credit
Outstandings exceeds the Total B Revolving Loan Commitment as then in effect,
the Borrower shall prepay the principal of B Revolving Loans in an amount equal
to such excess. If, after giving effect to the prepayment of all outstanding B
Revolving Loans, the aggregate amount of the B Letter of Credit Outstandings
exceeds the Total B Revolving Loan Commitment as then in effect, the Borrower
shall pay to the Administrative Agent at its Payment Office on such date an
amount of cash or Cash Equivalents equal to the amount of such excess, such
cash or Cash Equivalents to be held as security for all Obligations of the
Borrower hereunder in a manner satisfactory to the Collateral Agent.
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(iii) On any day on or prior to the Acquisition Loan Termination Date
on which the aggregate outstanding principal amount of Acquisition Loans
exceeds the Total Acquisition Loan Commitment, the Borrower shall repay the
principal of Acquisition Loans in the amount equal to such excess.
(b) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 3.02(A), the Borrower shall be required to
repay on each date set forth below (to the extent any day set forth below is
not a Business Day then the required date of repayment shall be the immediately
preceding Business Day) the principal amount of A Term Loans, to the extent
then outstanding, set forth below opposite such date (each such repayment as
the same may be reduced after the Restatement Effective Date as provided in
Sections 3.01 and 3.02(B), a "Scheduled A Term Loan Repayment"):
Scheduled A Term Loan Repayment Date Amount
------------------------------------ ------
September 30, 2000 $3,000,000
December 31, 2000 $3,000,000
March 31, 2001 $3,575,000
June 30, 2001 $3,575,000
September 30, 2001 $3,575,000
December 31, 2001 $3,575,000
March 31, 2002 $3,700,000
A Term Loan Maturity Date $1,000,000
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 3.02(A), the Borrower shall be required to
repay on each date set forth below (to the extent any date set forth below is
not a Business Day then the required date of repayment shall be the immediately
preceding Business Day) the principal amount of B Term Loans, to the extent
then outstanding, set forth below opposite such date (each such repayment as
the same may be reduced after the Restatement Effective Date as provided in
Sections 3.01 and 3.02(B), a "Scheduled B Term Loan Repayment"):
Scheduled B Term Loan Repayment Date Amount
------------------------------------ ------
September 30, 2000 $125,000
December 31, 2000 $125,000
March 31, 2001 $125,000
June 30, 2001 $125,000
September 30, 2001 $125,000
December 31, 2001 $125,000
March 31, 2002 $3,812,500
June 30, 2002 $3,812,500
September 30, 2002 $3,812,500
December 31, 2002 $3,812,500
March 31, 2003 $4,875,000
June 30, 2003 $4,875,000
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September 30, 2003 $4,875,000
December 31, 2003 $4,875,000
March 31, 2004 $5,922,000
June 30, 2004 $5,922,000
September 30, 2004 $5,922,000
December 31, 2004 $5,985,000
March 31, 2005 $7,531,000
June 30, 2005 $7,531,000
September 30, 2005 $7,531,000
B Term Loan Maturity Date $7,531,000
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 3.02(A), the Borrower shall be required to
repay on each date set forth below a principal amount of Acquisition Loans, to
the extent then outstanding, equal to (i) the aggregate principal amount of
Acquisition Loans outstanding on the Acquisition Loan Termination Date (after
giving effect to any Acquisition Loans made on such date) multiplied by (ii)
the percentage set forth below opposite such date (each such repayment as the
same may be reduced as provided in Sections 3.01 and 3.02(B), a "Scheduled
Acquisition Loan Repayment"):
Scheduled Acquisition Loan Repayment Dates Percentage:
Each Quarterly Payment Date occurring during the 12 month
period commencing on November 6, 2001 2.5%
Each Quarterly Payment Date occurring during the 12 month
period commencing on November 6, 2002 10.0%
Acquisition Loan Maturity Date 50%
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 3.02(A), the Borrower shall be required to
repay on each date set forth below (to the extent any date set forth below is
not a Business Day then the required date of repayment shall be the immediately
preceding Business Day) the principal amount of C Term Loans, to the extent
then outstanding, set forth below opposite such date (each such repayment as
the same may be reduced after the Third Restatement Effective Date as provided
in Sections 3.01 and 3.02(B), a "Scheduled C Term Loan Repayment" and the
Scheduled A Term Loan Repayments, Scheduled B Term Loan Repayments, Scheduled
Acquisition Loan Repayments, together with the Scheduled C Term Loan
Repayments, collectively referred to herein as the "Scheduled Repayments"):
Scheduled C Term Loan Repayment Date Amount
------------------------------------ ------
September 30, 2000 $100,000
December 31, 2000 $100,000
March 31, 2001 $750,000
June 30, 2001 $750,000
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Scheduled C Term Loan Repayment Date Amount
------------------------------------ ------
September 30, 2001 $750,000
December 31, 2001 $750,000
March 31, 2002 $1,000,000
June 30, 2002 $1,000,000
September 30, 2002 $1,000,000
December 31, 2002 $1,000,000
March 31, 2003 $1,250,000
June 30, 2003 $1,250,000
September 30, 2003 $1,250,000
December 31, 2003 $1,250,000
March 31, 2004 $10,000,000
June 30, 2004 $10,000,000
September 30, 2004 $10,000,000
December 31, 2004 $10,000,000
March 31, 2005 $11,950,000
June 30, 2005 $11,950,000
September 30, 2005 $11,950,000
C Term Loan Maturity Date $11,950,000
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 3.02, on the date of the receipt thereof by
the Parent or any of its Subsidiaries, an amount equal to:
(i) the Relevant Prepayment Percentage of the cash proceeds
(net of underwriting discounts and commissions and all other
reasonable costs associated with such transaction) from any sale or
issuance after the Third Restatement Effective Date of common equity
of the Parent or any Subsidiary of the Parent (other than (x)
Permitted Equity Issuances and (y) any proceeds from the FrontLine
Indemnity Contribution); provided that proceeds of equity sold or
issued to officers, directors or employees of the Borrower ("Employee
Stock Proceeds") shall not be required to be paid on the date of the
receipt thereof (unless such date of receipt is also a date specified
below) but instead shall be required to be paid on each date on which
the aggregate amount of such Employee Stock Proceeds received during
the period commencing on the later of (x) the Third Restatement
Effective Date and (y) the immediately preceding date on which a
mandatory repayment or commitment reduction was made pursuant to this
Section 3.02(A)(f) as a result of the receipt of Employee Stock
Proceeds and ending on the date of determination (the "Employee Stock
Proceeds Payment Period"), equals or exceeds $200,000 (beyond the $2
million exclusion set forth in the last proviso in this Section
3.02(A)(f)), with the amount of the repayments or commitment
reductions required on each such date to equal the Relevant Prepayment
Percentage of the aggregate amount of Employee Stock Proceeds received
on or before such date during the applicable Employee Stock Proceeds
Payment Period;
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(ii) the Relevant Prepayment Percentage of the cash proceeds
(net of underwriting discounts and commissions, loan fees and all
other reasonable costs associated with such transaction) from (x) any
incurrence of any Indebtedness by the Parent or any Subsidiary of the
Parent (other than Indebtedness permitted by Section 8.05 as said
Section is in effect on the Third Restatement Effective Date) or (y)
any sale or issuance after the Third Restatement Effective Date of
preferred equity of the Parent or any Subsidiary of the Parent (other
than Permitted Equity Issuances); and
(iii) if a Default or Event of Default is in existence at the
time of the receipt thereof, 100% of the cash proceeds from the
FrontLine Indemnity Contribution (whether made as a cash contribution
or pursuant to an issuance of Parent Common Stock).
shall be applied as provided in Section 3.02(B); provided, however, that so
long as there shall exist no Default or Event of Default at the time of
exercise thereof, the first $2 million of cash proceeds received by the Parent
after the Third Restatement Effective Date from the exercise of warrants and/or
options by employees and directors of the Parent with respect to the Parent's
Common Stock may be retained by the Parent.
(g) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 3.02, on each Excess Cash Flow Payment
Date, an amount equal to 75% of Excess Cash Flow of the Parent and its
Subsidiaries for the relevant Excess Cash Flow Payment Period shall be applied
as provided in Section 3.02(B).
(h) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 3.02, on each date after the Third
Restatement Effective Date on which the Parent or any Subsidiary of the Parent
receives cash proceeds from any sale of assets (including capital stock and
securities other than capital stock the proceeds from the sale of which is
recaptured under Section 3.02(A)(f) but excluding sales of assets so long as
the aggregate amount of Net Sale Proceeds excluded pursuant to this clause does
not exceed $200,000 in the aggregate for all such asset sales in any fiscal
year of the Parent), an amount equal to the Relevant Prepayment Percentage of
the Net Sale Proceeds thereof shall be applied as provided in Section 3.02(B).
Notwithstanding anything to the contrary contained in this Section 3.02(A)(h),
in no event shall the Parent or any of its Subsidiaries use any proceeds from
any asset sale to make any voluntary or mandatory repayment or prepayment of
Senior Subordinated Bridge Loans, Permitted Subordinated Refinancing
Indebtedness or Mezzanine Subordinated Notes and, in each case, before any such
obligation to use such proceeds to make such repayment shall arise, the Parent
or the respective Subsidiary shall apply such proceeds as a mandatory
prepayment and/or commitment reduction in accordance with requirements of
Sections 3.02(B).
(i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 3.02, on each date after the Third
Restatement Effective Date of the receipt thereof by the Parent or any
Subsidiary of the Parent, an amount equal to the Relevant Prepayment Percentage
of the cash proceeds of any Recovery Event (net of reasonable costs incurred in
connection with such Recovery Event (including the estimated marginal increase
in income taxes which will be payable as a result of such Recovery Event by the
Parent or any
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Subsidiary of the Parent)) shall be applied as provided in Section 3.02(B);
provided that proceeds from Recovery Events which relate to destruction of
property (and do not relate to key-man insurance or liability insurance) not in
excess of $1,000,000 in the aggregate for all Recovery Events occurring during
one fiscal year of the Parent shall not be required to be so applied on such
date to the extent that the Parent delivers a certificate to the Administrative
Agent on or prior to such date stating that such proceeds shall be used to
replace or restore any properties or assets in respect of which such proceeds
were paid within a period specified in such certificate not to exceed 180 days
after the date of receipt of such proceeds (which certificate shall set forth
estimates of the proceeds to be so expended); and provided further, that if all
or any portion of such proceeds not so applied pursuant to Section 3.02(B) are
not so used within the period specified in the proviso, such remaining portion
shall be applied on the last day of such specified period as provided in
Section 3.02(B).
(j) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 3.02(A), on each date upon which the Parent
or any of its Subsidiaries receives cash proceeds pursuant to any Acquisition
Document or any agreement or understanding relating to any Permitted
Acquisition, including, without limitation, indemnification or similar payments
and post-closing adjustments, but excluding in each case post-closing working
capital adjustments and reimbursement of out-of-pocket costs and expenses, an
amount equal to the Relevant Prepayment Percentage of such proceeds (net of
reasonable expenses incurred in connection with obtaining such proceeds and the
estimated marginal increase in income taxes payable in respect thereof) shall
be applied as provided in Section 3.02(B).
(k) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, all then outstanding Loans of each respective Tranche shall be
repaid in full on the Maturity Date for such Tranche of Loans.
(B) Application:
(a) Each mandatory repayment of Loans pursuant to Section 3.02(A)(f)
through (j), inclusive, shall be applied:
(i) first, (A) prior to the Acquisition Loan Termination
Date, to prepay the principal of outstanding A Term Loans, B Term
Loans, and C Term Loans on a pro rata basis, with the A Term Loan
Facility to receive the A TL Percentage, the B Term Loan Facility to
receive the B TL Percentage and the C Term Loan Facility to receive
the C TL Percentage, in each case, of the total amount to be applied
as a mandatory repayment of Term Loans pursuant to this Section
3.02(B), which prepayments of such Term Loans shall be applied to
reduce the then remaining Scheduled A Term Loan Repayments, Scheduled
B Term Loan Repayments and Scheduled C Term Loan Repayments on a pro
rata basis (based on the then remaining amounts of such Scheduled A
Term Loan Repayments, Scheduled B Term Loan Repayments and Scheduled C
Term Loan Repayments) and (B) after the Acquisition Loan Termination
Date, to prepay the principal of outstanding Term Loans and
Acquisition Loans on a pro rata basis, with the A Term Loan Facility
to receive the A TL Percentage, the B Term Loan Facility to receive
the B TL Percentage, the C Term Loan Facility to receive the C TL
Percentage
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and the Acquisition Loan Facility to receive the Acquisition TL
Percentage, in each case of the total amount to be applied as a
mandatory repayment of Term Loans and Acquisition Loans pursuant to
this Section 3.02(B), and which prepayments of such Term Loans and
Acquisition Loans shall be applied to reduce the then remaining
Scheduled Repayments of the respective Tranche on a pro rata basis
(based on the then remaining amounts of such Scheduled Repayments);
(ii) second, prior to the Acquisition Loan Termination Date,
to prepay the principal of outstanding Acquisition Loans (with a
corresponding reduction to the Total Acquisition Loan Commitment);
(iii) third, prior to the Acquisition Loan Termination Date,
to reduce the Total Acquisition Loan Commitment (with a corresponding
reduction to the Acquisition Loan Commitment of each Bank with such a
Commitment (it being understood and agreed that the amount of such
reduction shall be deemed to be an application of proceeds for
purposes of this Section 3.02(B)(a)(iii) even though cash is not
actually applied));
(iv) fourth, to prepay the principal of outstanding A
Revolving Loans and B Revolving Loans on a pro rata basis, with the A
Revolving Loan Facility to receive the A RL Repayment Percentage and
the B Revolving Loan Facility to receive the B RL Repayment
Percentage, in each case, of the total amount to be applied as a
mandatory repayment of Revolving Loans pursuant to this Section
3.02(B) (with a corresponding reduction to the Total A Revolving Loan
Commitment and the Total B Revolving Loan Commitment);
(v) fifth, to cash collateralize Letter of Credit
Outstandings by depositing cash in a letter of credit cash collateral
account on terms satisfactory to the Collateral Agent, in an amount
equal to the Letter of Credit Outstandings, with the amount required
to be used for such cash collateralization to be applied pro rata to
the A Letter of Credit Outstandings and the B Letter of Credit
Outstandings (based upon the A RL Repayment Percentage and the B RL
Repayment Percentage then in effect) (it being understood that the
Total A Revolving Loan Commitment and the Total B Revolving Loan
Commitment shall be reduced by the amount of cash collateral required
to be deposited in respect of A Letter of Credit Outstandings or B
Letter of Credit Outstandings, as the case may be, pursuant to this
clause (v)); and
(vi) sixth, to reduce the remaining (i.e., after giving
effect to all prior reductions thereto, including, without limitation,
to the reductions theretofore effected pursuant to the preceding
clauses (iv) and (v)) Total A Revolving Loan Commitment and Total B
Revolving Loan Commitment on a pro rata basis, with the Total A
Revolving Loan Commitment to be allocated the A RL Repayment
Percentage of the amount to be so applied and the Total B Revolving
Loan Commitment to be allocated the B RL Repayment Percentage of the
amount to be so applied (it being understood and agreed that the
amount of such reduction shall be deemed to be an application of
proceeds for purposes of this Section 3.02(B)(a)(vi) even though cash
is not actually applied).
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(b) With respect to each repayment of Loans required by this Section
3.02, the Borrower may designate the Types of Loans which are to be repaid and,
in the case of Eurodollar Loans, the specific Borrowing or Borrowings of the
respective Tranche pursuant to which made; provided that: (i) repayments of
Eurodollar Loans pursuant to this Section 3.02 may only be made on the last day
of an Interest Period applicable thereto unless all Eurodollar Loans of the
respective Tranche with Interest Periods ending on such date of required
repayment and all Base Rate Loans of the respective Tranche have been paid in
full; (ii) if any repayment of Eurodollar Loans made pursuant to a single
Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to such
Borrowing to an amount less than the applicable Minimum Borrowing Amount, such
Borrowing shall immediately be converted into Base Rate Loans; and (iii) each
repayment of any Loans made pursuant to a single Borrowing shall be applied pro
rata among such Loans. In the absence of a designation by such Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its sole discretion.
(C) Waiver of Certain Mandatory Repayments:
Notwithstanding anything to the contrary contained in this Section
3.02 or elsewhere in this Agreement (including, without limitation, in Section
12.12), the Banks with outstanding B Term Loans (the "B Term Banks") and C Term
Loans (the "C Term Banks") shall have the option, without the consent of the
Borrower, to waive a mandatory repayment of such Loans pursuant to Section
3.02(A)(f), (g), (h), (i) and/or (j) (each such repayment, a "Waivable
Mandatory Repayment") upon the terms and provisions set forth in this Section
3.02(C). The Borrower shall give the Administrative Agent written notice at
least five Business Days prior to the date of each Waivable Mandatory
Repayment, which notice the Administrative Agent shall promptly forward to all
B Term Banks and C Term Banks (indicating in such notice the amount of such
repayment to be applied to each such Bank's outstanding Term Loans under such
Tranches). In the event any such B Term Bank or C Term Bank desires to waive
such Bank's right to receive any such Waivable Mandatory Repayment, in whole or
in part, such Bank shall so advise the Administrative Agent no later than the
close of business two Business Days after the date of such notice from the
Administrative Agent, which notice shall also include the amount such Bank
desires to receive in respect of such repayment. If any Bank does not reply to
the Administrative Agent within such two Business Day period, it will be deemed
not to have waived any part of such repayment. If any Bank does not specify an
amount it wishes to receive, it will be deemed to have accepted 100% of the
total payment. In the event that any such Bank waives all or part of such right
to receive any such Waivable Mandatory Repayment, the Administrative Agent
shall apply 100% of the amount so waived by such Bank to the A Term Loans
and/or the Acquisition Loans (and if prior to the Acquisition Loan Termination
Date, to the reduction of the Acquisition Loan Commitments), in each case in
accordance with Section 3.02(B). Notwithstanding the foregoing, in no event
shall the amount of a Waivable Mandatory Repayment exceed the aggregate
principal amount of A Term Loans and Acquisition Loans that will be outstanding
after Banks with outstanding A Term Loans and Acquisition Loans receive their
respective shares of mandatory repayments pursuant to Section 3.02(B) (i.e.,
before giving effect to any application of such Waivable Mandatory Repayment to
A Term Loans and/or Acquisition Loans pursuant to this Section 3.03(C)).
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3.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the account of the Bank or Banks entitled thereto
not later than 12:00 Noon (New York time) on the date when due and shall be
made in Dollars in immediately available funds at the Payment Office of the
Administrative Agent. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
3.04 Net Payments. (a) All payments made by the Borrower hereunder or
under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 3.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future
taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such
payments (but excluding, except as provided in the second succeeding sentence,
any tax imposed on or measured by the net income of a Bank pursuant to the laws
of the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Bank is located or any
political subdivision or taxing authority thereof or therein) and all interest,
penalties or similar liabilities with respect to such non- excluded taxes,
levies, imposts, duties, fees, assessments or other charges (all such non-
excluded taxes, levies, imposts, duties, fees, assessments or other charges
being referred to collectively as "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
hereunder or under any Note, after withholding or deduction for or on account
of any Taxes, will not be less than the amount provided for herein or in such
Note. If any amounts are payable in respect of Taxes pursuant to the preceding
sentence, the Borrower agrees to reimburse each Bank, upon the written request
of such Bank, for taxes imposed on or measured by the net income or net profits
of such Bank pursuant to the laws of the jurisdiction or any political
subdivision or taxing authority thereof or therein in which such Bank is
organized or in which the principal office or applicable lending office of such
Bank is located and for any withholding of income or similar taxes as such Bank
shall determine are payable by, or withheld from, such Bank in respect of such
amounts so paid to or on behalf of such Bank pursuant to the preceding sentence
and in respect of any amounts paid to or on behalf of such Bank pursuant to
this sentence. The Borrower will furnish to the Administrative Agent within 45
days after the date of the payment of any Taxes due pursuant to applicable law
certified copies of tax receipts evidencing such payment by the Borrower. The
Borrower agrees to indemnify and hold harmless each Bank, and reimburse such
Bank upon its written request, for the amount of any Taxes so levied or imposed
and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Administrative Agent on or prior to the Third Restatement Effective
Date, or in the case of a Bank that is an assignee or transferee of an interest
under this Agreement pursuant to Section 12.04 (unless the respective Bank was
already a Bank hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Bank, (i) two accurate and
complete original signed copies of Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete
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exemption under an income tax treaty) (or successor forms) certifying to such
Bank's entitlement to a complete exemption from United States withholding tax
with respect to payments to be made under this Agreement and under any Note, or
(ii) if the Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete exemption under an income tax treaty)
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit C (any such certificate, a "Section 3.04(b)(ii) Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8BEN (with respect to the portfolio interest exemption) (or successor
form) certifying to such Bank's entitlement to a complete exemption from United
States withholding tax with respect to payments of interest to be made under
this Agreement and under any Note. In addition, each Bank agrees that from time
to time after the Third Restatement Effective Date, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits
of any income tax treaty), Form W-8BEN (with respect to the portfolio interest
exemption) and a Section 3.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Bank to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any Note, or
it shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Bank
shall not be required to deliver any such form of certificate pursuant to this
Section 3.04(b). Notwithstanding anything to the contrary contained in Section
3.04(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 income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, fees or
other amounts payable hereunder for the account of any Bank which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has not
provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower
shall not be obligated pursuant to Section 3.04(a) hereof to gross-up payments
to be made to a Bank in respect of income or similar taxes imposed by the
United States if (I) such Bank has not provided the Borrower the Internal
Revenue Service Forms required to be provided the Borrower pursuant to this
Section 3.04(b) or (II) in the case of a payment, other than interest, to a
Bank described in clause (ii) above, to the extent that such forms do not
establish a complete exemption from withholding of such taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 3.04, the Borrower agrees to pay additional amounts and to
indemnify each Bank in the manner set forth in Section 3.04(a) (without regard
to the identity of the jurisdiction requiring the deduction or withholding) in
respect of any amounts deducted or withheld by it as described in the
immediately preceding sentence as a result of any changes after the Third
Restatement Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of income or similar Taxes.
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Section 4. Conditions Precedent to Loans on the Third Restatement
Effective Date. The obligation of each Bank to make Loans on the Third
Restatement Effective Date (and the occurrence of the Third Restatement
Effective Date) is subject on the Third Restatement Effective Date to the
satisfaction of the following conditions (it being understood that the
conditions set forth in Sections 4.16, 4.17 and 4.18 shall be required to be
satisfied on the Third Restatement Effective Date and concurrently with the
making of Loans on such date):
4.01 Execution of Agreement; Notes. On or prior to the Third
Restatement Effective Date, there shall have been delivered to the
Administrative Agent, for the account of each of the Banks, the appropriate A
Term Note, B Term Note, C Term Note, Acquisition Note, A Revolving Note or B
Revolving Note executed by the Borrower, in each case in the amount, maturity
and as otherwise provided herein.
4.02 Officer's Certificate. On the Third Restatement Effective Date,
the Administrative Agent shall have received a certificate dated the Third
Restatement Effective Date signed on behalf of the Parent by the President or
Chief Financial Officer of the Parent stating that all of the conditions in
Sections 4.10, 4.11, 4.12, 4.14, 4.16, 4.17, 4.18 and 5.01 have been satisfied
on such date; provided the certificate shall not be required to certify as to
the acceptability of any items to the Agents and/or the Banks or as to whether
the Agents and/or the Banks are satisfied with any of the matters described in
said Sections.
4.03 Opinions of Counsel. On the Third Restatement Effective Date, the
Administrative Agent shall have received from (i) Xxxxx & Xxxx LLP, counsel to
the Parent and its Subsidiaries, an opinion addressed to each Agent, the
Collateral Agent and each of the Banks and dated the Third Restatement
Effective Date covering the matters set forth in Exhibit D, (ii) counsel
rendering such opinions, reliance letters addressed to each Agent, the
Collateral Agent and each of the Banks and dated the Third Restatement
Effective Date, with respect to certain other legal opinions delivered in
connection with the Transaction, which opinions shall cover such matters as the
Agents may reasonably request and be in form and substance reasonably
satisfactory to the Agents and (iv) local and foreign counsel satisfactory to
the Administrative Agent, opinions each of which (x) shall be addressed to each
Agent, the Collateral Agent and each of the Banks and be dated the Third
Restatement Effective Date, (y) shall be in form and substance reasonably
satisfactory to the Agents and the Required Banks and (z) shall cover the
perfection of security interests granted pursuant to the Security Documents and
such other matters incident to the transactions contemplated herein as the
Agents may reasonably request.
4.04 Company Documents; Proceedings. (a) On the Third Restatement
Effective Date, the Administrative Agent shall have received a certificate,
dated the Third Restatement Effective Date, signed by the President or any Vice
President of each Credit Party, and attested to by the Secretary or any
Assistant Secretary of such Credit Party, in the form of Exhibit E with
appropriate insertions, together with copies of the Certificate of
Incorporation, By-Laws or other equivalent organizational documents of such
Credit Party and the resolutions of such Credit Party referred to in such
certificate, and the foregoing shall be acceptable to each of the Agents and
the Required Banks in their sole discretion.
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(b) All Company and legal proceedings and all instruments and
agreements relating to the transactions contemplated by this Agreement and the
other Credit Documents shall be satisfactory in form and substance to each of
the Agents and the Required Banks, and the Administrative Agent shall have
received all information and copies of all documents and papers, including
records of Company proceedings, governmental approvals, good standing
certificates and bring-down telegrams, if any, which the Agents or the Required
Banks may have requested in connection therewith, such documents and papers
where appropriate to be certified by proper Company or governmental
authorities.
4.05 Plans; Shareholders' Agreements; Management Agreements;
Employment Agreements; Collective Bargaining Agreements; Debt Agreements;
Affiliate Contracts; Tax Sharing Agreements and Material Contracts. On or prior
to the Third Restatement Effective Date, there shall have been delivered to the
Banks true and correct copies, certified as true and complete by an appropriate
officer of the Parent of:
(i) all Plans (and for each Plan that is required to file an
annual report on Internal Revenue Service Form 5500-series, a copy of
the most recent such report (including, to the extent required, the
related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information), and
for each Plan that is a "single-employer plan," as defined in Section
4001(a)(15) of ERISA, the most recently prepared actuarial valuation
therefor) and any other "employee benefit plans," as defined in
Section 3(3) of ERISA, and any other material agreements, plans or
arrangements, with or for the benefit of current or former employees
of the Borrower or any of its Subsidiaries or any ERISA Affiliate
(provided that the foregoing shall apply in the case of any
Multiemployer Plan, only to the extent that any document described
therein is in the possession of the Parent or any Subsidiary of the
Parent or any ERISA Affiliate or reasonably available thereto from the
sponsor or trustee of any such plan) (collectively, the "Employee
Benefit Plans");
(ii) all agreements entered into by the Parent or any
Subsidiary of the Parent governing the terms and relative rights of
its capital stock and any agreements entered into by shareholders
relating to any such entity with respect to their capital stock
(collectively, the "Shareholders' Agreements");
(iii) all agreements with members of, or with respect to the,
management of the Parent or any Subsidiary of the Parent other than
Employment Agreements (collectively, the "Management Agreements");
(iv) any employment agreements entered into by the Parent or
any Subsidiary of the Parent (collectively, the "Employment
Agreements");
(v) all collective bargaining agreements applying or relating
to any employee of the Parent or any Subsidiary of the Parent
(collectively, the "Collective Bargaining Agreements");
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(vi) all agreements evidencing or relating to Indebtedness of
the Parent or any Subsidiary of the Parent whether or not such
agreement is to remain outstanding after giving effect to the
incurrence of Loans on the Third Restatement Effective Date
(collectively, the "Debt Agreements");
(vii) all tax sharing, tax allocation and other similar
agreements entered into by the Parent or any Subsidiary of the Parent
(collectively, the "Tax Sharing Agreements");
(viii) all contracts, agreements or understandings entered
into between the Parent or any of its Subsidiaries on the one hand,
and any of its Affiliates, on the other hand (collectively, the
"Affiliate Contracts"); and
(ix) all material contracts and licenses of the Parent or any
of its Subsidiaries that are to remain in effect after giving effect
to the consummation of the Transaction, including without limitation,
all leases pursuant to which the Parent or any of its Subsidiaries are
lessees, all partnership agreements and all management contracts
(collectively, the "Material Contracts");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Collective Bargaining Agreements, Debt
Agreements, Tax Sharing Agreements, Affiliate Contracts and Material Contracts
shall be in form and substance satisfactory to the Agents and the Required
Banks and shall be in full force and effect on the Third Restatement Effective
Date; provided, however, that only those Plans, Shareholders' Agreements,
Management Agreements, Employment Agreements, Collective Bargaining Agreements,
Debt Agreements, Tax Sharing Agreements, Affiliate Contracts and Material
Contracts (x) of HQ and its Subsidiaries and (y) of Vantas and its Subsidiaries
which were not in existence on the Second Restatement Effective Date or, if in
existence on the Second Restatement Effective Date, which have been changed in
any material respect since such date, shall be required to be delivered
pursuant to this Section 4.05.
4.06 Consent Letter. The Administrative Agent shall have received a
letter from Corporation Service Company, with offices on the date hereof at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx, 00000-0000, substantially in the form of
Exhibit J hereto, indicating its consent to its appointment by the Parent and
its Subsidiaries as their agent to receive service of process as specified in
Section 12.08 of this Agreement and Section 21 of the Subsidiaries Guaranty.
4.07 Pledge Agreement. On the Third Restatement Effective Date, each
Credit Party shall have duly authorized, executed and delivered an Amended and
Restated Pledge Agreement in the form of Exhibit F (as so amended and restated
and as the same may be further amended, modified, restated and/or supplemented
from time to time, the "Pledge Agreement") and shall have delivered to the
Collateral Agent, as Pledgee thereunder, (i) all of the Pledged Securities
referred to therein and then owned by such Credit Party, (x) endorsed in blank
in the case of promissory notes constituting Pledged Securities and (y)
accompanied by executed and undated endorsements for transfer in the case of
equity interests constituting certificated Pledged Securities and (ii) such
other evidence that all other actions necessary or, in the reasonable
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opinion of the Collateral Agent, desirable, to perfect the security interests
purported to be created by the Pledge Agreement have been taken, and the Pledge
Agreement shall be in full force and effect.
4.08 Security Agreement. On the Third Restatement Effective Date, each
Credit Party shall have duly authorized, executed and delivered an Amended and
Restated Security Agreement in the form of Exhibit G (as so amended and
restated and as the same may be further amended, modified, restated and/or
supplemented from time to time, the "Security Agreement") covering all of such
Credit Party's present and future Security Agreement Collateral, together with:
(i) proper financing statements (Form UCC-1 or such other
financing statements or similar notices as shall be required by local
law) fully executed for filing under the UCC or other appropriate
filing offices of each jurisdiction as may be necessary or, in the
opinion of the Collateral Agent, desirable to perfect the security
interests purported to be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all judgment liens, tax
liens or effective financing statements that name the Parent or any of
its Subsidiaries, or a division or other operating unit of any such
Person, as debtor and that are filed in the jurisdictions referred to
in said clause (i), together with copies of such other financing
statements (none of which shall cover the Collateral except to the
extent evidencing Permitted Liens or for which the Collateral Agent
shall receive termination statements (Form UCC-3 or such other
termination statements as shall be required by local law) fully
executed for filing);
(iii) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreement as may be
necessary or, in the opinion of the Collateral Agent, desirable to
perfect the security interests intended to be created by such Security
Agreement;
(iv) evidence that all other actions necessary or, in the
opinion of the Collateral Agent, desirable to perfect and protect the
security interests purported to be created by the Security Agreement
have been taken; and
(v) all necessary third-party consents to the granting of the
Liens purported to be granted pursuant to the Security Documents,
including, without limitation, consents under all management
contracts;
and the Security Agreement shall be in full force and effect.
4.09 Subsidiaries Guaranty. On the Third Restatement Effective Date,
each Domestic Subsidiary of the Parent (other than the Borrower) shall have
duly authorized, executed and delivered an Amended and Restated Subsidiaries
Guaranty in the form of Exhibit H (as so amended and restated and as the same
may be further amended, modified, restated and/or supple-
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mented from time to time, the "Subsidiaries Guaranty"), and the Subsidiaries
Guaranty shall be in full force and effect.
4.10 Material Adverse Change, etc. Since December 31, 1999, nothing
shall have occurred (and neither any Agent nor the Banks shall have become
aware of any facts or conditions not previously known) which such Agent or the
Required Banks shall determine (a) could reasonably be expected to have a
material adverse effect on the rights or remedies of the Banks or any Agent, or
on the ability of the Parent, HQ, Vantas or any of their respective
Subsidiaries to perform their obligations to the Agents and the Banks under
this Agreement or any other Credit Document, (b) could reasonably be expected
to have a materially adverse effect on the performance, business, assets,
nature of assets, liabilities, operations, properties, condition (financial or
otherwise) or prospects of the Parent, HQ, Vantas and their respective
Subsidiaries taken as a whole, (c) indicates the inaccuracy in any material
respect of the information previously provided to the Agents or the Banks
(taken as a whole) in connection with their analysis of the transactions
contemplated hereby or indicates that the information previously provided
omitted to disclose any material information or (d) could reasonably be
expected to have a materially adverse effect on the financial, banking, or
capital markets for the market for senior syndicated debt financings for
leveraged transactions generally.
4.11 Litigation. On the Third Restatement Effective Date, no
litigation by any entity (private or governmental) shall be pending or
threatened with respect to this Agreement, any other Credit Document or any
documentation executed in connection herewith or with respect to the
transactions contemplated hereby, or which the Agents or Required Banks shall
determine could reasonably be expected to have a materially adverse effect on
the Transaction or on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Parent, Vantas, HQ and their respective Subsidiaries taken as
a whole.
4.12 Fees, etc. On the Third Restatement Effective Date, the Borrower
shall have paid in full to each Agent and the Banks all costs, fees and
expenses (including, without limitation, all legal fees and expenses) payable
to such Agent and the Banks to the extent then due pursuant hereto or as
otherwise agreed between any of Vantas, HQ, the Parent or any of its
Subsidiaries and such Agent.
4.13 Solvency Certificate; Insurance Analyses. On the Third
Restatement Effective Date, the Administrative Agent shall have received: (i) a
solvency certificate from the chief financial officer of the Parent, in the
form of Exhibit I hereto, supporting the conclusions that, after giving effect
to the Transaction and the incurrence of all financings contemplated herein,
each Credit Party, and all Credit Parties taken as a whole, as the case may be,
are not insolvent and will not be rendered insolvent by the Indebtedness
incurred in connection therewith, will not be left with unreasonably small
capital with which to engage in its or their businesses and will not have
incurred debts beyond its or their ability to pay such debts as they mature,
and (ii) evidence (including, without limitation, certificates with respect to
each insurance policy listed on Schedule II) of insurance, complying with the
requirements of Section 7.03, with respect to the business and properties of
the Parent and its Subsidiaries, in scope, form and substance satisfactory to
the Agents and the Required Banks and naming each of the
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Collateral Agent, the Agents and the Banks as an additional insured and the
Collateral Agent as loss payee and stating that such insurance shall not be
cancelled or revised without 30 days' prior written notice by the insurer to
the Collateral Agent.
4.14 Approvals. Except as set forth on Part C of Schedule IV hereto,
all material necessary governmental and third party approvals in connection
with the Transaction and the transactions contemplated by the Documents and
otherwise referred to herein or therein (including, but not limited to, those
approvals required in respect of existing permits, landlord consents and
transfers of contract rights) shall have been obtained and remain in effect,
and all applicable waiting periods shall have expired without any action being
taken by any competent authority which restrains, prevents or imposes, in the
sole judgment of the Agents or the Required Banks, adverse conditions upon the
consummation of the Transaction or the other transactions contemplated by the
Documents and otherwise referred to herein or therein. Additionally, there
shall not exist any judgment, order, injunction or other restraint issued or
filed or a hearing seeking injunction relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon the
consummation of the Transaction, the transactions contemplated by the
Documents, the making of the Loans or the issuance of Letters of Credit.
4.15 Financial Statements; Projections; Compliance Letter; Compliance
Certificate. (a) On or prior to the Third Restatement Effective Date, the Banks
shall have received true and correct copies of (x) the historical financial
statements and the pro forma financial statements referred to in Section
6.05(a), all of which financial statements shall be prepared in accordance with
generally accepted accounting principles consistent with past practices and
shall be in form and substance reasonably satisfactory to the Agents and the
Required Banks, and shall not disclose any material adverse differences in the
business, properties, assets, liabilities, results of operations, condition
(financial or otherwise) or prospects of Vantas, HQ and their respective
Subsidiaries taken as a whole from that previously disclosed to the Agents and
the Required Banks.
(b) On the Third Restatement Effective Date, the Banks shall have
received detailed consolidated financial projections, certified by the Chief
Financial Officer of the Parent, for the Parent and its Subsidiaries, which
include the projected consolidated results of the Parent, after giving effect
to the Transaction and the other transactions contemplated herein, for the
period commencing on the Third Restatement Effective Date and ending on or
after December 31, 2003 (the "Projections"), which Projections, and the
supporting assumptions and explanations thereto, and the accounting practices
and procedures to be utilized by the Parent following the Third Restatement
Effective Date, shall be satisfactory in form and substance to the Agents and
the Required Banks and shall be as set forth on Schedule III hereto.
(c) On or prior to the Third Restatement Effective Date, the Banks
shall have received a compliance letter, in form and substance satisfactory to
the Agents and the Required Lenders, from PricewaterhouseCoopers LLP and KPMG
LLP, independent certified public accountants, certifying that for the year
ended December 31, 1999, Vantas and HQ had, on a combined basis, (i) EBITDA of
at least $48,000,000, (ii) historical one-time non-recurring expenses of at
least $5,000,000, (iii) an historical straight line rent cash adjustment of
$10,000,000, (iv) on a pro forma basis after giving effect to the creation of
an unconsolidated
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new development company affiliate and the transfer thereto of the developments
commenced in 1999, a decrease in EBITDA of at least $8,000,000 resulting from
development losses, and (v) on a pro forma basis after giving effect to the
Transaction, positive adjustments to combined EBITDA in conformity with the
rules and regulations of Regulation S-X of at least $15,000,000.
(d) On or prior to the Third Restatement Effective Date, the Agents
shall have received a compliance certificate, in form and substance
satisfactory to the Agents, from the Chief Financial Officer of the Parent
certifying that Vantas and HQ, on a combined basis, (i) had, for the fiscal
quarter of Vantas and HQ ending on Xxxxx 00, 0000, XXXXXX of $18,000,000 (which
amount shall include straightline rent adjustments and other adjustments
satisfactory to the Agents) and (ii) have, on a pro forma basis after giving
effect to the Transaction, anticipated annualized synergies (determined in
conformity the rules and regulations of with Regulation S-X), for the fiscal
year ended December 31, 2000, of at least $16,000,000.
4.16 Consummation of the Acquisitions; Preferred Equity Financing;
Senior Subordinated Notes; etc. (a) On the Third Restatement Effective Date,
Vantas and HQ shall have consummated the HQ Merger (i) pursuant to which the
existing holders of common stock of Vantas (other than FrontLine) shall have
received cash equal to approximately $21,742,696 in connection with the
conversion of such stock into a right to receive $8.00 per share as
contemplated by the HQ Merger Agreement, (ii) the existing holders of voting
and non-voting common stock of HQ will retain all shares of such common stock
(representing a continuing interest in HQ with an equity value of approximately
$133,600,000) (the "HQ Equity Rollover"), (iii) each outstanding share of
Vantas' preferred stock shall have been converted into the right to receive
.2569 shares of voting common stock of HQ in accordance with the conversion
requirements set forth in the HQ Merger Agreement, (iv) certain holders of
options to purchase Vantas' common stock shall have received cash equal to
approximately $11,207,717 in connection with the acceleration and cancellation
of such options pursuant to the HQ Merger Agreement, and (v) holders of options
to purchase Vantas' common stock under Vantas' 1996 stock option plan shall
have converted their option rights into a right to acquire voting common stock
of HQ on the basis set forth in the HQ Merger Agreement.
(b) On the Third Restatement Effective Date and immediately after
giving effect to the HQ Merger, FrontLine shall have purchased 4,130,530 shares
of voting common stock of HQ (as the surviving corporation of the HQ Merger)
from CarrAmerica and certain other Persons for aggregate cash consideration of
$151,053,482.10 (representing a purchase price of $36.57 per share) pursuant
to, and in accordance with the terms of, the HQ Stock Purchase Agreement (the
"HQ Common Stock Purchase").
