Exhibit 10.4
EXECUTION COPY
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CREDIT AGREEMENT
dated as of
January 10, 2005
among
XXX-XXXX CORPORATION,
XXX-XXXX SERVICES, INC.,
INTIRION CORPORATION,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
KEYBANK NATIONAL ASSOCIATION,
as Syndication Agent,
and
HSBC BANK USA,
WACHOVIA BANK NATIONAL ASSOCIATION and
BANK NORTH, N.A.,
as Co-Documentation Agents
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X.X. XXXXXX SECURITIES INC.,
as Arranger
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[CS&M Ref. 6701-442]
TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms ......................................................1
SECTION 1.02. Classification of Loans and Borrowings.............................24
SECTION 1.03. Terms Generally....................................................24
SECTION 1.04. Accounting Terms; GAAP.............................................24
SECTION 1.05. Pro Forma Basis....................................................24
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................................25
SECTION 2.02. Loans and Borrowings ..............................................25
SECTION 2.03. Requests for Borrowings............................................26
SECTION 2.04. Swingline Loans....................................................26
SECTION 2.05. Letters of Credit .................................................28
SECTION 2.06. Funding of Borrowings .............................................32
SECTION 2.07. Interest Elections.................................................32
SECTION 2.08. Termination and Reduction of Commitments...........................34
SECTION 2.09. Repayment of Loans; Evidence of Debt ..............................34
SECTION 2.10. Amortization of Term Loans ........................................35
SECTION 2.11. Prepayment of Loans ...............................................36
SECTION 2.12. Fees ..............................................................37
SECTION 2.13. Interest...........................................................39
SECTION 2.14. Alternate Rate of Interest ........................................39
SECTION 2.15. Increased Costs ...................................................40
SECTION 2.16. Break Funding Payments ............................................41
SECTION 2.17. Taxes .............................................................41
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs .......43
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.....................45
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers...............................................46
SECTION 3.02. Authorization; Enforceability .....................................46
SECTION 3.03. Governmental Approvals; No Conflicts ..............................46
SECTION 3.04. Financial Condition; No Material Adverse Change....................46
SECTION 3.05. Properties ........................................................47
SECTION 3.06. Litigation and Environmental Matters ..............................48
SECTION 3.07. Compliance with Laws and Agreements ...............................48
SECTION 3.08. Investment and Holding Company Status..............................48
SECTION 3.09. Taxes .............................................................49
SECTION 3.10. ERISA .............................................................49
SECTION 3.11. Disclosure ........................................................49
SECTION 3.12. Subsidiaries ......................................................49
SECTION 3.13. Insurance .........................................................49
SECTION 3.14. Labor Matters......................................................50
SECTION 3.15. Solvency...........................................................50
ARTICLE IV
Conditions
SECTION 4.01. Effective Date ....................................................50
SECTION 4.02. Each Credit Event .................................................53
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information ........................54
SECTION 5.02. Notices of Material Events.........................................55
SECTION 5.03. Information Regarding Collateral ..................................56
SECTION 5.04. Existence; Conduct of Business.....................................56
SECTION 5.05. Payment of Obligations.............................................56
SECTION 5.06. Maintenance of Properties .........................................57
SECTION 5.07. Insurance .........................................................57
SECTION 5.08. Casualty and Condemnation .........................................57
SECTION 5.09. Books and Records; Inspection and Audit Rights ....................57
SECTION 5.10. Compliance with Laws ..............................................57
SECTION 5.11. Use of Proceeds and Letters of Credit .............................57
SECTION 5.12. Additional Subsidiaries............................................58
SECTION 5.13. Further Assurances.................................................58
SECTION 5.14. Interest Rate Protection...........................................58