(c) On the Third Restatement Effective Date and immediately after
giving effect to the HQ Merger and the HQ Common Stock Purchase, (i) HQ (as the
surviving corporation of the HQ Merger) shall have purchased from CarrAmerica
(x) 2,006,066 shares of non-voting common stock of Omni UK and 144 shares of
non-voting common stock of Omni Lux for aggregate cash consideration of
$24,286,081 and (y) certain Notes (as defined in the UK/Lux Stock Purchase
Agreement) for cash consideration of $50,124,559.34 (representing the aggregate
principal amount of, and accrued and unpaid interest on, such Notes on the
Third Restatement Effective Date), in each case pursuant to, and in accordance
with the terms of, the
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UK/Lux Stock Purchase Agreement and (ii) CarrAmerica shall have assumed the
obligations of Omni UK under the Loan Notes (as defined in the UK/Lux Stock
Purchase Agreement) in consideration for a cash payment by HQ of $15,766,149.82
pursuant to, and in accordance with the terms of, the UK/Lux Stock Purchase
Agreement (with the transactions described in clauses (i) and (ii) above being
herein collectively called the "UK/Lux Acquisition").
(d) On the Third Restatement Effective Date and immediately after
giving effect to the HQ Merger, the HQ Common Stock Purchase and the UK/Lux
Acquisition, (w) HQ shall have contributed the Development Assets to the
Parent, (x) HQ (as the surviving corporation of the HQ Merger) and Merger Sub 2
shall have consummated the Second-Step Merger, as a result of which (i) the
Parent shall own all of the capital stock of Merger Sub 2 (as the surviving
corporation of the Second-Step Merger) and (ii) the common stockholders of HQ
shall have received Parent Common Stock in exchange for their outstanding
shares of common stock of HQ as contemplated by the Second-Step Merger
Agreement, (y) pursuant to the Exchange Agreement, FrontLine shall have
exchanged (the "Equity Exchange") a portion of the shares of Parent Common
Stock acquired pursuant to the Second-Step Merger (being those shares
attributable to the shares of common stock of HQ acquired by FrontLine pursuant
to the HQ Common Stock Purchase) for, and the Parent shall have sold directly
to the Equity Investors, in the aggregate (I) 4,782,692 shares of 13.5% Series
A Convertible Cumulative Preferred Stock with an aggregate liquidation
preference of $195,000,000 (such preferred stock, together with any subsequent
issuances thereof in accordance with the terms hereof, the "PIK Preferred
Stock") and (II) warrants to purchase up to 2,143,332 shares of Parent Common
Stock, and (z) immediately after giving effect to the Equity Exchange and the
transactions described in preceding clause (x), the Equity Investors shall have
purchased from FrontLine and Parent an aggregate of 4,782,692 shares of PIK
Preferred Stock and warrants to purchase up to 2,143,332 shares of Parent
Common Stock for aggregate cash consideration of $195,000,000 pursuant to, and
in accordance with the terms of, the PIK Preferred Stock Purchase Agreements
(with the Equity Exchange, Second-Step Merger and the related transactions
described above in this Section 4.16(d) being herein collectively called the
"Reorganization").
(e) On the Third Restatement Effective Date, (i) Vantas shall have
received gross cash proceeds in the aggregate amount of $125,000,000 from the
incurrence of Senior Subordinated Bridge Loans, (ii) Vantas shall have received
approximately $25,871,000 (or such greater or lesser amount as is required to
ensure that the conditions set forth in clauses (iii) and (v) below are
satisfied) in cash from a capital contribution by FrontLine pursuant to, and in
accordance with the terms of, the FrontLine Transaction Contribution Documents
(the "FrontLine Transaction Contribution"), (iii) Vantas and HQ shall have cash
on hand of approximately $12,500,000, all of which shall be available to be
used to make payments owing in connection with the Transaction, (iv) after
giving effect to the Transaction, the Borrower shall
---------
(1) Xxxxx & Xxxx to confirm amounts.
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have cash on hand of $10,000,000 available for the working capital requirements
of the Borrower and its Subsidiaries and (v) after giving effect to the
Transaction, the Parent shall have cash on hand, in an amount satisfactory to
the Banks, to be used to cover operating expenses relating to the Development
Assets.
(f) On the Third Restatement Effective Date, the Borrower shall have
utilized the full amount of the cash proceeds received from the incurrence of
the Senior Subordinated Bridge Loans and the FrontLine Transaction
Contribution, together with cash on hand of $12,500,000, to make payments owing
in connection with the Transaction prior to utilizing any proceeds of the Loans
for such purpose.
(g) On the Third Restatement Effective Date, (i) the Administrative
Agent shall have received true and correct copies of all Acquisition Documents,
Senior Subordinated Credit Documents, PIK Preferred Stock Documents and
FrontLine Transaction Contribution Documents, certified as such by an
appropriate officer of the Parent, (ii) all such Documents, and all terms and
conditions thereof (including, without limitation, in the case of the Senior
Subordinated Credit Documents and the PIK Preferred Stock Documents,
amortization, maturities, interest rates, dividend rates, limitation on cash
dividends payable, covenants, defaults, remedies, sinking fund provisions,
conversion features and subordination provisions, as applicable), shall be in
form and substance reasonably satisfactory to each Agent and the Required Banks
and (iii) all such Documents shall be in full force and effect. All conditions
precedent to the consummation of the Transaction as set forth in the
Acquisition Documents, the Senior Subordinated Credit Documents, the PIK
Preferred Stock Documents and the FrontLine Transaction Contribution Documents
shall have been satisfied, and not waived unless consented to by each Agent and
the Required Banks, to the reasonable satisfaction of each Agent and the
Required Banks. Each of the Acquisitions (including the Reorganization), the
incurrence of the Senior Subordinated Bridge Loans, the Preferred Equity
Financing, the consummation of the HQ Equity Rollover and the FrontLine
Transaction Contribution shall have been consummated in accordance with the
terms and conditions of the applicable Documents therefor and all applicable
law.
(h) On the Third Restatement Effective Date (after giving effect to
the Transaction), the capital and corporate structure of the Parent and its
Subsidiaries shall be reasonably satisfactory in form and substance to the
Agents and the Required Banks.
4.17 Refinancing. (a) On the Third Restatement Effective Date, the
commitments (if any) under the Indebtedness to be Refinanced shall have been
terminated, all loans outstanding thereunder shall have been repaid in full,
together with all accrued and unpaid interest thereon, all accrued and unpaid
fees thereon shall have been paid in full, all letters of credit issued
thereunder shall have been terminated (except to the extent (x) incorporated
(or deemed issued) as letters of credit under the L/C Reimbursement Agreements
and supported by Existing Letter of Credit Back-Stop Arrangements or (y) cash
collateralized pursuant to the Existing Letter of Credit Cash Collateral
Arrangements, in each case on the basis set forth in clause (c) below) and all
other amounts owing pursuant to the Indebtedness to be Refinanced shall have
been repaid in full.
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(b) On the Third Restatement Effective Date, all security interests in
respect of, and Liens securing, obligations under the Indebtedness to be
Refinanced shall have been terminated and released to the satisfaction of the
Agents and the Required Banks, and the Administrative Agent shall have received
all such releases as may have been requested by the Agents and the Required
Banks, which releases shall be in form and substance reasonably satisfactory to
the Agents and the Required Lenders. Without limiting the foregoing, there
shall have been delivered (i) proper termination statements (Form UCC-3 or the
appropriate equivalent) for filing under the UCC of each jurisdiction where a
financing statement Form UCC-1 or equivalent was filed with respect to the
Parent or any of its Subsidiaries in connection with the security interests
created pursuant to the Indebtedness to be Refinanced and the documentation
related thereto, (ii) termination or reassignment of any security interest in,
or Lien on, any patents, trademarks, copyrights or similar interests of the
Parent or any of its Subsidiaries on which filings have been made to secure
obligations under the Indebtedness to be Refinanced and (iii) terminations of
all mortgages, leasehold mortgages and deeds of trusts created with respect to
property of the Parent or any of its Subsidiaries to secure the obligations
under the Indebtedness to be Refinanced, all of which shall be in form and
substance reasonably satisfactory to the Agents and the Required Banks.
(c) (i) On the Third Restatement Effective Date, Paribas and Vantas
shall have entered into a letter of credit reimbursement agreement in form and
substance satisfactory to Paribas (as amended, modified or supplemented from
time to time, the "Paribas L/C Reimbursement Agreement"), pursuant to which all
Existing Letters of Credit issued by Paribas as Issuing Bank under, and as
defined in, the Second Amended and Restated Credit Agreement shall have been
incorporated (or deemed issued) as "Letters of Credit" under, and for all
purposes of, the Paribas L/C Reimbursement Agreement.
(ii) On the Third Restatement Effective Date, Bank Austria and Vantas
shall have entered into a letter of credit reimbursement agreement in form and
substance satisfactory to Bank Austria (as amended, modified or supplemented
from time to time, the "Bank Austria L/C Reimbursement Agreement"), pursuant to
which all Existing Letters of Credit issued by Bank Austria as Issuing Bank
under, and as defined in, the Second Amended and Restated Credit Agreement
shall have been incorporated (or deemed issued) as "Letters of Credit" under,
and for all purposes of, the Bank Austria L/C Reimbursement Agreement.
(iii) On the Third Restatement Effective Date, Xxxxxx Guaranty and HQ
shall have entered into a letter of credit reimbursement agreement in form and
substance satisfactory to Xxxxxx Guaranty (as amended, modified or supplemented
from time to time, the "Xxxxxx Guaranty L/C Reimbursement Agreement" and,
together with the Paribas L/C Reimbursement Agreement and the Bank Austria L/C
Reimbursement Agreement, collectively, the "L/C Reimbursement Agreements"),
pursuant to which all Existing Letters of Credit issued by Xxxxxx Guaranty as
issuing bank under the Existing HQ Credit Agreement shall have been
incorporated (or deemed issued) as "Letters of Credit" under, and for all
purposes of, the Xxxxxx Guaranty L/C Reimbursement Agreement.
(iv) On the Third Restatement Effective Date, FrontLine and Bankers
Trust Company shall have entered into a line of credit agreement (as amended,
modified or supplemented
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from time to time, the "Back-Stop Letter of Credit Agreement"), pursuant to
which Bankers Trust Company shall have issued one or more letters of credit for
the account of FrontLine in favor of Xxxxxx Guaranty, Paribas and Bank Austria
as beneficiaries thereunder, and the Back-Stop Letter of Credit Agreement shall
be in full force and effect.
(v) On or prior to the Third Restatement Effective Date, First Union
and HQ shall have entered into a cash collateral agreement in form and
substance satisfactory to First Union (as amended, modified or supplemented
from time to time, the "First Union L/C Cash Collateral Agreement"), pursuant
to which all Existing Letters of Credit issued by First Union as Fronting Bank
under, and as defined in, the Existing HQ Credit Agreement shall have been cash
collateralized on a basis satisfactory to First Union and the Required Banks
(the "Existing Letter of Credit Cash Collateral Arrangements").
(d) The Administrative Agent shall have received evidence in form,
scope and substance reasonably satisfactory to the Agents and the Required
Banks that the matters set forth in this Section 4.17 have been satisfied on
the Third Restatement Effective Date.
4.18 Second Amended and Restated Credit Agreement; etc. On the Third
Restatement Effective Date (after giving effect to the incurrence of Loans on
such date), (i) all outstanding Existing Revolving Loans shall be repaid in
full, (ii) each Existing RL Bank shall have received payment in full of all
amounts (including any accrued and unpaid interest and fees) then due and owing
to it under the Second Amended and Restated Credit Agreement in respect of its
Existing Revolving Loans being repaid, (iii) all accrued interest on all
outstanding extensions of credit pursuant to the Second Amended and Restated
Credit Agreement, and all regularly accruing fees pursuant to the Second
Amended and Restated Credit Agreement, shall be paid in full on, and through,
the Third Restatement Effective Date (whether or not same would otherwise then
be due and payable pursuant to the Second Amended and Restated Credit
Agreement) and (iv) the Administrative Agent shall have received evidence in
form, scope and substance satisfactory to it that the matters set forth in this
Section 4.18 have been satisfied on such date.
4.19 Subordination Agreement. On or prior to the Third Restatement
Effective Date, the Parent, the Borrower, each Subsidiary Guarantor, and each
other Subsidiary or Affiliate of the Parent which is an obligee or obligor with
respect to any Affiliate Debt, shall have duly authorized, executed and
delivered the Affiliate Debt and Subordination Agreement in the form of Exhibit
M (as modified, amended or supplemented from time to time, the "Subordination
Agreement"), and the Subordination Agreement shall be in full force and effect.
Section 5. Conditions Precedent to All Credit Events. The obligation
of each Bank to make Loans (including Loans made on the Third Restatement
Effective Date) and the obligation of an Issuing Bank to issue any Letter of
Credit and the occurrence of the Third Restatement Effective Date, is subject,
at the time of each such Credit Event or at the time of the Third Restatement
Effective Date, as the case may be (except as hereinafter indicated), to the
satisfaction of the following conditions:
5.01 No Default; Representations and Warranties. On the Third
Restatement Effective Date and at the time of each such Credit Event and also
after giving effect thereto (i)
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there shall exist no Default or Event of Default and (ii) all representations
and warranties contained herein or in the other Credit Documents shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on the date of the Third
Restatement Effective Date and/or the date of making of such Credit Event
(except to the extent such representations specifically relate to earlier dates
in which case such representations shall be correct in all material respects on
and as of such dates).
5.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Loan, the Administrative Agent shall have received a Notice of
Borrowing meeting the requirements of Section 1.03.
(b) Prior to the issuance of each Letter of Credit, the Issuing Bank
shall have received a Letter of Credit Request meeting the requirements of
Section 1A.03 or Section 1B.03, as applicable.
(c) Prior to the making of each A Revolving Loan and the issuance of
each A Letter of Credit, each of the Administrative Agent, each A Issuing Bank
and each Bank with an A Revolving Loan Commitment shall have received an A
Revolving Facility Borrowing Certificate meeting the requirements of the
definition thereof.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each of the Parent and the Borrower to each of
the Banks that all the conditions specified in Section 4 and in this Section 5
and applicable to such Credit Event exist as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 4 and in this Section 5, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Banks and, except for the Notes, in sufficient counterparts for each of the
Banks and, unless otherwise specified, shall be in form and substance
satisfactory to the Banks.
Section 6. Representations, Warranties and Agreements. In order to
induce the Banks to enter into this Agreement and to make the Loans, and issue
(or participate in) the Letters of Credit as provided herein, each of the
Parent and the Borrower makes the following representations, warranties and
agreements as to itself and as to each of its Subsidiaries (to the extent
applicable), as of the Third Restatement Effective Date (both before and after
giving effect to the Credit Events occurring on such date, the Transaction and
the other transactions contemplated by the Credit Documents, and all references
to each of the Parent and the Borrower herein and elsewhere in this Agreement,
shall, unless otherwise specifically indicated, be references to the Parent or
the Borrower, as the case may be, after giving effect to the Transaction) and
as of the date of each subsequent Credit Event, which representations,
warranties and agreements shall survive the execution and delivery of this
Agreement and the Notes and any subsequent Credit Event, with the occurrence of
each Credit Event on or after the Third Restatement Effective Date being deemed
to constitute a representation and warranty that the matters specified in this
Section 6 are true and correct on and as of the Third Restatement Effective
Date and on the date of each such Credit Event (except to the extent such
representations specifically relate to earlier dates in which case such
representations shall be correct in all material respects on and as of such
dates):
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6.01 Company Status. Each of the Parent and its Subsidiaries (i) is a
duly organized and validly existing corporation, limited liability company or
limited partnership under the laws of the jurisdiction of its organization,
(ii) is in good standing under the laws of the jurisdiction of its
organization, except, in the case of any Subsidiary of the Borrower, for
failures to so be in good standing which, in the aggregate, could not
reasonably be expected to have a material adverse effect on the performance,
business, assets, nature of assets, liabilities, operations, properties,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries taken as a whole, (iii) has the Company power and authority to own
its property and assets and to transact the business in which it is engaged and
presently proposes to engage and (iv) is duly qualified and is authorized to do
business and is in good standing in each jurisdiction where the ownership,
leasing or operation of property or the conduct of its business requires such
qualifications except for failures to be so qualified which, in the aggregate,
could not reasonably be expected to have a material adverse effect on the
performance, business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of the Parent and
its Subsidiaries taken as a whole.
6.02 Company Power and Authority. Each of the Parent and its
Subsidiaries has the Company power to execute, deliver and perform the terms
and provisions of each of the Documents to which it is party and has taken all
necessary Company action to authorize the execution, delivery and performance
by it of each of such Documents. Each of the Parent and its Subsidiaries has
duly executed and delivered each of the Documents to which it is party, and
each of such Documents constitutes its legal, valid and binding obligation
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by general equitable
principles (regardless of whether the issue of enforceability is considered in
a proceeding in equity or at law).
6.03 No Violation. Neither the execution, delivery or performance by
the Parent or any of its Subsidiaries of the Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any applicable law, statute, rule or regulation or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
except as set forth on Part C of Schedule IV hereto, will conflict with or
result in any breach of any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien (except pursuant to the
Security Documents) upon any of the property or assets of the Parent or any of
its Subsidiaries pursuant to the terms of any indenture, mortgage, deed of
trust, credit agreement or loan agreement, or any other material agreement,
contract or instrument to which the Parent or its Subsidiaries is a party or by
which it or any of its property or assets is bound or to which it may be
subject (including, without limitation, the Senior Subordinated Credit
Agreement and, on and after the execution and delivery thereof, any agreement
governing the Permitted Subordinated Refinancing Indebtedness and the Mezzanine
Subordinated Note Documents) or (iii) will violate any provision of the
Certificate of Incorporation, By-Laws or equivalent organizational documents of
the Parent or any of its Subsidiaries.
6.04 Governmental Approvals. (a) No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or
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made on or prior to the Third Restatement Effective Date and are in full force
and effect), or exemption by, any governmental or public body or authority, or
any subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Credit Document or
(ii) the legality, validity, binding effect or enforceability of any such
Credit Document.
(b) No material order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have been
obtained or made on or prior to the Third Restatement Effective Date and are in
full force and effect), or exemption by, any governmental or public body or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with, (i) the Transaction, (ii) the execution, delivery and
performance of any Document (other than the Credit Documents) or (iii) the
legality, validity, binding effect or enforceability of any such Document.
6.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) (i) The audited consolidated balance sheets
of Vantas as at June 30, 1997, June 30, 1998, December 31, 1998 and December
31, 1999 and the related consolidated statements of income, stockholders equity
and cash flows of Vantas for the fiscal years ended as of such dates, which
financial statements have been examined by PricewaterhouseCoopers LLP,
independent certified public accountants, who delivered unqualified opinions in
respect thereto, (ii) the unaudited consolidated balance sheet of Vantas as at
March 31, 2000 and related consolidated statements of income, stockholders
equity and cash flows of Vantas for the fiscal quarter ended as of such date,
(iii) the audited consolidated balance sheets of HQ as at December 31, 1997,
December 31, 1998 and December 31, 1999 and the related statements of earnings
and cash flows of HQ and its Subsidiaries for the fiscal years ended as of such
dates, which financial statements have been examined by KPMG LLP independent
certified public accountants, who delivered unqualified opinions in respect
thereto, (iv) the unaudited consolidated balance sheet of HQ as at March 31,
2000 and the related statements of earnings and cash flows of HQ and its
Subsidiaries for the fiscal quarter ended as of such date, (v) the pro forma
(after giving effect to the Transaction and the related financing thereof)
consolidated balance sheets and statements of income and cash flow of the
Parent and its Subsidiaries as at December 31, 1999 and (vi) the estimated
(after giving effect to the Transaction and the related financing thereof)
consolidated balance sheet of the Parent and its Subsidiaries as at May 31,
2000, copies of all of which financial statements referred to in the preceding
clauses (i), (ii), (iii), (iv), (v) and (vi) have heretofore been furnished to
each Bank, present fairly the financial position of the respective entities at
the dates of said statements and the results of operations for the period
covered thereby (or, in the case of the pro forma financial statements, present
a good faith estimate of the pro forma financial condition of Parent and its
Subsidiaries (after giving effect to the Transaction) on a consolidated basis
at the date thereof). All such financial statements (other than the estimated
balance sheet referred in clause (vi) above) have been prepared in accordance
with generally accepted accounting principles and practices consistently
applied except to the extent provided in the notes to said financial statements
and with respect to interim financial statements, subject to normal year end
adjustments. Since December 31, 1999 (after giving effect to the Transaction as
if same had been consummated on such date), there has been no material adverse
change in the performance, business, assets, nature of assets, liabilities,
operations, properties, condition (financial or otherwise) or prospects of
Parent and its Subsidiaries taken as a whole.
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(b) On and as of the Third Restatement Effective Date, on a pro forma
basis after giving effect to the Transaction and all other transactions
contemplated by the Documents and to all Indebtedness (including the Loans and
the Senior Subordinated Bridge Loans) being incurred in connection with the
Transaction, and Liens created, and to be created, by each Credit Party in
connection therewith: (a) the sum of the assets (including all intangible
assets), at a fair valuation, of each Credit Party will exceed its debts; (b)
no Credit Party has incurred or intends to, or believes that it will, incur
debts beyond its ability to pay such debts as such debts mature; and (c) each
Credit Party will have sufficient capital with which to conduct its business.
For purposes of this Section 6.05(b) "debt" means any liability on a claim, and
"claim" means (i) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(c) Except as fully reflected in the financial statements and the
notes related thereto described in Section 6.05(a), there were as of the Third
Restatement Effective Date (and after giving effect to the Transaction and the
other transactions contemplated hereby and by the Documents) no liabilities or
obligations with respect to the Parent or any of its Subsidiaries of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or
not due) which, either individually or in aggregate, could reasonably be
expected to be material to the Parent and its Subsidiaries taken as a whole. As
of the Third Restatement Effective Date, neither the Parent nor any of its
Subsidiaries knows of any basis for the assertion against the Parent or any of
its Subsidiaries of any liability or obligation of any nature whatsoever that
is not fully reflected in the financial statements and the notes related
thereto described in Section 6.05(a) which, either individually or in the
aggregate, could reasonably be expected to be material to the Parent and its
Subsidiaries taken as a whole. As of the Third Restatement Effective Date (and
after giving effect to the Transaction), none of the Parent or any of its
Subsidiaries will have any outstanding Indebtedness or preferred stock other
than (i) the Loans, (ii) the Existing Indebtedness and (iii) pursuant to the
Senior Subordinated Credit Documents and (iv) the PIK Preferred Stock.
(d) On and as of the Third Restatement Effective Date, the Projections
have been prepared in good faith by the Borrower and there are no statements or
conclusions in any of the Projections which are based upon or include
information known to the Borrower to be misleading or which fail to take into
account material information regarding the matters reported therein. On the
Third Restatement Effective Date, the Borrower believes that the Projections
were reasonable and attainable (although actual results may differ from the
Projections and no representation is made that the Projections will in fact be
attained).
(e) Incorporated into the Projections attached as Schedule III hereto
is a true and complete statement of the estimated sources and uses of all funds
to be received or expended by the Parent and its Subsidiaries in connection
with the Transaction, including all costs and expenses expected to be incurred
in connection with the Transaction.
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6.06 Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of each of the Parent and the Borrower, threatened
(i) with respect to any Document or the Transaction, or (ii) that are
reasonably likely to materially and adversely affect the performance, business,
assets, nature of assets, liabilities, operations, properties, condition
(financial or otherwise) or prospects of the Parent and its Subsidiaries taken
as a whole.
6.07 True and Complete Disclosure. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of the Parent
or any Subsidiary of the Parent in writing to any Bank (including, without
limitation, all information contained in the Documents) for purposes of or in
connection with this Agreement or any transaction contemplated herein is, and
all other such factual information (taken as a whole with all information
previously furnished) hereafter furnished by or on behalf of the Parent or any
Subsidiary of the Parent in writing to any Bank will be, true and accurate in
all material respects on the date as of which such information is dated or
certified and not incomplete or misleading by omitting to state any material
fact.
6.08 Use of Proceeds; Margin Regulations. (a) The proceeds of all C
Term Loans and Acquisition Loans incurred by the Borrower on the Third
Restatement Effective Date shall be utilized by the Borrower (i) to finance the
Acquisition, (ii) to effect the Refinancing and (iii) to pay fees and expenses
incurred in connection with the Transaction.
(b) All proceeds of Revolving Loans shall be used by the Borrower for
working capital and general corporate purposes of the Borrower and its
Subsidiaries (including to finance Permitted Acquisitions); provided that (i)
no proceeds of A Revolving Loans may be used to make payments owing in
connection with the Transaction and (ii) proceeds of not more than $5.625
million of the B Revolving Loans may be used to make payments owing in
connection with the Transaction.
(c) No part of the proceeds of any Loan will be used to purchase or
carry any Margin Stock or to extend credit for the purpose of purchasing or
carrying any Margin Stock. Neither the making of any Loan nor the use of the
proceeds thereof nor the occurrence of any other Credit Event will violate or
be inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
6.09 Tax Returns and Payments. Except as set forth on Schedule VI,
each of the Parent and its Subsidiaries has timely filed or caused to be timely
filed (including pursuant to any valid extensions of time for filing) with the
appropriate taxing authority, all returns, statements, forms and reports for
taxes (the "Returns") required to be filed by or with respect to the income,
properties or operations of the Parent and/or any of its Subsidiaries. The
Returns accurately reflect in all material respects all liability for taxes of
the Parent and its Subsidiaries as a whole for the periods covered thereby.
Each of the Parent and each of its Subsidiaries have paid all material taxes
(including, without limitation, all federal payroll withholding taxes) payable
by them which have become due other than those contested in good faith and for
which adequate reserves have been established in accordance with generally
accepted accounting principles. There is no material action, suit, proceeding,
investigation, audit, or claim now pending or, to the best knowledge of the
Parent or any of its Subsidiaries, threatened by any authority regarding any
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taxes relating to the Parent or any of its Subsidiaries. Except as set forth on
Schedule VI, as of the Third Restatement Effective Date, neither the Parent nor
any of its Subsidiaries has entered into an agreement or waiver or been
requested to enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of taxes of the Parent or any
of its Subsidiaries, or is aware of any circumstances that would cause the
taxable years or other taxable periods of the Parent or any of its Subsidiaries
not to be subject to the normally applicable statute of limitations. Neither
the Parent nor any of its Subsidiaries has provided, with respect to themselves
or property held by them, any consent under Section 341 of the Code. None of
the Parent or any of its Subsidiaries has incurred, or will incur, any material
tax liability in connection with the Transaction or any other transactions
contemplated hereby. In addition, nothing set forth on Schedule XI hereto has
had, or could reasonably be expected to have, individually or in the aggregate,
a material adverse effect on the performance, business, assets, nature of
assets, liabilities, properties, operations, condition (financial or otherwise)
or prospects of the Parent and its Subsidiaries taken as a whole.
6.10 Compliance with ERISA. (a) Schedule VII sets forth each Plan;
each Plan (and each related trust, insurance contract or fund) is in
substantial compliance with its terms and with all applicable laws, including,
without limitation, ERISA and the Code; each Plan (and each related trust, if
any) which is intended to be qualified under Section 401(a) of the Code has
received a determination letter from the Internal Revenue Service to the effect
that it meets the requirements of Sections 401(a) and 501(a) of the Code; no
Reportable Event has occurred; no Plan which is a Multiemployer Plan is
insolvent or in reorganization; no Plan has an Unfunded Current Liability; no
Plan which is subject to Section 412 of the Code or Section 302 of ERISA has an
accumulated funding deficiency, within the meaning of such sections of the Code
or ERISA, or has applied for or received a waiver of an accumulated funding
deficiency or an extension of any amortization period, within the meaning of
Section 412 of the Code or Section 303 or 304 of ERISA; all contributions
required to be made with respect to a Plan and each Multiemployer Plan have
been timely made; neither the Parent nor any Subsidiary of the Parent nor any
ERISA Affiliate has incurred any material liability (including any indirect,
contingent or secondary liability) to or on account of a Plan or Multiemployer
Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or
expects to incur any such liability under any of the foregoing sections with
respect to any Plan or Multiemployer Plan; no condition exists which presents a
material risk to the Parent or any Subsidiary of the Parent or any ERISA
Affiliate of incurring a liability to or on account of a Plan or Multiemployer
Plan pursuant to the foregoing provisions of ERISA and the Code; no proceedings
have been instituted to terminate or appoint a trustee to administer any Plan
which is subject to Title IV of ERISA; no action, suit, proceeding, hearing,
audit or investigation with respect to the administration, operation or the
investment of assets of any Plan (other than routine claims for benefits) is
pending, expected or threatened; using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA, the
aggregate liabilities of the Parent and its Subsidiaries and its ERISA
Affiliates to all Multiemployer Plans in the event of a complete withdrawal
therefrom, as of the close of the most recent fiscal year of each such
Multiemployer Plan ended prior to the date of the most recent Credit Event,
would not exceed $50,000; each group health plan (as defined in Section 607(1)
of ERISA or Section 4980B(g)(2) of the Code) which covers or has covered
employees or former
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employees of the Parent, any Subsidiary of the Parent, or any ERISA Affiliate
has at all times been operated in compliance with the provisions of Part 6 of
subtitle B of Title I of ERISA and Section 4980B of the Code; no lien imposed
under the Code or ERISA on the assets of the Parent or any Subsidiary of the
Parent or any ERISA Affiliate exists or is likely to arise on account of any
Plan or Multiemployer Plan and the Parent and its Subsidiaries may cease
contributions to or terminate any employee benefit plan maintained by any of
them without incurring any material liability.
(b) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. All
contributions required to be made with respect to a Foreign Pension Plan have
been timely made. Neither the Parent nor any of its Subsidiaries has incurred
any obligation in connection with the termination of, or withdrawal from, any
Foreign Pension Plan. The present value of the accrued benefit liabilities
(whether or not vested) under each Foreign Pension Plan, determined as of the
end of the Borrower's most recently ended fiscal year on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan allocable to such benefit liabilities.
(c) Notwithstanding anything to the contrary contained in this Section
6.10, the representations and warranties made in this Section 6.10 shall only
be untrue if the aggregate effect of all failures and noncompliances of the
types described above in this Section 6.10 have had, or could reasonably be
expected to have, a material adverse effect on the performance, business,
assets, nature of assets, liabilities, operations, properties, condition
(financial or otherwise) or prospects of the Parent and its Subsidiaries taken
as a whole.
6.11 The Security Documents. (a) The provisions of the Security
Agreement are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the respective Credit Parties in
the Collateral described therein and the Collateral Agent, for the benefit of
the Secured Creditors, has a fully perfected Lien on, and security interest in,
all right, title and interest of the respective Credit Parties, in all of the
Collateral described therein, subject to no other Liens other than Permitted
Liens. The recordation of the Security Agreement in the United States Patent
and Trademark Office together with filings on Form UCC-1 made pursuant to the
Security Agreement will be effective, under federal and state law, to perfect
the security interest granted to the Collateral Agent in the trademarks and
patents covered by the Security Agreement and the filing of the Security
Agreement with the United States Copyright Office together with filings on Form
UCC-1 made pursuant to the Security Agreement will be effective under federal
and state law to perfect the security interest granted to the Collateral Agent
in the copyrights covered by the Security Agreement. Each of the Credit Parties
party to the Security Agreement has good and merchantable title to all
Collateral described therein, free and clear of all Liens except those
described above in this clause (a).
(b) The security interests created in favor of the Collateral Agent,
as Pledgee for the benefit of the Secured Creditors, under the Pledge Agreement
constitute first perfected security interests in the Pledge Agreement
Collateral, subject to no security interests of any other
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Person. No filings or recordings are required in order to perfect (or maintain
the perfection or priority of) the security interests created in the Pledge
Agreement Collateral and the proceeds thereof under the Pledge Agreement other
than with respect to that portion of the Pledge Agreement Collateral
constituting a "general intangible" under the UCC.
6.12 Representations and Warranties in the Documents. All
representations and warranties of the Parent, HQ, Vantas and their respective
Subsidiaries set forth in the other Documents are true and correct in all
material respects as of the Third Restatement Effective Date (except to the
extent any such representation or warranty specifically relates to an earlier
date in which such case such representation or warranty shall be true and
correct in all material respects on and as of such earlier date), and the Banks
shall be entitled to rely upon such representations and warranties with the
same force and effect as if they were incorporated in this Agreement and made
to the Banks directly.
6.13 Properties. (a) Each of the Parent and its Subsidiaries has good
and merchantable title to, or a validly subsisting leasehold interest in, all
properties owned or leased by it, including all property reflected in the
consolidated pro forma balance sheet (after giving effect to the Transaction)
referred to in Section 6.05(a) (except as sold or otherwise disposed of since
the date of such balance sheet in the ordinary course of business or as
permitted by Section 8.02), free and clear of all Liens, other than (i) as
referred to in the consolidated balance sheets or in the notes thereto or in
the pro forma balance sheet in each case referred to in Section 6.05(a) or (ii)
otherwise permitted by Section 8.01. Schedule IV, Part A contains a true and
complete list of each parcel of Real Property owned by the Parent and each of
its Subsidiaries on the Third Restatement Effective Date, and the type of
interest therein held by the Parent and/or its Subsidiaries. Schedule IV, Part
B contains a true and complete list of each Real Property leased or subleased
(including each Master Lease) by the Parent and each of its Subsidiaries on the
Third Restatement Effective Date, and the type of interest therein held by the
Parent and/or its Subsidiaries.
(b) Each Lease (including, without limitation, each Master Lease and
Business Center Agreement) is valid and in full force and effect and none of
the Parent, the Borrower, or any Subsidiary is in default under any such Lease
and, to the knowledge of the Parent or the Borrower, the other party or parties
thereto are not in default of its or their obligations thereunder except for
the defaults set forth on Part C of Schedule IV, which defaults, individually
or in the aggregate, shall not have a Material Adverse Effect. The Parent, the
Borrower and/or each Subsidiary is in possession of all the Real Property
except with respect to portions thereof subleased to third parties pursuant to
a Business Center Agreement in the ordinary course of business and in
accordance with the provisions of the applicable Security Documents. As of the
Third Restatement Effective Date, all Leases to which the Parent or any of its
Subsidiaries is a party are legal, valid and binding obligations of the Parent
or such Subsidiary and, to the knowledge of the Parent and each of its
Subsidiaries, of the lessor and each other Person which is a party thereto.
(c) Part C of Schedule IV sets forth a true and accurate list of all
Real Property leased or subleased (including, without limitation, all Master
Leases) by the Parent, the Borrower and the Subsidiaries that require the
consent of the landlord thereunder to the
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Transaction. The Parent will not, and will not permit any of the Subsidiaries
to, agree to an increase in the rate of rent under such leases in order to
obtain such consents. The aggregate amount of cash payments by the Parent and
the Subsidiaries to the landlords under such leases in order to obtain such
consents does not exceed $5.0 million.
6.14 Capitalization. (a) On the Third Restatement Effective Date,
after giving effect to the Transaction, the authorized capital stock of the
Parent consists of (i) 100,000,000 shares of common stock, $.01 par value per
share (such authorized shares of common stock, together with any subsequently
authorized shares of common stock of the Parent, the "Parent Common Stock"),
11,956,729 of which shares shall be issued and outstanding and owned by the
Persons set forth on Schedule VIII and (ii) 100,000,000 shares of PIK Preferred
Stock, 4,782,692 of which shares shall be issued and outstanding and owned by
the Persons set forth on Schedule VIII. All of such outstanding shares have
been duly and validly issued, are fully paid and nonassessable and are free of
preemptive rights. Except as set forth in this Section and on Schedule VIII, on
the Third Restatement Effective Date, the Parent does not have outstanding any
securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock.
(b) On the Third Restatement Effective Date, after giving effect to
the Transaction, the authorized capital stock of the Borrower consists of
100,000,000 shares of common stock, $.01 par value per share, 1,000 of which
shares shall be issued and outstanding and owned by the Parent. All of such
outstanding shares have been duly and validly issued, are fully paid and
nonassessable and are free of preemptive rights. The Borrower does not have
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent
or otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock.
6.15 Subsidiaries. On and as of the Third Restatement Effective Date
and after giving effect to the Transaction, the Borrower has no Subsidiaries
other than those Subsidiaries listed on Schedule IX. Schedule IX correctly sets
forth, as of the Third Restatement Effective Date and after giving effect to
the Transaction, the percentage ownership (direct and indirect) of the Borrower
in each class of capital stock or other equity interests of each of its
Subsidiaries and also identifies direct owner thereof. All outstanding shares
of capital stock of each Subsidiary of the Borrower have been duly and validly
issued, are fully paid and non-assessable and have been issued free of
preemptive rights. No Subsidiary of the Borrower has outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any right
to subscribe for or to purchase, or any options or warrants for the purchase
of, or any agreement providing for the issuance (contingent or otherwise) of or
any calls, commitments or claims of any character relating to, its capital
stock or any stock appreciation or similar rights.
6.16 Compliance with Statutes, etc. Each of the Parent and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its
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business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls), except with respect to each of the foregoing such noncompliance as
could not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Parent and its Subsidiaries taken as a whole.
6.17 Investment Company Act. None of the Parent nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.18 Public Utility Holding Company Act. None of the Parent nor any of
its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
6.19 Environmental Matters. (a) The Parent and each of its
Subsidiaries have complied with, and on the date of such Credit Event are in
compliance with, in all respects, all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws except such
noncompliances which, in the aggregate, could not reasonably be expected to
have a material adverse effect on the performance, business, assets, nature of
assets, liabilities, operations, properties, condition (financial or otherwise)
or prospects of the Parent and its Subsidiaries taken as a whole. There are no
past, pending or, to the best knowledge of the Parent and the Borrower,
threatened material Environmental Claims against the Parent or any of its
Subsidiaries or any Real Property currently owned or operated by the Parent or
any of its Subsidiaries. There are no facts, circumstances, conditions or
occurrences concerning the business or operations of the Parent or any of its
Subsidiaries or any Real Property or facility at any time owned, operated or
used by the Parent or any of its Subsidiaries or, to the knowledge of the
Parent and the Borrower, any property adjoining any such Real Property that
could reasonably be expected (i) to form the basis of an Environmental Claim
against the Parent or any of its Subsidiaries or any Real Property owned or
operated by the Parent or any of its Subsidiaries or (ii) to cause such Real
Property to be subject to any restrictions on the ownership, occupancy, use or
transferability of such Real Property under any Environmental Law except such
Environmental Claims and restrictions which individually or in the aggregate
could not reasonably be expected to have a material adverse effect on the
performance, business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of the Parent and
its Subsidiaries taken as a whole.
(b) Except for immaterial amounts in compliance with applicable law,
neither the Parent nor any of its Subsidiaries has, at any time, generated,
used, treated, stored, transported or released Hazardous Materials on, to or
from any Real Property at any time owned, leased or at any time operated by the
Parent or any of its Subsidiaries.
(c) To the best knowledge of the Parent and the Borrower, there are no
underground storage tanks located on any Real Property owned or operated by the
Parent or any of its Subsidiaries the existence of which could reasonably be
expected to have a material adverse
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effect on the performance, business, assets, nature of assets, liabilities,
operations, properties, condition (financial or otherwise) or prospects of the
Parent and its Subsidiaries taken as a whole.
6.20 Labor Relations. Neither the Parent nor any of its Subsidiaries
is engaged in any unfair labor practice that could reasonably be expected to
have a material adverse effect on the Parent and its Subsidiaries taken as a
whole. There is (i) no significant unfair labor practice complaint pending
against the Parent or any of its Subsidiaries or, to the best knowledge of the
Parent and the Borrower, threatened against the Parent or any of its
Subsidiaries, before the National Labor Relations Board, and no significant
grievance or significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Parent or any of its
Subsidiaries or, to the best knowledge of the Parent and the Borrower,
threatened against the Parent or any of its Subsidiaries and (ii) no
significant strike, labor dispute, slowdown or stoppage pending against the
Parent or any of its Subsidiaries or, to the best knowledge of the Parent and
the Borrower, threatened against the Parent or any of its Subsidiaries.
6.21 Patents, Licenses, Franchises and Formulas. (a) The Parent,
together with its Subsidiaries, has a license to use or otherwise has the right
to use, free and clear of pending or threatened Liens, all the material
patents, patent applications, trademarks, service marks, trade names, trade
secrets, copyrights, proprietary information, computer programs, data bases,
licenses, franchises and formulas, or rights with respect to the foregoing
(together with all "Intellectual Property" as defined in any Mezzanine
Subordinated Note Document, collectively, "Intellectual Property"), and has
obtained all licenses and other rights of whatever nature, necessary for the
present conduct of its business, without any known conflict with the rights of
others which, or the failure to obtain which, as the case may be, could
reasonably be expected to have a material adverse effect on the performance,
business, assets, nature of assets, liabilities, operations, properties,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries taken as a whole.
(b) Neither the Parent nor any of its Subsidiaries has knowledge of
any claim by any third party contesting the validity, enforceability, use or
ownership of the Intellectual Property, or of any existing state of facts that
would support a claim that use by the Parent or any of its Subsidiaries of any
such Intellectual Property has infringed or otherwise violated any Intellectual
Property right of any other Person and that to the best knowledge of the Parent
and its Subsidiaries no claim is threatened except for such claims that could
not, individually or in the aggregate, reasonably be expected to have a
material adverse affect on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Parent and its Subsidiaries taken as a whole.
6.22 Indebtedness. Schedule X sets forth a true and complete list of
all Indebtedness (other than the Loans and Indebtedness pursuant to the Senior
Subordinated Credit Documents) of the Parent and each of its Subsidiaries as of
the Third Restatement Effective Date after giving effect to the Transaction and
the other transactions contemplated hereby (the "Existing Indebtedness"), in
each case showing the aggregate amount thereof and the name of the respective
obligor and any other entity which directly or indirectly guaranteed such debt.
None
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of the Existing Indebtedness was incurred in connection with, or in
contemplation of, the Transaction or the other transactions contemplated
hereby.
6.23 Restrictions on or Relating to Subsidiaries. (a) There does not
exist any encumbrance or restriction on the ability of (x) any Subsidiary of
the Parent to pay dividends or make any other distributions on its capital
stock or any other interest or participation in its profits owned by the Parent
or any Subsidiary of the Parent, or to pay any Indebtedness owed to the Parent
or a Subsidiary of the Parent, (y) any Subsidiary of the Parent to make loans
or advances to the Parent or any of the Parent's Subsidiaries or (z) any
Subsidiary of the Parent to transfer any of its properties or assets to the
Parent or any Subsidiary of the Parent, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of the Parent or a Subsidiary of the Parent, (iv) the Senior
Subordinated Credit Documents, (v) restrictions applicable to any Joint Venture
that is a Subsidiary existing at the time of the acquisition thereof as a
result of an Investment pursuant to Section 8.06(ix); provided that the
restrictions applicable to the respective such Joint Venture are not made
worse, or more burdensome, from the perspective of the Parent and its
Subsidiaries, than those as in effect immediately before giving effect to the
consummation of the respective Investment or (vi) on and after the execution
and delivery thereof, the documentation governing the Permitted Subordinated
Refinancing Indebtedness and the Mezzanine Subordinated Note Documents.
(b) There does not exist any encumbrance or restriction on the ability
of any Non-Subsidiary Joint Venture to pay dividends or make any other
distributions on its capital stock or any other interest or participation in
its profits owned by the Parent or any Subsidiary of the Parent, or to pay any
Indebtedness owed to the Parent or a Subsidiary of the Parent, except for such
encumbrances or restrictions existing under or by reason of (i) applicable law,
(ii) this Agreement and the other Credit Documents, (iii) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of any Non-Subsidiary Joint Venture, (iv) the Senior Subordinated
Credit Documents, (v) restrictions applicable to any Non-Subsidiary Joint
Venture existing at the time of the acquisition thereof as a result of an
Investment pursuant to Section 8.06(ix); provided that the restrictions
applicable to the respective such Non-Subsidiary Joint Venture are not made
worse, or more burdensome, from the perspective of the Parent and its
Subsidiaries, than those as in effect immediately before giving effect to the
consummation of the respective Investment or (vi) on and after the execution
and delivery thereof, the documentation governing the Permitted Subordinated
Refinancing Indebtedness and the Mezzanine Subordinated Note Documents.
6.24 Foreign Pension Plans. Neither the Parent nor any of its
Subsidiaries has maintained, currently maintains or will maintain a Foreign
Pension Plan without the consent of the Administrative Agent and the Required
Banks.
6.25 The Transaction. All aspects of the Transaction have been
effected in all material respects in accordance with the terms of the Documents
and applicable law. At the time of consummation thereof, all consents and
approvals of, and filings and registrations with, and all other actions in
respect of, all governmental agencies, authorities or instrumentalities
required in
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order to consummate the Transaction in accordance with the terms of the
Documents and all applicable laws shall have been obtained, given, filed or
taken and are in full force and effect (or effective judicial relief with
respect thereto has been obtained). All applicable waiting periods with respect
thereto have or, prior to the time when required, will have, expired without,
in all such cases, any action being taken by any competent authority which
restrains, prevents or imposes material adverse conditions upon the
consummation of the Transaction. Additionally, at the time of consummation
thereof, there does not exist any judgment, order or injunction prohibiting or
imposing material adverse conditions upon the consummation of the Transaction
or the occurrence of any Credit Event.
6.26 Concentration Account. Schedule V sets forth a true and complete
description of the Concentration Account maintained with the Concentration
Account Bank by the Parent and each of its Subsidiaries. No Credit Party now
maintains, or will in the future maintain, any concentration account with any
financial institution other than the Concentration Account with the
Concentration Account Bank; provided, however, that each such Credit Party
shall be permitted to establish new Concentration Accounts pursuant to the
terms of the Security Agreement.
6.27 Material Contracts. All Material Contracts of the Parent and each
of its Subsidiaries as of the Third Restatement Effective Date are listed on
Schedule XI.
6.28 Business Centers; Owners. Set forth on Schedule XIII is a list of
each of the business centers of the Parent and each Subsidiary of the Parent as
of the Third Restatement Effective Date, and identifies the owners of each such
business center, those that are owned by limited liability companies, and those
that Parent or any of its Subsidiaries manages pursuant to a management
contract.
6.29 Senior Subordinated Notes; etc. (a) The subordination provisions
contained in the Senior Subordinated Credit Documents are enforceable against
the respective Credit Parties party thereto and the holders of the Indebtedness
thereunder, and all Obligations, Guaranteed Obligations and Guaranteed
Obligations under, and as defined in, the Subsidiaries Guaranty are within the
definitions of "Designated Senior Debt" and "Senior Debt", as applicable,
included in such subordination provisions. From and after the Third Restatement
Effective Date, this Agreement (as same may be amended, modified or
supplemented from time to time) constitutes the "Senior Secured Credit
Agreement" under, and as defined in, the Senior Subordinated Credit Agreement.
(b) On and after the execution and delivery thereof, the subordination
provisions contained in any agreement or instrument relating to Permitted
Subordinated Refinancing Indebtedness and the Mezzanine Subordinated Note
Documents will be enforceable against the debtor thereunder and the holders of
such Indebtedness, and all Obligations, Guaranteed Obligations and Guaranteed
Obligations under, and as defined in, the Subsidiaries Guaranty will be within
the definitions of "Senior Indebtedness" included in the subordination
provisions contained in the Mezzanine Subordinated Note Documents.
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6.30 Special Purpose Corporation. (a) Parent and Merger Sub 2 were
formed to effect the Transaction. Prior to the consummation of the Transaction,
neither Parent nor Merger Sub 2 had any significant assets or liabilities.
(b) After giving effect to the Transaction, the Parent has no
significant assets (other than (x) the capital stock of the Borrower, (y) the
Development Assets and (z) the immaterial assets used for the performance of
those activities permitted to be performed by the Parent pursuant to Section
8.16(b)) or liabilities (other than under this Agreement and the other
Documents to which it is a party and those liabilities permitted to be incurred
by the Parent pursuant to Section 8.16(b)).
6.31 Foreign Assets Control Regulations. None of the Parent or any of
its Subsidiaries nor, to the best knowledge of the Parent and the Borrower
after due inquiry, any Affiliate of the Parent or any of its Subsidiaries, is,
or will be after consummation of the Transaction and application of the
proceeds of the Loans, by reason of being a national of a designated foreign
country or a specially designated national within the meaning of the
Regulations of the Office of Foreign Assets Control, United States Treasury
Department (31 C.F.R., Subtitle B, Chapter V), or for any other reason, in
violation of, any United States Federal Statute or Presidential Executive Order
concerning trade or other relations with any foreign country or any citizen or
national thereof or the ownership or operation of any Property.
6.32 Common Carrier. Neither the Parent nor any of its Subsidiaries is
subject to regulation as a common carrier or contract carrier or any similar
classification by the Interstate Commerce Commission or under the laws of any
state, or is subject to regulation under any other federal, state or local
statute which limits its ability to incur Indebtedness.
6.33 Customers. Set forth in Schedule XXI is a list, as of the Third
Restatement Effective Date after giving effect to the Transaction, of the
Parent and its Subsidiaries' ten largest operating customers and clients as
measured by gross revenues of the Parent and its Subsidiaries generated by such
customers and clients, for the three years ended as of December 31, 1997, 1998
and 1999. Except as disclosed on Schedule XXI, as of the Third Restatement
Effective Date, no significant customer or client (or group of related
customers or clients which in the aggregate is significant) of the Parent or
any of its Subsidiaries has given any of them notice or, to the knowledge of
the Parent or any of its Subsidiaries, has taken any other action which has
given the Parent or any of its Subsidiaries any reason to believe that such
customer or client (or group of customers or clients) will materially reduce
the amount of its purchases or adversely change the price or terms to the
Parent or any of its Subsidiaries of such purchases. For such purposes, a
customer or client (or group of customers or clients) shall be deemed
significant if such customer or client (or group of related customers or
clients) has accounted for more than 5% of the total gross revenues of the
Parent and its Subsidiaries (taken as a whole) during the past fiscal year.
Section 7. Affirmative Covenants. Each of the Parent and the Borrower
covenants and agrees that on and after the Third Restatement Effective Date and
until the Total Commitment and all Letters of Credit have terminated and the
Loans and Notes and Unpaid
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Drawings, together with interest, Fees and all other Obligations incurred
hereunder and thereunder, are paid in full:
7.01 Information Covenants. The Parent will furnish to each Bank:
(a) Monthly Reports. Within 30 days after the end of each
fiscal month other than the last such month of any fiscal quarter of
the Parent, the consolidated balance sheet of the Parent and its
Subsidiaries as at the end of such month and the related consolidated
statements of operations and cash flows for such month (including,
without limitation, on a stand-alone basis the operations and
cashflows of the Development Assets) and for the elapsed portion of
the fiscal year ended with the last day of such month, in each case
setting forth comparative figures for the corresponding month and
elapsed portion of such fiscal year for the prior fiscal year and
comparable budgeted figures for such period as well as a management
discussion and analysis of such results, all of which shall be
certified by the chief financial officer or controller of the Parent,
subject to normal year-end audit adjustments.
(b) Quarterly Financial Statements. Within 45 days after the
close of each of the quarterly accounting periods in each fiscal year
of the Parent, (i) the consolidated and consolidating balance sheets
of the Parent and its Subsidiaries as at the end of such quarterly
period and the related consolidated and consolidating statements of
operations, stockholders' equity and cash flows (including, without
limitation, on a stand-alone basis the operations and cashflows of the
Development Assets) for such quarterly period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
period, in each case setting forth comparative figures for the related
periods in the prior fiscal year and comparable budgeted figures for
such period, (ii) management's discussion and analysis of such
results, (iii) the "Consolidated Business Center Operating Analysis"
showing the financial condition of each business suite center as at
the end of such quarterly accounting period and the results of
operation for such period, in each case prepared on a basis consistent
with the past practices of Vantas under the Second Amended and
Restated Credit Agreement prior to the Third Restatement Effective
Date and (iv) the consolidating balance sheet and related statements
of income and cash flows showing the financial condition of the
Development Assets as of the close of such quarterly accounting period
and the results of operations of the Development Assets during such
quarterly accounting period and the then elapsed portion of the fiscal
year, all of which shall be certified by the chief financial officer
or controller of the Parent, subject to normal year-end audit
adjustments.
(c) Annual Financial Statements. Within 90 days after the
close of each fiscal year of the Parent, the consolidated and
consolidating balance sheets of the Parent and its Subsidiaries as at
the end of such fiscal year and the related consolidated and
consolidating statements of operations, stockholders' equity and cash
flows for such fiscal year and setting forth comparative figures for
the preceding fiscal year and comparable budgeted figures for such
period and certified, (x) in the case of the consolidating statements,
by the chief financial officer or controller of the Parent and (y) in
the case of the consolidated financial statements of the Parent and
its Subsidiaries, by
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Ernst & Young LLP or any other independent certified public
accountants of recognized national standing reasonably acceptable to
the Required Banks, together with a signed opinion of such accounting
firm (which opinion shall not be qualified as to the scope of the
audit or the status of the Parent or any Subsidiary as a going concern
in any respect) stating that in the course of its regular audit of the
financial statements of the Parent which audit was conducted in
accordance with generally accepted auditing standards, such accounting
firm obtained no knowledge of any Default or Event of Default which
has occurred and is continuing or, if in the opinion of such
accounting firm such a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof.
(d) Management Letters. Promptly after the receipt thereof by
the Parent or any of its Subsidiaries, a copy of any "management
letter" received by the Parent or any of its Subsidiaries from its
certified public accountants.
(e) Budgets. As soon as available but in no event later than
30 days after the first day of each fiscal year of the Parent, a
budget for the Parent and its Subsidiaries in form customarily
prepared by the Borrower and/or the Parent (including budgeted
statements of earnings as well as sources and uses of cash and balance
sheets and budgeted openings of new business centers which may be made
available on a quarterly basis only) prepared by the Parent for each
calendar month of such fiscal year prepared in reasonable detail with
appropriate presentation and discussion of the principal assumptions
upon which such budgets are based, accompanied by the statement of the
chief financial officer or controller of the Parent to the effect
that, to the best of his knowledge, the budget is a reasonable
estimate for the period covered thereby.
(f) Officer's Certificates. At the time of the delivery of
the financial statements provided for in Section 7.01(a), (b) and (c),
a certificate of the chief financial officer or controller of the
Parent to the effect that no Default or Event of Default has occurred
and is continuing or, if any Default or Event of Default has occurred
and is continuing, specifying the nature and extent thereof, which
certificate, (x) in the case of certificates delivered pursuant to
Section 7.01(b) or (c), shall set forth (i) the calculations required
to establish whether the Parent was in compliance with the provisions
of Sections 2.03, 3.02, 7.15, 8.02, 8.04, 8.05 and 8.08 through 8.13,
inclusive, at the end of such fiscal quarter or year, as the case may
be, and (ii) the calculation of the Total Leverage Ratio as at the
last day of the respective fiscal quarter or fiscal year of the
Parent, as the case may be, (y) in the case of certificates delivered
pursuant to Section 7.01(c), the amount of Excess Cash Flow for the
relevant Excess Cash Flow Payment Period, and (z) in the case of
certificates delivered pursuant to Section 7.01(b) or (c), shall
certify which, if any, Development Assets had been transferred to the
Borrower during the period covered by such financial statements and
the Business Center Level EBITDA generated by, and costs attributable
to, such transferred Development Assets during such period.
(g) Notice of Default or Litigation. (A) Promptly, and in any
event within three Business Days after an officer of the Parent or any
of its Subsidiaries obtains knowledge thereof, notice of (i) the
occurrence of any event which constitutes a Default or
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Event of Default, (ii) any litigation or governmental investigation or
proceeding pending (x) against the Parent or its Subsidiaries which
could reasonably be expected to materially and adversely affect the
performance, business, assets, nature of assets, liabilities,
operations, properties, condition (financial or otherwise) or
prospects of the Parent and its Subsidiaries taken as a whole or (y)
with respect to any Document, (iii) (I) any material default of the
Parent, the Borrower or any of their Subsidiaries under any material
lease under which the Parent, the Borrower or any of their
Subsidiaries is a lessee and (II) any termination, renewal, expiration
or entering into of any material lease under which the Parent, the
Borrower or any of their Subsidiaries is or will be a lessee and (iv)
any other event which could reasonably be expected to materially and
adversely affect the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or
otherwise) or prospects of the Parent and its Subsidiaries taken as a
whole.
(B) Promptly, and in any event within five Business Days
after an officer of the Parent or any of its Subsidiaries obtains
knowledge thereof, notice of (i) any material default of the Parent or
any of its Subsidiaries under any material lease under which the
Parent or any of its Subsidiaries is a lessee and (ii) any
termination, renewal, expiration or entering into of any material
lease under which the Parent or any of its Subsidiaries is or will be
a lessee.
(h) Other Reports and Filings. Promptly upon transmission
thereof, copies of any financial information, proxy materials and
other information and reports, if any, which any Credit Party or any
of its Subsidiaries (x) has filed with the Securities and Exchange
Commission or any successor thereto (the "SEC") or (y) has delivered
to holders of, or any agent or trustee with respect to, Indebtedness
of any Credit Party or any of its Subsidiaries in its capacity as such
a holder, agent, or trustee.
(i) Environmental Matters. Promptly upon, and in any event
within three Business Days after an officer of the Parent or of any of
its Subsidiaries obtains knowledge thereof, notice of any of the
following environmental matters (i) any pending or threatened material
Environmental Claim against the Parent or any of its Subsidiaries or
any Real Property owned or operated at any time by the Parent or any
of its Subsidiaries; (ii) any condition or occurrence on or arising
from any Real Property owned or operated at any time by the Parent or
any of its Subsidiaries that (a) could reasonably be anticipated to
result in a material noncompliance by the Parent or any of its
Subsidiaries with any material applicable Environmental Law, or (b)
could reasonably be anticipated to form the basis of a material
Environmental Claim against the Parent or any of its Subsidiaries or
any Real Property owned or operated by the Parent or any of its
Subsidiaries; (iii) any condition or occurrence on any material Real
Property owned or operated by the Parent or any of its Subsidiaries
that could reasonably be anticipated to cause such Real Property to be
subject to any material restrictions on the ownership, occupancy, use
or transferability of such Real Property under any Environmental Law;
and (iv) the taking of any removal or remedial action in response to a
material Release or material threatened Release or the actual or
alleged presence of any Hazardous Material on or from any Real
Property owned or operated at any time by the Parent or any of its
Subsidiaries in each case as required by any Environmental Law or any
governmental or
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other administrative agency. All such notices shall describe in
reasonable detail the nature of the claim, investigation, condition,
occurrence or removal or remedial action and the Parent or such
Subsidiary's response thereto. In addition, the Parent will provide
the Banks with copies of all material communications with any
government or governmental agency relating to material Environmental
Claims, all material communications with any person relating to
material Environmental Claims, and such detailed reports of any
Environmental Claim as may reasonably be requested by the Required
Banks.
(j) Annual Meetings with Banks. Within 120 days after the
close of each fiscal year of the Parent, the Parent shall, at the
request of the Administrative Agent or the Required Banks, hold a
meeting (at a mutually agreeable location and time) with all Banks who
choose to attend such meeting at which meeting shall be reviewed the
financial results of the previous fiscal year and the financial
condition of the Parent and its Subsidiaries and the budgets presented
for the current fiscal year of the Parent and its Subsidiaries.
(k) Reconciliation of Accrued Rent Liabilities. In connection
with any financial information furnished by the Parent which contains
a calculation of Consolidated EBITDA, the Parent shall also furnish a
statement reconciling any increase or decrease in accrued rent
liabilities.
(l) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to any
Credit Party or any of its Subsidiaries, as the Administrative Agent
or the Required Banks may reasonably request.
7.02 Books, Records and Inspections. The Parent will, and will cause
each of its Subsidiaries to, (x) keep proper books of record and account in
which full, true and correct entries, in conformity with United States
generally accepted accounting principles and all requirements of law, shall be
made of all dealings and transactions in relation to its business and
activities and (y) reflect in their financial statements adequate accruals and
appropriations to reserves in conformity with the United States generally
accepted accounting principals as from time to time in effect and consistently
applied. The Parent will, and will cause each of its Subsidiaries to, permit
officers and designated representatives of the Administrative Agent or any Bank
to visit and inspect, under guidance of officers of the Parent or of such
Subsidiary, any of the properties of the Parent or such Subsidiary, and to
examine the books of account of the Parent or such Subsidiary and discuss the
affairs, finances and accounts of the Parent or of such Subsidiary with, and be
advised as to the same by, its and their officers, all at such reasonable times
and intervals and to such reasonable extent as the Administrative Agent or such
Bank may request.
7.03 Maintenance of Property, Insurance. (a) Schedule II sets forth a
true and complete listing of all insurance maintained by the Parent and each of
its Subsidiaries as of the Third Restatement Effective Date. The Parent will,
and will cause each of its Subsidiaries to, (i) keep all material property
useful and necessary in its business in good working order and condition
(ordinary wear and tear excepted), (ii) maintain with financially sound and
reputable insurance companies key-man life insurance, liability insurance and
insurance on all its property in at
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least such amounts and against at least such risks as are described on Schedule
II and in any event in accordance with standard industry practices and (iii)
furnish to each Bank, upon written request, full information as to the
insurance carried. The provisions of this Section 7.03 shall be deemed to be
supplemental to, but not duplicative of, the provisions of any of the Security
Documents that require the maintenance of insurance.
(b) The Parent will at all times keep, and will cause each of its
Subsidiaries to keep, its property insured in favor of the Collateral Agent,
and all policies (including mortgage policies) or certificates (or certified
copies thereof) with respect to such insurance (and any other insurance
maintained by the Parent or its Subsidiaries (other than employee benefit
insurance)) (i) shall be endorsed to the Collateral Agent's satisfaction for
the benefit of the Collateral Agent (including, without limitation, by naming
the Collateral Agent as loss payee and naming the Collateral Agent, each Agent
and each Bank as an additional insured) with respect to any Collateral, (ii)
shall state that such insurance policies shall not be canceled or revised in a
manner adverse to the Banks without 30 days' prior written notice thereof by
the respective insurer to the Collateral Agent, (iii) shall provide that the
respective insurers irrevocably waive any and all rights of subrogation with
respect to the Collateral Agent, (iv) shall contain the standard
noncontributory mortgagee clause endorsement in favor of the Collateral Agent
with respect to hazard insurance coverage, (v) shall provide that any losses
shall be payable notwithstanding (A) any act or neglect of the Parent or any of
its Subsidiaries, (B) the occupation or use of the properties for purposes more
hazardous than those permitted by the terms of the respective policy if such
coverage is obtainable at commercially reasonable rates and is of the kind from
time to time customarily insured against by Persons owning or using similar
property and in such amounts as are customary, (C) any foreclosure or other
proceeding relating to the insured properties or (D) any change in the title to
or ownership or possession of the insured properties and (vi) shall be
deposited with the Collateral Agent. If the Parent or any of its Subsidiaries
shall fail to insure its property in accordance with this Section 7.03, or if
the Parent or any of its Subsidiaries shall fail to endorse and deposit all
policies or certificates with respect thereto, the Collateral Agent shall have
the right (but shall be under no obligation) to procure such insurance, and
each of the Parent and the Borrower jointly and severally agrees to reimburse
the Collateral Agent for all costs and expenses of procuring such insurance.
7.04 Corporate Franchises. The Parent will do, and will cause each of
its Subsidiaries to do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its rights, franchises,
licenses and patents; provided, however, that nothing in this Section 7.04
shall prevent (x) the withdrawal by the Parent or any Subsidiary of the Parent
of its qualification as a foreign corporation in any jurisdiction where such
withdrawal could not reasonably be expected to have a material adverse effect
on the performance, business, assets, nature of assets, liabilities,
properties, operations, condition (financial or otherwise) or prospects of the
Parent and its Subsidiaries taken as a whole, or (y) the dissolution of any
Subsidiary of the Parent if no Permitted Business is run in connection with
such Subsidiary and such dissolution could not reasonably be expected to have a
material adverse effect on the performance, business, assets, nature of assets,
liabilities, properties, operations, condition (financial or otherwise) or
prospects of the Parent and its Subsidiaries taken as a whole.
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7.05 Compliance with Statutes, etc. The Parent will, and will cause
each of its Subsidiaries to, comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property, except such noncompliances as could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the performance, business, assets, nature of assets,
liabilities, operations, properties, condition (financial or otherwise) or
prospects of the Parent and its Subsidiaries taken as a whole.
7.06 Compliance with Environmental Laws. (a) The Parent will comply,
and will cause each of its Subsidiaries to comply, in all material respects
with all Environmental Laws applicable to ownership or use of the Real
Property, will promptly pay or cause each of its Subsidiaries to pay all costs
and expenses incurred in such compliance, and will keep or cause to be kept all
such Real Properties free and clear of any Liens imposed pursuant to such
Environmental Laws. None of the Parent nor any Subsidiary of the Parent will
generate, use, treat, store, release or dispose of, or permit the generation,
use, treatment, storage, Release or disposal of Hazardous Materials on any Real
Property, or transport or permit the transportation of Hazardous Materials to
or from any Real Property, other than in compliance in all material respects
with applicable law.
(b) At the request of the Administrative Agent or the Required Banks
at any time and from time to time during the existence of this Agreement: (i)
if an Event of Default exists under this Agreement, (ii) upon the reasonable
belief by the Administrative Agent that the Parent or any of its Subsidiaries
has breached any representation or covenant herein with respect to any
environmental matters and such breach is continuing, or (iii) in the event
notice is provided under Section 7.01(i) herein, the Parent and the Borrower
will provide, at their sole cost and expense (or will cause the relevant
Subsidiary to provide at its sole cost and expense), an environmental site
assessment report reasonable in scope concerning any Real Property of the
Parent or its Subsidiaries, prepared by an environmental consulting firm
approved by the Administrative Agent and the Required Banks, indicating the
presence or Release of Hazardous Materials on or from any of the Real Property
and the potential cost of any removal or remedial action in connection with any
Hazardous Materials on such Real Property. If the Parent or the Borrower fails
to provide the same after thirty (30) days notice, the Administrative Agent may
order the same, and the Parent and the Borrower shall grant and hereby grant to
the Administrative Agent and the Banks and their agents access to such Real
Property and specifically grants the Administrative Agent and the Banks an
irrevocable non-exclusive license, subject to the rights of tenants, to
undertake such an assessment, all at the Parent's and the Borrower's joint and
several expense, which assessments, if obtained, will be provided to the Parent
and the Borrower.
7.07 ERISA. As soon as possible and, in any event, within ten (10)
days after the Parent, any Subsidiary of the Parent or any ERISA Affiliate
knows or has reason to know of the occurrence of any of the following, the
Parent will deliver to each of the Banks a certificate of the chief financial
officer of the Parent setting forth the full details as to such occurrence and
the action, if any, that the Parent, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by the Parent, such Subsidiary, the Plan
administrator or such ERISA Affiliate to or with the PBGC or any
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other government agency, or a Plan or Multiemployer Plan participant and any
notices received by the Parent, such Subsidiary or ERISA Affiliate from the
PBGC or any other government agency, or a Plan or Multiemployer Plan
participant with respect thereto: that a Reportable Event has occurred (except
to the extent that the Parent has previously delivered to the Banks a
certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably
expected to occur with respect to such Plan within the following 30 days; that
an accumulated funding deficiency, within the meaning of Section 412 of the
Code or Section 302 of ERISA, has been incurred or an application may be or has
been made for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of
ERISA with respect to a Plan or Multiemployer Plan; that any contribution
required to be made with respect to a Plan, Multiemployer Plan, or Foreign
Pension Plan has not been timely made; that a Plan or Multiemployer Plan has
been or may be terminated, reorganized, partitioned or declared insolvent under
Title IV of ERISA; that a Plan or Multiemployer Plan has an Unfunded Current
Liability; that proceedings may be or have been instituted to terminate or
appoint a trustee to administer a Plan which is subject to Title IV of ERISA;
that a proceeding has been instituted pursuant to Section 515 of ERISA to
collect a delinquent contribution to a Multiemployer Plan; that the Parent, any
Subsidiary of the Parent or any ERISA Affiliate will or may incur any liability
(including any indirect, contingent, or secondary liability) to or on account
of the termination of or withdrawal from a Plan or Multiemployer Plan under
Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to
a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409
or 502(i) or 502(l) of ERISA or with respect to a group health plan (as defined
in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section
4980B of the Code; or that the Parent or any Subsidiary of the Parent may incur
any material liability pursuant to any employee welfare benefit plan (as
defined in Section 3(1) of ERISA) that provides benefits to retired employees
or other former employees (other than as required by Section 601 of ERISA) or
any Plan or Foreign Pension Plan. The Parent will deliver to each of the Banks
copies of any records, documents or other information that must be furnished to
the PBGC with respect to any Plan pursuant to Section 4010 of ERISA. The Parent
will also deliver to each of the Banks a complete copy of the annual report (on
Internal Revenue Service Form 5500-series) of each Plan (including, to the
extent required, the related financial and actuarial statements and opinions
and other supporting statements, certificates, schedules and information)
required to be filed with the Internal Revenue Service. In addition to any
certificates or notices delivered to the Banks pursuant to the first sentence
hereof, copies of annual reports and any records, documents or other
information required to be furnished to the PBGC or any other government
agency, and any material notices received by the Parent, any Subsidiary of the
Parent or any ERISA Affiliate with respect to any Plan or Foreign Pension Plan
or received from any governmental agency or plan administrator or sponsor or
trustee with respect to any Multiemployer Plan, shall be delivered to the Banks
no later than ten (10) days after the date such annual report has been filed
with the Internal Revenue Service or such records, documents and/or information
has been furnished to the PBGC or any other government
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agency or such notice has been received by the Parent, such Subsidiary or such
ERISA Affiliate, as applicable. The Parent and each of its applicable
Subsidiaries shall ensure that all Foreign Pension Plans administered by it or
into which it makes payments obtains or retains (as applicable) registered
status under and as required by applicable law and is administered in a timely
manner in all respects in compliance with all applicable laws except where the
failure to do any of the foregoing would not be reasonably likely to result in
a material adverse effect upon the business, operations, condition (financial
or otherwise) or prospects of the Parent or any Subsidiary of the Parent.
7.08 End of Fiscal Years; Fiscal Quarters. The Parent will cause its,
and each of its Subsidiaries', fiscal years to end on December 31 of each year
and each of its, and each of its Subsidiaries', first three fiscal quarters end
on March 31, June 30 and September 30.
7.09 Performance of Obligations. The Parent will, and will cause each
of its Subsidiaries to, perform all of its obligations under the terms of each
mortgage, indenture, security agreement and other debt instrument by which it
is bound, except such non-performances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
performance, business, assets, nature of assets, liabilities, operations,
properties, condition (financial or otherwise) or prospects of the Parent and
its Subsidiaries taken as a whole.
7.10 Payment of Taxes. The Parent will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits,
or upon any properties belonging to it, prior to the date on which penalties
would otherwise attach thereto, and all lawful claims which, if unpaid, might
become a lien or charge upon any properties of the Parent or any of its
Subsidiaries not otherwise permitted under Section 8.01; provided that neither
the Parent nor any of its Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim which is being contested in good faith and by
proper proceedings if it has maintained adequate reserves with respect thereto
in accordance with generally accepted accounting principles.
7.11 Interest Rate Protection. No later than 60 days following the
Third Restatement Effective Date, the Borrower shall enter into interest rate
protection arrangements establishing a maximum interest rate for a portion of
the Borrower's outstanding Term Loans and Acquisition Loans and for a specified
period, all on a basis satisfactory to the Agents.
7.12 Use of Proceeds. All proceeds of the Loans shall be used as
provided in Section 6.08.
7.13 Intellectual Property Rights. The Parent will, and will cause
each of its Subsidiaries to, make all filings in connection with the transfer
of the material Intellectual Property rights in any acquisition. The Parent
will, and will cause each of its Subsidiaries to, maintain in full force and
effect all Intellectual Property rights necessary or appropriate to the
business of the Parent or any Subsidiary of the Parent and take no action
(including, without limitation, the licensing of Intellectual Property), or
fail to take an action, as the case may be, in connection with such
Intellectual Property rights which could reasonably be expected to result in
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a material adverse effect on the performance, business, assets, nature of
assets, liabilities, properties, operations, condition (financial or otherwise)
or prospects of the Parent and its Subsidiaries taken as a whole. The Parent
will, and will cause each of its Subsidiaries to, diligently prosecute all
pending applications filed in connection with seeking or seeking to perfect the
Intellectual Property rights and take all other reasonable actions necessary
for the protection and maintenance of the Intellectual Property rights
necessary or appropriate to the business of the Parent or any Subsidiary of the
Parent at all times from and after the Third Restatement Effective Date other
than any such actions the failure of which, in the aggregate, could not
reasonably be expected to have a material adverse effect on the performance,
business, assets, nature of assets, liabilities, operations, properties,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries taken as a whole.
7.14 PIK Preferred Stock; etc. (a) Parent shall pay all dividends
owing on any outstanding PIK Preferred Stock through the issuance of additional
PIK Preferred Stock (or, alternatively, through an increase in the aggregate
liquidation preference of the outstanding PIK Preferred Stock), rather than in
cash, to the maximum extent permitted by the PIK Preferred Stock Documents.
(b) The Borrower shall pay interest owing on any outstanding Senior
Subordinated Bridge Loans through an increase in the aggregate principal amount
of outstanding Senior Subordinated Bridge Loans, rather than in cash, to the
maximum extent permitted by the Senior Subordinated Credit Documents.
(c) The Borrower shall pay interest owing on any outstanding Permitted
Subordinated Refinancing Indebtedness through an increase in the aggregate
principal amount of outstanding Permitted Subordinated Refinancing
Indebtedness, rather than in cash, to the maximum extent permitted by the
documentation governing the Permitted Subordinated Refinancing Indebtedness.
7.15 Permitted Acquisitions. (a) Subject to the remaining provisions
of this Section 7.15 applicable thereto and the requirements contained in the
definition of Permitted Acquisition, the Borrower and its Wholly-Owned
Subsidiaries may from time to time after the Third Restatement Effective Date
effect Permitted Acquisitions, so long as with respect to each Permitted
Acquisition:
(i) the Borrower demonstrates that no Default or Event of
Default is in existence at the time of the consummation of such
Permitted Acquisition or would exist after giving effect thereto and
all representations and warranties contained herein and in the other
Credit Documents shall be true and correct in all material respects
with the same effect as though such representations and warranties
were made on and as of the date of such Permitted Acquisition (both
before and after giving effect thereto);
(ii) the Borrower shall have given the Administrative Agent
and the Banks at least 15 days prior written notice of any such
Permitted Acquisition (each such notice, a "Permitted Acquisition
Notice"), which notice shall (r) contain the estimated date such
Permitted Acquisition is scheduled to be consummated, (s) attach a
true and correct copy
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of the draft purchase agreement, letter of intent, description of
material terms or similar agreement executed by the Borrower and the
seller in connection with such Permitted Acquisition, (t) contain the
estimated aggregate purchase price of such Permitted Acquisition
(including, without limitation, the amount of Capitalized Lease
Obligations assumed in connection with the Permitted Acquisition) and
the amount of related costs and expenses and the intended method of
financing thereof, (u) contain a description of the Permitted Seller
Notes to be issued by the Borrower in connection with such Permitted
Acquisition, (v) contain a description of any Permitted Earn-Out Debt
to be incurred by the Borrower in connection with such Permitted
Acquisition and the maximum potential liability of the Borrower with
respect thereto, (w) contain a description of the Parent Common Stock
or Seller Preferred Stock to be issued by the Parent in connection
with such Permitted Acquisition, (y) specify the aggregate principal
amount of the Revolving Loans to be incurred by the Borrower in
connection with such Permitted Acquisition and (z) specify the amount
of cash on hand to be used to finance such Permitted Acquisition;
provided, however, that if the estimated aggregate purchase price
(including, without limitation, the amount of Capitalized Lease
Obligations assumed in connection with the Permitted Acquisition) of
such Permitted Acquisition is less than $1,000,000, such notice need
not contain the information described in clause (s) above unless the
Administrative Agent requests such information; provided further,
however, in the event that after delivery of the documentation
described in clause (s) above any material economic terms of the
Permitted Acquisition shall be amended in any material way, then
promptly after such amendment the Borrower shall provide the
Administrative Agent and the Banks written notice of such changes;
(iii) the Borrower shall have given the Banks such other
information related to the Person or business, division or product
line being acquired and the Permitted Acquisition as the
Administrative Agent shall reasonably request;
(iv) (I) as soon as available but not later than the date of
the consummation of such Permitted Acquisition, a copy of the executed
purchase agreement and all related agreements, schedules and exhibits
with respect to such Permitted Acquisition and (II) at the time of
delivery of the purchase agreement, a certification from the Borrower
as to the purchase price for the proposed Permitted Acquisition
(including, without limitation, the amount of Capitalized Lease
Obligations assumed in connection with the Permitted Acquisition) and
the estimated amount of all related costs, fees and expenses and that,
except as described, there are no other amounts which will be payable
in connection with the respective Permitted Acquisition;
(v) with respect to Permitted Acquisitions effected during
any twelve-month period (including Permitted Acquisitions effected
under and as defined in the Second Amended and Restated Credit
Agreement, the sum (without duplication) of (I) the aggregate amount
of cash paid as consideration by the Borrower or any of its
Subsidiaries in connection with such Permitted Acquisitions (including
proceeds from the incurrence of Revolving Loans used for such
purpose), (II) the aggregate amount (determined by using the face
amount of the debt or the amount payable at maturity, whichever is
greater) of Permitted Seller Notes issued by the Borrower in
connection with such Permitted
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Acquisitions, (III) the maximum potential liability of the Borrower
with respect to the Permitted Earn-Out Debt issued in connection with
such Permitted Acquisitions, and (IV) the amount of Capitalized Lease
Obligations assumed in connection with such Permitted Acquisitions
shall not exceed $30,000,000 during such rolling twelve-month period
with the first such period commencing on the Original Effective Date;
(vi) with respect to each Permitted Acquisition the sum
(without duplication) of (I) the aggregate amount of cash paid by the
Borrower and any of its Subsidiaries as consideration in connection
with such Permitted Acquisition, (II) the aggregate amount (determined
by using the face amount of the debt or the amount payable at
maturity, whichever is greater) of Permitted Seller Notes issued by
the Borrower in connection with such Permitted Acquisition, (III) the
maximum potential liability of the Borrower with respect to all
Permitted Earn-Out Debt issued in connection with such Permitted
Acquisition, and (IV) the amount of Capitalized Lease Obligations
assumed in connection with the Permitted Acquisition, shall not exceed
$7,500,000;
(vii) except in connection with Permitted Acquisitions
consisting of Start-Up Costs, calculations are made by the Parent of
the Acquired EBITDA of the Person or business, division or product
line being acquired pursuant to the respective Permitted Acquisition,
and the amount thereof shall exceed $1 for the period of four
consecutive fiscal quarters (taken as one accounting period and
including fiscal quarters ending prior to the Third Restatement
Effective Date) most recently ended prior to the date of the Permitted
Acquisition (the "Four Quarter Calculation Period"); provided,
however, in the case of calculations based on unaudited financial
statements, the Administrative Agent shall be reasonably satisfied
that the Acquired EBITDA of such Person or business, division or
product line being acquired pursuant to the respective Permitted
Acquisition exceeds $1 for the Four Quarter Calculation Period;
provided further, however, that, so long as the Permitted Acquisition
Notice has been given as required above and so long as the Borrower
has furnished the Administrative Agent information with respect to the
Acquired EBITDA of such Person or business, division or product line
being acquired pursuant to the respective Permitted Acquisition, if
the Administrative Agent has not notified the Borrower on or prior to
the fifth Business Day prior to the consummation of the Permitted
Acquisition that the Administrative Agent has not yet been reasonably
satisfied that the $1 threshold is satisfied, the Administrative Agent
shall be deemed for purposes of this clause (vii) to be so satisfied;
(viii) the Administrative Agent and the Required Banks shall
be satisfied in their reasonable discretion that the proposed
Permitted Acquisition will not reasonably likely result in materially
increased liabilities (contingent or otherwise) of the Parent or any
of its Subsidiaries other than Permitted Seller Notes, Permitted
Earn-Out Debt and Capitalized Lease Obligations incurred in accordance
with the provisions of this Agreement (including, without limitation,
tax, ERISA or environmental liabilities); provided that, so long as
the Permitted Acquisition Notice has been given as required above and
so long as the Borrower has furnished each Bank, following request by
the Administrative Agent, information with respect to liabilities of
the type described in this clause with all information so requested,
if any Bank has not notified the Borrower or the
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Administrative Agent on or prior to the tenth day prior to the
consummation of the Permitted Acquisition that such Bank has not yet
been satisfied that the proposed Permitted Acquisition would not be
reasonably likely to result in materially increased liabilities of the
Parent or any of its Subsidiaries, such Bank shall be deemed for
purposes of this clause (viii) to be so satisfied;
(ix) recalculations are made by the Parent and the Borrower
of compliance with the covenants contained in Sections 8.11 and 8.12
on a Pro Forma Basis, and such recalculations shall show that such
covenants would have been complied with throughout the Two Quarter
Calculation Period on a Pro Forma Basis;
(x) the Parent in good faith believes, based on calculations
made by the Parent, on a Pro Forma Basis (as if the Two Quarter
Calculation Period were the six-month period following the date of the
consummation of the respective Permitted Acquisition), that the
financial covenants contained in such Sections 8.11 and 8.12 will
continue to be met for the six-month period following the date of the
consummation of the respective Permitted Acquisition;
(xi) in no event may the aggregate amount of Start-Up Costs
relating to any Permitted Acquisition with respect to any one new
executive office suite center exceed $3,000,000;
(xii) with respect to each Permitted Acquisition, the Borrower
shall conduct the customary due diligence set forth on Schedule XIV
for the Four Quarter Calculation Period which shall be performed in
accordance with standards established by the American Institute of
Certified Public Accountants;
(xiii) with respect to Permitted Acquisitions with an
aggregate consideration equal to or greater than $10,000,000, the
Borrower shall engage a "big five" accounting firm or other accounting
firm acceptable to the Administrative Agent to perform financial due
diligence set forth on Schedule XIV and produce a report of their
findings which shall be delivered to the Banks and be acceptable to the
Required Banks in their sole judgment and to the extent a Bank has not
indicated in writing within five Business Days after receipt of the
materials required by this Section 7.15(a)(xiii) that it is not
acceptable to such Bank then it shall be deemed to be acceptable to
such Bank; provided, however, that this Section 7.15(xiii) shall not
apply to Permitted Acquisitions which have been audited by a "big five"
accounting firm within four months prior to the date of closing of a
Permitted Acquisition; and
(xiv) prior to the consummation of the respective Permitted
Acquisition, the Parent shall furnish the Administrative Agent and the
Banks an officer's certificate executed by the chief financial officer
of the Parent, certifying as to compliance with the requirements of
preceding clauses (i) through (xiii) and containing the calculations
required by preceding clauses (v) through (vii), (ix), (x) and (xi).