SECTION 5.15. Post-Closing Matters...............................................58
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities ...........................59
SECTION 6.02. Liens..............................................................61
SECTION 6.03. Fundamental Changes................................................62
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions..........63
SECTION 6.05. Asset Sales .......................................................65
SECTION 6.06. Sale and Leaseback Transactions....................................65
SECTION 6.07. Swap Agreements ...................................................66
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness .............66
SECTION 6.09. Transactions with Affiliates.......................................67
SECTION 6.10. Restrictive Agreements ............................................67
SECTION 6.11. Amendment of Material Documents....................................67
SECTION 6.12. Minimum Net Worth..................................................68
SECTION 6.13. Funded Debt Ratio .................................................68
SECTION 6.14. Consolidated Cash Flow Coverage Ratio .............................68
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ...........................................................74
SECTION 9.02. Waivers; Amendments................................................74
SECTION 9.03. Expenses; Indemnity; Damage Waiver.................................76
SECTION 9.04. Successors and Assigns.............................................77
SECTION 9.05. Survival ..........................................................80
SECTION 9.06. Counterparts; Integration; Effectiveness...........................80
SECTION 9.07. Severability ......................................................81
SECTION 9.08. Right of Setoff....................................................81
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.........81
SECTION 9.10. WAIVER OF JURY TRIAL...............................................82
SECTION 9.11. Headings ..........................................................82
SECTION 9.12. Confidentiality ...................................................82
SECTION 9.13. Interest Rate Limitation ..........................................83
SECTION 9.14. USA Patriot Act ...................................................83
SECTION 9.15. Obligations Joint and Several .....................................83
SCHEDULES:
Schedule 1.01 -- Mortgaged Property
Schedule 2.01 -- Commitments
Schedule 3.05 -- Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 5.15 -- Regional Sales and Service Facilities
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Collateral Agreement
Exhibit C -- Form of Opinion of Xxxxxxx Procter LLP
Exhibit D -- Form of Perfection Certificate
CREDIT AGREEMENT dated as of January 10, 2005 (this
"AGREEMENT"), among XXX-XXXX CORPORATION, XXX-XXXX SERVICES,
INC., INTIRION CORPORATION, the LENDERS party hereto, and
JPMORGAN CHASE BANK, N.A., as Administrative Agent.
Pursuant to an asset purchase agreement (the "ACQUISITION AGREEMENT")
to be entered into between the Mac-Gray Services, Inc. (such term and each
capitalized term not otherwise defined having the meanings assigned in Section
1.01) and Web Service Company Inc. (the "COMPANY"), Mac-Gray Services, Inc.
("SERVICES") will acquire (the "ACQUISITION") certain of the Company's laundry
facilities management assets and related contracts specified in the Acquisition
Agreement (such assets and related contracts, together with certain liabilities
of the Company to be assumed by Services as and to the extent provided in the
Acquisition Agreement, the "ACQUIRED BUSINESS") for aggregate consideration (the
"ACQUISITION CONSIDERATION") not to exceed $106,000,000 in cash at close.
The Borrowers have requested that the Lenders extend credit in the
form of (a) Term Loans on the Effective Date, in aggregate principal amount not
in excess of $80,000,000 and (b) Revolving Loans, Letters of Credit and
Swingline Loans at any time and from time to time during the Revolving
Availability Period in an aggregate principal amount at any time outstanding not
to exceed $120,000,000. The proceeds of the Term Loans and Revolving Loans made
on the Effective Date will be used (a) to repay all loans, interest and other
amounts accrued or owing under the Existing
Credit Agreement, (b) to pay the
fees and expenses payable in connection with the Transactions in an aggregate
amount not to exceed $1,500,000 (the "TRANSACTION COSTS") and (c) to pay the
Acquisition Consideration. The proceeds of the Revolving Loans after the
Effective Date and of the Swingline Loans will be used only for working capital
and general corporate purposes (including Permitted Acquisitions). Letters of
Credit will be used only for general corporate purposes.
The Lenders and the Swingline Lender are willing to extend such credit
to the Borrowers, and the Issuing Bank is willing to issue Letters of Credit for
the account of the Borrowers, on the terms and subject to the conditions set
forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
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"ACQUIRED BUSINESS" has the meaning assigned to such term in the
preamble.