The consummation of each Permitted Acquisition shall be deemed to be a
representation and warranty by each of the Parent and the Borrower
that all conditions thereto have been satisfied and that
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same is permitted in accordance with the terms of this Agreement,
which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including,
without limitation, Sections 5 and 9.
(b) At the time of each Permitted Acquisition after the Third
Restatement Effective Date involving the creation or acquisition of a
Subsidiary, not less than 100% of the capital stock of such Subsidiary shall be
directly owned by the Borrower or a Guarantor and such 100% owned by the
Borrower or Guarantor shall be pledged for the benefit of the Secured Creditors
pursuant to the Pledge Agreement or pursuant to a similar agreement
satisfactory to the Administrative Agent.
(c) The Borrower shall cause each Subsidiary which is formed to
effect, or is acquired pursuant to, a Permitted Acquisition after the Third
Restatement Effective Date to execute and deliver, prior to or on the date of
the respective Permitted Acquisition, a counterpart of the Subordination
Agreement and the Subsidiaries Guaranty (or by an amendment thereto pursuant to
which it shall be a party thereto) or a substantially similar guaranty, in
either case with the documentation to be in form and substance satisfactory to
the Administrative Agent.
(d) The Borrower shall on the date of a Permitted Acquisition after
the Third Restatement Effective Date, in the case of Permitted Acquisitions
involving the acquisition of assets by the Borrower (including Permitted
Acquisitions constituting Start-Up Costs), or, in the case of an acquisition by
the respective Subsidiary, shall cause the respective Subsidiary to, grant to
the Collateral Agent, for the benefit of the Secured Creditors, first priority
perfected security interests in all property of the Borrower or such
Subsidiaries acquired in connection with the Permitted Acquisition and to take,
or cause such Subsidiary to take, all actions requested by the Administrative
Agent or the Required Banks (including, without limitation, the obtaining of
UCC-11's and the filing of UCC-1's) in connection with the granting of such
security interests. All security interests required to be granted pursuant to
this Section 7.15(d) shall be granted pursuant to such security documentation
(which shall be substantially similar to the analogous Security Documents
already executed and satisfactory in form and substance to the Administrative
Agent) and shall (except as otherwise consented to by the Administrative Agent
and the Required Banks) constitute valid and enforceable perfected security
interests prior to the rights of all third Persons and subject to no other
Liens except such Liens as are permitted by Section 8.01. The security
documents and other instruments related thereto shall be duly recorded or filed
in such manner and in such places as are required by law to establish, perfect,
preserve and protect the Liens, in favor of the Collateral Agent for the
benefit of the Secured Creditors, required to be granted pursuant to the
respective Additional Security Documents and all taxes, fees and other charges
payable in connection therewith shall be paid in full by the Borrower or the
relevant Subsidiary. At the time of the execution and delivery of Additional
Security Documents, the Parent and the Borrower shall cause to be delivered to
the Collateral Agent such opinions of counsel, environmental appraisals and
other related documents as may be reasonably requested by the Collateral Agent
or the Required Banks to assure themselves that this Section has been complied
with. All actions required to be taken by this Section 7.15(d) with respect to
the Additional Collateral shall be completed no later than the date on which
the Permitted Acquisition is effected unless otherwise consented to by the
Administrative Agent.
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7.16 Register. The Borrower hereby designates the Administrative Agent
to serve as its agent, solely for purposes of this Section 7.16, to maintain a
register (the "Register") on which it will record the Commitments from time to
time of each of the Banks, the Loans made by each of the Banks and each
repayment in respect of the principal amount of the Loans of each Bank. Failure
to make any such recordation, or any error in such recordation shall not affect
the Borrower's obligations in respect of such Loans. With respect to any Bank,
the transfer of the Commitments of such Bank and the rights to the principal
of, and interest on, any Loan made pursuant to such Commitments shall not be
effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Commitments and Loans
and prior to such recordation all amounts owing to the transferor with respect
to such Commitments and Loans shall remain owing to the transferor. The
registration of an assignment or transfer of all or part of any Commitments and
Loans shall be recorded by the Administrative Agent on the Register only upon
the acceptance by the Administrative Agent of a properly executed and delivered
assignment and assumption agreement pursuant to Section 12.04(b). Coincident
with the delivery of such an assignment and assumption agreement to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Commitment or Loan, or as soon thereafter as practicable,
the assigning or transferor Bank shall surrender the Note evidencing such
Commitment or Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Bank and/or the
new Bank. Each of the Parent and the Borrower jointly and severally agrees to
indemnify the Administrative Agent from and against any and all losses, claims,
damages and liabilities of whatsoever nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties under
this Section 7.16.
7.17 Further Actions. (a) Each Credit Party shall grant to the
Collateral Agent, for the benefit of the Secured Creditors, at the request of
the Administrative Agent or the Required Banks, at any time, a security
interest in any Real Property or vehicles owned by any such Credit Party and
any other assets of such Credit Party and not already subject to a Security
Document and shall take all actions requested by the Administrative Agent or
the Required Banks (including, without limitation, the obtaining of mortgage
policies, title surveys and real estate appraisals satisfying the requirements
of all applicable laws) in connection with the granting of such security
interest.
(b) The security interests required to be granted pursuant to clause
(a) above shall be granted pursuant to mortgages, deeds of trust and security
agreements, in each case satisfactory in form and substance to the
Administrative Agent and the Required Banks, which mortgages and security
agreements shall create valid and enforceable perfected security interests
prior to the rights of all third Persons and subject to no other Liens, except
such Liens as are permitted by Section 8.01. The mortgages and other
instruments related thereto and security agreements shall be duly recorded or
filed in such manner and in such places and at such times as are required by
law to establish, perfect, preserve and protect the Liens, in favor of the
Collateral Agent for the benefit of the Secured Creditors, required to be
granted pursuant to such documents and all taxes, fees and other charges
payable in connection therewith shall be paid in full by the Borrower. At the
time of the execution and delivery of the additional documents, the Parent and
the Borrower shall cause to be delivered to the Collateral Agent such opinions
of counsel, mortgage policies, title surveys, real estate appraisals,
certificates of title and other related documents
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as may be reasonably requested by the Administrative Agent or the Required
Banks to assure themselves that this Section 7.17 has been complied with.
(c) Each Credit Party agrees that each action required by Section
7.17(a) or (b) shall be completed within 60 days of the date such action is
requested to be taken.
7.18 Concentration Account; Lockboxes, etc. (a) On the Third
Restatement Effective Date, the Parent shall, and shall have caused each of its
Subsidiaries to, have duly authorized, executed and delivered a Concentration
Account Consent Letter in such form as approved by the Collateral Agent (each
as amended and restated, modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, a "Concentration Account Consent
Letter") with the Collateral Agent and the Concentration Account Bank,
acknowledging that the Concentration Account listed on Schedule V and
maintained at the Concentration Account Bank is under the exclusive dominion
and control of the Collateral Agent and that all moneys, instruments and other
securities deposited in such Concentration Account are to be held by the
Concentration Account Bank for the benefit of the Collateral Agent. Each Credit
Party represents and warrants that it does not now maintain, and will not in
the future maintain, any other Concentration Account with any Concentration
Account Bank other than the applicable Concentration Account; provided,
however, that each such Credit Party shall be permitted to establish new
Concentration Accounts pursuant to the terms of the Security Agreement.
(b) On or prior to December 31, 2000 (or such later date as the
Administrative Agent shall determine in its sole discretion), the Borrower, its
Subsidiaries, the Collateral Agent and financial institutions selected by the
Borrower and acceptable to the Collateral Agent (the "Lockbox Banks") shall
have duly authorized, executed and delivered lockbox agreements substantially
in the form of Annex L to the Security Agreement (each, as amended, modified or
supplemented from time to time, a "Lockbox Agreement"), providing, inter alia,
for (i) the establishment and maintenance of one or more lockboxes for the
collection of payments made in respect of Property Income (each, a "Lockbox")
and (ii) the transfer of all amounts held in any such Lockbox at the end of
each Business Day to the Concentration Account. On and after the execution and
delivery of the Lockbox Agreements as provided in the immediately preceding
sentence, the Parent shall, and shall cause its Subsidiaries to, (x) instruct
all tenants and other account debtors in respect of Property Income to remit
all payments to a designated Lockbox and (y) deposit all amounts received from
any tenant or account debtor in respect of Property Income into a Lockbox.
7.19 Contributions; Payments; etc. (a) The Parent will, upon its
receipt thereof, contribute as an equity contribution to the capital of the
Borrower, any cash proceeds received by the Parent from any asset sale, any
incurrence of Indebtedness, any Recovery Event, any tax refunds or any sale or
issuance of its equity or any cash capital contributions (other than equity
proceeds received pursuant to the Preferred Equity Financing or as part of a
Permitted Equity Issuance).
(b) The Borrower will apply the proceeds of all equity contributions
received by it from the Parent as provided in clause (a) above in accordance
with the requirements of Section 3.02.
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7.20. Name Change. Immediately after giving effect to the Second-Step
Merger, Merger Sub 2 shall cause an amendment to the Certificate of
Incorporation of Merger Sub 2 to be filed with the Secretary of State of the
State of Delaware, which amendment shall change the name of Merger Sub 2 from
"HQ Merger Subsidiary, Inc." to "HQ Global Workplaces, Inc."
Section 8. Negative Covenants. Each of the Parent and the Borrower
hereby covenants that on and after the Third Restatement Effective Date and
until the Total Commitment and all Letters of Credit have terminated and the
Loans and Notes and all Unpaid Drawings, together with interest, Fees and all
other Obligations incurred hereunder and thereunder, are paid in full:
8.01 Liens. The Parent will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Parent or any of its Subsidiaries, whether now owned or hereafter acquired
(including, without limitation, Master Leases), or sell any such property or
assets subject to an understanding or agreement, contingent or otherwise, to
repurchase such property or assets (including sales of accounts receivable with
recourse to the Parent or any of its Subsidiaries), or assign any right to
receive income or permit the filing of any financing statement under the UCC or
any other similar notice of Lien under any similar recording or notice statute;
provided that the provisions of this Section 8.01 shall not prevent the Parent
or any of its Subsidiaries from creating, incurring, assuming or permitting the
existence of the following (liens described below are herein referred to as
"Permitted Liens"):
(i) inchoate Liens with respect to the Parent or any of its
Subsidiaries for taxes (including social security charges in France)
not yet due or Liens for taxes (including social security charges in
France) being contested in good faith and by appropriate proceedings
for which adequate reserves have been established in accordance with
generally accepted accounting principles;
(ii) unperfected Liens in respect of property or assets of
the Parent or any of its Subsidiaries imposed by law or, in the case
of landlord liens, pursuant to contractual rights, which were incurred
in the ordinary course of business and do not secure Indebtedness for
borrowed money, such as carriers', warehousemen's, materialmen's,
mechanics' and landlords' liens and other similar Liens arising in the
ordinary course of business, and (x) which do not in the aggregate
materially detract from the value of the Parent's or any of its
Subsidiaries' property or assets or materially impair the use thereof
in the operation of the business of the Parent or its Subsidiaries or
(y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or assets subject to any such Lien;
(iii) Liens of the Parent or its Subsidiaries in existence on
the Third Restatement Effective Date which are listed, and the
property subject thereto described, on Schedule XII, but only to the
respective date, if any, set forth in such Schedule XII for the
removal and termination of any such Liens except, that, any Lien may
be continued or renewed in connection with the refinancing of any
Indebtedness secured thereby, provided that (x)
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such Lien does not encumber additional property, and (y) the principal
amount of Indebtedness secured by such Lien is not increased;
(iv) Liens created pursuant to the Security Documents;
(v) easements, rights-of-way, restrictions, encroachments and
other similar charges or encumbrances on the property of the Parent or
any of its Subsidiaries arising in the ordinary course of business and
not materially interfering with the conduct of the business of the
Parent or any of its Subsidiaries;
(vi) Liens on property of the Borrower and its Subsidiaries
subject to, and securing only, Capitalized Lease Obligations to the
extent such Capitalized Lease Obligations are permitted by Section
8.05(iii) or 8.05(vi); provided that such Liens only serve to secure
the payment of Indebtedness arising under such Capitalized Lease
Obligation and the Lien encumbering the asset giving rise to the
Capitalized Lease Obligation does not encumber any other asset of the
Parent or any of its Subsidiaries;
(vii) Liens (other than any Lien imposed by ERISA) on
property of the Parent or any of its Subsidiaries incurred or deposits
made in the ordinary course of business (x) in connection with
workers' compensation, unemployment insurance and other types of
social security or (y) to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the payment of
borrowed money); provided that the aggregate amount of cash and the
fair market value of the property encumbered by Liens described in
this clause (vii)(y) (excluding the amount of cash deposited to secure
the performance of leases entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business and consistent with
past practices of the Borrower and its Subsidiaries as in effect on
the Third Restatement Effective Date) shall not exceed $100,000;
(viii) Liens placed upon equipment or machinery used in the
ordinary course of the business of the Borrower or any of its
Subsidiaries within 60 days following the time of purchase thereof by
the Borrower or any of its Subsidiaries and improvements and
accretions thereto to secure Indebtedness incurred to pay all or a
portion of the purchase price thereof or any Indebtedness incurred to
refinance such Indebtedness, provided that (x) the aggregate principal
amount of all Indebtedness secured by Liens permitted by this clause
(viii) does not exceed at any one time outstanding $400,000 with
respect to all machinery and equipment and (y) in all events, the Lien
encumbering the equipment or machinery so acquired and improvements
and accretions thereto does not encumber any other asset of the
Borrower or any of its Subsidiaries;
(ix) Liens arising from precautionary UCC-1 financing
statement filings regarding operating leases entered into by the
Borrower or any of its Subsidiaries in the ordinary course of
business;
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(x) inchoate Liens (where there has been no execution or levy
and no pledge or delivery of collateral) arising from and out of
judgments or decrees in existence at such time not constituting an
Event of Default; and
(xi) a lien in favor of the landlord with respect to the
assets of Vantas Walnut, Inc., located at 00 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx.
8.02 Consolidation, Merger, Purchase or Sale of Assets, etc. The
Parent will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of (or agree to do
any of the foregoing at any future time) all or any part of its property or
assets, or enter into any partnerships, joint ventures or sale-leaseback
transactions, or purchase or otherwise acquire (in one or a series of related
transactions) any part of the property or assets (other than purchases or other
acquisitions by the Borrower or any of its Subsidiaries of inventory, materials
and equipment in the ordinary course of business) of any Person, except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries
shall be permitted to the extent not in violation of Section 8.08;
(ii) each of the Borrower and its Subsidiaries may lease (as
lessee) real or personal property to the extent permitted by Section
8.08 and to the extent such lease is not a Capital Lease, the Borrower
and its Subsidiaries shall enter into such leases in the ordinary
course of business;
(iii) Investments may be made to the extent permitted by
Section 8.06;
(iv) the Acquisitions shall be permitted, so long as same are
consummated in accordance with the relevant requirements of Section
4.16;
(v) the Borrower and its Subsidiaries may effect Permitted
Acquisitions in accordance with the requirements of Section 7.15;
(vi) the Borrower may cause any Subsidiary to be dissolved if
no Permitted Business is operated in connection with such Subsidiary
and such dissolution could not reasonably be expected to have a
material adverse effect on the performance, business, assets, nature
of assets, liabilities, properties, operations, condition (financial
or otherwise) or prospects of the Parent and its Subsidiaries taken as
a whole; and
(vii) the Borrower and any of its Subsidiaries may sell or
otherwise dispose of assets (including the capital stock of, or other
equity interests in, any of their respective Subsidiaries or Joint
Ventures) which, in the reasonable opinion of such Person, are
uneconomic or no longer useful in the conduct of such Person's
business, provided that (w) each such sale or disposition shall be for
an amount at least equal to the fair market value thereof (as
determined in good faith by senior management of the Borrower), (x)
all of the consideration from each such sale shall be in the form of
cash (for purposes of this clause (x) treating as cash consideration
the amount of any trade payables and the principal amount of
Indebtedness for borrowed money assumed by the respective
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purchaser of assets), (y) the aggregate Net Sale Proceeds of all
assets sold or otherwise disposed of pursuant to this clause (vii) in
any fiscal year of the Parent shall not exceed $10,000,000 in the
aggregate and (z) the Net Sale Proceeds therefrom are applied to repay
Loans and/or reduce the Total Commitment as provided in Section
3.02(A)(h).
To the extent the Required Banks waive the provisions of this Section 8.02 with
respect to the sale of any Collateral (to the extent the Required Banks are
permitted to waive such provisions in accordance with Section 12.12), or any
Collateral is sold as permitted by this Section 8.02, such Collateral shall be
sold free and clear of the Liens created by the Security Documents, and the
Administrative Agent and Collateral Agent shall be authorized to take any
actions deemed appropriate in order to effect the foregoing.
8.03 Dividends. The Parent will not, nor will the Parent permit any of
its Subsidiaries to, declare or pay any Dividends with respect to the Parent or
any of its Subsidiaries, except that (i) any Subsidiary of the Borrower may pay
Dividends to the Borrower or any Wholly-Owned Subsidiary of the Borrower, (ii)
the Parent may pay regularly accruing Dividends with respect to Seller
Preferred Stock through the issuance of additional shares of Seller Preferred
Stock (but not in cash) in accordance with the terms of the documentation
governing the same, (iii) the Parent may pay regularly accruing Dividends with
respect to the PIK Preferred Stock (whether outstanding on the Third
Restatement Effective Date or issued thereafter in accordance with the
requirements of this clause (iii)) through the issuance of additional shares of
PIK Preferred Stock (or, alternatively, through an increase in the aggregate
liquidation preference of the outstanding PIK Preferred Stock by the amount of
the accumulated dividends thereunder) (but not in cash) in accordance with the
terms of the PIK Preferred Stock Documents, (iv) the Borrower may pay cash
Dividends to the Parent, so long as (x) there shall exist no Default or Event
of Default (both before and immediately after giving effect to the payment
thereof), (y) the proceeds thereof are promptly used by Parent to pay operating
expenses and other similar corporate overhead costs and expenses (but excluding
in any event any costs, expenses or losses relating to the Development Assets)
and (z) the aggregate amount of Dividends paid by the Borrower in any fiscal
year of Parent pursuant to this clause (iv) does not exceed $100,000, (v) the
Borrower may pay cash Dividends to the Parent in the amounts and at the times
of any payment by the Parent in respect of taxes, provided that (x) the amount
of cash Dividends paid pursuant to this clause (v) to enable the Parent to pay
federal income taxes at any time shall not exceed the lesser of (A) the amount
of such federal income taxes owing by the Parent at such time for the
respective period and (B) the amount of such federal income taxes that would be
owing by the Borrower and its Subsidiaries on a consolidated basis for such
period if determined without regard to the Parent's ownership of the Borrower
and (y) any refunds shall promptly be returned by the Parent to the Borrower
and (vi) any Subsidiary of the Borrower that is not a Wholly-Owned Subsidiary
may pay cash Dividends to its shareholders or partners generally, so long as
the Borrower or its respective Subsidiary which owns the equity interest or
interests in the Subsidiary paying such Dividends receives at least its
proportionate share thereof (based upon its relative holdings of equity
interests in the Subsidiary paying such Dividends and taking into account the
relative preferences, if any, of the various classes of equity interests in
such Subsidiary or the terms of any agreements applicable thereto).
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8.04 Concentration Account; Lockboxes. The Parent will not, and will
not permit any of its Subsidiaries to, directly or indirectly, open, maintain
or otherwise have any checking, savings or other deposit accounts at any bank
or other financial institution where cash or Cash Equivalents is or may be
deposited or maintained with any Person, other than (i) at any time prior to
December 31, 2000 (or such later date as the Administrative Agent shall
determine in its sole discretion), the bank deposit accounts listed on Part A
of Schedule V hereto, (ii) on and after the establishment thereof pursuant to
Section 7.18(b), the Lockboxes, (iii) the Concentration Account and (iv) the
foreign bank accounts of Foreign Subsidiaries of the Parent set forth on Part B
of Schedule V (so long as the cash or Cash Equivalents held in such accounts
represents earnings from Foreign Subsidiaries operating in International
Locations).
8.05 Indebtedness. The Parent will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(ii) Indebtedness of the Borrower under any Interest Rate
Protection or Other Hedging Agreement or under any similar type of
agreement to the extent such is entered into to satisfy the
requirements of Section 7.11;
(iii) Indebtedness of the Borrower and its Subsidiaries
evidenced by Capitalized Lease Obligations to the extent permitted
pursuant to Section 8.08; provided that the aggregate amount of
Indebtedness evidenced by Capitalized Lease Obligations under all
Capital Leases outstanding under this clause (iii) at any one time
shall not exceed $10,000,000 (so long as the amount of Capitalized
Lease Obligations incurred in any one fiscal year of the Parent does
not exceed the amount of Capital Expenditures (other than Permitted
Acquisitions) the Borrower and its Subsidiaries is permitted to incur
during such fiscal year in accordance with Section 8.08);
(iv) Existing Indebtedness listed on Schedule X but without
giving effect to any refinancings, renewals or increases in the
principal amount thereof, except for refinancings, renewals and
extensions thereof which do not increase the principal amount of
Indebtedness being refinanced, renewed and/or extended;
(v) Indebtedness in amounts, and subject to Liens, permitted
under Section 8.01(viii);
(vi) (x) Indebtedness of the Borrower evidenced by Permitted
Seller Notes or constituting Permitted Earn-Out Debt issued in
accordance with the requirements of Section 7.15 so long as the amount
outstanding at any time shall not exceed $4,000,000 and (y)
Capitalized Lease Obligations of Subsidiaries of the Borrower assumed
in connection with Permitted Acquisitions and incurred in accordance
with Section 7.15, so long as such (y) Capitalized Lease Obligations
were not incurred in anticipation or contemplation of such Permitted
Acquisitions and the Capitalized Lease Obligations are obligations
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solely of the entity acquired in such Permitted Acquisition or formed
by the Borrower to effect such Permitted Acquisition;
(vii) guaranties by the Borrower or any of its Subsidiaries
of leases entered into in the ordinary course of business by any
Subsidiary of the Borrower;
(viii) Indebtedness of the Borrower, and subordinated
guarantees thereof by the Subsidiary Guarantors, incurred pursuant to
the Senior Subordinated Bridge Loans and the other Senior Subordinated
Credit Documents on the Third Restatement Effective Date in an
aggregate principal amount not to exceed $125,000,000 (as (x)
increased as a result of the increase in the aggregate principal
amount of Senior Subordinated Bridge Loans to pay any regularly
accruing interest on then outstanding Senior Subordinated Bridge Loans
in accordance with the terms of the Senior Subordinated Credit
Agreement and (y) reduced by any repayments of principal thereof
(including any deemed repayment occurring as a result of any
conversion or exchange of the Senior Subordinated Bridge Loans into or
for Permitted Subordinated Refinancing Indebtedness incurred pursuant
to clause (x) below));
(ix) Indebtedness constituting Intercompany Loans to the
extent permitted by Section 8.06(xii);
(x) so long as no Default or Event of Default is in existence
at the time of the incurrence thereof and immediately after giving
effect thereto, Permitted Subordinated Refinancing Indebtedness in an
aggregate principal amount at any time outstanding not to exceed the
sum of (x) the aggregate principal amount of the Permitted
Subordinated Refinancing Indebtedness on the date of the incurrence
thereof in accordance with the requirements of the definition thereof
plus (y) the amount of any increase in the principal amount thereof
incurred to pay any regularly accruing interest on the then
outstanding Permitted Subordinated Refinancing Indebtedness in
accordance with the terms of the documentation governing the same
minus (z) any repayment of principal of any such Permitted
Subordinated Refinancing Indebtedness;
(xi) Indebtedness of the Borrower, and subordinated
guarantees thereof by the Parent and the Subsidiary Guarantors, as the
case may be, under the Mezzanine Subordinated Notes and the other
Mezzanine Subordinated Note Documents in an aggregate principal amount
at any time outstanding not to exceed the remainder of (x) the sum of
the aggregate principal amount of the Mezzanine Subordinated Notes on
the date of issuance thereof in accordance with the requirements of
the definition thereof less (y) any repayment of principal of any such
Mezzanine Senior Subordinated Notes; and
(xii) additional unsecured Indebtedness incurred in the
ordinary course of business in an aggregate principal amount at any
time outstanding not to exceed $2,000,000.
Notwithstanding anything to the contrary contained above, (x)
Indebtedness incurred to refinance any theretofore outstanding Senior
Subordinated Bridge Loans or Permitted
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Subordinated Refinancing Indebtedness may only be incurred pursuant to the
provisions of clauses (x) and (xi) of Section 8.05 (and not in reliance on any
other provisions of Section 8.05), (y) at no time shall the aggregate principal
amount of all Indebtedness outstanding at any time pursuant to clauses (viii),
(x) and (xi) exceed $125,000,000 (as the same may be increased as a result of
any increase in the aggregate principal amount of such Indebtedness to pay any
regularly accruing interest on such then outstanding Indebtedness in accordance
with the terms of the documentation governing the same) and (z) Affiliate Debt
shall only be permitted to be incurred and to remain outstanding if each
obligee and each obligor (including any guarantors) with respect to such
Affiliate Debt shall have become parties to the Subordination Agreement in
accordance with the terms thereof.
8.06 Advances, Investments and Loans. The Parent will not, and will
not permit any of its Subsidiaries to, directly or indirectly lend money or
credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (any of the foregoing, an "Investment"), except that
the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
receivables owing to any of them, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance
with customary terms;
(ii) the Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents; provided that all cash or Cash Equivalents
of the Borrower and its Subsidiaries shall be held in a Lockbox or the
Concentration Account in accordance with the terms of the relevant
Lockbox Agreement or the Concentration Account Consent Letter, as the
case may be (or, in the case of a Foreign Subsidiary, in a foreign
account specified on Part B of Schedule V to the extent permitted to
be held in such an account pursuant to Section 8.04), provided,
however, that at any time that any Revolving Loans are outstanding,
the aggregate amount of cash and Cash Equivalents permitted to be held
by the Borrower and its Subsidiaries (whether held in the
Concentration Account, a Lockbox or otherwise) shall not exceed the
product of (x) $25,000 and (y) the number of business centers operated
by the Borrower and its Subsidiaries at the time of determination;
(iii) the Borrower may enter into Interest Rate Protection or
Other Hedging Agreements to the extent such is entered into to satisfy
the requirements of Section 7.11;
(iv) the Borrower and its Subsidiaries may make Capital
Expenditures (other than Permitted Acquisitions and Investments in
Joint Ventures which are permitted pursuant to clauses (viii) and
(ix), respectively, below) to the extent permitted by Section 8.08;
(v) the Acquisitions shall be permitted, so long as same are
consummated in accordance with the relevant requirements of Section
4.16;
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(vi) the Borrower and its Subsidiaries may endorse negotiable
instruments for collection in the ordinary course of business;
(vii) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business consistent with past
practices to their respective employees for moving, travel and
emergency expenses and other similar expenses, so long as the
aggregate principal amount thereof at any one time outstanding
(determined without regard to any write-downs or write-offs of such
loans and advances) shall not exceed $750,000;
(viii) the Borrower and its Subsidiaries may effect Permitted
Acquisitions (including Start-Up Costs) in accordance with the
requirements of Section 7.15;
(ix) the Borrower and/or any of its Wholly-Owned Subsidiaries
shall be permitted to make Investments in any Joint Venture on any
date , so long as (x) the aggregate amount of such Investments does
not exceed the Annual Available JV Basket Amount in effect on such
date or the Aggregate Available JV Basket Amount in effect on such
date (in each case, after giving effect to all prior and
contemporaneous adjustments thereto, except as a result of such
Investment), (y) no Default or Event of Default exists or would exist
immediately after giving effect to the respective Investment and (z)
neither the Borrower nor any of its Subsidiaries has any obligation to
(A) subscribe for additional equity interests in such Joint Venture or
(B) maintain or preserve such Joint Venture's financial condition
(except for any guaranty by Parent or any if its Subsidiaries of
obligations of such Joint Venture included in clause (iii) of the
definitions of "Annual Available JV Basket Amount" and "Aggregate
Available JV Basket Amount") or cause such Joint Venture to achieve
certain levels of operating results;
(x) the Parent and its Subsidiaries may own the capital stock
of their respective Subsidiaries created or acquired in accordance
with the terms of this Agreement (so long as all amounts invested in
such Subsidiaries are independently justified under another provision
of this Section 8.06);
(xi) investments in existence on the Third Restatement
Effective Date and listed on Schedule XIX shall be permitted, without
giving effect to any additions thereto or replacements thereof;
(xii) the Borrower may make intercompany loans and advances
to any Subsidiary Guarantor (collectively, "Intercompany Loans"),
provided, that (x) each Intercompany Loan shall be evidenced by an
Intercompany Note and (y) each such Intercompany Note shall be pledged
to the Collateral Agent pursuant to the Pledge Agreement;
(xiii) the Parent may make cash equity contributions to the
Borrower and the Borrower may make cash equity contributions to any of
its direct Wholly-Owned Subsidiaries that is a Subsidiary Guarantor;
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(xiv) the Parent may contribute to the Borrower at cost that
portion of the Development Assets which, for the fiscal quarter
immediately preceding such contribution, had positive Business Center
Level EBITDA, so long as any such contribution is made in exchange for
additional shares of common stock of the Borrower valued at the time
of such contribution; and
(xv) HQ may contribute the Development Assets to the Parent
on the Third Restatement Effective Date in accordance with the
requirements of Sections 4.16(d) and (g).
8.07 Transactions with Affiliates. The Parent will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of the Parent or any Affiliate of the Parent's Subsidiaries,
unless such transaction or series of related transactions is in writing and on
terms that are no less favorable to the Parent or such Subsidiary, as the case
may be, than those that would be available in a comparable transaction in
arm's-length dealings with an unrelated third party, except that (i) the Parent
and its Subsidiaries may effect the Transaction, (ii) loans and advances made
in accordance with Section 8.06(vii) shall be permitted, (iii) the Parent and
its Subsidiaries may pay customary fees to non-officer directors of the Parent
and its Subsidiaries, and (iv) the entering into, and performing of, the
Intercompany Agreement by the Borrower and any of its Subsidiaries party
thereto (including without limitation entering into any Product Agreement)
shall be permitted. In no event may any management or similar fees be paid or
payable by the Parent or any of its Subsidiaries to any Person except as
specifically provided in this Section 8.07.
8.08 Capital Expenditures. (a) The Parent will not, and will not
permit any of its Subsidiaries to, make any expenditure for fixed or capital
assets (including, without limitation, expenditures for maintenance and repairs
which should be capitalized in accordance with generally accepted accounting
principles and including Capitalized Lease Obligations) or Investments in Joint
Ventures (collectively, "Capital Expenditures"), except that, subject to the
provisions of Section 8.06(ix) and the limitations contained in Sections
8.08(c) and (e) below, (i) the Parent (so long as it owns Development Assets)
and the Borrower and its Subsidiaries may make Capital Expenditures as provided
in Sections 8.08(b) and (d) below, (ii) during the period commencing on the
Third Restatement Effective Date and ending on December 31, 2000, the Parent
(so long as it owns Development Assets) and the Borrower and its Subsidiaries
may make Maintenance and Up-Grade Capital Expenditures, so long as the
aggregate amount thereof during such period does not exceed $9,000,000 and
(iii) during any fiscal year of the Parent commencing after December 31, 2000,
the Parent (so long as it owns Development Assets) and the Borrower and its
Subsidiaries may make Maintenance and Up-Grade Capital Expenditures, so long as
the aggregate amount thereof during any such fiscal year does not exceed
$18,000,000 (as such amount may be increased on January 1 of each fiscal year
(commencing with January 1, 2001) by three percent of the previous fiscal
year's amount as determined hereunder).
(b) In addition to the Capital Expenditures permitted pursuant to
clauses (ii) and (iii) of Section 8.08(a) above but subject to Sections 8.08(c)
and (e) below, the Parent (so long as it owns Development Assets) and the
Borrower and its Subsidiaries may make additional
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Capital Expenditures (including Permitted Acquisitions in accordance with
Section 7.15 and Joint Venture Investments made in accordance with Section
8.06(ix)) (i) during the period commencing on the Third Restatement Effective
Date and ending on December 31, 2000, so long as the aggregate amount thereof
during such period does not exceed $18,500,000 and (ii) during any fiscal year
of the Parent commencing after December 31, 2000, so long as the aggregate
amount thereof during any such fiscal year does not exceed the remainder of (x)
the Additional Permitted CapEx Amount then in effect for such fiscal year minus
(y) the aggregate amount of Maintenance and Up-Grade Capital Expenditures that
the Parent (so long as it owns Development Assets) and the Borrower and its
Subsidiaries are permitted to make during such fiscal year pursuant to clause
(iii) of Section 8.08(a) above.
(c) Notwithstanding anything to the contrary contained in Sections
8.08(a) or (b) above (and without prejudice to the right of the Parent and its
Subsidiaries to make additional Capital Expenditures pursuant to Section
8.08(d) below), in no event shall the Parent, the Borrower and their
Subsidiaries make Capital Expenditures (including Maintenance and Up-Grade
Capital Expenditures) in reliance on clauses (ii) and (iii) of Section 8.08(a)
and Section 8.08(b) above in excess of $20,000,000 during any fiscal quarter of
the Parent.
(d) In addition to the Capital Expenditures permitted pursuant to
clauses (ii) and (iii) of Section 8.08(a) and Section 8.08(b) above but subject
to Section 8.08(e) below, the Parent (so long as it owns Development Assets)
and the Borrower and its Subsidiaries may make, at any time, additional Capital
Expenditures constituting Permitted Acquisitions (other than Start-Up Costs) in
an aggregate amount equal to the Retained Excess Cash Flow Amount at such time,
so long as any such Permitted Acquisition is otherwise consummated in
accordance with the requirements of Section 7.15.
(e) Notwithstanding anything to the contrary in this Section 8.08, in
no event shall the Parent, the Borrower and their respective Subsidiaries make,
during any fiscal quarter of the Parent, commencing with the fiscal quarter
ending March 31, 2001, Capital Expenditures (including Permitted Acquisitions
and Investments in Joint Ventures) which in the aggregate exceed the Permitted
Quarterly CapEx Amount for such fiscal quarter. In addition, once the Permitted
Quarterly CapEx Amount for a fiscal quarter has been determined, commencing
with the fiscal quarter ending March 31, 2001, the Parent, the Borrower and
their respective Subsidiaries shall not enter into any additional binding
commitments or agreements, to make Capital Expenditures (including Permitted
Acquisitions and Investments in Joint Ventures) during such fiscal quarter,
which in the aggregate, when combined with existing binding commitments to make
such Capital Expenditures in such fiscal quarter, exceed the Permitted
Quarterly CapEx Amount for such fiscal quarter.
8.09 Fixed Charge Coverage Ratio. The Parent will not permit the Fixed
Charge Coverage Ratio for any Test Period ending on the last day of any fiscal
quarter of the Parent set forth below to be less than the ratio set forth
opposite such fiscal quarter below:
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Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2001 1.00:1.00
June 30, 2001 1.00:1.00
September 30, 2001 1.00:1.00
December 31, 2001 1.00:1.00
March 31, 2002 1.10:1.00
June 30, 2002 1.10:1.00
September 30, 2002 1.10:1.00
December 31, 2002 1.10:1.00
March 31, 2003 1.10:1.00
June 30, 2003 1.10:1.00
September 30, 2003 1.10:1.00
December 31, 2003 1.10:1.00
March 31, 2004 1.10:1.00
June 30, 2004 1.10:1.00
September 30, 2004 1.10:1.00
December 31, 2004 1.10:1.00
March 31, 2005 1.10:1.00
June 30, 2005 1.10:1.00
September 30, 2005 1.10:1.00
8.10 Interest Coverage Ratio. The Parent will not permit the ratio of
its Consolidated EBITDA to its Consolidated Interest Expense for any Test
Period ending on the last day of any fiscal quarter of the Parent set forth
below to be less than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 2000 2.00:1.00
December 31, 2000 2.00:1.00
March 31, 2001 2.25:1.00
June 30, 2001 2.25:1.00
September 30, 2001 2.50:1.00
December 31, 2001 2.50:1.00
March 31, 2002 2.50:1.00
June 30, 2002 2.50:1.00
September 30, 2002 2.50:1.00
December 31, 2002 2.50:1.00
March 31, 2003 2.50:1.00
June 30, 2003 2.50:1.00
September 30, 2003 2.50:1.00
December 31, 2003 3.00:1.00
March 31, 2004 3.00:1.00
June 30, 2004 3.00:1.00
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Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 2004 3.00:1.00
December 31, 2004 3.00:1.00
March 31, 2005 3.00:1.00
June 30, 2005 3.00:1.00
September 30, 2005 3.00:1.00
8.11 Maximum Total Leverage Ratio. The Parent will not permit the
Total Leverage Ratio at any time during a fiscal quarter set forth below to be
greater than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 2000 4.00:1.00
December 31, 2000 4.00:1.00
March 31, 2001 3.75:1.00
June 30, 2001 3.50:1.00
September 30, 2001 3.25:1.00
December 31, 2001 3.25:1.00
March 31, 2002 3.25:1.00
June 30, 2002 3.25:1.00
September 30, 2002 3.25:1.00
December 31, 2002 3.00:1.00
March 31, 2003 3.00:1.00
June 30, 2003 3.00:1.00
September 30, 2003 3.00:1.00
December 31, 2003 3.00:1.00
March 31, 2004 3.00:1.00
June 30, 2004 3.00:1.00
September 30, 2004 3.00:1.00
December 31, 2004 3.00:1.00
March 31, 2005 3.00:1.00
June 30, 2005 3.00:1.00
September 30, 2005 3.00:1.00
8.12 Maximum Senior Leverage Ratio. The Parent will not permit the
Senior Leverage Ratio at any time during a fiscal quarter set forth below to be
greater than the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 2000 2.95:1.00
December 31, 2000 2.75:1.00
March 31, 2001 2.50:1.00
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Fiscal Quarter Ended Ratio
-------------------- -----
June 30, 2001 2.50:1.00
September 30, 2001 2.25:1.00
December 31, 2001 2.25:1.00
March 31, 2002 2.25:1.00
June 30, 2002 2.25:1.00
September 30, 2002 2.25:1.00
December 31, 2002 2.00:1.00
March 31, 2003 2.00:1.00
June 30, 2003 2.00:1.00
September 30, 2003 2.00:1.00
December 31, 2003 2.00:1.00
March 31, 2004 2.00:1.00
June 30, 2004 2.00:1.00
September 30, 2004 2.00:1.00
December 31, 2004 2.00:1.00
March 31, 2005 2.00:1.00
June 30, 2005 2.00:1.00
September 30, 2005 2.00:1.00
8.13 Minimum EBITDA. The Parent will not permit its Consolidated
EBITDA for any Test Period ending on the last day of a fiscal quarter set forth
below to be less than an amount equal to the sum of (A) the amount set forth
opposite such fiscal quarter below plus (B) the product of (i) 85% and (ii) the
amount of Acquired EBITDA for the four fiscal quarters immediately preceding
the date of the Permitted Acquisition of any Person, business, division or
product line acquired after the Third Restatement Effective Date and prior to
the respective fiscal quarter set forth above pursuant to a Permitted
Acquisition; provided, however, that (x) to the extent such four quarter
Acquired EBITDA is not audited, the Administrative Agent must be satisfied with
the amount of Acquired EBITDA being included for purposes of setting the levels
for the covenant contained in this Section 8.13 (provided that if the
Administrative Agent has not notified the Borrower prior to the consummation of
the Permitted Acquisition that the Administrative Agent is not satisfied with
the amount of such Acquired EBITDA, the Administrative Agent shall be deemed
satisfied for purposes of this clause (x)), (y) all calculations and procedures
used in determining Acquired EBITDA must be in accordance with the definition
of "Pro Forma Basis" and (z) in any event, the amount of Acquired EBITDA of any
Person, business decision or product line acquired pursuant to a Permitted
Acquisition to be used for the purposes of clause (ii) above shall be set forth
in an officer's certificate provided by the Parent and delivered to the
Administrative Agent and to each of the Banks in connection with the respective
Permitted Acquisition:
Fiscal Quarter Ended Ratio
-------------------- -----
September 30, 2000 $92,000,000
December 31, 2000 $92,000,000
March 31, 2001 $98,000,000
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Fiscal Quarter Ended Ratio
-------------------- -----
June 30, 2001 $105,000,000
September 30, 2001 $108,000,000
December 31, 2001 $110,000,000
March 31, 2002 $110,000,000
June 30, 2002 $110,000,000
September 30, 2002 $110,000,000
December 31, 2002 $110,000,000
March 31, 2003 $110,000,000
June 30, 2003 $110,000,000
September 30, 2003 $110,000,000
December 31, 2003 $114,000,000
March 31, 2004 $114,000,000
June 30, 2004 $114,000,000
September 30, 2004 $114,000,000
December 31, 2004 $115,000,000
March 31, 2005 $115,000,000
June 30, 2005 $115,000,000
September 30, 2005 $115,000,000
8.14 Limitation on Voluntary Payments and Modification of Existing
Indebtedness; Limitation on Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; etc. (a) The Parent will not, and will
not permit any of its Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary or
optional payment or prepayment on or redemption (including pursuant to
any change of control provision) or acquisition for value of
(including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of
paying when due), or exchange of, or any involuntary prepayment or
redemption as a result of any asset sale, change of control or similar
event of, or set off any amounts against, any Existing Indebtedness
(other than up to $1 million to prepay Capitalized Lease Obligations),
any Senior Subordinated Credit Document, any Permitted Earn-Out Debt
or any Permitted Seller Note, or, after the incurrence, issuance or
delivery thereof, any Permitted Subordinated Refinancing Indebtedness
or any Mezzanine Subordinated Note Document; provided however that the
Senior Subordinated Bridge Loans and any Permitted Subordinated
Refinancing Indebtedness may be Refinanced with the issuance or
incurrence of Permitted Subordinated Refinancing Indebtedness or
Mezzanine Subordinated Notes, as the case may be, in accordance with
the requirements of the respective definitions thereof and the
relevant provisions of this Agreement;
(ii) amend or modify, or permit the amendment or modification
of, any provision of any Acquisition Document, FrontLine Transaction
Contribution Document or the Existing Indebtedness or of any agreement
relating to any of the foregoing except for such amendments or
modifications which, in the aggregate or individually, could not
reasonably be likely to be adverse to any Bank in its capacity as
such;
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(iii) amend or modify, or permit the amendment or
modification of, any provision of any Senior Subordinated Credit
Document, any PIK Preferred Stock Document, any Permitted Seller Note,
any Permitted Earn-Out Debt or Seller Preferred Stock or of any
agreement related to any of the foregoing or, after the incurrence,
issuance or delivery thereof, any Permitted Subordinated Refinancing
Indebtedness or any Mezzanine Subordinated Note Document;
(iv) materially amend, modify or change its Certificate of
Incorporation (including, without limitation, by the filing or
modification of any certificate of designation), By-Laws, limited
liability company agreement, partnership agreement or any equivalent
organizational document of Parent or any of its Subsidiaries, in a
manner adverse to the Banks; provided, that the Parent and its
Subsidiaries may amend their respective Certificates of Incorporation
to change their names to the names set forth on Schedule XV on the
Third Restatement Effective Date;
(v) amend, modify or change, terminate, or enter into any new
Shareholders' Agreement or any other agreement with respect to its
equity interests, except for such amendments, modifications or changes
which, in the aggregate or individually could not reasonably be likely
to be adverse to any Bank in its capacity as such;
(vi) amend, modify or change, terminate or enter into any new
Tax Sharing Agreement;
(vii) amend, modify or change, or enter into any new
Management Agreement, Employee Benefit Plan or Employment Agreement
except if the aggregate cost to the Parent and its Subsidiaries as a
result of such amendments, modifications, changes to such plans,
agreements and contracts and new plans, agreements and contracts are
not reasonably likely to have a material adverse effect on the
performance, business, property, assets, nature of assets,
liabilities, condition (financial or otherwise) or prospects of the
Parent and its Subsidiaries taken as a whole;
(viii) amend, modify, change or terminate the Intercompany
Agreement, except for such amendments, modifications or changes which,
in the aggregate or individually could not reasonably be likely to be
adverse to any Bank in its capacity as such; or
(ix) amend or modify, or permit the amendment or modification
of, the Subordination Agreement (except for the addition of parties
thereto as contemplated by this Agreement and the Subordination
Agreement).
(b) Neither the Parent nor the Borrower shall designate any
Indebtedness (except Indebtedness pursuant to this Agreement) as "Designated
Senior Debt" (as defined in the Senior Subordinated Credit Agreement or, on and
after the execution and delivery thereof, in any Mezzanine Subordinated Note
Document or any agreement relating to Permitted Subordinated Refinancing
Indebtedness).
8.15 Limitation on Certain Restrictions on Subsidiaries. (a) The
Parent will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or
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suffer to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary of the Parent to (x) pay Dividends or make any other
distributions on its capital stock or any other interest or participation in
its profits owned by the Parent or any Subsidiary of the Parent, or pay any
Indebtedness owed to the Parent or a Subsidiary of the Parent, (y) make loans
or advances to the Parent or any of the Parent's Subsidiaries or (z) transfer
any of its properties or assets to the Parent or any of its Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement and the other Credit Documents, (iii) the
Senior Subordinated Credit Documents, (iv) customary provisions restricting
subletting or assignments of any lease governing a leasehold interest of the
Borrower or a Subsidiary of the Borrower, (v) restrictions applicable to any
Joint Venture that is a Subsidiary existing at the time of the acquisition
thereof as a result of an Investment pursuant to Section 9.05; provided that
the restrictions applicable to the respective such Joint Venture are not made
worse, or more burdensome, from the perspective of the Borrower and its
Subsidiaries, than those as in effect immediately before giving effect to the
consummation of the respective Investment or (vi) on and after the execution
and delivery thereof, the documentation governing the Permitted Subordinated
Refinancing Indebtedness and the Mezzanine Subordinated Note Documents.
(b) The Parent will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any
Non-Subsidiary Joint Venture to pay Dividends or make any other distributions
on its capital stock or any other interest or participation in its profits
owned by the Parent or any Subsidiary of the Parent, or pay any Indebtedness
owed to the Parent or a Subsidiary of the Parent, except for such encumbrances
or restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) the Senior Subordinated Credit
Documents, (iv) customary provisions restricting subletting or assignments of
any lease governing a leasehold interest of a Non-Subsidiary Joint Venture, (v)
restrictions applicable to any Non-Subsidiary Joint Venture existing at the
time of the acquisition thereof as a result of an Investment pursuant to
Section 8.06(ix); provided that the restrictions applicable to the respective
such Non-Subsidiary Joint Venture are not made worse, or more burdensome, from
the perspective of the Parent and its Subsidiaries, than those as in effect
immediately before giving effect to the consummation of the respective
Investment or (vi) on and after the execution and delivery thereof, the
documentation governing the Permitted Subordinated Refinancing Indebtedness and
the Mezzanine Subordinated Note Documents.
8.16 Limitation on Issuance of Capital Stock and Other Equity
Interests. (a) The Parent will not permit any of its Subsidiaries to issue any
capital stock or other equity interests (including, without limitation, limited
liability company interests) (including by way of sales of treasury stock) or
any options or warrants to purchase, or securities convertible into, capital
stock, except (i) for transfers and replacements of then outstanding shares,
(ii) for stock splits, stock dividends and similar issuances which do not
decrease the percentage ownership of Parent or any of its Subsidiaries in any
class of the capital stock or other interests of such Subsidiary and (iii) upon
the formation of any new Subsidiaries as permitted by Section 8.18. Any stock
or other equity interests issued as permitted by this Section 8.16, if owned by
the Parent or any of the Parent's Subsidiaries, shall be immediately pledged as
Collateral and delivered pursuant to the Pledge Agreement.
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(b) The Parent will not issue any capital stock or any options or
warrants to purchase, or securities convertible into, capital stock, except for
(i) issuances of Acceptable Common Stock (or options or warrants exercisable
into Acceptable Common Stock) where, after giving effect to such issuance, the
proceeds therefrom are applied in accordance with Section 3.02(A)(f), (ii) the
issuance of PIK Preferred Stock pursuant to the Preferred Equity Financing,
(iii) the issuance of shares of PIK Preferred Stock in payment of regularly
accruing dividends on theretofore outstanding shares of PIK Preferred Stock,
(iv) the issuance of Seller Preferred Stock in accordance with the requirements
of Section 7.15 and the definition thereof, (v) further issuances of shares of
Seller Preferred Stock in payment of regularly accruing dividends on
theretofore outstanding shares of Seller Preferred Stock issued in accordance
with clause (iv) above, (vi) the issuance of warrants to the lenders under the
Senior Subordinated Credit Agreement on the Third Restatement Effective Date in
accordance with the terms of the relevant Senior Subordinated Credit Documents
and (vii) the issuance of warrants to the holders of the Mezzanine Subordinated
Notes on the date of the issuance of the Mezzanine Subordinated Notes in
accordance with the terms of the relevant Mezzanine Subordinated Note
Documents; provided, however, that with respect to clause (i) above, no Default
or Event of Default will exist under Section 9.10 (or, in the case of issuance
of options, warrants, or convertible securities, no Default or Event of Default
would exist under Section 9.10 if such options, warrants or convertible
securities were to be exercised or converted).
8.17 Business. (a) The Parent will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than a
Permitted Business.
(b) Notwithstanding the foregoing or anything else where in this
Agreement to the contrary, the Parent will not engage in any business and will
not own any significant assets or have any material liabilities other than (i)
its ownership of the capital stock of the Borrower and the Development Assets
and (ii) liabilities under this Agreement and the other Documents to which it
is a party and resulting from its ownership of the Development Assets, provided
that the Parent may engage in those activities that are incidental to (x) the
maintenance of its corporate existence in compliance with applicable law and
(y) legal, tax and accounting matters in connection with any of the foregoing
activities.
8.18 Limitation on Creation of Subsidiaries and Joint Ventures. (a)
The Parent will not, and will not permit any of its Subsidiaries to, establish,
create or acquire any new Subsidiary (other than Joint Ventures permitted to be
established in accordance with the requirements of Section 8.06(ix)), except
the Borrower and its Wholly-Owned Subsidiaries may acquire or form Subsidiaries
in connection with Permitted Acquisitions to the extent otherwise permitted by
this Agreement and may form new Subsidiaries in connection with brokerage or
similar operations or the opening of new executive office suite business
centers, so long as (x) such new Subsidiaries are Wholly-Owned Subsidiaries,
(y) such new Subsidiaries execute and deliver pledge agreements, security
agreements and guaranties in form and substance satisfactory to the
Administrative Agent and all capital stock of such Subsidiary is pledged to the
Collateral Agent for the benefit of the Secured Creditors pursuant to a pledge
agreement reasonably satisfactory to the Administrative Agent and (z) such new
Subsidiaries execute and deliver a counterpart of (or otherwise become a party
to) the Subordination Agreement.
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(b) The Parent will not, and will not permit any of its Subsidiaries
to, enter into any Joint Ventures, except to the extent permitted by Sections
8.06(ix).
8.19 Lease Agreements. The Parent and the Borrower will use its
commercially reasonable best efforts to cause each lease entered into by the
Borrower or any of its Subsidiaries to provide that the landlord thereunder
waives all statutory landlord liens and does not provide for any contractual
landlord liens.
8.20 Special Override Provisions. Notwithstanding anything to the
contrary contained in this Section 8, in no event shall the Parent or any of
its Subsidiaries take any action which in the absence of this Section 8.20
would otherwise be permitted under this Section 8 to the extent any such action
is prohibited by any Senior Subordinated Credit Document or, on and after the
execution and delivery thereof, any Mezzanine Subordinated Note Document or the
documentation governing any Permitted Subordinated Refinancing Indebtedness.
Section 9. Events of Default. Subject to Section 12.16, upon the
occurrence of any of the following specified events (each, an "Event of
Default"):
9.01 Payments. The Borrower shall (i) default in the payment when due
of any principal of any Loan or any Note or Unpaid Drawing or (ii) default, and
such default shall continue unremedied for two or more Business Days, in the
payment when due of any interest on any Loan or Note or Unpaid Drawing, or any
Fees or any other amounts owing by it hereunder or thereunder; or
9.02 Representations, etc. Any representation, warranty or statement
made by any Credit Party herein or in any other Credit Document or in any
certificate delivered pursuant hereto or thereto shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
9.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 7.01(g)(i), 7.08, 7.11, 7.15, 7.17 or 8 or (ii) default in the due
performance or observance by it of any other term, covenant or agreement
contained in any Credit Document and such default shall continue unremedied for
a period of 30 days after written notice to the Borrower by the Administrative
Agent or any Bank; or
9.04 Default Under Other Agreements. The Parent or any of its
Subsidiaries shall (i) default in any payment of any Indebtedness (other than
the Indebtedness referred to in Section 9.01) beyond the period of grace (not
to exceed 10 days), if any, provided in the instrument or agreement under which
such Indebtedness was created, (ii) default in the observance or performance of
any agreement or condition relating to any Indebtedness (other than the
Indebtedness referred to in Section 9.01) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause
(determined without regard to whether any notice is required), such
Indebtedness to become due prior to its
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stated maturity and such default shall not have been cured or waived, or (iii)
any Indebtedness (other than the Indebtedness referred to in Section 9.01) of
the Parent or any of its Subsidiaries shall be declared to be due and payable,
or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof; provided that it shall not
constitute an Event of Default pursuant to this Section 9.04 unless the
aggregate amount of all Indebtedness referred to in the preceding clauses (i)
through (iii) above exceeds $5,000,000 at any one time; or
9.05 Bankruptcy, etc. The Parent or any of its Material Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the United
States Code entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced
against the Parent or any of its Material Subsidiaries and the petition is not
controverted within 10 days, or is not dismissed or discharged, within 60 days,
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of the Parent or any of its Material Subsidiaries, or the Parent or
any of its Material Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Parent or any of its
Material Subsidiaries, or there is commenced against the Parent or any of its
Material Subsidiaries any such proceeding which remains undismissed or
undischarged for a period of 60 days, or the Parent or any of its Material
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or the Parent or
any of its Material Subsidiaries suffers any appointment of any custodian or
the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or the Parent or any of its
Material Subsidiaries makes a general assignment for the benefit of creditors;
or any corporate action is taken by the Parent or any of its Material
Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation 4043 shall be reasonably expected to occur with
respect to such Plan within the following 30 days, any Plan which is subject to
Title IV of ERISA shall have had or is likely to have a trustee appointed to
administer such Plan, any Plan or Multiemployer Plan which is subject to Title
IV of ERISA is, shall have been or is likely to be terminated or to be the
subject of termination proceedings under ERISA, any Plan shall have an Unfunded
Current Liability, a contribution required to be made with respect to a Plan,
Multiemployer Plan or Foreign Pension Plan has not been timely made, the Parent
or any Subsidiary of the Parent or any ERISA Affiliate has incurred or is
likely to incur any liability to or on account of a Plan or Multiemployer Plan
under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of
a group health plan (as defined in Section 607(1) of ERISA or Section
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4980B(g)(2) of the Code) under Section 4980B of the Code, or the Parent or any
Subsidiary of the Parent has incurred or is likely to incur liabilities
pursuant to one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) that provide benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or Plans or Foreign
Pension Plans, a "default," within the meaning of Section 4219(c)(5) of ERISA,
shall occur with respect to any Multiemployer Plan; any applicable law, rule or
regulation is adopted, changed or interpreted, or the interpretation or
administration thereof is changed, in each case after the date hereof, by any
governmental authority or agency or by any court (a "Change in Law"), or, as a
result of a Change in Law, an event occurs following a Change in Law, with
respect to or otherwise affecting any Plan or Multiemployer Plan; (b) there
shall result from any such event or events the imposition of a lien, the
granting of a security interest, or a liability or a material risk of incurring
a liability; and (c) such lien, security interest or liability, individually,
and/or in the aggregate, in the opinion of the Required Banks, has had, or
could reasonably be expected to have, a material adverse effect upon the
business, operations, condition (financial or otherwise) or prospects of the
Parent or any Subsidiary of the Parent; or
9.07 Security Documents. At any time after the execution and delivery
thereof, any of the Security Documents shall cease to be in full force and
effect or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without limitation, a perfected security interest
in, and Lien on, all of the Collateral), in favor of the Collateral Agent,
superior to and prior to the rights of all third Persons (except as permitted
by Section 6.11), and subject to no other Liens (except as permitted by Section
6.11), or any Credit Party shall default in the due performance or observance
of any term, covenant or agreement on its part to be performed or observed
pursuant to any of the Security Documents and such default shall continue
beyond any grace period specifically applicable thereto pursuant to the terms
of such Security Document; or
9.08 Guaranties. At any time after the execution and delivery thereof,
any Guaranty or any provision thereof shall cease to be in full force or effect
as to any Guarantor, or any Guarantor or any Person acting by or on behalf of
any Guarantor shall deny or disaffirm such Guarantor's obligations under the
respective Guaranty, or any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to the respective Guaranty and such default shall continue
beyond any grace period specifically applicable thereto; or
9.09 Judgments. One or more judgments or decrees shall be entered
against the Parent or any of its Material Subsidiaries involving in the
aggregate for the Parent and its Material Subsidiaries a liability (not paid or
fully covered by a reputable insurance company) of $1,000,000 or more and all
such judgments or decrees shall not be satisfied, vacated, discharged or stayed
or bonded pending appeal for any period of 30 consecutive days; or
9.10 Change in Control. There shall be a Change in Control; or
9.11 Existing Letter of Credit Back-Stop Arrangements; Existing Letter
of Credit Cash Collateral Arrangements. At any time prior to the date when all
Existing Letters of Credits have terminated or been incorporated as A Letters
of Credit hereunder in accordance with
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Section 1A.01(d) either (x) the Existing Letter of Credit Back-Stop
Arrangements cease to be in effect, (y) the Existing Letter of Credit Cash
Collateral Arrangements cease to be in effect (except to the extent the
Existing Letters of Credit initially supported thereby are supported by the
Existing Letter of Credit Back-Stop Arrangements) or (z) the Parent or any of
its Subsidiaries becomes obligated to make any payment under any Existing
Letter of Credit that is not covered by the Existing Letter of Credit Back-Stop
Arrangements or the Existing Letter of Credit Cash Collateral Arrangements; or
9.12 FrontLine Indemnification Contribution Agreement. On and after
the execution and delivery of the FrontLine Indemnification Contribution
Agreement, (i) the FrontLine Indemnification Contribution Agreement or any
material provision thereof shall cease to be in full force and effect except in
accordance with the terms thereof, (ii) FrontLine or any Person acting on
behalf of FrontLine shall deny or disaffirm its obligations under the FrontLine
Indemnification Contribution Agreement or (iii) FrontLine or any Person acting
on behalf of FrontLine shall default in the due performance or observance of
any material term, covenant or agreement on its part to be performed or
observed pursuant to the FrontLine Indemnification Contribution Agreement;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent, upon the written
request of the Required Banks, shall by written notice to the Parent or the
Borrower, take any or all of the following actions, without prejudice to the
rights of any Agent, any Bank or the holder of any Note to enforce its claims
against any Credit Party (provided that, if an Event of Default specified in
Section 9.05 shall occur with respect to the Borrower, the result which would
occur upon the giving of written notice by the Administrative Agent to the
Borrower as specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare the Total Commitment
terminated, whereupon all Commitments of each Bank shall forthwith terminate
immediately and any Fees shall forthwith become due and payable without any
other notice of any kind; (ii) declare the principal of and any accrued
interest in respect of all Loans and the Notes and all Obligations owing
hereunder and thereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Credit Party; (iii) exercise any rights
or remedies under any of the Guaranties; (iv) terminate any Letter of Credit
which may be terminated in accordance with its terms; (v) direct the Borrower
to pay (and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 9.05, it will pay) to
the Collateral Agent at the Payment Office such additional amount of cash, to
be held as security by the Collateral Agent for the benefit of the Banks in a
cash collateral account established and maintained by the Collateral Agent
pursuant to a cash collateral agreement in form and substance satisfactory to
the Collateral Agent, as is equal to the aggregate Stated Amount of all Letters
of Credit then outstanding; and (vi) enforce, as Collateral Agent, all of the
Liens and security interests created pursuant to the Security Documents.
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Section 10. Definitions and Accounting Terms.
10.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"A Drawing" shall have the meaning provided in Section 1A.05(b).
"A Issuing Bank" shall mean Paribas and any Bank which at the request
of the Borrower agrees, in such Bank's sole discretion, to become an A Issuing
Bank for the purpose of issuing A Letters of Credit pursuant to Section 1A;
provided that in the case of any Existing Letter of Credit issued by Bank
Austria, Bank Austria shall (to the extent same is still a Bank hereunder at
the time of the respective incorporation thereof as described below) be the A
Issuing Bank with respect to such Existing Letter of Credit in connection with
the incorporation thereof hereunder as an "A Letter of Credit" as contemplated
by Section 1A.01(d). The sole A Issuing Bank on the Third Restatement Effective
Date is Paribas.
"A Letter of Credit" shall have the meaning provided in Section
1A.01(a).
"A Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding A Letters of Credit and (ii)
the amount of all A Unpaid Drawings.
"A Participant" shall have the meaning provided in Section 1A.04(a).
"A Revolving Facility Borrowing Certificate" shall mean an officer's
certificate from the chief financial officer of the Borrower delivered to the
Administrative Agent, each Bank and each A Issuing Bank on the date of a
proposed Borrowing of A Revolving Loans or proposed issuance of an A Letter of
Credit (or incorporation of an Existing Letter of Credit as an A Letter of
Credit hereunder), (w) specifying the principal amount of A Revolving Loans the
Borrower proposes to incur and/or the Stated Amount of an A Letter of Credit
the Borrower is requesting to be issued for its account (or of the Existing
Letter of Credit the Borrower wishes to designate as an A Letter of Credit
issued for its account) on such date (with the aggregate amounts specified in
any such certificate being called the "Permitted Revolving A Borrowing
Amount"), (x) certifying that (i) the Total Leverage Ratio determined on the
date of delivery of such certificate is less than 3.75:1.0 (calculated on a pro
forma basis to give effect to each Credit Event to occur on such date) and (ii)
after giving effect to each Credit Event to occur on such date, the Total
Unutilized A Revolving Loan Commitment at such time equals or exceeds the sum
of (I) the maximum amount available to be drawn under all Existing Letters of
Credit outstanding at such time (in each case determined without regard to
whether any conditions or drawing could then be met thereunder) which have not
been incorporated as "A Letters of Credit" hereunder as contemplated by Section
1A.01(d) plus (II) the aggregate amount of all unreimbursed payments or
disbursements made by issuing banks then outstanding with respect to such
Existing Letters of Credit, (y) in the case of an Existing Letter of Credit to
be incorporated as an "A Letter of Credit" under this Agreement, specifying the
details thereof and designating such Existing Letter of
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Credit as an A Letter of Credit and (z) attaching the calculations required to
determine compliance with preceding clause (x).
"A Revolving Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name on Schedule I hereto directly below the
column entitled "A Revolving Loan Commitment," as same may be (x) reduced or
terminated from time to time pursuant to Sections 2.02, 3.02 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.12 or 12.04.
"A Revolving Loan Facility" shall mean the facility evidenced by the
Total A Revolving Loan Commitment.
"A Revolving Loan Maturity Date" shall mean November 6, 2003.
"A Revolving Loans" shall have the meaning provided in Section
1.01(e).
"A Revolving Note" shall have the meaning provided in Section
1.05(a)(v).
"A RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the A Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
A Revolving Loan Commitment at such time; provided that if the A RL Percentage
of any Bank is to be determined after the Total A Revolving Loan Commitment has
been terminated, then the A RL Percentages of the Banks shall be determined
immediately prior (and without giving effect) to such termination.
"A RL Repayment Percentage" shall mean, at any time, a fraction
(expressed as a percentage), the numerator of which is equal to the Total A
Revolving Loan Commitment in effect at such time and the denominator of which
is equal to the Total Revolving Loan Commitment in effect at such time;
provided that if the A RL Repayment Percentage of any Bank is to be determined
after the Total A Revolving Loan Commitment or the Total Revolving Loan
Commitment has been terminated, then the A RL Repayment Percentages of the
Banks shall be determined immediately prior (without giving effect) to any such
termination.
"A Term Loan" shall have the meaning provided in Section 1.01(a).
"A Term Loan Facility" shall mean the facility evidenced by the
outstanding A Term Loans.
"A Term Loan Maturity Date" shall mean June 30, 2002.
"A Term Note" shall have the meaning provided in Section 1.05(a)(i).
"A TL Percentage" shall mean, at any time, a fraction (expressed as a
percentage), the numerator of which is equal to the aggregate principal amount
of all A Term Loans outstanding at such time, and the denominator of which is
equal to the aggregate principal amount of all Term Loans outstanding at such
time and, after the Acquisition Loan Termination Date, the aggregate principal
amount of all Acquisition Loans outstanding at such time.
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"A Unpaid Drawings" shall have the meaning provided for in Section
1A.05(a).
"Acceptable Common Stock" shall mean Parent Common Stock so long as in
connection with such issuance of Parent Common Stock, the holders thereof are
not granted any rights other than rights held by all holders of Parent Common
Stock on the Third Restatement Effective Date.
"Acquired EBITDA" shall mean, for any period, Consolidated EBITDA of
the Person or business, division or product line being acquired pursuant to a
Permitted Acquisition for such period (determined in accordance with the
definition of Consolidated EBITDA contained herein, but treating references
therein and in any other defined terms used in determining Consolidated EBITDA
to "the Parent" or "the Borrower" to instead be references to the Person or
business, division or product line being acquired pursuant to the respective
Permitted Acquisition and without giving effect to clauses (ii) through (v) of,
and the proviso contained in, the definition of Consolidated EBITDA).
"Acquisitions" shall mean and include (i) the HQ Merger, (ii) the HQ Common
Stock Purchase, (iii) the UK/Lux Acquisition and (iv) the Reorganization.
"Acquisition Commitment Percentage" shall mean at any time a fraction
(expressed as a percentage) the numerator of which is the Acquisition Loan
Commitment of such Bank at such time and the denominator of which is the Total
Acquisition Loan Commitment at such time.
"Acquisition Documents" shall mean (i) the HQ Merger Agreement, (ii)
the HQ Stock Purchase Agreement, (iii) the UK/Lux Stock Purchase Agreement,
(iv) the Second-Step Merger Agreement, (v) HQ Equity Rollover Financing
Documents, (vi) the Exchange Agreement, (vii) the Indemnification Agreement and
(viii) the other agreements, documents and instruments entered into in
connection with the Acquisitions, in each case as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.
"Acquisition Loan" shall have the meaning provided in Section 1.01(d).
"Acquisition Loan Commitment" shall mean, with respect to each Bank,
the amount set forth opposite such Bank's name in Schedule I hereto directly
below the column entitled "Acquisition Loan Commitment," as the same may be (x)
reduced or terminated from time to time pursuant to Section 2.02, 2.03, 3.02
and/or 9 or (y) adjusted from time to time as a result of assignments to or
from such Bank pursuant to Section 1.12 or 12.04.
"Acquisition Loan Facility" shall mean the facility evidenced by the
Total Acquisition Loan Commitment.
"Acquisition Loan Maturity Date" shall mean November 6, 2003.
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"Acquisition Loan Termination Date" shall mean November 6, 2000 or
such earlier date on which the Total Acquisition Loan Commitment has been
permanently reduced to zero pursuant to Section 2.02 or Section 9.
"Acquisition Note" shall have the meaning provided in Section
1.05(a)(iv).
"Acquisition TL Percentage" shall mean, after the Acquisition Loan
Termination Date, a fraction (expressed as a percentage), the numerator of
which is equal to the aggregate principal amount of all Acquisition Loans
outstanding at such time and the denominator of which is equal to the aggregate
principal amount of all Term Loans and Acquisition Loans outstanding at such
time.
"Additional Collateral" shall mean all property (whether real or
personal) in which security interests are granted (or purported to be granted)
(and continue to be in effect at the time of determination) pursuant to Section
7.15 or 7.17.
"Additional Permitted CapEx Amount" shall mean, as at any date of
determination, (i) in the event that the Total Leverage Ratio as set forth in
the certificate of the Parent then last delivered pursuant to Section 7.01(f)
exceeds 2.75:1.0 (or no such certificate is delivered pursuant to said
Section), $30,000,000, (ii) in the event that the Total Leverage Ratio as set
forth in the certificate of the Parent then last delivered pursuant to Section
7.01(f) is less than or equal to 2.75:1.0 but greater than 2.5:1.0, $40,000,000
and (iii) in the event that the Total Leverage Ratio as set forth in the
certificate of the Parent then last delivered pursuant to Section 7.01(f) is
less than or equal to 2.5:1.0, $50,000,000.
"Additional Security Documents" shall mean all mortgages, pledge
agreements, security agreements and other security documents entered into
pursuant to Section 7.15 or 7.17 with respect to Additional Collateral.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus the sum of the amount of all net
non-cash charges (including, without limitation, depreciation, amortization,
deferred tax expense, non-cash interest expense and other non-cash charges)
included in arriving at Consolidated Net Income for such period less the sum of
the amount of all net non-cash gains or losses (exclusive of items reflected in
Adjusted Working Capital) and gains or losses from sales of assets included in
arriving at Consolidated Net Income for such period.
"Adjusted Working Capital" shall mean Consolidated Current Assets
(excluding cash and Cash Equivalents) minus Consolidated Current Liabilities.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with, such Person; provided, however,
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that for purposes of Section 8.07, an Affiliate of the Parent shall include any
Person that directly or indirectly (including through limited partner or
general partner interests) owns more than 5% of any class of the capital stock
of the Parent and for all purposes of this Agreement, neither any Agent, the
Collateral Agent, any Bank or any of their respective Affiliates, shall be
considered an Affiliate of the Parent or any of its Subsidiaries. A Person
shall be deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Affiliate Contracts" shall have the meaning provided in Section 4.05.
"Affiliate Debt" shall mean any Indebtedness (including, without
limitation, any Intercompany Loans), whether now existing or hereafter
incurred, owed by the Parent or any of its Subsidiaries to the Parent or any
Subsidiaries, any Affiliate of the Parent or any employee of the Parent or any
of its Subsidiaries.
"Agents" shall mean and include the Administrative Agent, the
Syndication Agent, the Documentation Agent and the Managing Agent and shall
include any successor to any such Agent appointed pursuant to Section 11.09.
"Aggregate Available JV Basket Amount" shall mean, on any date of
determination, an amount equal to the sum of (i) $50,000,000 minus (ii) the
aggregate amount of Investments made (including for such purpose the fair
market value of any asset contributed to any Joint Venture (as determined in
good faith by senior management of the Borrower), net of Indebtedness and,
without duplication, Capitalized Lease Obligations assigned to, and assumed by,
the respective Joint Venture in connection therewith) pursuant to Section
8.06(ix) after the Third Restatement Effective Date, minus (iii) the aggregate
amount of Indebtedness or other obligations (whether absolute, accrued,
contingent or otherwise and whether or not due) of any Joint Venture incurred
after the Third Restatement Effective Date for which the Parent or any of its
Subsidiaries (other than the respective Joint Venture) is liable, minus (iv)
all payments made by the Parent or any of its Subsidiaries (other than the
respective Joint Venture) in respect of Indebtedness or other obligations of
the respective Joint Venture (including, without limitation, payments in
respect of obligations described in preceding clause (iii)) after the Third
Restatement Effective Date.
"Aggregate Unutilized Commitment" with respect to any Bank at any time
shall mean the sum of (i) such Bank's Unutilized A Revolving Loan Commitment at
such time (if any) plus (ii) such Bank's Unutilized B Revolving Loan Commitment
at such time (if any) plus (iii) such Bank's Unutilized Acquisition Loan
Commitment at such time (if any).
"Agreement" shall mean this Amended and Restated Credit Agreement, as
modified, supplemented or amended from time to time.
"Annual Available JV Basket Amount" shall mean, on any date of
determination during any fiscal year of the Parent, an amount equal to the sum
of (i) $15,000,000 minus (ii) the aggregate amount of Investments made
(including for such purpose the fair market value of any
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asset contributed to any Joint Venture (as determined in good faith by senior
management of the Borrower), net of Indebtedness and, without duplication,
Capitalized Lease Obligations assigned to, and assumed by, the respective Joint
Venture in connection therewith) pursuant to Section 8.06(ix) during such
fiscal year, minus (iii) the aggregate amount of Indebtedness or other
obligations (whether absolute, accrued, contingent or otherwise and whether or
not due) of any Joint Venture incurred during such fiscal year for which the
Parent or any of its Subsidiaries (other than the respective Joint Venture) is
liable, minus (iv) all payments made by the Parent or any of its Subsidiaries
(other than the respective Joint Venture) in respect of Indebtedness or other
obligations of the respective Joint Venture (including, without limitation,
payments in respect of obligations described in preceding clause (iii)) during
such fiscal year.
"Applicable Margin" shall mean (A)(i) in the case of A Term Loans,
Acquisition Loans and A Revolving Loans which are maintained as Base Rate
Loans, 2.25%, (ii) in the case of B Term Loans and C Term Loans which are
maintained as Base Rate Loans, 3.00% and (iii) in the case of B Revolving Loans
which are maintained as Base Rate Loans, 2.50%, and (B)(i) in the case of A
Term Loans, Acquisition Loans and A Revolving Loans which are maintained as
Eurodollar Loans, 3.25%, (ii) in the case of B Term Loans and C Term Loans
which are maintained as Eurodollar Loans, 4.00% and (iii) in the case of B
Revolving Loans which are maintained as Eurodollar Loans, 3.50%.
"Available A Revolving Loan Commitment" for any Bank shall mean, at
any time, such Bank's A RL Percentage of the Total Available A Revolving Loan
Commitment.
"B Drawing" shall have the meaning provided in Section 1B.05(b).
"B Issuing Bank" shall mean Paribas and any Bank which at the request
of the Borrower agrees, in such Bank's sole discretion, to become a B Issuing
Bank for the purpose of issuing B Letters of Credit pursuant to Section 1B. The
sole B Issuing Bank on the Third Restatement Effective Date is Paribas.
"B Letter of Credit" shall have the meaning provided in Section
1B.01(a).
"B Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding B Letters of Credit and (ii)
the amount of all B Unpaid Drawings.
"B Participant" shall have the meaning provided in Section 1B.04(a).
"B Revolving Loan Commitment" shall mean, for each Bank, the amount
set forth opposite such Bank's name on Schedule I hereto directly below the
column entitled "B Revolving Loan Commitment," as same may be (x) reduced or
terminated from time to time pursuant to Sections 2.02, 3.02 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.12 or 12.04.
"B Revolving Loan Facility" shall mean the facility evidenced by the
Total B Revolving Loan Commitment.
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"B Revolving Loan Maturity Date" shall mean May 31, 2005.
"B Revolving Loans" shall have the meaning provided in Section
1.01(f).
"B Revolving Note" shall have the meaning provided in Section
1.05(a)(vi).
"B RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the B Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
B Revolving Loan Commitment at such time; provided that if the B RL Percentage
of any Bank is to be determined after the Total B Revolving Loan Commitment has
been terminated, then the B RL Percentages of the Banks shall be determined
immediately prior (and without giving effect) to such termination.
"B RL Repayment Percentage" shall mean, at any time, a fraction
(expressed as a percentage), the numerator of which is equal to the Total B
Revolving Loan Commitment in effect at such time and the denominator of which
is equal to the Total Revolving Loan Commitment in effect at such time;
provided that if the B RL Repayment Percentage of any Bank is to be determined
after the Total B Revolving Loan Commitment or the Total Revolving Loan
Commitment has been terminated, then the B RL Repayment Percentages of the
Banks shall be determined immediately prior (without giving effect) to any such
termination.
"B Term Banks" shall have the meaning provided in Section 3.02(C).
"B Term Loan" shall have the meaning provided in Section 1.01(b).
"B Term Loan Facility" shall mean the facility evidenced by the
outstanding B Term Loans.
"B Term Loan Maturity Date" shall mean November 6, 2005.
"B Term Note" shall have the meaning provided in Section 1.05(a)(ii).
"B TL Percentage" shall mean, at any time, a fraction (expressed as a
percentage), the numerator of which is equal to the aggregate principal amount
of all B Term Loans outstanding at such time and the denominator of which is
equal to the aggregate principal amount of all Term Loans outstanding at such
time and, after the Acquisition Loan Termination Date, the aggregate principal
amount of all Acquisition Loans outstanding at such time.
"B Unpaid Drawings" shall have the meaning provided for in Section
1B.05(a).
"Back-Stop Letter of Credit Agreement" shall have the meaning provided
in Section 4.17(c).
"Bank" shall mean each financial institution listed on Schedule I, as
well as any institution which becomes a "Bank" hereunder pursuant to Section
12.04 or Section 12.16.
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"Xxxx Xxxxxxx" shall mean Bank Austria Creditanstalt Corporate
Finance, Inc. and any successor thereto (by merger, consolidation or
otherwise).
"Bank Austria L/C Reimbursement Agreement" shall have the meaning
provided in Section 4.17(c).
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 1A.04(c) or Section
1B.04(c) or (ii) a Bank having notified in writing to the Borrower and/or the
Administrative Agent that it does not intend to comply with its obligations
under Section 1.01, including in either case as a result of any takeover of
such Bank by any regulatory authority or agency.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" shall mean the higher of (i) 1/2 of 1% in excess of the
Federal Funds Rate and (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean any Loan designated or deemed designated
as such by the Borrower at the time of the incurrence thereof or conversion
thereto.
"Borrower" shall mean (i) at any time prior to the HQ Merger, Vantas,
(ii) at any time after the HQ Merger and prior to the Second-Step Merger, HQ,
as the surviving corporation of the HQ Merger and (iii) on and after the
consummation of the Second-Step Merger, Merger Sub 2 as the surviving
corporation of the Second-Step Merger (which will be renamed "HQ Global
Workplaces, Inc." in accordance with the requirements of Section 7.20).
"Borrowing" shall mean the borrowing of one Type of Loan of a single
Tranche from all the Banks having Commitments or outstanding Loans with respect
to such Tranche on a pro rata basis on a given date (or resulting from a
conversion or conversions on such date) having in the case of Eurodollar Loans
the same Interest Period; provided that (x) Base Rate Loans incurred pursuant
to Section 1.10(b) shall be considered part of the related Borrowing of
Eurodollar Loans and (y) for purposes of Section 1.08, the term "Borrowing"
shall mean and include the continuation of Existing A Term Loans and Existing B
Term Loans, in each case on the Third Restatement Effective Date, as
contemplated by Section 1.01.
"Business Center Agreement" shall mean any and all Leases under which
the Parent, the Borrower and/or any Subsidiary, in its capacity as lessor,
sublessor, landlord, sublandlord, franchisor, licensor, center, grantor or
otherwise, has granted or will hereafter grant to persons the right to use or
occupy space or otherwise use services provided at all or any portion of the
Real Property.
"Business Center Level EBITDA" with respect to any Development Asset
shall mean, for any period, Consolidated EBITDA of such Development Asset for
such period (determined in accordance with the definition of Consolidated
EBITDA contained herein, but treating references therein and in any other
defined terms used in determining Consolidated EBITDA to "the Parent" or "the
Borrower" to instead be references to such Development Asset
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and without giving effect to clauses (ii) through (v) of, or the proviso
contained in, the definition of Consolidated EBITDA).
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall
be in New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and
between banks in the New York interbank Eurodollar market.
"C Term Banks" shall have the meaning provided in Section 3.02(C).
"C Term Loan" shall have the meaning provided in Section 1.01(c).
"C Term Loan Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Schedule I to this Agreement
directly below the column entitled "C Term Loan Commitment," as the same may
have been (x) reduced or terminated pursuant to Section 2.03, 3.02 and/or 9 or
(y) adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 1.12 or 12.04.