"ACQUISITION" has the meaning assigned to such term in the preamble.
"ACQUISITION AGREEMENT" has the meaning assigned to such term in the
preamble.
"ACQUISITION CONSIDERATION" has the meaning assigned to such term in
the preamble.
"ACQUISITION DOCUMENTS" means the Acquisition Agreement, all other
agreements to be entered into in connection with the Acquisition and all
Schedules, exhibits and annexes to each of the foregoing and all side letters,
instruments and agreements to which any of the Borrowers or any Subsidiary is a
party affecting the terms of the foregoing or entered into in connection
therewith.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder, and its successors
in such capacity as provided in Article VIII.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE PERCENTAGE" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"APPLICABLE RATE" means, for any day with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan or a Term Loan, or with respect to the
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commitment fees payable hereunder, as the case may be, the applicable rate per
annum set forth below under the caption "ABR Spread", "Eurodollar Spread" or
"Commitment Fee Rate", as the case may be, based upon the Funded Debt Ratio as
of the most recent determination date; PROVIDED that (i) prior to the delivery
of the financial statements for the fiscal quarter ending March 31, 2005, the
Funded Debt Ratio shall be deemed to be the Funded Debt Ratio on the Effective
Date and (ii) after the delivery of the financial statements for the fiscal
quarter ending March 31, 2005, the Funded Debt Ratio shall be deemed to be the
Funded Debt Ratio as of the most recent determination date (provided that until
June 30, 2005, if the Funded Debt Ratio is less than 3.00 to 1.00, then the
"Applicable Rate" shall be deemed to be the applicable rate per annum set forth
below in Category 2):
ABR EURODOLLAR COMMITMENT FEE
FUNDED DEBT RATIO: SPREAD SPREAD RATE
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CATEGORY 1
GREATER THAN 3.50x 1.50 2.50% 0.500%
CATEGORY 2
LESS THAN OR EQUAL
TO 3.50x and
GREATER THAN 3.00x 1.25% 2.25% 0.375%
CATEGORY 3
LESS THAN OR EQUAL
TO 3.00x and
GREATER THAN 2.50x 1.00% 2.00% 0.375%
CATEGORY 4
LESS THAN OR
EQUAL TO 2.50x 0.75% 1.75% 0.375%
For purposes of the foregoing, (i) the Funded Debt Ratio shall be
determined as of the end of each fiscal quarter of the Parent Borrower's fiscal
year based upon the Parent Borrower's consolidated financial statements
delivered pursuant to Section 5.01(a) or (b) and (ii) each change in the
Applicable Rate resulting from a change in the Funded Debt Ratio shall be
effective during the period commencing on and including the date of delivery to
the Administrative Agent of such consolidated financial statements indicating
such change and ending on the date immediately preceding the effective date of
the next such change; PROVIDED that the Funded Debt Ratio shall be deemed to be
in Category 1 (A) at any time that an Event of Default has occurred and is
continuing or (B) at the option of the Administrative Agent or at the request of
the Required Lenders if the Parent Borrower fails to deliver the consolidated
financial statements required to be delivered by it pursuant to Section 5.01(a)
or (b), during the period from the expiration of the time for delivery thereof
until such consolidated financial statements are delivered.
"APPROVED FUND" has the meaning assigned to such term in Section 9.04.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
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"BOARD" means the Board of Governors of the Federal Reserve System of
the United States of America.
"BORROWERS" means the Parent Borrower, Mac-Gray Services, Inc. and
Intirion Corporation, each a Delaware corporation.
"BORROWING" means (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Swingline Loan.