"C Term Loan Facility" shall mean the facility evidenced by Total C
Term Loan Commitment.
"C Term Loan Maturity Date" shall mean November 6, 2005.
"C TL Percentage" shall mean, at any time, a fraction (expressed as a
percentage), the numerator of which is equal to the aggregate principal amount
of all C Term Loans outstanding at such time, and the denominator of which is
equal to the aggregate principal amount of all Term Loans outstanding at such
time and, after the Acquisition Loan Termination Date, the aggregate principal
amount of all Acquisition Loans outstanding at such time.
"Capital Expenditures" shall have the meaning provided in Section
8.08.
"Capital Lease," as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with generally accepted accounting principles, is accounted for as a
capital lease on the balance sheet of that Person.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations under Capital Leases, in each case taken at the amount thereof
accounted for as Indebtedness in accordance with generally accepted accounting
principles.
"CarrAmerica" shall mean CarrAmerica Realty Corporation, a Maryland
corporation.
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"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than
six months from the date of acquisition, (ii) time deposits and certificates of
deposit of any commercial bank organized under the laws of the United States,
any State thereof or the District of Columbia having, or which is the principal
banking subsidiary of a bank holding company organized under the laws of the
United States, any State thereof, or the District of Columbia having, capital,
surplus and undivided profits aggregating in excess of $200,000,000 and having
a long-term unsecured debt rating of at least "A" or the equivalent thereof
from Standard & Poor's Corporation ("S&P") or "A2" or the equivalent thereof
from Xxxxx'x Investors Service, Inc. ("Moody's"), with maturities of not more
than six months from the date of acquisition by such Person, (iii) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in clause (i) above entered into with any bank meeting
the qualifications specified in clause (ii) above, (iv) commercial paper issued
by any Person incorporated in the United States rated at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's
and in each case maturing not more than six months after the date of
acquisition by such Person, (v) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
clauses (i) through (iv) above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time
to time, 42 U.S.C. Section 9601 et seq.
"Change in Control" means the occurrence of one or more of the
following: (i) at any time prior to the consummation of a Qualified IPO,
FrontLine shall cease to have the power to appoint or elect or to control a
majority of the Board of Directors of the Parent (whether through the ownership
of voting stock, a Shareholders' Agreement or otherwise), (ii) at any time
after the consummation of a Qualified IPO, any Person, entity or "group"
(within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act)
shall have the power to appoint or elect or to control more of the seats of the
Board of Directors of the Parent than FrontLine has the power to appoint or
elect or control, (iii) FrontLine shall cease to have record and beneficial
ownership of more than 30% of the voting stock of the Parent on a fully diluted
basis, (iv) if any Person, entity or "group" (within the meaning of Section
13(d) and 14(d) of the Securities Exchange Act) shall become the "beneficial
owner" (as defined in Rules 13(d) and 13(d)-5 under the Exchange Act, except
that a Person shall be deemed to have "beneficial ownership" of all securities
that such Person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
of any outstanding class of capital stock of the Parent having ordinary voting
power in the election of directors of the Parent (determined on a fully diluted
basis) than that owned beneficially and of record by FrontLine, (v) the Parent
shall cease to own 100% of the outstanding capital stock of the Borrower or
shall no longer control the Borrower, or (vi) a "Change of Control" or similar
event shall have occurred under any Senior Subordinated Credit Document or, on
and after the execution and delivery thereof, any document governing any
Permitted Subordinated Refinancing Indebtedness. For purposes of this
definition, "control" of any Person shall mean the possession, directly or
indirectly,
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of the power to direct or cause the direction of its management or policies,
whether through the ownership of voting securities, by contract or otherwise.
"Change in Law" shall have the meaning provided in Section 9.06.
"Claims" shall have the meaning provided in the definition of
"Environmental Claims."
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement, and to any subsequent provision of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purport to be
granted) pursuant to any Security Document, including, without limitation, all
Pledge Agreement Collateral, all Security Agreement Collateral, all Additional
Collateral, and all cash and Cash Equivalents delivered as collateral pursuant
to this Agreement or any other Credit Document.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Security Documents.
"Collective Bargaining Agreements" shall have the meaning provided in
Section 4.05.
"Commitment" shall mean, with respect to each Bank, such Bank's C Term
Loan Commitment, Acquisition Loan Commitment, A Revolving Loan Commitment or B
Revolving Loan Commitment, if any.
"Commitment Commission" shall have the meaning provided in Section
2.01(a).
"Company" shall mean any corporation, limited company, limited
liability company, partnership or other business entity (or the adjectival form
thereof, where appropriate).
"Concentration Account" shall mean a separate account established and
maintained with the Concentration Account Bank for the benefit of the Secured
Creditors by the Parent and each of its Subsidiaries and in which the
Collateral Agent has a security interest pursuant to the Concentration Account
Consent Letter.
"Concentration Account Bank" shall mean Bankers Trust Company or such
other bank that may become a Concentration Account Bank in accordance with the
provisions of the Security Agreement.
"Concentration Account Consent Letter" shall have the meaning provided
in Section 7.18.
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"Consolidated Current Assets" shall mean the consolidated current
assets of the Parent and its Subsidiaries.
"Consolidated Current Liabilities" shall mean the sum of (i) the
consolidated current liabilities of the Parent and its Subsidiaries plus (ii)
without duplication of amounts included pursuant to clause (i), Tenant Deposits
minus (iii) the current portion of any long-term Indebtedness which would
otherwise be included therein pursuant to clause (i) or (ii) above.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income before interest income, Consolidated Interest Expense and provision for
taxes and without giving effect to any extraordinary gains or losses or gains
or losses from sales of assets.
"Consolidated EBITDA" for any period shall mean Consolidated EBIT,
adjusted by adding thereto (i) the amount of all amortization of intangibles
and depreciation that was deducted in arriving at Consolidated Net Income for
such period, (ii) interest income of the Parent and its Subsidiaries during
such period, (iii) in the case of the Test Period ended September 30, 2000, (x)
Merger and Integration Costs incurred by the Parent and its Subsidiaries during
such Test Period to the extent the aggregate amount of such Merger and
Integration Costs do not exceed $2,350,000 and (y) an adjustment for specified
synergies acceptable to the Agents of up to $3,500,000, (iv) (I) in the case of
the Test Period ended December 31, 2000, (x) Merger and Integration Costs
incurred by the Parent and its Subsidiaries during such Test Period to the
extent the aggregate amount of such Merger and Integration Costs do not exceed
$4,700,000 and (y) an adjustment for specified synergies acceptable to the
Agents of up to $7,000,000 and (II) in the case of the Test Period ended March
31, 2001, (x) Merger and Integration Costs incurred by the Parent and its
Subsidiaries during the fiscal quarter of the Parent ended December 31, 2000 to
the extent the aggregate amount of such Merger and Integration Costs do not
exceed $2,350,000 and (y) an adjustment for specified synergies acceptable to
the Agents of up to $3,500,000, and (v) net losses resulting from the
Development Assets held by the Parent during such period, and adjusted further
for any increase or decrease in accrued rent liabilities during such period;
provided, however, that (I) for purposes of determining compliance with
Sections 8.09 and 8.10, all calculations of Consolidated EBITDA for the Test
Period then last ended prior to the date of determination shall include
contributions from Permitted Acquisitions made following the first day of the
respective Test Period, (II) for purposes of determining compliance with
Sections 8.11, 8.12 and 8.13 and for determining the Total Leverage Ratio for
purposes of this Agreement, all calculations of Consolidated EBITDA for the
Test Period then last ended prior to the date of determination shall be
determined by taking Consolidated EBITDA for such Test Period as determined
pursuant to this definition (but excluding contributions from Permitted
Acquisitions made following the first day of the respective Test Period)
multiplied by 2 (or, in the case of the Test Period ended September 30, 2000,
by 4), (III) for purposes of determining compliance with Sections 8.11 and 8.12
and for determining the Total Leverage Ratio for purposes of this Agreement,
calculations of Consolidated EBITDA shall be made on a Pro Forma Basis in
accordance with the requirements of the definition thereof, (IV) for purposes
of determining compliance with Section 8.13, the Acquired EBITDA of any Person,
business, division or product line acquired pursuant to a Permitted Acquisition
during the Test Period then last ended for the four fiscal quarters prior to
such Permitted Acquisition shall be included as Consolidated EBITDA, so long as
all calculations of such Acquired EBITDA shall be made in accordance with
clause (ii) of the definition of "Pro Forma Basis", (V) for determinations of
Consolidated EBITDA for all purposes of this Agreement, Discounted Domestic
Consolidated EBITDA shall be excluded in determining Consolidated EBITDA to the
extent that such Discounted Domestic Consolidated EBITDA exceeds 10% of
Consolidated EBITDA
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(determined in accordance with this definition as if this clause (V) were not
applicable), it being understood and agreed, however, that to the extent that
any portion of Consolidated EBITDA which constituted Discounted Domestic
Consolidated EBITDA during any Test Period for which compliance with Section
8.09, 8.10 or 8.13 is being determined ceases to be Discounted Domestic
Consolidated EBITDA as at the end of such Test Period, then the amount of such
Discounted Domestic Consolidated EBITDA shall be included for the entire Test
Period, and (VI) for determinations of Consolidated EBITDA for all purposes of
this Agreement, Excluded International Consolidated EBITDA shall be excluded in
determining Consolidated EBITDA to the extent that such Excluded International
Consolidated EBITDA exceeds 25% of the Consolidated EBITDA (determined in
accordance with this definition as if this clause (VI) were not applicable).
"Consolidated Indebtedness" shall mean, at any time, all Indebtedness
of the Parent and its Subsidiaries determined on a consolidated basis
(excluding all Indebtedness of the type described in clause (vii) of the
definition thereof, except to the extent amounts are owing with respect thereto
upon the termination of the respective agreement constituting such
Indebtedness) plus any original issue discount attributable to such
Indebtedness minus cash on hand and Cash Equivalents of the Parent and its
Subsidiaries at such time (excluding cash and Cash Equivalents collateralizing
Existing Letters of Credit pursuant to the Existing Letter of Credit Cash
Collateral Arrangements); provided that the term "Consolidated Indebtedness" as
used herein shall not include any Contingent Obligation of the Parent or any of
its Subsidiaries in respect of the Master Leases.
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Parent and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
payable during such period in respect of all Indebtedness of the Parent and its
Subsidiaries, on a consolidated basis, for such period (including, without
duplication, that portion of Capitalized Lease Obligations of the Parent and
its Subsidiaries representing the interest factor for such period); provided
that the term "Indebtedness" as used herein shall not include any Contingent
Obligation of the Parent or any of its Subsidiaries in respect of the Master
Leases.
"Consolidated Net Income" shall mean, for any period, net income of
the Parent and its Subsidiaries for such period determined on a consolidated
basis (after provision for taxes); provided, however, (x) the net income of any
Subsidiary of the Parent, which is not a Wholly-Owned Subsidiary, shall have
its net income included in the Consolidated Net Income of the Parent and its
Subsidiaries only (i) to the extent of the amount of such net income
corresponding to the Borrower's ownership percentage interest in such
Subsidiary and (ii) if there are no restrictions or limitation whether by law,
contractual or otherwise to pay the dividends or distributions under the
preceding clause (i) hereto to the Borrower and (y) except to the extent
expressly required by the definition of "Consolidated EBITDA" or "Pro Forma
Basis", the net income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary or all or substantially all of the property or assets of
such Person are acquired by a Subsidiary shall be excluded in computing
Consolidated Net Income.
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"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
holder of such primary obligation against loss in respect thereof; provided,
however, that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in good
faith.
"Credit Documents" shall mean this Agreement, each Note, each Notice
of Borrowing, each Notice of Conversion, each Letter of Credit, each Letter of
Credit Request, the Subsidiaries Guaranty, each Security Document, each A
Revolving Facility Borrowing Certificate, the Subordination Agreement and, on
and after the execution and delivery thereof, the FrontLine Indemnification
Contribution Agreement, and any letter agreements or other documents executed
in connection with any of the above.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean the Parent, the Borrower and each Subsidiary
Guarantor.
"Debt Agreements" shall have the meaning provided in Section 4.05.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is then in effect.
"Development Assets" shall mean the assets set forth on Schedule XX
hereto (provided that at the time of any contribution by the Parent to the
Borrower of a Development Asset pursuant to Section 8.06(xiv), such Schedule
shall be automatically amended to delete therefrom the Development Asset so
contributed).
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"Discounted Domestic Consolidated EBITDA" shall mean, for any period,
any portion of Consolidated EBITDA (determined without regard to clause (V) of
the proviso to the definition thereof) for such period relating to the Parent
or any Subsidiary of the Parent which is party to a Lease in which any Person
has a first Lien which is superior to any Lien created or purported to be
created pursuant to any Security Document in favor of the Secured Creditors.
"Dividend" with respect to any Person shall mean that such Person has
declared or paid a dividend or returned any equity capital to its stockholders
(including, without limitation, its preferred stockholders) or authorized or
made any other distribution, payment or delivery of property (other than common
stock of such Person) or cash to its stockholders in their capacity as
stockholders, or redeemed, retired, purchased or otherwise acquired, directly
or indirectly, for a consideration any shares of any class of its capital stock
outstanding on or after the Third Restatement Effective Date (or any options or
warrants issued by such Person with respect to its capital stock), or set aside
any funds for any of the foregoing purposes, or shall have permitted any of its
Subsidiaries to purchase or otherwise acquire for a consideration any shares of
any class of the capital stock of such Person outstanding on or after the Third
Restatement Effective Date (or any options or warrants issued by such Person
with respect to its capital stock). Without limiting the foregoing, "Dividends"
with respect to any Person shall also include all cash payments made or
required to be made by such Person with respect to any stock appreciation
rights, equity incentive plans or any similar plans or setting aside of any
funds for the foregoing purposes.
"Documentation Agent" shall have the meaning provided in the first
paragraph of the Agreement and shall include any successor to the Documentation
Agent appointed pursuant to Section 11.09.
"Documents" shall mean and include (i) each Credit Document, (ii) each
Senior Subordinated Credit Document, (iii) each Acquisition Document, (iv) each
PIK Preferred Stock Document, (v) each HQ Equity Rollover Financing Document,
(vi) each FrontLine Transaction Contribution Document and (vii) each
Refinancing Document.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Domestic Subsidiary", shall mean, as to any Person, each Subsidiary
of such person that is incorporated under the laws of the United States, any
State or territory thereof or the District of Columbia.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution, collaterized loan investment vehicle, fund, insurance
company or other "accredited investor" (as defined in Regulation D of the
Securities Act) other than individuals, or a "qualified institutional buyer" as
defined in Rule 144A of the Securities Act.
"Employee Benefit Plans" shall have the meaning provided in Section
4.05.
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"Employee Stock Proceeds Payment Period" shall have the meaning
provided in Section 3.02(A)(f).
"Employee Stock Proceeds" shall have the meaning provided in Section
3.02(A)(f).
"Employment Agreements" shall have the meaning provided in Section
4.05.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations or proceedings relating
in any way to any violation of, or liability under, any Environmental Law or
any permit issued, or any approval given, under any such Environmental Law
(hereafter, "Claims"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, policy and rule of common law
now or hereafter in effect (including, without limitation, the EPA guidance on
asbestos abatement and removal) and in each case as amended, and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or Hazardous Materials, including, without limitation, CERCLA;
RCRA; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section
1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 7401 et seq.;
the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking Water Act,
42 U.S.C. Section 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C.
Section 2701 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section
651 et seq.; and any applicable state and local or foreign counterparts or
equivalents.
"Equity Exchange" shall have the meaning provided in Section 4.16(d).
"Equity Investors" shall mean EOP Operating Limited Partnership,
Fortress HQ LLC, Stichting Pensioenfonds ABP, First Union Real Estate Equity
and Mortgage Investments, CIBC WMC Inc., CIBC Employee Private Equity Fund
Partners, AEW Targeted Securities Fund, L.P., AEW Targeted Securities Fund II,
L.P., Blackacre Capital Partners, L.P. and Paribas North America, Inc.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement, and to any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
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"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Parent or a Subsidiary of the Parent would be
deemed to be a "single employer" (i) within the meaning of Section 414(b), (c),
(m) or (o) of the Code or (ii) as a result of the Parent or a Subsidiary of the
Parent being or having been a general partner of such person.
"Eurodollar Loan" shall mean each Loan designated as such by the
Borrower at the time of the incurrence thereof or conversion thereto.
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any period, the remainder of (i)
the sum of (a) Adjusted Consolidated Net Income for such period, and (b) the
decrease, if any, in Adjusted Working Capital from the first day to the last
day of such period, minus (ii) the sum of (a) the amount of cash Capital
Expenditures (to the extent not financed with Indebtedness but not in excess of
the amounts permitted pursuant to Section 8.08) made by the Borrower and its
Subsidiaries on a consolidated basis during such period, (b) the amount of
permanent principal payments of Indebtedness for borrowed money of the Parent
and its Subsidiaries (other than repayments of Loans); provided that repayments
of Loans shall be deducted in determining Excess Cash Flow if such repayments
were applied to Scheduled Repayments required to be made during such period,
were made as a voluntary prepayment with internally generated funds (but in the
case of a voluntary prepayment of A Revolving Loans, a voluntary prepayment of
B Revolving Loans or a voluntary prepayment of Acquisition Loans prior to the
Acquisition Loan Termination Date, only to the extent accompanied by a
voluntary reduction to the Total A Revolving Loan Commitment, Total B Revolving
Loan Commitments or to the Total Acquisition Loan Commitment, as the case may
be) during such period, (c) the amount of cash expended in respect of Permitted
Acquisitions during such period (to the extent not financed with Indebtedness)
and (d) the increase, if any, in Adjusted Working Capital from the first day to
the last day of such period. In making the foregoing determinations under
clause (i)(b) or (ii)(d) of the immediately preceding sentence, the amount of
the Adjusted Working Capital acquired as a result of each Permitted Acquisition
which occurred during the respective period for which Excess Cash Flow is being
determined shall have been deemed to have been acquired on the first day of
such period.
"Excess Cash Flow Payment Date" shall mean the date occurring 90 days
after the last day of a fiscal year of the Parent (commencing with its fiscal
year ending December 31, 2000).
"Excess Cash Flow Payment Period" shall mean (a) the period from the
Third Restatement Effective Date to and including December 31, 2000 and (b)
each fiscal year of the Parent thereafter.
"Exchange Agreement" shall mean the Exchange Agreement, dated as of
May 31, 2000, between the Parent and FrontLine, as the same may be amended,
modified or supplemented from time to time pursuant to the terms hereof and
thereof.
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"Excluded International Consolidated EBITDA" shall mean, for any
period, any portion of Consolidated EBITDA (determined without regard to clause
(VI) of the proviso to the definition thereof) for such period relating to (x)
International Locations of Parent and its Subsidiaries or (y) any Foreign
Subsidiary of the Parent all or any part of whose assets in which the Secured
Creditors do not have a first perfected security interest (other than an asset
subject to a Permitted Lien).
"Existing Bank" shall mean each Person which was a Bank under, and as
defined in, the Second Amended and Restated Credit Agreement.
"Existing Indebtedness" shall have the meaning provided in Section
6.22.
"Existing HQ Credit Agreement" shall mean the Amended and Restated
Revolving Credit Agreement, dated as of August 27, 1998, among HQ (formerly
known as OmniOffices, Inc.), various financial institutions party thereto, and
Xxxxxx Guaranty as a lender, arranger and lead agent, as in effect on the Third
Restatement Effective Date.
"Existing Letter of Credit Back-Stop Arrangements" shall mean issuance
of back-stop letters of credit in favor of Xxxxxx Guaranty and Paribas pursuant
to the Back-Stop Letter of Credit Agreement as contemplated by Section 4.17(c).
"Existing Letter of Credit Cash Collateral Arrangements" shall have
the meaning provided in Section 4.17(c).
"Existing Letters of Credit" shall have the meaning provided in
Section 1A.01(d).
"Existing RL Bank" shall mean each Bank under, and as defined in, the
Second Amended and Restated Credit Agreement with outstanding Existing
Revolving Loans on the Third Restatement Effective Date (immediately prior to
giving effect thereto).
"Existing Revolving Loans" shall mean the "Revolving Loans" under, and
as defined in, the Second Amended and Restated Credit Agreement.
"Existing A Term Loan Bank" shall mean each Bank under, and as defined
in, the Second Amended and Restated Credit Agreement with outstanding Existing
A Term Loans on the Third Restatement Effective Date (immediately prior to
giving effect thereto).
"Existing A Term Loans" shall mean the "A Term Loans" under, and as
defined in, the Second Amended and Restated Credit Agreement.
"Existing B Term Loan Bank" shall mean each Bank under, and as defined
in, the Second Amended and Restated Credit Agreement with outstanding Existing
B Term Loans on the Third Restatement Effective Date (immediately prior to
giving effect thereto).
"Existing B Term Loans" shall mean the "B Term Loans" under, and as
defined in, the Second Amended and Restated Credit Agreement.
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"Facing Fee" shall have the meaning provided in Section 2.01(b).
"Federal Funds Rate" shall mean for any period, a fluctuating interest
rate equal for each day during such period to the weighted average of the rates
on overnight Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 2.01.
"First Union" shall mean First Union National Bank and any successor
thereto (by merger, consolidation or otherwise).
"First Union L/C Cash Collateral Agreement" shall have the meaning
provided in Section 4.17(c).
"Fixed Charge Coverage Ratio" for any period shall mean the ratio of
(x) Consolidated EBITDA less the amount of all cash Capital Expenditures for
such period (other than cash Capital Expenditures made with Retained Excess
Cash Flow during such period in reliance on Section 8.08(d)) to (y) Fixed
Charges for such period.
"Fixed Charges" for any period shall mean the sum of (i) Consolidated
Interest Expense for such period, (ii) the aggregate principal amount of all
scheduled repayments of Indebtedness (whether or not paid) (including the
principal portion of rentals under Capitalized Lease Obligations but excluding
repayment of A Revolving Loans not accompanied by a permanent reduction to the
Total A Revolving Loan Commitment, excluding repayments of B Revolving Loans
not accompanied by a permanent reduction to the Total B Revolving Loan
Commitment, and excluding repayments of Acquisition Loans prior to the
Acquisition Loan Termination Date not accompanied by a permanent reduction to
the Total Acquisition Loan Commitment, as the case may be) and (iii) taxes paid
by the Parent and its Subsidiaries for such period (including taxes paid during
such period by the Person or business, division or product line acquired by the
Borrower or any of its Subsidiaries pursuant to a Permitted Acquisition during
such period; provided, however, the amount of such taxes shall be audited or
otherwise acceptable to the Administrative Agent and provided further, that if
the Administrative Agent has not notified the Borrower on or prior to the fifth
day prior to the consummation of the Permitted Acquisition that the
Administrative Agent is not satisfied with the amount of such taxes, the
Administrative Agent shall be deemed to be so satisfied).
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America or any territory thereof by the
Parent or any one or more of its Subsidiaries primarily for the benefit of
employees of the Parent or such Subsidiaries residing outside the United States
of America, which plan, fund or other similar program provides, or results in,
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retirement income, a deferral of income in contemplation of retirement or
payments to be made upon termination of employment, and which plan is not
subject to ERISA or the Code.
"Foreign Subsidiary" shall mean, as to any Person, each Subsidiary of
any such Person which is not a Domestic Subsidiary.
"Four Quarter Calculation Period" shall have the meaning provided in
Section 7.15(a)(vii).
"FrontLine" shall mean FrontLine Capital Group, a Delaware corporation
(formerly known as Reckson Services Industries, Inc.).
"FrontLine Indemnity Contribution" shall mean a "Capital Contribution"
under, and as defined in, the FrontLine Indemnification Contribution Agreement.
"FrontLine Indemnification Contribution Agreement" shall have the
meaning provided in Section 12.18(f).
"FrontLine Transaction Contribution" shall have the meaning provided
in Section 4.16(e).
"FrontLine Transaction Contribution Documents" shall mean the
agreements, documents and instruments entered into in connection with the
FrontLine Transaction Contribution, in each case as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.
"Guaranties" shall mean and include the Parent Guaranty and each of
the Subsidiaries Guaranties executed by the Subsidiaries of the Borrower.
"Guaranteed Creditors" shall mean and include each of the Bank
Creditors and the Other Creditors.
"Guaranteed Obligations" shall mean (i) the principal and interest on
each Note issued to each Bank, and all Loans made, under this Agreement,
together with all the other obligations (including obligations which, but for
the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due) and liabilities (including, without limitation, indemnities, Fees and
interest thereon) of the Borrower to each Bank, the Agents and the Collateral
Agent now existing or hereafter incurred under, arising out of or in connection
with this Agreement or any other Credit Document and the due performance and
compliance with all the terms, conditions and agreements contained in the
Credit Documents by the Borrower and (ii) all obligations (including
obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of the Borrower or any of
its Subsidiaries owing under any Interest Rate Protection Agreement and any
Other Hedging Agreement entered into by the Borrower or any of its Subsidiaries
with any Bank or any affiliate thereof (even if such Bank subsequently ceases
to be a Bank under this Agreement for any reason) so long as such Bank or
affiliate participates in such Interest Rate Protection or Other Hedging
Agreement, and their
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subsequent assigns, if any, whether now in existence or hereafter arising, and
the due performance and compliance with all terms, conditions and agreements
contained therein.
"Guarantor" shall mean the Parent and each Subsidiary Guarantor.
"Hazardous Materials" means (a) petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that
contain, dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," or "pollutants," or
words of similar meaning and regulatory effect, under any applicable
Environmental Law; and (c) any other chemical, material or substance, exposure
to which is prohibited, limited or regulated under applicable Environmental
Laws.
"HQ" shall mean HQ Global Workplaces, Inc., a Delaware corporation.
"HQ Common Stock Purchase" shall have the meaning provided in Section
4.16(b).
"HQ Equity Rollover" shall have the meaning provided in Section
4.16(a).
"HQ Equity Rollover Financing Documents" shall mean the agreements and
documents entered into in connection with the HQ Equity Rollover, in each case
as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"HQ Merger" shall mean the merger of Vantas with and into HQ pursuant
to, and in accordance with the terms of, the HQ Merger Agreement, with HQ as
the surviving corporation of such merger,
"HQ Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of January 20, 2000, among Vantas, FrontLine, CarrAmerica and HQ, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"HQ Stock Purchase Agreement" shall mean the Stock Purchase Agreement,
dated as of January 20, 2000, between CarrAmerica and HQ (as surviving
corporation of the HQ Merger and the assignee of FrontLine), as the same may be
amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services other than trade payables, (ii) the maximum amount available to be
drawn under all letters of credit issued for the account of such Person and all
unpaid drawings in respect of such letters of credit, (iii) all Indebtedness of
the types
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described in clause (i), (ii), (iv), (v), (vi), (vii) or (viii) of this
definition secured by any Lien on any property owned by such Person, whether or
not such Indebtedness has been assumed by such Person, (iv) all Capitalized
Lease Obligations of such Person, (v) all obligations of such Person to pay a
specified purchase price for goods or services, whether or not delivered or
accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person and (vii) all obligations under any Interest Rate
Protection or Other Hedging Agreement or under any similar type of agreement
entered into with a Person not a Bank or an affiliate of a Bank; provided,
however, that so long as the Existing Letter of Credit Back-Stop Arrangements
and/or the Existing Letter of Credit Cash Collateral Arrangements remain in
effect with respect to all Existing Letters of Credit which have not been
incorporated hereunder as A Letters of Credit, the amount available to be drawn
under any Existing Letters of Credit issued for the account of the Borrower or
any of its Subsidiaries and all unpaid drawings in respect of such Existing
Letters of Credit shall not be considered Indebtedness until such Existing
Letter of Credit is incorporated as an "A Letter of Credit" hereunder in
accordance with the requirements of Section 1A.01(d).
"Indebtedness to be Refinanced" shall mean all Indebtedness set forth
on Schedule XVII which is to be repaid in full on the Third Restatement
Effective Date as part of the Refinancing.
"Indemnification Agreement" means the Indemnification and Escrow
Agreement, dated as of May 31, 2000, by and among FrontLine, CarrAmerica, the
other shareholders, warrantholders and optionees of HQ party thereto, and
Citibank, N.A., as escrow agent.
"Indemnified Matters" shall have the meaning provided in Section
12.01.
"Indemnitees" shall have the meaning provided in Section 12.01.
"Initial Eurodollar Loan Borrowing Date" shall mean a date occurring
at least three Business Days following the Third Restatement Effective Date and
no more than seven days following the Third Restatement Effective Date on which
a Borrowing of Eurodollar Loans occurs or on which a conversion of Base Rate
Loans into Eurodollar Loans occurs; provided, however, there may only be one
Initial Eurodollar Loan Borrowing Date.
"Intellectual Property" shall have the meaning provided in Section
6.21.
"Intercompany Agreement" shall mean the Intercompany Agreement, dated
as of December 31, 1998 by and between Alliance National Incorporated and
Reckson Service Industries, Inc.
"Intercompany Loan" shall have the meaning provided in Section
8.06(xii).
"Intercompany Notes" shall mean promissory notes, in the form of
Exhibit L, evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
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"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection or Other Hedging Agreements" shall have the
meaning provided in the Security Documents.
"International Locations" shall mean the office locations outside the
United States and Permitted Acquisitions made outside the United States by the
Parent and its Subsidiaries.
"Investment" shall have the meaning provided in the preamble to
Section 8.06.
"Issuing Bank" shall mean and include each A Issuing Bank and each B
Issuing Bank.
"Joint Venture" shall mean any Person, other than an individual or a
Wholly-Owned Subsidiary of the Parent, (i) in which the Parent or a Subsidiary
of the Parent holds or acquires an ownership interest (whether by way of
capital stock, partnership or limited liability company interest, or other
evidence of ownership) and (ii) which is engaged in a Permitted Business.
"L/C Reimbursement Agreements" shall have the meaning provided in
Section 4.17(c).
"L/C Supportable Indebtedness" shall mean (i) obligations of the
Borrower or any of its Subsidiaries incurred in the ordinary course of business
with respect to workers compensation, surety bonds and other similar statutory
obligations and security deposits for landlords and (ii) such other obligations
of the Borrower or any of its Subsidiaries as are reasonably acceptable to the
Issuing Bank and otherwise permitted to exist pursuant to the terms of this
Agreement.
"Leaseholds" of any Person means all the right, title and interest of
such Person as lessee or licensee in, to and under Leases or licenses of land,
improvements and/or fixtures.
"Leases" shall mean any and all leases, tenancies, options, concession
agreements, rental agreements, occupancy agreements, franchise agreements,
client agreements, service agreements, office service agreements, office access
agreements and any other agreements (including, without limitation, all
amendments, extensions, replacements, renewals, modifications and/or guarantees
thereof), whether or not of record and whether now in existence or hereafter,
entered into, affecting the use or occupancy of, or use of services provided
at, all or any portion of any Real Property.
"Letter of Credit" shall mean and include each A Letter of Credit and
each B Letter of Credit.
"Letter of Credit Fee" shall have the meaning provided in Section
2.01(c).
"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) all A Letter of Credit Outstandings at such time and (ii) all B Letter of
Credit Outstandings at such time.
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"Letter of Credit Request" shall have the meaning provided in Section
1A.03(a).
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Lockbox Agreement" shall have the meaning provided in Section
7.18(b).
"Lockbox Bank" shall have the meaning provided in Section 7.18(b).
"Lockboxes" shall have the meaning provided in Section 7.18(b).
"Loan" shall mean each Term Loan, each Revolving Loan and each
Acquisition Loan.
"Maintenance and Up-Grade Capital Expenditures" shall mean Capital
Expenditures made by the Borrower or any of its Subsidiaries to the extent not
constituting (i) Permitted Acquisitions (including Start-Up Costs) or (ii)
Investments in Joint Ventures made pursuant to Section 8.06(ix).
"Management Agreements" shall have the meaning provided in Section
4.05.
"Managing Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Margin Stock" shall have the meaning provided in Regulation U.
"Master Leases" shall mean any and all Leases under which the Parent,
the Borrower, any Subsidiary of the Parent and/or any Joint Venture of any
Subsidiary of the Parent, in its capacity as lessee, sublease, tenant,
subtenant, franchisee, licensee, grantee or otherwise, has been or will
hereafter be granted the right to use or occupy all or any portion of the Real
Property.
"Material Contracts" shall have the meaning provided in Section 4.05.
"Material Subsidiary" shall mean (i) any Subsidiary of the Parent
which is a "significant subsidiary" as defined in Article I, Rule 1-02 of
Regulation S-X (as in effect on the Third Restatement Effective Date) or (ii)
any one or more Subsidiaries of the Parent that (x) are not otherwise Material
Subsidiaries, (y) as to which any event described in Section 9.05 has occurred
and is continuing and (z) would together constitute a Material Subsidiary under
clause (i) of this definition.
"Maturity Date" with respect to a Tranche shall mean the A Term Loan
Maturity Date, the B Term Loan Maturity Date, the C Term Loan Maturity Date,
the Acquisition Loan
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Maturity Date, A Revolving Loan Maturity Date or the B Revolving Loan Maturity
Date, as the case may be.
"Merger and Integration Costs" shall mean certain one-time costs and
expenses incurred by the Parent and its Subsidiaries in connection with the
Acquisitions (including, without limitation, severance and restructuring
costs).
"Merger Sub 2" shall mean HQ Merger Subsidiary, Inc., a Delaware
corporation (to be renamed "HQ Global Workplaces, Inc." in accordance with the
requirements of Section 7.20).
"Mezzanine Subordinated Notes" shall mean the mezzanine subordinated
notes issued by the Borrower pursuant to the Mezzanine Subordinated Note
Purchase Agreement to Refinance all or a portion of the then outstanding Senior
Subordinated Bridge Loans or Permitted Subordinated Refinancing Indebtedness.
The issuance of Mezzanine Subordinated Notes shall be deemed to be a
representation and warranty by the Borrower that all conditions thereto have
been satisfied in all material respects and that same is permitted in
accordance with the terms of this Agreement, which representation and warranty
shall be deemed to be a representation and warranty for all purposes hereunder,
including, without limitation, Sections 5 and 9.
"Mezzanine Subordinated Note Documents" shall mean, on and after the
execution and delivery thereof, (i) the Mezzanine Subordinated Note Purchase
Agreement, (ii) the Mezzanine Subordinated Notes and (iii) each other
agreement, document or instrument relating to the issuance of the Mezzanine
Subordinated Notes (including the execution copies of the documents attached as
exhibits to the Mezzanine Subordinated Note Purchase Agreement), in each case
as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Mezzanine Subordinated Note Purchase Agreement" shall mean, on and
after the execution and delivery thereof, a Note and Warrant Purchase Agreement
in the form of Exhibit N hereto (with such changes thereto as are approved by
the Required Banks or, in the case of changes that are determined by the
Administrative Agent in its sole discretion not to be material to the interests
of the Banks, by the Administrative Agent), as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof.
"Minimum Borrowing Amount" shall mean (i) for Base Rate Loans,
$500,000, and (ii) for Eurodollar Loans, $1,000,000.
"Xxxxxx Guaranty" shall mean Xxxxxx Guaranty Trust Company of New
York.
"Xxxxxx Guaranty L/C Reimbursement Agreement" shall have the meaning
provided in Section 4.17(c).
"Multiemployer Plan" shall mean any multiemployer plan as defined in
Section 4001(a)(3) of ERISA, which is maintained or contributed to by (or to
which there is an obligation to contribute of) the Parent or a Subsidiary of
the Parent or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Parent, or a
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Subsidiary of the Parent or an ERISA Affiliate maintained, contributed to or
had an obligation to contribute to such plan.
"Net Sale Proceeds" shall mean for any sale of assets, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from such sale, net of reasonable transaction costs (including,
without limitation, attorneys' fees), the amount of such gross cash proceeds
required to be used to permanently repay any Indebtedness which is secured by
the respective assets which were sold, and the estimated marginal increase in
income taxes which will be payable by the Parent's consolidated group as a
result of such sale.
"Non-Subsidiary Joint Venture" shall mean each Joint Venture which is
not a Subsidiary of the Parent.
"Note" shall mean each A Term Note, each B Term Note, each C Term
Note, each Acquisition Note , each A Revolving Note and each B Revolving Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxxxxxx, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Obligations" shall mean all amounts owing to the Agents, the
Collateral Agent, the Issuing Banks or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Omni Lux" shall mean OmniOffices (Lux) 1929 Holding Company S.A., a
corporation organized under the laws of Luxembourg.
"Omni UK" shall mean OmniOffices (UK) Limited, a corporation organized
under the laws of England.
"Original Credit Agreement" shall mean the Credit Agreement, dated as
of January 16, 1997, among Vantas, the Banks party thereto and the
Administrative Agent.
"Original Effective Date" shall mean January 16, 1997.
"Other Creditors" shall mean and include each Person (other than any
Credit Party) party to an Interest Rate Protection or Other Hedging Agreement
to the extent that such Person constitutes a Bank or a Secured Creditor under
the Security Documents.
"Parent" shall have the meaning provided in the first paragraph of
this Agreement.
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"Parent Common Stock" shall have the meaning provided in Section
6.14(a).
"Parent Guaranty" shall mean the guaranty of the Parent pursuant to
Section 13 of this Agreement.
"Paribas" shall mean BNP Paribas (formerly known as Paribas), a French
banking organization acting through its New York Branch.
"Paribas L/C Reimbursement Agreement" shall have the meaning provided
in Section 4.17(c).
"Payment Office" shall mean the office of the Administrative Agent
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxx (Fax: 000-000-0000, or such other office as the Administrative Agent may
hereafter designate in writing as such to the other parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition Notice" shall have the meaning provided in
Section 7.15(a)(ii).
"Permitted Acquisition" shall mean (I) the acquisition by the Borrower
or any of its Wholly-Owned Subsidiaries of assets (but not Real Property other
than Leaseholds) constituting all or substantially all of a business, business
unit, division or product line of any Person not already a Subsidiary of the
Borrower or 100% of the capital stock of any such Person, although any such
acquisition shall only be a Permitted Acquisition so long as (A) the
consideration therefor consists solely of cash on hand, issuances of Parent
Common Stock, Seller Preferred Stock, Permitted Seller Notes, Permitted
Earn-Out Debt and the assumption of Capitalized Lease Obligations and tenant
security deposits; (B) the assets acquired, or the business of the Person whose
stock is acquired, shall be in a Permitted Business; (C) those acquisitions
that are structured as asset acquisitions shall be consummated through a new
Subsidiary formed by the Borrower, which shall be a Wholly-Owned Subsidiary of
the Borrower, to effect such acquisition and (D) those acquisitions that are
structured as stock acquisitions shall be effected through a purchase of 100%
of the capital stock of such Person by the Borrower or a newly formed
Wholly-Owned Subsidiary or through a merger between such Person and a
newly-formed direct Wholly-Owned Subsidiary of the Borrower, as the case may
be, so that after giving effect to such merger 100% of the capital stock of the
surviving corporation of such merger is owned by the Borrower and (II) Start-Up
Costs. Notwithstanding anything to the contrary contained in the immediately
preceding sentence, an acquisition shall be a Permitted Acquisition only if all
requirements of Section 7.15 with respect to Permitted Acquisitions are met
with respect thereto.
"Permitted Business" shall mean the business of operating executive
office suite centers, which shall include the outsourcing of office operations
both on an on-site and off-site basis and the outsourcing of business support
services for customers or clients of the Borrower or its Subsidiaries.
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"Permitted Earn-Out Debt" shall mean Indebtedness of the Borrower
incurred in connection with a Permitted Acquisition and in accordance with
Section 7.15, which Indebtedness is not secured by any assets of the Parent or
any of its Subsidiaries (including, without limitation, the assets so acquired)
and is only payable by the Borrower upon the passage of time (e.g., non-compete
payments) or in the event certain future performance goals are achieved with
respect to the assets acquired; provided that such Indebtedness shall only
constitute Permitted Earn-Out Debt to the extent the terms of such Indebtedness
expressly limit the maximum potential liability of the Borrower with respect
thereto and all such other terms shall be in form and substance satisfactory to
the Administrative Agent.
"Permitted Equity Issuances" shall mean issuances of Parent Common
Stock or Seller Preferred Stock by the Parent as consideration in Permitted
Acquisitions, but only to the extent permitted pursuant to Sections 7.15 and
8.16.
"Permitted Liens" shall have the meaning provided in Section 8.01.