"BORROWING REQUEST" means a request by the Borrowers for a Borrowing
in accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in
New York City are authorized or required by law
to remain closed; PROVIDED that, when used in connection with a Eurodollar Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAMBRIDGE PROPERTY" means the owned real estate of Mac-Gray Services,
Inc., located at 00 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
"CAPITAL EXPENDITURES" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Parent
Borrower and its Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Parent Borrower for such period prepared in
accordance with GAAP and (b) Capital Lease Obligations incurred by the Parent
Borrower and its Subsidiaries during such period, PROVIDED that (i) for purposes
of the calculation of the Consolidated Cash Flow Coverage Ratio only, Capital
Expenditures shall not include Capital Lease Obligations in an amount not to
exceed $1,500,000 incurred by the Parent Borrower and its Subsidiaries solely in
connection with the Acquisition and (ii) Capital Expenditures shall not include
(A) expenditures to the extent they are financed with the proceeds of a
Prepayment Event described in clauses (a) or (b) of "Prepayment Event," so long
as such proceeds are reinvested in the business of the Parent Borrower and its
Subsidiaries pursuant to the requirements of the proviso contained in 2.11(c)
and (B) expenditures or investments that constitute the Acquisition or Permitted
Acquisitions.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) other than
Stewart G.
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XxxXxxxxx, Jr., Xxxxxx XxxXxxxxx, Xxxxxx XxxXxxxxx or Xxxxxx XxxXxxxxx or any of
their respective spouses or immediate family members or trusts or family limited
partnerships for their benefit, of Equity Interests representing more than 25%
of either the aggregate ordinary voting power or the aggregate equity value
represented by the issued and outstanding Equity Interests in the Parent
Borrower or (b) occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Parent Borrower by Persons who were neither (i)
nominated by the board of directors of the Parent Borrower (or any committee
thereof) nor (ii) appointed by directors so nominated.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment or Term Loan
Commitment.
"CLO" has the meaning assigned to such term in Section 9.04(b).
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COLLATERAL" means any and all "Collateral", as defined in any
applicable Security Document.
"COLLATERAL AGENT" means JPMorgan Chase Bank, N.A., in its capacity as
collateral agent for the Lenders under this Agreement and the Lenders and other
secured parties under any Security Document.
"COLLATERAL AGREEMENT" means the Guarantee and Collateral Agreement
among the Parent Borrower, the Subsidiary Loan Parties and the Collateral Agent,
substantially in the form of Exhibit C.
"COLLATERAL AND GUARANTEE REQUIREMENT" means the requirement that:
(a) the Collateral Agent shall have received from each Loan Party
either (i) a counterpart of the Collateral Agreement duly executed and
delivered on behalf of such Loan Party or (ii) in the case of any Person
that becomes a Loan Party after the Effective Date, a supplement to the
Collateral Agreement, in the form specified therein, duly executed and
delivered on behalf of such Loan Party;
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(b) all outstanding Equity Interests of each Subsidiary (other than
TLP) owned by or on behalf of any Loan Party shall have been pledged
pursuant to the Collateral Agreement (except that the Loan Parties shall
not be required to pledge more than 65% of the outstanding voting Equity
Interests of any Foreign Subsidiary that is not a Loan Party) and the
Collateral Agent shall have received certificates or other instruments
representing all such Equity Interests, together with undated stock powers
or other instruments of transfer with respect thereto endorsed in blank;
(c) all Indebtedness of the Parent Borrower and each Subsidiary that
is owing to any Loan Party shall be evidenced by a promissory note and
shall have been pledged pursuant to the Collateral Agreement and the
Collateral Agent shall have received all such promissory notes, together
with undated instruments of transfer with respect thereto endorsed in
blank;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Collateral Agent to be filed, registered or recorded to
create the Liens intended to be created by the Collateral Agreement and
perfect such Liens to the extent required by, and with the priority
required by, the Collateral Agreement, shall have been filed, registered or
recorded or delivered to the Collateral Agent for filing, registration or
recording;
(e) the Collateral Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first
Lien on the Mortgaged Property described therein, free of any other Liens
except as expressly permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent or the
Required Lenders may reasonably request, and (iii) such surveys, abstracts,
appraisals, legal opinions and other documents as the Collateral Agent or
the Required Lenders may reasonably request with respect to any such
Mortgage or Mortgaged Property; and
(f) each Loan Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery
of all Security Documents to which it is a party, the performance of its
obligations thereunder and the granting by it of the Liens thereunder.