"Permitted Quarterly CapEx Amount" shall mean, (i) with respect to any
fiscal quarter (the "specified fiscal quarter") of the Parent, other than the
fiscal quarter ending March 31, 2001, an amount equal to (x) Consolidated
EBITDA for the fiscal quarter ending six months prior to the end of such
specified fiscal quarter less (y) Fixed Charges for the fiscal quarter ending
six months prior to the end of such specified fiscal quarter multiplied by
1.05; and (ii) for the fiscal quarter ending March 31, 2001, an amount equal to
(x) Consolidated EBITDA for the fiscal quarter ending September 30, 2000
multiplied by 2.00 less (y) Fixed Charges for the fiscal quarter ending
September 30, 2000 multiplied by 2.10 less (z) Capital Expenditures (including
Permitted Acquisitions and Investments in Joint Ventures) which were made
during the fiscal quarter ending December 31, 2000. For purposes of this
definition, the term "Consolidated EBITDA" shall be determined using the
definition thereof as if (i) each reference to "Test Period" in clauses (iii)
and (iv) were instead a reference to the term "fiscal quarter" and (ii) the
references to "$4,700,000" and "$7,000,000" were instead references to
"$2,350,000" and "$3,500,000", respectively.
"Permitted Revolving A Borrowing Amount" shall have the meaning
provided in the definition of A Revolving Facility Borrowing Certificate
contained in this Section 10.01.
"Permitted Seller Notes" shall mean notes in an aggregate principal
amount of $4,000,000 issued by the Borrower to sellers of stock or assets in a
Permitted Acquisition and issued in accordance with Section 7.15, which notes
may be senior but shall be unsecured and unguaranteed, and shall otherwise be
in form and substance satisfactory to the Administrative Agent.
"Permitted Subordinated Refinancing Indebtedness" shall mean any
Indebtedness of the Borrower and the Subsidiary Guarantors incurred to
Refinance, in whole or in part, the Senior Subordinated Bridge Loans or any
Indebtedness issued to so Refinance any such Indebtedness (but for the
avoidance of doubt, excluding in any event any Indebtedness evidenced by
Mezzanine Subordinated Notes), so long as (a) such Indebtedness has (x) a
weighted average
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life to maturity greater than or equal to the weighted average life to maturity
of the Indebtedness being Refinanced and (y) a final maturity identical to or
later than the final maturity of the Indebtedness being Refinanced, (b) such
refinancing, renewal or replacement does not (i) increase the principal amount
of the Indebtedness being Refinanced and outstanding immediately prior to such
refinancing, renewal or replacement or (ii) add guarantors, obligors or
security from that which applied to such Indebtedness being Refinanced, (c)
such Indebtedness has substantially the same (or, from the perspective of the
Lenders, more favorable) subordination provisions as those contained in the
Senior Subordinated Credit Agreement, and (d) all other terms applicable to
such Indebtedness to be Refinanced (including, without limitation, with respect
to the amortization schedules, redemption provisions, maturities, covenants,
defaults and remedies), are not, taken as a whole, materially less favorable to
the respective borrower than those previously existing with respect to the
Indebtedness being Refinanced. As used herein, the term "Permitted Subordinated
Refinancing Indebtedness" shall in any event include any Term Loan under, and
as defined in, the Senior Subordinated Credit Agreement into which any Senior
Subordinated Bridge Loan may be converted pursuant to, and in accordance with
the terms of, the Senior Subordinated Credit Agreement. The issuance of
Permitted Subordinated Refinancing Indebtedness shall be deemed to be a
representation and warranty by the Borrower that all conditions thereto have
been satisfied in all material respects and that same is permitted in
accordance with the terms of this Agreement, which representation and warranty
shall be deemed to be a representation and warranty for all purposes hereunder,
including, without limitation, Sections 5 and 9.
"Person" shall mean any individual, limited liability company,
partnership, joint venture, firm, corporation, association, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"PIK Preferred Stock" shall have the meaning provided in Section
4.16(d).
"PIK Preferred Stock Documents" shall mean the PIK Preferred Stock,
the PIK Preferred Stock Purchase Agreements, the Certificate of Designation in
respect of the PIK Preferred Stock and the other agreements, documents and
instruments entered into in connection with the issuance of PIK Preferred
Stock, in each case as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"PIK Preferred Stock Purchase Agreements" shall mean the Purchase
Agreements, dated as of May 31, 2000, each between FrontLine and an Equity
Investor, in each case as the same may be amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof.
"Plan" shall mean any pension plan, as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Parent, a Subsidiary of the Parent or an ERISA
Affiliate, and each such plan for the five year period immediately following
the latest date on which the Parent, a Subsidiary of the Parent or an ERISA
Affiliate maintained, contributed to or had an obligation to contribute to such
plan.
"Pledge Agreement" shall have the meaning provided in Section 4.07.
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"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in the Pledge Agreement.
"Pledged Securities" shall have the meaning assigned that term in the
Pledge Agreement.
"Preferred Equity Financing" shall have the meaning provided in
Section 4.16(d).
"Prime Lending Rate" shall mean the rate which Bankers Trust Company
announces from time to time as its prime lending rate, the Prime Lending Rate
to change when and as such prime lending rate changes. The Prime Lending Rate
is a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer by Paribas or Bankers Trust Company, who may
make commercial loans or other loans at rates of interest at, above or below
the Prime Lending Rate.
"Pro Forma Basis" shall mean, with respect to any Permitted
Acquisition, the calculation of the consolidated results of the Parent and its
Subsidiaries otherwise determined in accordance with this Agreement as if the
respective Permitted Acquisition (and all other Permitted Acquisitions
consummated during the respective Two Quarter Calculation Period or thereafter
and prior to the date of determination pursuant to Section 7.15 or other
applicable provision of this Agreement) had been effected on the first day of
the respective Two Quarter Calculation Period; provided that all calculations
shall take into account the following assumptions:
(i) if any Indebtedness is incurred pursuant to the
respective Permitted Acquisition (or was incurred in any other
Permitted Acquisition which occurred during the relevant Two Quarter
Calculation Period or thereafter and prior to the date of
determination) then all such Indebtedness shall be deemed to have been
outstanding from the first day of the respective Two Quarter
Calculation Period (and the interest expense associated with such
Indebtedness, shall be determined at the actual rates applicable
thereto or which would have been applicable had such debt been
outstanding for the whole such period and shall be included in
determining Consolidated Interest Expense on such Pro Forma Basis) and
all Indebtedness that was outstanding during the Two Quarter
Calculation Period or thereafter and prior to the date of the
Permitted Acquisition but not outstanding on the date of the Permitted
Acquisition shall be deemed to have been repaid in full on the first
day of the Two Quarter Calculation Period; and
(ii) (a) all calculations of Acquired EBITDA (and the other
components of the definition of Consolidated EBITDA included therein)
shall include only the Consolidated EBITDA of the Parent and its
Subsidiaries (and the other components of the definition of Acquired
EBITDA included therein) during the relevant Two Quarter Calculation
Period and shall not include any Acquired EBITDA (or other components)
of the Person or business, division or product line being acquired
pursuant to the Permitted Acquisition unless either (x) such Acquired
EBITDA of the Person or business, division or product line being
acquired has been audited for the entire Four Quarter Calculation
Period by any of the "big five" or (y) in the case of calculations
based on unaudited financial statements,
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(i) adjustments to Acquired EBITDA with respect to each Permitted
Acquisition shall only include (A) immediate cost reductions
associated with overhead eliminations and (B) adjustments to reflect
the Borrower's contractual rates for services (rather than the former
owners' rates) whether additive or deductive to Consolidated EBITDA
and (ii) the Administrative Agent shall be reasonably satisfied with
the amounts of Acquired EBITDA (and the other components) of such
Person or business, division or product line being acquired pursuant
to the respective Permitted Acquisition; provided, however, that so
long as the Borrower has furnished the Administrative Agent all
relevant information with respect to the amount of Acquired EBITDA of
such Person or business, division or product line being acquired
pursuant to the respective Permitted Acquisition, if the
Administrative Agent has not notified the Borrower on or prior to the
fifth day prior to the consummation of the Permitted Acquisition that
the Administrative Agent is not satisfied with the amount of Acquired
EBITDA, the Administrative Agent shall be deemed for purposes of this
clause (ii) to be so satisfied.
"Product Agreements" shall have the meaning provided in the
Intercompany Agreement.
"Property Income" shall mean, with respect to each Real Property, all
rents, income, issues, profits and other benefits now or hereafter received or
collected by or on behalf of the Borrower or any of its Subsidiaries from the
related Real Property or under or in connection with the related Leases,
including, without limitation, all income received from room rentals, food and
beverage operations, vending machines, telecommunications, business center
activities, retail, parking, tenants, transient guests, lessees, licensees and
concessionaires and other persons occupying space at such Real Property and/or
rendering services to such Real Property's occupants and guests.
"Projections" shall have the meaning provided in Section 4.15 but
shall include the projections delivered pursuant to Section 12.18(d) to the
extent required by said Section.
"Qualified Public Offering" means an initial public offering and sale
of Parent Common Stock for cash (i) pursuant to which the Parent and/or selling
stockholders shall receive gross cash proceeds (before deducting underwriter's
discounts and commissions) in an aggregate amount of at least $100,000,000,
(ii) which is underwritten on a firm commitment basis by a nationally
recognized investment banking firm, (iii) in which such Parent Common Stock is
distributed beneficially to at least 100 Persons, and (iv) which is made
pursuant to an effective registration statement on form S-1 under the
Securities Act or any successor form thereto, whether such Parent Common Stock
is registered for sale for the Parents' own account or for the account of any
selling stockholder.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December of each calendar year.
"Quoted Rate" shall mean (a) the offered quotation to first-class
banks in the New York interbank Eurodollar market by the Administrative Agent
for U.S. dollar deposits of amounts in immediately available funds comparable
to the outstanding principal amount of the
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Eurodollar Loan of the Administrative Agent for which an interest rate is then
being determined with maturities comparable to the Interest Period applicable
to such Eurodollar Loan determined as of 10:00 a.m. (New York time) on the date
which is two Business Days prior to the commencement of such Interest Period,
divided (and rounded upward to the next whole multiple of 1/16 of 1%) by (b) a
percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. Section 6901 et seq.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Parent or any
Subsidiary of the Parent of any cash insurance proceeds from key-man life
insurance or liability insurance or insurance payable by reason of theft,
physical destruction or damage or any other similar event with respect to any
properties or assets of the Parent or any Subsidiary of the Parent (including,
without limitation, business interruption insurance).
"Refinance" shall mean, with respect to any then outstanding
Indebtedness, the issuance of Indebtedness issued or given in exchange for, or
the proceeds of which are used to, extend, refinance, renew, replace,
substitute or refund such theretofore outstanding Indebtedness.
"Refinancing" shall mean the refinancing transactions described in
Section 4.17 (including the establishment of the Existing Letter of Credit
Back-Stop Arrangements).
"Refinancing Documents" shall mean all of the agreements, documents
and instruments entered into in connection with the Refinancing (including the
L/C Reimbursement Agreements and the Back-Stop Letter of Credit Agreement).
"Register" shall have its meaning provided in Section 7.16.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation S-X" shall mean Regulation S-X under the Securities
Exchange Act.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
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"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Related Fund" shall mean, with respect to any Bank that is a fund
that invests in loans, any other fund that invests in loans and is managed by
the same investment advisor as such Bank or by an Affiliate of such investment
advisor.
"Release" means disposing, discharging, injecting, spilling, pumping,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing,
pouring and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"Relevant Prepayment Percentage" shall mean (i) with respect to any
repayment required pursuant to Section 3.02(A)(f)(ii), (h), (i) or (j), (I) in
the case of any receipt of proceeds by the Parent or any of its Wholly-Owned
Subsidiaries as contemplated by any such Section, 100% and (II) in the case of
the receipt of proceeds by any Joint Venture that is a Subsidiary of the Parent
as contemplated by any such Section, a percentage equal to the percentage
ownership interest of the Parent and its Wholly-Owned Subsidiaries in such
Joint Venture (based upon their holdings of equity interests in such Joint
Venture) and (ii) with respect to any repayment required pursuant to Section
3.02(A)(f)(i), (I) in the case of any receipt of proceeds by the Parent or any
of its Wholly-Owned Subsidiaries as contemplated by any such Section, 50% and
(II) in the case of the receipt of proceeds by any Joint Venture that is a
Subsidiary of the Parent as contemplated by any such Section, a percentage
equal to the lesser of (x) percentage ownership interest of the Parent and its
Wholly-Owned Subsidiaries in such Joint Venture (based upon their holdings of
equity interests in such Joint Venture) and (y) 50%.
"Reorganization" shall have the meaning provided in Section 4.16(d)
"Replaced Bank" shall have the meaning provided in Section 1.12.
"Replacement Bank" shall have the meaning provided in Section 1.12.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27, or .28 of PBGC Regulation Section 4043.
"Required Acquisition Facility Banks" shall mean Banks the sum of
whose Acquisition Loan Commitments (or after the termination thereof, the sum
of whose Acquisition Loans) represent an amount greater than 50% of the Total
Acquisition Loan Commitment (or, after the Acquisition Loan Termination Date,
the Banks the sum of whose outstanding Acquisition Loans represent an amount
greater that 50% of all outstanding Acquisition Loans made by all Banks).
"Required A Facility Banks" shall mean Banks the sum of whose
outstanding A Term Loans represent an amount greater than 50% of all
outstanding A Term Loans.
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"Required B Facility Banks" shall mean Banks the sum of whose
outstanding B Term Loans represent an amount greater than 50% of the sum of all
outstanding B Term Loans made by all Banks.
"Required Banks" shall mean Banks the sum of whose outstanding A Term
Loans, B Term Loans, C Term Loans, Acquisition Loan Commitments (or after the
termination thereof, outstanding Acquisition Loans), A Revolving Loan
Commitments (or after the termination thereof, outstanding A Revolving Loans
and A Letter of Credit Outstandings) and B Revolving Loan Commitments (or after
the termination thereof, outstanding B Revolving Loans and B Letter of Credit
Outstandings), represent an amount greater than 50% of the sum of all
outstanding A Term Loans, B Term Loans, C Term Loans, the Total Acquisition
Loan Commitment (or after the termination thereof, the sum of the then total
outstanding Acquisition Loans), the Total A Revolving Loan Commitment (or after
the termination thereof, the sum of the then total outstanding A Revolving
Loans and A Letter of Credit Outstandings) and Total B Revolving Loan
Commitment (or after the termination thereof, the sum of the then total
outstanding B Revolving Loans and B Letter of Credit Outstandings).
"Required C Facility Banks" shall mean Banks the sum of whose
outstanding C Term Loans represent an amount greater than 50% of the sum of all
outstanding C Term Loans made by all Banks.
"Restatement Effective Date" shall mean the Second Restatement
Effective Date.
"Retained Excess Cash Flow" shall mean the portion of Excess Cash Flow
of the Parent and its Subsidiaries which is permitted to be retained by the
Parent and its Subsidiaries pursuant to Section 3.02(A)(g).
"Retained Excess Cash Flow Amount" shall initially mean $0, which
amount shall be (x) increased on each Excess Cash Flow Payment Date so long as
any repayment required pursuant to Section 3.02(A)(g) has been made, by an
amount equal to 25% of Excess Cash Flow for the immediately preceding Excess
Cash Flow Payment Period and (y) reduced (i) on each Excess Cash Flow Payment
Date where Excess Cash Flow for the immediately preceding Excess Cash Flow
Payment Period is a negative number, by such amount and (ii) at any time a
Capital Expenditure is made pursuant to Section 8.08(d), by the amount thereof.
"Returns" shall have the meaning provided in Section 6.09.
"Revolving Loans" shall mean and include the A Revolving Loans and the
B Revolving Loans.
"Revolving Loan Commitment" shall mean, for each Bank, its A Revolving
Loan Commitment (if any) and its B Revolving Loan Commitment (if any).
"Revolving Loan Maturity Date" shall mean (i) in the case of A
Revolving Loans and A Letter of Credit Outstandings, the A Revolving Loan
Maturity Date and (ii) in the case of B Revolving Loans and B Letter of Credit
Outstandings, the B Revolving Loan Maturity Date.
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"RL Percentage" of any Bank shall mean and include the A RL Percentage
of such Bank and the B RL Percentage of such Bank.
"Scheduled A Term Loan Repayment" shall have the meaning provided in
Section 3.02(A)(b).
"Scheduled Acquisition Loan Repayment" shall have the meaning provided
in Section 3.02(A)(d).
"Scheduled B Term Loan Repayment" shall have the meaning provided in
Section 3.02(A)(c).
"Scheduled C Term Loan Repayment" shall have the meaning provided in
Section 3.02(A)(e).
"Scheduled Repayment" shall have the meaning provided in Section
3.02(A)(e).
"SEC" shall have the meaning provided in Section 7.01(h).
"Second Amended and Restated Credit Agreement" shall have the meaning
provided in the first WHEREAS clause of this Agreement.
"Second Restatement Effective Date" shall mean the Restatement
Effective Date under, and as defined in, the Second Amended and Restated Credit
Agreement.
"Second-Step Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of May 31, 2000, among HQ (as the surviving corporation of the
HQ Merger), the Parent and Merger Sub 2, as the same may be amended, modified
or supplemented from time to time in accordance with the terms hereof and
thereof.
"Second-Step Merger" shall mean the merger of HQ (as the surviving
corporation of the HQ Merger) with and into Merger Sub 2, with Merger Sub 2 as
the surviving corporation of such merger, pursuant to and in accordance with
the Second-Step Merger Agreement.
"Section 3.04(b)(ii) Certificate" shall have the meaning provided in
Section 3.04(b)(ii).
"Secured Creditors" shall mean (x) the Banks, the Agents, the
Collateral Agent and (y) any Bank or any Affiliate of a Bank which on the date
hereof is, or subsequently becomes, party to any Interest Rate Protection or
Other Hedging Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section 4.08.
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"Security Agreement Collateral" shall mean and include all
"Collateral" as defined in the Security Agreement.
"Security Documents" shall mean and include each of the Pledge
Agreement, the Security Agreement, the Concentration Account Consent Letter,
each Lockbox Agreement, the Subordination Agreement, each Additional Security
Document and each other pledge agreement or security agreement entered into in
accordance with the requirements of Section 8.18.
"Seller Preferred Stock" shall mean any preferred stock of the Parent,
the express terms of which shall provide that dividends thereon shall not be
required to be paid at any time (and to the extent) that such payment would be
prohibited by the terms of this Agreement or any other agreement of the Parent
or any of its Subsidiaries relating to outstanding indebtedness and which, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event (including any
change of control event), cannot mature (excluding any maturity as the result
of an optional redemption by the issuer thereof) and is not mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, and is not
redeemable, or required to be repurchased, at the sole option of the holder
thereof (including, without limitation, upon the occurrence of an change of
control event), in whole or in part, on or prior to the tenth anniversary of
the date of issuance of such Seller Preferred Stock.
"Senior Leverage Ratio" shall mean, as at any date of determination,
the ratio of Total Senior Indebtedness at such time to Consolidated EBITDA for
the Test Period most recently ended prior to such date of determination.
"Senior Subordinated Bridge Loans" shall mean the Bridge Loans
incurred by the Borrower pursuant to, and as defined in, the Senior
Subordinated Credit Agreement.
"Senior Subordinated Credit Agreement" shall mean that certain Senior
Subordinated Credit Agreement, dated as of May 31, 2000, relating to the Senior
Subordinated Bridge Loans described therein, among the Parent, the Borrower,
various Subsidiary Guarantors, various lenders, UBS Warburg LLC, as arranger
and syndication agent, and UBS, Stamford Branch, as administrative agent, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Senior Subordinated Credit Documents" shall mean the Senior
Subordinated Credit Agreement and each other agreement, document, note or
instrument relating to the incurrence of the Senior Subordinated Bridge Loans,
as the same may be amended, modified or supplemented from time to time pursuant
to the terms hereof and thereof.
"Shareholders' Agreements" shall have the meaning provided in Section
4.05.
"Start-Up Costs" shall mean expenditures incurred by the Borrower or
any of its Subsidiaries for fixturing, security deposits to landlords and
working capital in connection with the opening of new executive office suite
centers.
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"Stated Amount" of each Letter of Credit shall, at any time, mean the
maximum amount available to be drawn thereunder at such time (in each case
determined without regard to whether any conditions to drawing could then be
met).
"Subordination Agreement" shall have the meaning provided in Section
4.19.
"Subsidiaries Guaranty" shall have the meaning provided in Section
4.09 but in any event shall include any guaranty entered into by any Subsidiary
of the Borrower in accordance with the requirements of Section 8.18.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person, (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time and (iii) any partnership or limited liability company in which such
Person is the general partner or manager.
"Subsidiary Guarantor" shall mean each Subsidiary of the Borrower
which is or becomes a party to the Subsidiaries Guaranty.
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement but in any event shall include any guaranty entered
into by any Subsidiary of the Borrower in accordance with the requirements of
Section 8.18.
"Syndication Termination Date" shall mean the earlier of (x) 120 days
after the Third Restatement Effective Date or (y) the date on which the
Administrative Agent, in its sole discretion, determines (and notifies the
Borrower) that the primary syndication (and the resultant addition of
institutions as Banks pursuant to Section 12.04) has been completed.
"Tax Sharing Agreements" shall have the meaning provided in Section
4.05.
"Taxes" shall have the meaning provided in Section 3.04(a).
"Tenant Deposits" shall mean deposits made by the Parent or any of its
Subsidiaries with landlords under Master Leases to secure the performance of
the Parent or any of its Subsidiaries under such Master Leases.
"Term Loan Commitment" shall mean each C Term Loan Commitment, with
the Term Loan Commitment of any Bank at any time to equal the sum of its C Term
Loan Commitment as then in effect.
"Term Loans" shall mean the A Term Loans, the B Term Loans and the C
Term Loans.
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"Test Period" shall mean each period of two consecutive fiscal
quarters then last ended, in each case taken as one accounting period; provided
that for purposes of any determination of compliance with Section 8.09, 8.10,
8.11, 8.12 or 8.13 or of the Total Leverage Ratio for the fiscal quarter ended
September 30, 2000, the term "Test Period" shall mean the period commencing
June 30, 2000 and ending on September 30, 2000, taken as one accounting period.
"Third Restatement Effective Date" shall have the meaning provided in
Section 12.10.
"Total A Revolving Loan Blocked Commitment" shall mean, on any date of
determination, the Total A Revolving Loan Commitment; provided that the Total A
Revolving Loan Blocked Commitment as in effect on any date shall be (x) reduced
by the Permitted Revolving A Borrowing Amount specified by the Borrower in each
A Revolving Facility Compliance Certificate delivered on or prior to such date
and (y) increased by the sum of (i) the aggregate principal amount of all A
Revolving Loans repaid after the Third Restatement Effective Date and prior to
such date and (ii) the aggregate Stated Amounts of all A Letters of Credit
which have expired or terminated after the Third Restatement Effective Date and
prior to such date.
"Total A Revolving Loan Commitment" shall mean, at any time, the sum
of the A Revolving Loan Commitments of each of the Banks at such time.
"Total Acquisition Loan Commitment" shall mean, at any time, the sum
of the Acquisition Loan Commitments of each of the Banks.
"Total Available A Revolving Loan Commitment" shall mean, at any time,
an amount equal to the remainder of (i) the Total A Revolving Loan Commitment
minus (ii) the Total A Revolving Loan Blocked Commitment in effect at such
time.
"Total B Revolving Loan Commitment" shall mean, at any time, the sum
of the B Revolving Loan Commitments of each of the Banks at such time.
"Total C Term Loan Commitment" shall mean, at any time, the sum of the
C Term Loan Commitments of each of the Banks.
"Total Commitment" shall mean, at any time, the sum of the Commitments
of each of the Banks.
"Total Leverage Ratio" shall mean, as at any date of determination,
the ratio of Consolidated Indebtedness at such time to Consolidated EBITDA for
the Test Period most recently ended prior to such date of determination.
"Total Revolving Loan Commitment" shall mean, at any time, the sum of
the Total A Revolving Loan Commitment and the Total B Revolving Loan
Commitment, in each case as then in effect.
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"Total Senior Indebtedness" shall mean, at any time, the remainder of
(x) Consolidated Indebtedness at such time less (y) the sum of (i) the
aggregate outstanding principal amount of the Senior Subordinated Bridge Loans
at such time, (ii) the aggregate outstanding principal amount of the Permitted
Subordinated Refinancing Indebtedness at such time and (iii) the aggregate
outstanding principal amount of the Mezzanine Subordinated Notes at such time.
"Total Unutilized A Revolving Loan Commitment" shall mean, at any
time, an amount equal to the remainder of (x) the then Total A Revolving Loan
Commitment, less (y) the sum of (i) the aggregate principal amount of A
Revolving Loans then outstanding and (ii) the then aggregate amount of A Letter
of Credit Outstandings.
"Total Unutilized Acquisition Loan Commitment" shall mean, at any
time, an amount equal to the remainder of (x) the then Total Acquisition Loan
Commitment less (y) the aggregate principal amount of Acquisition Loans then
outstanding.
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
an amount equal to the remainder of (x) the then Total Revolving Loan
Commitment, less (y) the sum of (i) the aggregate principal amount of all
Revolving Loans then outstanding and (ii) the then aggregate amount of all
Letter of Credit Outstandings.
"Tranches" shall mean the respective facilities in respect of which
Loans are made hereunder, with there being six separate Tranches, i.e., whether
A Term Loans, B Term Loans, C Term Loans, Acquisition Loans, A Revolving Loans
or B Revolving Loans.
"Transaction" shall mean, collectively, (i) the occurrence of the
Third Restatement Effective Date, (ii) the entering into of the Credit
Documents and the incurrence of Loans on the Third Restatement Effective Date,
(iii) the consummation Acquisitions, (iv) the consummation of the Preferred
Equity Financing, (v) the incurrence of the Senior Subordinated Bridge Loans,
(vi) the consummation of the HQ Equity Rollover, (vii) the consummation of the
Refinancing, (viii) the consummation of the FrontLine Transaction Contribution
and (ix) the payment of all fees and expenses in connection with the foregoing.
"Transaction Fees and Expenses" shall mean all fees and expenses
incurred in connection with and arising out of the Transaction and the
transactions contemplated thereby and hereby; provided, however, that the
aggregate amount of such fees and expenses shall not exceed $38.2 million in
the aggregate.
"Two Quarter Calculation Period" shall mean, with respect to any
Permitted Acquisition, the period of two consecutive fiscal quarters (taken as
one accounting period and including any fiscal quarter ending prior to the
Third Restatement Effective Date) most recently ended prior to the date of the
consummation of such Permitted Acquisition.
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
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"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"UK/Lux Acquisition" shall have the meaning provided in Section
4.16(c).
"UK/Lux Stock Purchase Agreement" shall mean the Stock Purchase
Agreement, dated as of January 20, 2000, among CarrAmerica, Omni UK, Omni Lux,
Vantas and FrontLine, as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which value of the accumulated plan benefits under the Plan determined
on a plan termination basis in accordance with actuarial assumptions at such
time consistent with those prescribed by the PBGC for purposes of Section 4044
of ERISA, exceeds the fair market value of all plan assets allocable to such
liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions).
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawings" shall mean and include each A Unpaid Drawing and
each B Unpaid Drawing.
"Unutilized A Revolving Loan Commitment" for any Bank, at any time,
shall mean the A Revolving Loan Commitment of such Bank at such time less the
sum of (i) the aggregate principal amount of A Revolving Loans made by such
Bank and then outstanding and (ii) such Bank's A RL Percentage of the A Letter
of Credit Outstandings.
"Unutilized Acquisition Loan Commitment" for any Bank, at any time,
shall mean the Acquisition Loan Commitment of such Bank at such time less the
aggregate principal amount of Acquisition Loans made by such Bank and then
outstanding.
"Unutilized B Revolving Loan Commitment" for any Bank, at any time,
shall mean the B Revolving Loan Commitment of such Bank at such time less the
sum of (i) the aggregate principal amount of B Revolving Loans made by such
Bank and then outstanding and (ii) such Bank's B RL Percentage of the B Letter
of Credit Outstandings.
"Vantas" shall mean VANTAS Incorporated, a Nevada corporation.
"Waivable Mandatory Repayment" shall have the meaning provided in
Section 3.02(C).
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, limited liability company, association, joint venture or other
entity in which such Person and/or one or more Wholly-Owned Subsidiaries of
such Person has a 100% equity interest at such time.
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Section 11. The Agents.
11.01 Appointment. The Banks hereby designate Paribas as
Administrative Agent (for purposes of this Section 11, the term "Administrative
Agent" shall include Paribas in its capacity as Collateral Agent pursuant to
the Security Documents and as Arranger), ING (U.S.) Capital LLC as Managing
Agent, Bankers Trust Company as Syndication Agent and Citicorp Real Estate,
Inc. as Documentation Agent to act as specified herein and in the other Credit
Documents. Each Bank hereby irrevocably authorizes, and each holder of any Note
by the acceptance of such Note shall be deemed irrevocably to authorize, each
Agent to take such action on its behalf under the provisions of this Agreement,
the other Credit Documents and any other instruments and agreements referred to
herein or therein and to exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated to or required of such
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. Each Agent may perform any of its duties hereunder by or
through its officers, directors, agents or employees.
11.02 Nature of Duties. No Agent shall have any duties or
responsibilities except those expressly set forth in this Agreement and in the
other Credit Documents. Neither any Agent nor any of its officers, directors,
agents or employees shall be liable for any action taken or omitted by it or
them hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful
misconduct. The duties of each Agent shall be mechanical and administrative in
nature; no Agent shall have by reason of this Agreement or any other Credit
Document a fiduciary relationship in respect of any Bank or the holder of any
Note; and nothing in this Agreement or any other Credit Document, expressed or
implied, is intended to or shall be so construed as to impose upon any Agent
any obligations in respect of this Agreement or any other Credit Document
except as expressly set forth herein.
11.03 Lack of Reliance on the Agents. Independently and without
reliance upon any Agent, each Bank and the holder of each Note, to the extent
it deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the Parent
and its Subsidiaries in connection with the making and the continuance of the
Loans and the participation in Letters of Credit and the taking or not taking
of any action in connection herewith and (ii) its own appraisal of the
creditworthiness of the Parent and its Subsidiaries and, except as expressly
provided in this Agreement, no Agent shall have any duty or responsibility,
either initially or on a continuing basis, to provide any Bank or the holder of
any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans, the participation in
the Letters of Credit or at any time or times thereafter. No Agent shall be
responsible to any Bank or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
priority or sufficiency of this Agreement or any other Credit Document or the
financial condition of the Parent or its Subsidiaries or be required to make
any inquiry concerning either the performance or observance of any of the
terms, provisions or conditions of this Agreement or any other Credit Document,
or the financial condition of the Parent or its Subsidiaries or the existence
or possible existence of any Default or Event of Default.
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11.04 Certain Rights of the Agents. If any Agent shall request
instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other
Credit Document, such Agent shall be entitled to refrain from such act or
taking such action unless and until such Agent shall have received instructions
from the Required Banks; and such Agent shall not incur liability to any Person
by reason of so refraining. Without limiting the foregoing, no Bank or the
holder of any Note shall have any right of action whatsoever against any Agent
as a result of such Agent acting or refraining from acting hereunder or under
any other Credit Document in accordance with the instructions of the Required
Banks.
11.05 Reliance. Each Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or facsimile message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that such Agent believed to be the proper Person, and, with respect
to all legal matters pertaining to this Agreement and any other Credit Document
and its duties hereunder and thereunder, upon advice of counsel selected by it.
11.06 Indemnification. (a) To the extent any Agent is not reimbursed
and indemnified by the Parent or the Borrower, the Banks will reimburse and
indemnify such Agent, in proportion to their respective "percentages" as used
in determining the Required Banks, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses or disbursements of whatsoever kind or nature which may be
imposed on, asserted against or incurred by such Agent in performing its duties
hereunder or under any other Credit Document, in any way relating to or arising
out of this Agreement or any other Credit Document; provided that no Bank shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent's gross negligence or willful misconduct.
(b) Each Agent shall be fully justified in failing or refusing to take
any action hereunder and under any other Credit Document (except actions
expressly required to be taken by it hereunder or under the Credit Documents)
unless it shall first be indemnified to its satisfaction by the Banks pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
11.07 Each Agent in Its Individual Capacity. With respect to its
obligation to make Loans under this Agreement, each Agent shall have the rights
and powers specified herein for a "Bank" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Banks," "Required Banks," "holders of Notes" or any similar terms shall,
unless the context clearly otherwise indicates, include such Agent in its
individual capacity. Each Agent and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with any Credit Party or any Affiliate of any Credit Party as if it
were not performing the duties specified herein, and may accept fees and other
consideration from the Borrower or any other Credit Party for services in
connection with this Agreement and may purchase and hold equity interests in
the Parent or any other Credit Party without having to account for the same to
the Banks and otherwise without having to account for the same to the Banks.
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11.08 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or indorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
11.09 Resignation by the Agents. (a) The Administrative Agent may
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 15 Business Days' prior
written notice to the Borrower and the Banks. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower (it
being understood and agreed that any Bank is deemed to be acceptable to the
Borrower).
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with
the consent of the Borrower, shall then appoint a successor Administrative
Agent who shall serve as Administrative Agent hereunder or thereunder until
such time, if any, as the Banks appoint a successor Administrative Agent as
provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Banks shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Banks appoint a successor
Administrative Agent as provided above.
(e) The Syndication Agent may resign from the performance of all its
functions and duties hereunder and/or under the other Credit Documents at any
time by giving five Business Days' prior written notice to the Banks. Such
resignation shall take effect at the end of such five Business Day period. Upon
the effectiveness of the resignation of the Syndication Agent, the
Administrative Agent shall assume all of the functions and duties of the
Syndication Agent hereunder and/or under the other Credit Documents.
(f) The Documentation Agent may resign from the performance of all its
functions and duties hereunder and/or under the other Credit Documents at any
time by giving five Business Days' prior written notice to the Banks. Such
resignation shall take effect at the end of such five Business Day period. Upon
the effectiveness of the resignation of the Documentation Agent, the
Administrative Agent shall assume all of the functions and duties of the
Documentation Agent hereunder and/or under the other Credit Documents.
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(g) Upon a resignation of any Agent pursuant to this Section 11.09,
such Agent shall remain indemnified to the extent provided in this Agreement
and the other Credit Documents and the provisions of this Section 11 shall
continue in effect for the benefit of such Agent for all of its actions and
inactions while serving as such Agent.
11.10. Collateral Matters; Special Authorizations. (a) Each Bank
authorizes and directs the Collateral Agent to enter into the Security
Documents for the benefit of the Banks and the other Secured Creditors. Each
Bank hereby agrees, and each holder of any Note or participant in Letters of
Credit by the acceptance thereof will be deemed to agree, that, except as
otherwise set forth herein, any action taken by the Required Banks in
accordance with the provisions of this Agreement or the Security Documents, and
the exercise by the Required Banks of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Banks. The Administrative Agent is
hereby authorized on behalf of all the Banks, without necessity of further
consent from any Bank, to execute and deliver any Mezzanine Subordinated Note
Document governing intercreditor matters entered into in accordance with the
terms hereof and requiring by its express terms the execution or acknowledgment
of the Administrative Agent and (ii) any escrow or similar agreement
contemplated to be entered into in connection with the Transaction by any of
the Documents. The Collateral Agent is hereby authorized on behalf of all of
the Banks, without the necessity of any notice to or further consent from any
Bank, from time to time prior to an Event of Default, to take any action with
respect to any Collateral or Security Documents which may be necessary to
perfect and maintain perfected the security interest in and liens upon the
Collateral granted pursuant to the Security Documents.
(b) The Banks hereby authorize the Collateral Agent, at its option and
in its discretion, to release any Lien granted to or held by the Collateral
Agent upon any Collateral (i) upon termination of the Commitments and payment
and satisfaction of all of the Obligations at any time arising under or in
respect of this Agreement or the Credit Documents or the transactions
contemplated hereby or thereby, (ii) constituting property being sold or
disposed of (to Persons other than the Parent and its Subsidiaries) upon the
sale thereof in compliance with Section 8.02 or (iii) if approved, authorized
or ratified in writing by the Required Banks (unless such release is required
to be approved by all of the Banks hereunder). Upon request by the
Administrative Agent at any time, the Banks will confirm in writing the
Collateral Agent's authority to release particular types or items of Collateral
pursuant to this Section 11.10.
(c) Upon any sale and transfer of Collateral which is expressly
permitted pursuant to the terms of this Agreement, or consented to in writing
by the Required Banks, or all of the Banks, as applicable, and upon at least
five (5) Business Days' (or such shorter period as is acceptable to the
Collateral Agent) prior written request by the Parent, the Collateral Agent
shall (and is hereby irrevocably authorized by the Banks to) execute such
documents as may be necessary to evidence the release of the Liens granted to
the Collateral Agent for the benefit of the Banks herein or pursuant hereto
upon the Collateral that was sold or transferred, provided, that (i) the
Collateral Agent shall not be required to execute any such document on terms
which, in the Collateral Agent's opinion, would expose the Collateral Agent to
liability or create any obligation or entail any consequence other than the
release of such Liens without recourse, representation or warranty and (ii)
such release shall not in any manner discharge, affect or
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impair the Obligations or any Liens upon (or obligations of the Parent or any
of its Subsidiaries in respect of) all interests retained by the Parent or any
of its Subsidiaries, including, without limitation, the proceeds of the sale,
all of which shall continue to constitute part of the Collateral. In the event
of any foreclosure or similar enforcement action with respect to any of the
Collateral, the Collateral Agent shall be authorized to deduct all of the costs
and expenses reasonably incurred by the Collateral Agent from the proceeds of
any such sale, transfer or foreclosure.
(d) The Collateral Agent shall have no obligation whatsoever to the
Banks or to any other Person to assure that the Collateral exists or is owned
by the Parent or any of its Subsidiaries or is cared for, protected or insured
or that the Liens granted to the Collateral Agent herein or pursuant hereto
have been properly or sufficiently or lawfully created, perfected, protected or
enforced or are entitled to any particular priority, or to exercise or to
continue exercising at all or in any manner or under any duty of care,
disclosure or fidelity any of the rights, authorities and powers granted or
available to the Collateral Agent in this Section 11.10 or in any of the
Security Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Collateral Agent
may act in any manner it may deem appropriate, in its sole discretion, given
the Collateral Agent's own interest in the Collateral as one of the Banks and
that the Collateral Agent shall have no duty or liability whatsoever to the
Banks, except for its gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final and non-appealable decision).
11.11. Delivery of Information. The Administrative Agent shall not be
required to deliver to any Bank originals or copies of any documents,
instruments, notices, communications or other information received by the
Administrative Agent from the Parent, any Subsidiary, the Required Banks, any
Bank or any other Person under or in connection with this Agreement or any
other Credit Document except (i) as specifically provided in this Agreement or
any other Credit Document and (ii) as specifically requested from time to time
in writing by any Bank with respect to a specific document, instrument, notice
or other written communication received by and in the possession of the
Administrative Agent at the time of receipt of such request and then only in
accordance with such specific request.
Section 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower, agrees to: (i) whether
or not the transactions herein contemplated are consummated, pay all reasonable
out-of- pocket costs and expenses of the Agents and the Collateral Agent
(including, without limitation, the reasonable fees and disbursements of White
& Case LLP) in connection with the preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto, of each Agent in connection with its syndication efforts
with respect to this Agreement (including, without limitation, the reasonable
fees and disbursements of White & Case LLP) and of each Agent, the Collateral
Agent and each of the Banks in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable
fees and disbursements of counsel for each of the Agents and for each of the
Banks); (ii) pay and hold each Agent, the Collateral Agent and each of the
Banks harmless from and against any and all present and future stamp, excise
and
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other similar taxes with respect to the foregoing matters and save each Agent,
the Collateral Agent and each of the Banks harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Agent, the Collateral Agent or such
Bank) to pay such taxes; and (iii) defend, protect, indemnify and hold harmless
each Agent, the Collateral Agent and each Bank, and each of their respective
officers, directors, employees, representatives, attorneys and agents
(collectively, called the "Indemnitees") from and against any and all
liabilities, obligations (including removal or remedial actions), losses,
damages (including foreseeable and unforeseeable consequential damages and
punitive damages), penalties, claims, actions, judgments, suits, costs,
expenses and disbursements (including reasonable attorneys' and consultants
fees and disbursements) of any kind or nature whatsoever that may at any time
be incurred by, imposed on or assessed against the Indemnitees directly or
indirectly based on, or arising or resulting from, or in any way related to, or
by reason of (a) any investigation, litigation or other proceeding (whether or
not any Agent, the Collateral Agent or any Bank is a party thereto and whether
or not any such investigation, litigation or other proceeding is between or
among any Agent, the Collateral Agent, any Bank, the Parent or any third person
or otherwise) related to the entering into and/or performance of this Agreement
or any other Credit Document or the use of any Letter of Credit or the proceeds
of any Loans hereunder or the consummation of any transactions contemplated
herein (including, without limitation, the Transaction) or in any other Credit
Document or the exercise of any of their rights or remedies provided herein or
in the other Credit Documents; or, (b) the actual or alleged generation,
presence or Release of Hazardous Materials on or from, or the transportation of
Hazardous Materials to or from, any Real Property owned or at any time operated
by the Parent or any of its Subsidiaries or; (c) any Environmental Claim
relating to the Parent or any of its Subsidiaries or any Real Property owned or
at any time operated by the Parent or any of its Subsidiaries or; (d) the
exercise of the rights of any Agent, the Collateral Agent and any Bank under
any of the provisions of this Agreement or any other Credit Document or any
Letter of Credit or any Loans hereunder; or (e) the consummation of any
transaction contemplated herein (including, without limitation, the
Transaction) or in any other Credit Document (the "Indemnified Matters")
regardless of when such Indemnified Matter arises, but excluding any such
Indemnified Matter based the gross negligence or willful misconduct of any
Indemnitee.