"COMMITMENT" means a Revolving Commitment or Term Loan Commitment, or
any combination thereof (as the context requires).
"COMPANY" has the meaning assigned to such term in the preamble.
"CONSOLIDATED CASH FLOW" means, for any period, (a) Consolidated
EBITDA for such period minus (b) the sum of (i) Capital Expenditures for such
period,
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(ii) Prepaid Commission Expenses for such period and (iii) consolidated cash
income taxes paid during such period. For purposes of determining Consolidated
Cash Flow, (1) the sum of Capital Expenditures as described in clause (b)(i)
above and Prepaid Commission Expenses as described in clause (b)(ii) above shall
be deemed to be (A) for the fiscal quarter ended on June 30, 2004, equal to
$7,000,000, (B) for the fiscal quarter ended on September 30, 2004, equal to
$7,000,000, and (C) for the fiscal quarter ended on December 31, 2004, equal to
$7,000,000, and (2)(A) consolidated cash income taxes paid during the period of
four consecutive fiscal quarters ending on March 31, 2005, shall be equal to the
product of (x) consolidated cash income taxes paid during the fiscal quarter
ending on Xxxxx 00, 0000, xxx (x) xxxx, (X) consolidated cash income taxes paid
during the period of four consecutive fiscal quarters ending on June 30, 2005,
shall be equal to the product of (x) consolidated cash income taxes paid during
the two consecutive fiscal quarters ending on June 30, 2005, and (y) two and (C)
consolidated cash income taxes paid during the period of four consecutive fiscal
quarters ending on September 30, 2005, shall be equal to the product of (x)
consolidated cash income taxes paid during the three consecutive fiscal quarters
ending on September 30, 2005, and (y) a fraction, the numerator of which is four
and the denominator of which is three.
"CONSOLIDATED CASH FLOW COVERAGE RATIO" means, for any period, the
ratio of (a) Consolidated Cash Flow for such period to (b) the sum of (i)(A) the
aggregate amount of scheduled principal payments made during such period in
respect of Long-Term Indebtedness of the Parent Borrower and the Subsidiaries
(other than payments made by the Parent Borrower or any Subsidiary to the Parent
Borrower or a Subsidiary) and (B) the aggregate amount of principal payments
(other than scheduled principal payments) made during such period in respect of
Long-Term Indebtedness of the Parent Borrower and the Subsidiaries, to the
extent that such payments reduced any scheduled principal payments that would
have become due within one year after the date of the applicable payment and
(ii) Consolidated Cash Interest Expense for such period. For purposes of the
Consolidated Cash Flow Coverage Ratio, (i)(A) Consolidated Cash Interest Expense
for the period of four consecutive fiscal quarters ending on March 31, 2005,
shall be equal to the product of (x) Consolidated Cash Interest Expense for the
fiscal quarter ending on Xxxxx 00, 0000, xxx (x) xxxx, (X) Consolidated Cash
Interest Expense for the period of four consecutive fiscal quarters ending on
June 30, 2005, shall be equal to the product of (x) Consolidated Cash Interest
Expense for the two consecutive fiscal quarters ending on June 30, 2005, and (y)
two and (C) Consolidated Cash Interest Expense for the period of four
consecutive fiscal quarters ending on September 30, 2005, shall be equal to the
product of (x) Consolidated Cash Interest Expense for the three consecutive
fiscal quarters ending on September 30, 2005, and (y) a fraction, the numerator
of which is four and the denominator of which is three, and (ii) the aggregate
principal amount of scheduled principal payments in respect of Long-Term
Indebtedness of the Parent Borrower and the Subsidiaries as described in
subclause (i)(A) of clause (b) above shall be deemed to be (A) for the fiscal
quarter ended on June 30, 2004, equal to $2,200,000, (B) for the fiscal quarter
ended on September 30, 2004, equal to $2,400,000 and (C) for the fiscal quarter
ended on December 31, 2004, equal to $2,300,000.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, the excess
of (a) the sum of (i) the interest expense (including imputed interest expense
in respect of
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Capital Lease Obligations) of the Parent Borrower and the Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, (ii) any
interest accrued during such period in respect of Indebtedness of the Parent
Borrower or any Subsidiary that is required to be capitalized rather than
included in consolidated interest expense for such period in accordance with
GAAP, plus (iii) any cash payments made during such period in respect of
obligations referred to in clause (b)(ii) below that were amortized or accrued
in a previous period, minus (b) the sum of (i) to the extent included in such
consolidated interest expense for such period, non-cash amounts attributable to
amortization of financing costs paid in a previous period, plus (ii) to the
extent included in such consolidated interest expense for such period, non-cash
amounts attributable to amortization of debt discounts or accrued interest
payable in kind for such period.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and amortization for such period,
(iv) any extraordinary non-cash charges for such period and (v) Transaction
Costs and additional costs incurred in connection with the Transactions in an
amount not to exceed $500,000, and minus (b) without duplication and to the
extent included in determining such Consolidated Net Income, any extraordinary
gains for such period, all determined on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED NET INCOME" means, for any period, the net income or
loss of the Parent Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; PROVIDED that there shall be
excluded (a) the income of any Subsidiary to the extent that the declaration or
payment of dividends or other distributions by such Subsidiary of that income is
not at the time permitted by a Requirement of Law or any agreement or instrument
applicable to such Subsidiary, except to the extent of the amount of cash
dividends or other cash distributions actually paid to the Borrower or any
Subsidiary during such period (unless the income of such Subsidiary would be
excluded from Consolidated Net Income pursuant to this proviso), (b) the income
of any Subsidiary in which any other Person (other than the Parent Borrower or
any Subsidiary or any director holding qualifying shares in compliance with
applicable law) owns an Equity Interest, except to the extent of the amount of
cash dividends or other cash distributions actually paid to the Parent Borrower
or any Subsidiary during such period (unless the income of such Subsidiary would
be excluded from Consolidated Net Income pursuant to this proviso), and (c) the
income or loss of any Person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with the Parent Borrower or any Subsidiary or
the date that such Person's assets are acquired by the Parent Borrower or any
Subsidiary.
"CONSOLIDATED NET WORTH" means, as of any date of determination, an
amount equal to the net worth of the Parent Borrower and the Subsidiaries as of
such date determined on a consolidated basis in accordance with GAAP.
9
"CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DEPOSIT ACCOUNT CONTROL AGREEMENTS" has the meaning assigned to such
term in the Collateral Agreement.
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"EFFECTIVE DATE CONSOLIDATED EBITDA" has the meaning assigned to such
term in Section 4.01(q).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the presence, management, release or threatened release of or
exposure to any Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Parent Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) compliance or non-compliance with
any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
10
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Parent Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Parent Borrower or any ERISA Affiliate from the PBGC (or
a plan administrator in the case of a Multiemployer Plan) of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXCESS CASH FLOW" means, for any fiscal year, the sum (without
duplication) of:
(a) the consolidated net income (or loss) of the Parent Borrower and
its Subsidiaries for such fiscal year, adjusted to exclude any gains or
losses attributable to Prepayment Events; PLUS
(b) depreciation, amortization and other non-cash charges or losses
(including deferred income taxes) deducted in determining such consolidated
net income (or loss) for such fiscal year; PLUS
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal year (except as a result of the
reclassification of items from short-term to long-term) plus (ii) the net
amount, if any, by which the consolidated deferred revenues and other
consolidated accrued long-term liability accounts of the Parent Borrower
and its Subsidiaries increased during such fiscal
11
year plus (iii) the net amount, if any, by which the consolidated accrued
long-term asset accounts of the Parent Borrower and its consolidated
Subsidiaries decreased during such fiscal year; MINUS
(d) the sum of (i) any non-cash gains included in determining such
consolidated net income (or loss) for such fiscal year (except as a result
of the reclassification of items from long-term to short-term) plus (ii)
the amount, if any, by which Net Working Capital increased during such