12.02 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Agent and each Bank is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to
any Credit Party or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general
or special) and any other Indebtedness at any time held or owing by such Agent
or such Bank (including, without limitation, by branches and agencies of such
Bank wherever located) to or for the credit or the account of each Credit Party
against and on account of the Obligations and liabilities of such Credit Party
to such Agent or such Bank under this Agreement or under any of the other
Credit Documents, including, without limitation, all interests in Obligations
purchased by such Bank pursuant to Section 12.06(b), and all other claims of
any nature or description arising out of or connected with this Agreement or
any other Credit Document, irrespective of whether or not
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such Bank shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
12.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to the Parent or the
Borrower, at its address specified opposite its signature below; if to any
Bank, the Syndication Agent or the Documentation Agent, at its address
specified opposite its name below; and if to the Administrative Agent, at its
Notice Office; or, as to any Credit Party or the Administrative Agent, at such
other address as shall be designated by such party in a written notice to the
other parties hereto and, as to each Bank, the Syndication Agent or the
Documentation Agent, at such other address as shall be designated by such Bank
or such Agent in a written notice to the Borrower and the Administrative Agent.
All such notices and communications shall, when mailed, telegraphed, telexed,
facsimiled, or cabled or sent by overnight courier, be effective 3 Business
Days after deposited in the mails, certified, return receipt requested, when
delivered to the telegraph company, cable company or one day following delivery
to an overnight courier, as the case may be, or sent by telex or facsimile
device, except that notices and communications to any Agent shall not be
effective until received by such Agent.
12.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, no Credit Party may assign or
transfer any of its rights, obligations or interest hereunder or under any
other Credit Document without the prior written consent of the Banks; and
provided further, that although any Bank may transfer, assign or grant
participations in its rights hereunder, such Bank shall remain a "Bank" for all
purposes hereunder (and may not transfer or assign all or any portion of its
Commitments or Loans hereunder except as provided in Section 12.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
"Bank" hereunder; and provided further, that no Bank shall transfer or grant
any participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the relevant Maturity Date therefor) in which such
participant is participating, or reduce the rate or extend the time of payment
of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the Commitments in which such participant
is participating over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default or of a mandatory reduction in
the Total Commitment shall not constitute a change in the terms of any
Commitment, and that an increase in any Commitment shall be permitted without
the consent of any participant if the participant's participation is not
increased as a result thereof), (ii) consent to the assignment or transfer by
any Credit Party of any of its rights and obligations under this Agreement or
(iii) release all or substantially all of the Collateral under all of the
Security Documents (except as expressly provided in the Credit Documents)
supporting the Loans hereunder in which such participant is participating. In
the case of any such participation, the participant shall not have any rights
under this Agreement or any of the other Credit Documents (the participant's
rights against such Bank
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in respect of such participation to be those set forth in the agreement
executed by such Bank in favor of the participant relating thereto) and all
amounts payable by the Borrower hereunder shall be determined as if such Bank
had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together with
one or more other Banks) may (x) (A) pledge its Loans and/or Notes hereunder to
a Federal Reserve Bank in support of borrowings made by such Bank from such
Federal Reserve Bank, (B) at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Bank, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, (or in the case of a Bank that is an investment fund, to
the trustee under the indenture to which such fund is a party) and this Section
shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Bank from any of its obligations hereunder or substitute any such pledgee or
assignee for such Bank as a party hereto, or (C) assign all or a portion of its
Loans or Commitments and related outstanding Obligations hereunder to its
parent company, principal office and/or any Affiliate of such Bank or one or
more other Banks or to a Related Fund or (y) assign all or a portion equal to
at least $2,500,000 (or lesser amount if the Bank is pledging or assigning to a
Related Fund), of such Loans or Commitments and related outstanding Obligations
hereunder to one or more Eligible Transferees each of which assignees shall
become a party to this Agreement as a Bank by execution of an assignment and
assumption agreement substantially in the form of Exhibit K (appropriately
completed); provided that: (i) at such time Schedule I shall be deemed modified
to reflect the Commitments of such new Bank and of the existing Banks; (ii) new
Notes will be issued to such new Bank and to the assigning Bank upon the
request of such new Bank or assigning Bank, such new Notes to be in conformity
with the requirements of Section 1.05 to the extent needed to reflect the
revised Commitments; (iii) the consent of the Administrative Agent shall be
required in connection with any assignment (provided, however, that no such
consent by the Administrative Agent shall be required in the case of any
assignment to another Bank's Related Fund); (iv) the consent of the Borrower
shall be required in connection with any assignment (which consent shall not be
unreasonably withheld); provided, however, no such consent by the Borrower
shall be required in connection with any assignment pursuant to clause (x)
above and no such consent shall be required if a Default or Event of Default
has occurred and (v) the Administrative Agent shall receive at the time of each
such assignment, from the assigning Bank, the payment of a non-refundable
assignment fee of $3,500 (provided, however, that any fee shall be waived upon
a pledge or assignment to a Related Fund). To the extent of any assignment
pursuant to this Section 12.04(b), the assigning Bank shall be relieved of its
obligations hereunder with respect to its assigned Commitments. No transfer or
assignment under this Section 12.04(b) will be effective until recorded by the
Administrative Agent on the Register pursuant to Section 7.16. At the time of
each assignment pursuant to this Section 12.04(b) to a Person which is not
already a Bank hereunder and which is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes,
the respective assignee Bank shall provide to the Borrower, and the
Administrative Agent the appropriate Internal Revenue Service Forms (and, if
applicable, a Section 3.04(b)(ii) Certificate) required by Section 3.04(b). In
connection with any assignment prior to the Syndication Termination Date, the
Borrower agrees to pay all amounts to the assignee Bank which the Borrower
would be obligated to pay in
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accordance with Section 1.11 if such assignment was instead a repayment of
Loans by the Borrower on other than the last day of an Interest Period.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of any Agent, the Collateral Agent, any Issuing Bank or any Bank or any holder
of any Note in exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between a Borrower or any other
Credit Party and any Agent, the Collateral Agent, any Issuing Bank or any Bank
or the holder of any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which any Agent, the Collateral Agent, any Issuing Bank or any Bank or the
holder of any Note would otherwise have. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the
rights of any Agent, the Collateral Agent, any Issuing Bank or any Bank or the
holder of any Note to any other or further action in any circumstances without
notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of the Borrower in
respect of any Obligations hereunder, it shall distribute such payment to the
Banks pro rata based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Except in accordance with Section 3.02(C), each of the Banks
agrees that, if it should receive any amount hereunder (whether by voluntary
payment, by realization upon security, by the exercise of the right of setoff
or banker's lien, by counterclaim or cross action, by the enforcement of any
right under the Credit Documents, or otherwise), which is applicable to the
payment of the principal of, or interest on, the Loans, Unpaid Drawings or
Fees, of a sum which with respect to the related sum or sums received by other
Banks is in a greater proportion than the total of such Obligation then owed
and due to such Bank bears to the total of such Obligation then owed and due to
all of the Banks immediately prior to such receipt, then such Bank receiving
such excess payment shall purchase for cash without recourse or warranty from
the other Banks an interest in the Obligations of the respective Credit Party
to such Banks in such amount as shall result in a proportional participation by
all the Banks in such amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
12.07 Calculations; Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with generally accepted accounting principles in the United States consistently
applied throughout the periods involved (except as set forth in the notes
thereto or as otherwise disclosed in writing by the Borrower to the Banks);
provided that, except as otherwise specifically provided herein, all
computations of Excess Cash Flow and all computations determining compliance
with Sections 8.04 and 8.08 through 8.13, inclusive, including the definitions
used therein, shall utilize accounting principles
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and policies in conformity with those used to prepare the historical financial
statements for the fiscal year ended December 31, 1999 delivered to the Banks
pursuant to Section 4.15(a).
(b) All computations of interest and Fees hereunder shall be made on
the basis of a year of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or Fees are payable.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF EXCEPT AS OTHERWISE SPECIFIED
IN SUCH DOCUMENTS. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARENT AND
THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE PARENT AND THE BORROWER HEREBY IRREVOCABLY
DESIGNATES, APPOINTS AND EMPOWERS CORPORATION SERVICE COMPANY WITH OFFICES ON
THE DATE HEREOF AT 000 XXXXXXX XXXXXX, XXXXXX, XXX XXXX 00000-0000 AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS
BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS,
SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR
PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO
BE AVAILABLE TO ACT AS SUCH, EACH OF THE PARENT AND THE BORROWER AGREES TO
DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT ON THE TERMS AND FOR THE PURPOSES
OF THIS PROVISION SATISFACTORY TO THE AGENT UNDER THIS AGREEMENT. EACH OF THE
PARENT AND THE BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
EACH OF THE PARENT AND THE BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT, THE COLLATERAL AGENT, ANY
ISSUING BANK, ANY BANK OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST ANY CREDIT PARTY IN ANY OTHER JURISDICTION.
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(b) EACH OF THE PARENT AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Parent, the
Borrower and the Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective on the date
(the "Third Restatement Effective Date") on which (i) the Parent, the Borrower,
each Agent, each Bank with a C Term Loan Commitment, each Bank with a B
Revolving Loan Commitment, and the Required Banks (determined immediately
before the occurrence of the Third Restatement Effective Date and without
giving effect thereto) shall have signed a copy hereof (whether the same or
different copies) and shall have delivered the same to the Administrative Agent
at its Notice Office or, in the case of the Banks, shall have given to the
Administrative Agent telephonic (confirmed in writing), written or facsimile
transmission notice (actually received) in accordance with Section 12.03 at
such office that the same has been signed and mailed to it and (ii) the
conditions contained in Sections 4 and 5 are met to the satisfaction of the
Agents and the Required Banks (determined immediately after the occurrence of
the Third Restatement Effective Date). Unless the Administrative Agent has
received actual notice from any Bank that the conditions contained in Sections
4 and 5 have not been met to its satisfaction, upon the satisfaction of the
condition described in clause (i) of the immediately preceding sentence and
upon the Administrative Agent's good faith determination that the conditions
described in clause (ii) of the immediately preceding sentence have been met,
then the Third Restatement Effective Date shall have been deemed to have
occurred, regardless of any subsequent determination that one or more of the
conditions thereto had not been met (although the occurrence of the Third
Restatement Effective Date shall not release the Borrower from any liability
for failure to satisfy one or more of the applicable conditions contained in
Section 4 or 5). To the extent any Banks under and as defined in the Second
Amended and Restated Credit Agreement shall have any rights thereunder with
respect to matters occurring prior to the Third Restatement Effective Date
(including without limitation as to obligations with respect to loans
outstanding thereunder, interest or fees owing thereunder or any costs under
Sections 1.10, 1.11, 1A.06 or 3.04 of the
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Second Amended and Restated Credit Agreement), neither the Third Restatement
Effective Date or the repayment of any amounts owing to such Banks shall limit
or otherwise affect any of such Banks' rights under the Second Amended and
Restated Credit Agreement and such Banks' rights shall remain in full force and
effect as if the Third Restatement Effective Date has not occurred with respect
to matters occurring prior to the Third Restatement Effective Date.
12.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.
12.12 Amendment or Waiver. (a) Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination
is in writing signed by the respective Credit Parties party thereto and the
Required Banks; provided that no such change, waiver, discharge or termination
shall, without the consent of each Bank (with Obligations of the respective
types being directly affected thereby): (i) extend the final scheduled maturity
of any Loan or Note beyond the applicable Maturity Date or extend the stated
maturity of any Letter of Credit beyond the Revolving Loan Maturity Date, or
reduce the rate or extend the time of payment of interest or Fees thereon
(except in connection with a waiver of applicability of any post-default
increase in interest rates), or reduce the principal amount thereof, or
increase the Commitments of any Bank over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Commitment or a mandatory prepayment shall not
constitute an increase of the Commitment of any Bank, and that an increase in
the available portion of any Commitment of any Bank shall not constitute an
increase in the Commitment of such Bank); (ii) release all or substantially all
of the Collateral (except as expressly provided in the respective Credit
Document); (iii) amend, modify or waive any provision of this Section 12.12;
(iv) reduce the percentage specified in, or otherwise modify, the definition of
Required Banks (it being understood that, with the consent of the Required
Banks, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Banks on substantially the same
basis as the extensions of A Term Loans, B Term Loans, Acquisition Loans,
Acquisition Loan Commitments and Revolving Loan Commitments are included on the
Restatement Effective Date); or (v) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement;
provided further, that no such change, waiver, discharge or termination shall:
(t) increase the Commitments of any Bank over the amount thereof then in effect
(it being understood that a waiver of any conditions precedent, covenants,
Defaults or Events of Default or of a mandatory reduction in the Total
Commitment or of a mandatory prepayment shall not constitute an increase of the
Commitment of any Bank, and that an increase in the available portion of any
Commitment of any Bank shall not constitute an increase in the Commitment of
such Bank) without the consent of such Bank; or (u) without the consent of any
Issuing Bank effected thereby, amend, modify or waive any provision of Section
1A or alter its rights or obligations with respect to Letters of Credit; or (v)
without the consent of the Agent, amend, modify or waive any provision of
Section 11 or any other provision relating to the rights or obligations of the
Agent; or (w) without the consent of the Collateral Agent, amend, modify or
waive any provision of Section 11 or any other provision relating to the rights
or obligations of the Collateral Agent; or (x) without the consent of the
Required A Facility Banks, amend, modify or
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waive (I) Sections 3.01(v), 3.01(vi), 3.02(B)(a)(i) or the definitions of A TL
Percentage, B TL Percentage, Acquisition TL Percentage or Required A Facility
Banks to the extent that, in any such case, such amendment, modification or
waiver would alter the application of prepayments or repayments as between A
Term Loans, B Term Loans and Acquisition Loans in a manner adverse to the A
Term Loans or (II) Section 3.02(A)(b) or (y) without the consent of the
Required B Facility Banks, amend, modify or waive Sections 3.01(v), 3.01(vi),
3.02(B)(a)(i) or the definitions of A TL Percentage, B TL Percentage,
Acquisition TL Percentage or Required B Facility Banks to the extent that, in
any such case, such amendment, modification or waiver would alter the
application of prepayments or repayments as between A Term Loans, B Term Loans
and Acquisition Loans in a manner adverse to the B Term Loans or (II) Section
3.02(A)(c) or (z) without the consent of the Required Acquisition Facility
Banks, amend, modify or waive (I) Section 3.01(v), 3.01(vi), 3.02(B)(a)(i) or
the definitions of A TL Percentage, B TL Percentage, Acquisition TL Percentage
or Required Acquisition Facility Banks to the extent that, in any such case,
such amendment, modification or waiver would alter the application of
prepayments or repayments as between A Term Loans, B Term Loans and Acquisition
Loans in a manner adverse to the Acquisition Loans or (II) Section 3.02(A)(d)
or the definition of Acquisition Loan Termination Date.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clause (a)(i) through (v), inclusive, of the first proviso to Section 12.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Borrower
shall have the right to replace each such non-consenting Bank or Banks (so long
as all non-consenting Banks are so replaced) with one or more Replacement Banks
pursuant to Section 1.12 so long as at the time of such replacement, each such
Replacement Bank consents to the proposed change, waiver, discharge or
termination, provided that such Borrower shall not have the right to replace a
Bank solely as a result of the exercise of such Bank's rights (and the
withholding of any required consent by such Bank) pursuant to clauses (t)-(z)
of the second proviso to Section 12.12(a).
(c) Notwithstanding anything to the contrary contained above in this
Section 12.12, the Collateral Agent may (i) enter into amendments to the
Subsidiaries Guaranty and the Security Documents for the purpose of adding
additional Subsidiaries of the Borrower (or other Credit Parties) as parties
thereto and (ii) enter into security documents to satisfy the requirements of
Sections 7.15 and 7.17, in each case without the consent of the Required Banks.
12.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 1A.06, 1B.06, 3.04, 11.06 and 12.01 shall
survive the execution and delivery of this Agreement and the Notes and the
making and repayment of the Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry its Loans
at, to or for the account of any office, Subsidiary or Affiliate of such Bank.
12.15 Post-Closing Obligations. The Borrower hereby acknowledges that
in connection with certain assignments hereof, any of the Agents or any of the
Banks may be required to obtain a rating of the Obligations and Commitments
hereunder. The Borrower hereby
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consents to any Agent or Bank providing to the respective rating agency such
information regarding the Obligations and creditworthiness of the Parent and
its Subsidiaries as is customary practice of such rating agency.
12.16 Default Exception. Notwithstanding anything to the contrary
contained in this Agreement, the lack of a first perfected security interest
being provided to the Secured Creditors by the Parent or any Subsidiary of the
Parent as described in clause (y) of the definition of Excluded International
Consolidated EBITDA and the failure of any such Person to execute and deliver a
Guaranty or any Security Document shall not constitute a Default or Event of
Default.
12.17 Special Provisions Regarding Other Amendments or Waivers. In
order to induce the Banks with C Term Loan Commitments and B Revolving Loan
Commitments to make C Term Loans or B Revolving Loans (or participate in B
Letters of Credit), as the case may be, and for the benefit of such Banks and
their successors and assigns, each Bank which executes this Agreement agrees
for itself, and its successors and assigns, that:
(a) such Bank (including for this purpose its successors and
assigns) will not (s) without the consent of each Bank, amend or
modify any provision of this Section 12.17, (t) without the consent of
each Bank, consent to the assignment or transfer by the Parent of any
of its rights and obligations under this Agreement, (u) without the
consent of any Issuing Bank affected thereby, amend, modify or waive
any provision of Section 1B or alter its rights or obligations with
respect to Letters of Credit, (v) without the consent of the Required
A Facility Banks, amend, modify or waive Sections 3.01(v), 3.01(vi),
3.02(B)(a)(i) or the definitions of A TL Percentage, B TL Percentage,
C TL Percentage, Acquisition TL Percentage or Required A Facility
Banks to the extent that, in any such case, such amendment,
modification or waiver would alter the application of prepayments or
repayments as between A Term Loans, B Term Loans, C Term Loans and
Acquisition Loans in a manner adverse to the A Term Loans, (w) without
the consent of the Required B Facility Banks, amend, modify or waive
Sections 3.01(v), 3.01(vi), 3.02(B)(a)(i) or the definitions of A TL
Percentage, B TL Percentage, C TL Percentage, Acquisition TL
Percentage or Required B Facility Banks to the extent that, in any
such case, such amendment, modification or waiver would alter the
application of prepayments or repayments as between A Term Loans, B
Term Loans, C Term Loans and Acquisition Loans in a manner adverse to
the B Term Loans, (x) without the consent of the Required C Facility
Banks amend, modify or waive (I) Sections 3.01(v), 3.01(vi),
3.02(B)(a)(i) or the definitions of A TL Percentage, B TL Percentage,
C TL Percentage, Acquisition TL Percentage or Required C Facility
Banks to the extent that, in any such case, such amendment,
modification or waiver would alter the application of prepayments or
repayments as between A Term Loans, B Term Loans, C Term Loans and
Acquisition Loans in a manner adverse to the C Term Loans or (II)
Section 3.02(A)(e), (y) without the consent of the Required
Acquisition Facility Banks, amend, modify or waive Section 3.01(v),
3.01(vi), 3.02(B)(a)(i) or the definitions of A TL Percentage, B TL
Percentage, C TL Percentage, Acquisition TL Percentage or Required
Acquisition Facility Banks to the extent that, in any such case, such
amendment, modification or waiver would alter the application of
prepayments or repayments as between A Term Loans, B Term Loans,
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C Term Loans and Acquisition Loans in a manner adverse to the
Acquisition Loans or (z) without the consent of Bankers Trust Company,
amend the provisions of Section 1A.01(d) or the definition of
Revolving Facility Borrowing Certificate in any manner adverse to the
interests of Bankers Trust Company in its capacity as issuing bank
under the Back-Stop Letter of Credit Agreement; and
(b) if, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clause (a)(s) or (t) of Section 12.17(a) above, the
consent of the Required Banks is obtained but the consent of one or
more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right to replace each such
non-consenting Bank or Banks (so long as all non-consenting Banks are
so replaced) with one or more Replacement Banks pursuant to Section
1.12 so long as at the time of such replacement, each such Replacement
Bank consents to the proposed change, waiver, discharge or
termination, provided that such Borrower shall not have the right to
replace a Bank solely as a result of the exercise of such Bank's
rights (and the withholding of any required consent by such Bank)
pursuant to sub-clauses (u) through (z), inclusive, of Section
12.17(a).
12.18 Post-Closing Actions. Notwithstanding anything to the contrary
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
(a) UCC Filings; Filings with respect to Intellectual Property; etc.
Parent and its Subsidiaries were not required to have filed (or cause to have
filed) on or prior to the Third Restatement Effective Date Financing Statements
(Form UCC-1) or any filings with the United States Patent and Trademark Office
or the United States Copyright Office necessary to perfect the security
interest purported to be created by the Security Agreement in the assets of HQ
and its Subsidiaries. Not later than the 5th day after the Third Restatement
Effective Date, Parent and its Subsidiaries shall have filed (or cause to have
filed) all of such Financing Statements (Form UCC-1) and any filings with the
United States Patent and Trademark Office or the United States Copyright Office
necessary to perfect the security interest purported to be created by the
Security Agreement in the assets of HQ and its Subsidiaries.
(b) Actions by Various Foreign Subsidiaries. Parent and its
Subsidiaries shall be required to take the actions specified in Schedule XVIII
as promptly as practicable, and in any event within the time periods set forth
in said Schedule XVIII. The provisions of said Schedule XVIII shall be deemed
incorporated by reference herein as fully as if set forth herein in its
entirety.
(c) Good Standing of Subsidiaries. Within thirty (30) days following
the Third Restatement Effective Date, the Parent shall have caused each of its
Subsidiaries to take all actions as may be required to ensure that each such
Subsidiary is in good standing under the laws of the jurisdiction of its
organization.
(d) Updated Projections. Within fifteen (15) days following the Third
Restatement Effective Date, the Parent shall have delivered to each Agent and
each of the Banks updated consolidated projections in substantially the form of
the Projections delivered on the Third Restatement Effective Date pursuant to
Section 4.15, except such updated projection shall cover the period commencing
on the
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Third Restatement Effective Date and ending on or after December 31, 2005 (with
each reference to the "Projections" appearing in Section 6.05 hereof to be
deemed to be a reference to the projections delivered pursuant to this Section
12.18(d) at all times after their delivery pursuant to this Section as if same
had been delivered on the Third Restatement Effective Date).
(e) Subordination Agreement. The Parent and its Subsidiaries shall not
be required to execute and deliver the Subordination Agreement on the Third
Restatement Effective Date as otherwise required by Section 4.19 but shall
instead be required to duly execute and deliver same to the Administrative
Agent within 60 days after the Third Restatement Effective Date, (or, if later,
the date of the execution and delivery of the Mezzanine Subordinated Note
Documents).
(f) FrontLine Indemnification Contribution Agreement. Within 30 days
following the Third Restatement Effective Date (or such later date as the
Administrative Agent shall determine in its sole discretion), the Parent and
FrontLine shall have duly authorized, executed and delivered to the
Administrative Agent an indemnification contribution agreement in the form of
Exhibit O hereto (as amended, modified or supplemented from time to time, the
"FrontLine Indemnification Contribution Agreement"), and the FrontLine
Indemnification Contribution Agreement shall be in full force and effect.
All conditions precedent and representations contained in this
Agreement and the other Credit Documents shall be deemed modified to the extent
necessary to effect the foregoing (and to permit the taking of the actions
described above within the time periods required above, rather than as
elsewhere provided in the Credit Documents), provided that (x) to the extent
any representation and warranty would not be true because the foregoing actions
were not taken on the Third Restatement Effective Date, the respective
representation and warranty shall be required to be true and correct in all
material respects at the time the respective action is taken (or was required
to be taken) in accordance with the foregoing provisions of this Section 12.18
and (y) all representations and warranties relating to the Security Documents
shall be required to be true immediately after the actions required to be taken
by Section 12.18 have been taken (or were required to be taken). The acceptance
of the benefits of each Credit Event shall constitute a representation,
warranty and covenant by each of the Parent and the Borrower to each of the
Banks that the actions required pursuant to this Section 12.18 will be, or have
been, taken within the relevant time periods referred to in this Section 12.18
and that, at such time, all representations and warranties contained in this
Agreement and the other Credit Documents shall then be true and correct without
any modification pursuant to this Section 12.18, and the parties hereto
acknowledge and agree that the failure to take any of the actions required
above, within the relevant time periods required above, shall give rise to an
immediate Event of Default pursuant to this Agreement.
12.19 Special Provisions Regarding Pledges of Equity Interests in, and
Promissory Notes Owed by, Persons Not Organized in the United States. The
parties hereto acknowledge and agree that the provisions of the various
Security Documents executed and delivered by the Credit Parties require that,
among other things, all promissory notes executed by, and capital stock and
other equity interests in, various Persons owned by the respective Credit Party
be pledged, and delivered for pledge, pursuant to the Security Documents. The
parties
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hereto further acknowledge and agree that each Credit Party shall be required
to take all actions under the laws of the jurisdiction in which such Credit
Party is organized (each, a "Qualified Jurisdiction") to create and perfect all
security interests granted pursuant to the various Security Documents and to
take all actions under the laws of each Qualified Jurisdiction to perfect the
security interests in the capital stock and other equity interests of, and
promissory notes issued by, any Person organized under the laws of such
Qualified Jurisdictions (in each case, to the extent said capital stock, other
equity interests or promissory notes are owned by any Credit Party). Except as
provided in the immediately preceding sentence, to the extent any Security
Document requires or provides for the pledge of promissory notes issued by, or
capital stock or other equity interests in, any Person organized under the laws
of a jurisdiction other than a Qualified Jurisdiction, it is acknowledged that,
as of the Third Restatement Effective Date, no actions have been required to be
taken to perfect, under local law of the jurisdiction of the Person who issued
the respective promissory notes or whose capital stock or other equity
interests are pledged, under the Security Documents. The Parent and the
Borrower hereby agree that, following any request by the Administrative Agent
or Required Banks to do so, Parent shall, and shall cause its Subsidiaries to,
take such actions (including, without limitation, the execution of Additional
Security Documents, the making of any filings and the delivery of appropriate
legal opinions) under the local law of any jurisdiction as are determined by
the Administrative Agent or Required Banks to be necessary or desirable in
order to fully perfect, preserve or protect the security interests granted
pursuant to the various Security Documents in the promissory notes issued by,
or capital stock or other equity interests in, any Person organized in a
non-Qualified Jurisdiction under the laws of such non-Qualified Jurisdiction.
If requested to do so pursuant to this Section 12.19, all such actions shall be
taken in accordance with the provisions of this Section 12.19 and Section 7.17
and within the time periods set forth therein. All conditions and
representations contained in this Agreement and the other Credit Documents
shall be deemed modified to the extent necessary to effect the foregoing and so
that same are not violated by reason of the failure to take actions under local
law (but only with respect to capital stock of, other equity interests in, and
promissory notes issued by, Persons organized under laws of jurisdictions other
than the Qualified Jurisdiction) not required to be taken in accordance with
the provisions of this Section 12.19, provided that to the extent any
representation or warranty would not be true because the foregoing actions were
not taken, the respective representation of warranties shall be required to be
true and correct in all material respects at such time as the respective action
is required to be taken in accordance with the foregoing provisions of this
Section 12.19 or pursuant to Section 7.17.
Section 13. Parent Guaranty.
13.01 Guaranty. In order to induce the Agents, the Collateral Agent,
the Issuing Banks and the Banks to enter into this Agreement and to extend
credit hereunder, and to induce the other Guaranteed Creditors to enter into
Interest Rate Protection or Other Hedging Agreements, and in recognition of the
direct benefits to be received by the Parent from the proceeds of the Loans,
the issuance of the Letters of Credit and the entering into of such Interest
Rate Protection Agreements and Other Hedging Agreements, the Parent hereby
agrees with the Guaranteed Creditors as follows: the Parent hereby
unconditionally and irrevocably guaranties as primary obligor and not merely as
surety the full and prompt payment when due, whether upon maturity,
acceleration or otherwise, of any and all of the Guaranteed Obligations of the
Borrower
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to the Guaranteed Creditors. If any or all of the Guaranteed Obligations of the
Borrower to the Guaranteed Creditors becomes due and payable hereunder, the
Parent unconditionally and irrevocably promises to pay such indebtedness to the
Agents and/or the other Guaranteed Creditors, or order, on demand, together
with any and all expenses which may be incurred by the Agents and the other
Guaranteed Creditors in collecting any of the Guaranteed Obligations. If claim
is ever made upon any Guaranteed Creditor for repayment or recovery of any
amount or amounts received in payment or on account of any of the Guaranteed
Obligations and any of the aforesaid payees repays all or part of said amount
by reason of (i) any judgment, decree or order of any court or administrative
body having jurisdiction over such payee or any of its property or (ii) any
settlement or compromise of any such claim effected by such payee with any such
claimant (including the Borrower), then and in such event the Parent agrees
that any such judgment, decree, order, settlement or compromise shall be
binding upon the Parent, notwithstanding any revocation of this Parent Guaranty
or other instrument evidencing any liability of the Borrower, and the Parent
shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee.
13.02 Bankruptcy. Additionally, the Parent, unconditionally and
irrevocably, guaranties the payment of any and all of the Guaranteed
Obligations of the Borrower to the Guaranteed Creditors whether or not due or
payable by the Borrower upon the occurrence of any of the events specified in
Section 9.05, and irrevocably and unconditionally promises to pay such
indebtedness to the Guaranteed Creditors, or order, on demand, in lawful money
of the United States.
13.03 Nature of Liability. The liability of the Parent hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of the Borrower, any other guarantor or by any other
party, and the liability of the Parent hereunder shall not be affected or
impaired by (a) any direction as to application of payment by the Borrower or
by any other party, or (b) any other continuing or other guaranty, undertaking
or maximum liability of a guarantor or of any other party as to the Guaranteed
Obligations of the Borrower, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to any
Guaranteed Creditor on the Guaranteed Obligations which any such Guaranteed
Creditor repays to the Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
the Parent waives any right to the deferral or modification of its obligations
hereunder by reason of any such proceeding.
13.04 Independent Obligation. The obligations of the Parent hereunder
are independent of the obligations of any other guarantor, any other party or
the Borrower, and a separate action or actions may be brought and prosecuted
against the Parent whether or not action is brought against any other
guarantor, any other party or the Borrower and whether or not any other
guarantor, any other party or the Borrower be joined in any such action or
actions. The Parent waives, to the fullest extent permitted by law, the benefit
of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by the Borrower or other circumstance which
operates to toll any statute of limitations as to the Borrower shall operate to
toll the statute of limitations as to the Parent.
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13.05 Authorization. The Parent authorizes the Guaranteed Creditors
without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate
or alter, any of the Guaranteed Obligations (including any increase or
decrease in the principal amount thereof or the rate of interest or
fees thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the Guaranty herein
made shall apply to the Guaranteed Obligations as so changed,
extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, impair, surrender, realize
upon or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to secure, or
howsoever securing, the Guaranteed Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against a
Borrower, any other Credit Party or others or otherwise act or refrain
from acting;
(d) release or substitute any one or more endorsers,
guarantors, the Borrower, other Credit Parties or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to
its creditors other than the Guaranteed Creditors;
(f) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of the Borrower to the Guaranteed
Creditors regardless of what liability or liabilities of the Borrower
remain unpaid;
(g) consent to or waive any breach of, or any act, omission
or default under, this Agreement, any other Credit Document, any
Interest Rate Protection or Other Hedging Agreement or any of the
instruments or agreements referred to herein or therein, or otherwise
amend, modify or supplement this Agreement, any other Credit Document,
any Interest Rate Protection or Other Hedging Agreement or any of such
other instruments or agreements; and/or
(h) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable
discharge of the Parent from its liabilities under this Parent
Guaranty.
13.06 Reliance. It is not necessary for any Guaranteed Creditor to
inquire into the capacity or powers of the Parent or any of its Subsidiaries
or the officers, directors, partners or
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agents acting or purporting to act on their behalf, and any Guaranteed
Obligations made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
13.07 Subordination. Any indebtedness of the Borrower now or hereafter
owing to the Parent is hereby subordinated to the Guaranteed Obligations of the
Borrower owing to the Guaranteed Creditors; and if the Administrative Agent so
requests at a time when an Event of Default exists, all such indebtedness of
the Borrower to the Parent shall be collected, enforced and received by the
Parent for the benefit of the Guaranteed Creditors and be paid over to the
Administrative Agent on behalf of the Guaranteed Creditors on account of the
Guaranteed Obligations of the Borrower to the Guaranteed Creditors, but without
affecting or impairing in any manner the liability of the Parent under the
other provisions of this Parent Guaranty. Prior to the transfer by the Parent
of any note or negotiable instrument evidencing any such indebtedness of the
Borrower to the Parent, the Parent shall xxxx such note or negotiable
instrument with a legend that the same is subject to this subordination.
Without limiting the generality of the foregoing, the Parent hereby agrees with
the Guaranteed Creditors that it will not exercise any right of subrogation
which it may at any time otherwise have as a result of this Parent Guaranty
(whether contractual, under Section 509 of the Bankruptcy Code or otherwise)
until all Guaranteed Obligations have been irrevocably paid in full in cash.
13.08 Waiver. (a) The Parent waives any right (except as shall be
required by applicable statute and cannot be waived) to require any Guaranteed
Creditor to (i) proceed against the Borrower, any other guarantor or any other
party, (ii) proceed against or exhaust the security held from the Borrower, any
other guarantor or any other party or (iii) pursue any other remedy in any
Guaranteed Creditor's power whatsoever. The Parent waives any defense based on
or arising out of any defense of the Borrower, any other guarantor or any other
party, other than payment of the Guaranteed Obligations to the extent of such
payment, based on or arising out of the disability of the Borrower, the Parent,
any other guarantor or any other party, or the validity, legality or
unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Borrower other
than payment of the Guaranteed Obligations to the extent of such payment. The
Guaranteed Creditors may, at their election, foreclose on any security held by
the Agents, the Collateral Agent or any other Guaranteed Creditor by one or
more judicial or nonjudicial sales, whether or not every aspect of any such
sale is commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Guaranteed Creditors
may have against the Borrower or any other party, or any security, without
affecting or impairing in any way the liability of the Parent hereunder except
to the extent the Guaranteed Obligations have been paid. The Parent waives any
defense arising out of any such election by the Guaranteed Creditors, even
though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of the Parent against the
Borrower or any other party or any security.
(b) The Parent waives all presentments, demands for performance,
protests and notices, including without limitation notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Parent
Guaranty, and notices of the existence, creation or incurring of new or
additional Guaranteed Obligations. The Parent assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the
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nature, scope and extent of the risks which the Parent assumes and incurs
hereunder, and agrees that the Agents and the other Guaranteed Creditors shall
have no duty to advise the Parent of information known to them regarding such
circumstances or risks.
13.09 Nature of Liability. It is the desire and intent of the Parent
and the Guaranteed Creditors that this Parent Guaranty shall be enforced
against the Parent to the fullest extent permissible under the laws and public
policies applied in each jurisdiction in which enforcement is sought. If,
however, and to the extent that, the obligations of the Parent under this
Parent Guaranty shall be adjudicated to be invalid or unenforceable for any
reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers), then the amount
of the Parent's obligations under this Parent Guaranty shall be deemed to be
reduced and the Parent shall pay the maximum amount of the Guaranteed
Obligations which would be permissible under applicable law.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
00 Xxxx Xxxxxx XXXXXX XXXXXXXXXXXX
Xxxxx 0000 (formerly known as Alliance
Xxx Xxxx, Xxx Xxxx 00000 National Incorporated)
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Secretary
00000 Xxxxx Xxxxxx Xxxxxxx HQ GLOBAL HOLDINGS, INC.
Xxxxx XX, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXX X. LOUIS
-----------------------------------
Name: Xxxx X. Xxxxx
Title: General Counsel
164
000 Xxxxxxx Xxxxxx XXXXXXX,
Xxx Xxxx, Xxx Xxxx 00000 Individually and as Administrative
Attention: Xxxxxx Xxxxxxxxxx Agent and Arranger
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ XXXXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director Merchant Banking
Group
165
000 Xxxxxxx Xxxxxx BANKERS TRUST COMPANY,
Xxx Xxxx, XX 00000 Individually and as Syndication Agent
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
166
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx CITICORP REAL ESTATE, Inc.,
Xxx Xxxx, XX 00000 Individually and as Documentation Agent
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
167
C/O ING Capital Advisors LLC ING (U.S.) CAPITAL LLC,
000 X. Xxxxx Xxxxxx Individually and as Managing Agent
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXX X. XXXXXXXX
-----------------------------------
Name: XXXXX X. XXXXXXXX
Title: Managing Director
168
787 Seventh Avenue PARIBAS CAPITAL FUNDING LLC
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
169
0000 Xxxx Xxxx Xxxx FIRST SOURCE FINANCIAL LLP
Xxxxx 000
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000 By: First Source Financial, Inc.,
Attention: Xxxxxx Xxxxx its Agent/Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
000
Xxx Xxxxx Xxxxxx IBJ XXXXXXXXX XXXX & XXXXX
Xxx Xxxx, Xxx Xxxx 00000 COMPANY (formerly, IBJ Xxxxxxxx
Attention: Xxxxxxxx XxXxxxxxx Bank & Trust Company)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxxxx X. XxXxxxxxx
Title: Managing Director
171
Two Renaissance Square PILGRIM PRIME RATE TRUST
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000 By: Pilgrim Investments, Inc.,
Xxxxxxx, Xxxxxxx 00000-0000 as its investment manager
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
172
000 Xxxx Xxxxxx Xxxxxx XXXXXX FINANCIAL, INC.
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
000
Xxx Xxxxx Xxxxxx Xxxxx SRF TRADING, INC.
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
174
One South Xxxxxx Drive XXXXX XXX & FARNHAM CLO1 LTD.,
33rd Floor By Xxxxx Xxx & Xxxxxxx Incorporated,
Xxxxxxx, Xxxxxxxx 00000 as Portfolio Manager
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President &
Portfolio Manager
175
450 West 33rd Street - 15th Floor KZH ING-2 LLC
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ XXXXX XXXX
-----------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
176
000 X. Xxxxx Xxxxxx THE ING CAPITAL SENIOR SECURED HIGH
Suite 4250 INCOME FUND, L.P.
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx By: ING Capital Advisors LLC
Telephone: (000) 000-0000 as Investment Advisor
Facsimile: (000) 000-0000
By: /s/ XXXX XXXXXX, CFA
-----------------------------------
Name: Xxxx Xxxxxx, CFA
Title: Vice President
000
Xxx Xxxx Xxxxxx Xxxxxx THE PROVIDENT BANK
MS 216A
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxxx Xxxxx
Title: Senior Vice President
178
150 South Rodeo Drive, Suite 230 PACIFICA PARTNERS I, L.P.
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxx By: Imperial Credit Asset Management
Telephone: (000) 000-0000 Investment Manager
Facsimile: (000) 000-0000
By:
-----------------------------------
Name:
Title:
179
000 Xxxxxxx Xxxxxx EUROPEAN AMERICAN XXXX
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx By:
Telephone: (000) 000-0000 -----------------------------------
Facsimile: (000) 000-0000 Name:
Title:
000
000 Xxxxxxx Xxxxxx XXX (XXX) CAPITAL CORPORATION
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx By:
Telephone: (000) 000-0000 ------------------------------------
Facsimile: (000) 000-0000 Name:
Title:
By:
------------------------------------
Name:
Title:
181
Two Greenwich Plaza BANK AUSTRIA CREDITANSTALT
4th Floor CORPORATE FINANCE INC.
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx By:
Telephone:(000) 000-0000 ------------------------------------
Facsimile: (000) 000-0000 Name:
Title:
By:
------------------------------------
Name:
Title:
182
000 Xxxxxxx Xxxxxx BALANCED HIGH-YIELD FUND II LIMITED
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 By: BHF (USA) Capital Corporation,
Attention: Xxxx X. Xxxxxx as attorney-in-fact
Telephone:(000) 000-0000
Facsimile: (000) 000-0000 By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