fiscal year plus (iii) the net amount, if any, by which the consolidated
deferred revenues and other consolidated accrued long-term liability
accounts of the Parent Borrower and its Subsidiaries decreased during such
fiscal year plus (iv) the net amount, if any, by which the consolidated
accrued long-term asset accounts of the Parent Borrower and its
Subsidiaries increased during such fiscal year; MINUS
(e) Capital Expenditures and Prepaid Commission Expenses for such
fiscal year (except to the extent attributable to the incurrence of Capital
Lease Obligations or otherwise financed by incurring Long Term
Indebtedness); MINUS
(f) the aggregate principal amount of Indebtedness repaid or prepaid
by the Parent Borrower and its Subsidiaries during such fiscal year,
excluding (i) Indebtedness in respect of Revolving Loans and Letters of
Credit (unless there is a corresponding reduction in the aggregate
Revolving Commitments), (ii) Term Loans prepaid pursuant to Section 2.11(c)
or (d), (iii) repayments or prepayments of Indebtedness financed by
incurring other Indebtedness, to the extent that mandatory payments in
respect of other such Indebtedness would, pursuant to this clause (f), be
deducted in determining Excess Cash Flow when made and (iv) Indebtedness
referred to in clauses (iii) and (iv) of Section 6.01(a).
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrowers hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income or net profits by the United
States of America, or by the jurisdiction under the laws of which such recipient
is organized, in which its principal office is located or in which it is
otherwise doing business or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other jurisdiction described
in clause (a) above, (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrowers under Section 2.19(b)), any withholding
tax that (i) is in effect and would apply to amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office), except to the extent that such Foreign Lender
(or its assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from the Borrowers
with respect to any withholding tax pursuant to Section 2.17(a), or (ii) is
attributable to such Foreign Lender's failure to comply with Section 2.17(e) and
(d) any Taxes imposed as a result of such Person's gross negligence or wilful
misconduct.
12
"EXISTING
CREDIT AGREEMENT" means the
Credit Agreement dated as of
June 24, 2003, by and among Xxx-Xxxx Corporation, Xxx-Xxxx Services, Inc.,
Intirion Corporation, Citizens Bank of Massachusetts the lenders party thereto,
Bank North N.A. and Key Bank, N.A. (as amended, supplemented, restated or
otherwise modified as of the Effective Date).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of
New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or controller of the Parent Borrower.
"FOREIGN LENDER" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrowers are located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America, any State
thereof or the District of Columbia.
"FUNDED DEBT RATIO" means, on any date, the ratio of (a) Total Funded
Debt as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Parent Borrower ended on such date (or, if
such date is not the last day of a fiscal quarter, ended on the last day of the
fiscal quarter of the Parent Borrower most recently ended prior to such date).
"GAAP" means generally accepted accounting principles in the United
States of America, as in effect from time to time.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to
13
advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; PROVIDED, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"HAZARDOUS MATERIALS" means (i) any petroleum products or byproducts
and all other hydrocarbons, radon gas, asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls, chlorofluorocarbons and all other
ozone-depleting substances; or (ii) any chemical, material, substance or waste
that is prohibited, limited or regulated by or pursuant to any Environmental
Law.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding trade accounts
payable incurred in the ordinary course of business), (f) all Indebtedness of
the type described in clauses (a), (b), (c), (d), (e), (g), (h), (i) and (j) of
this definition of others secured by (or for which the holder of such
obligations has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (g) all Guarantees by such Person
of obligations of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
Notwithstanding the foregoing, in connection with any Permitted Acquisition, the
term "Indebtedness" shall not include post closing purchase price adjustments or
earn-outs to which the Seller may become entitled.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INFORMATION MEMORANDUM" means the Confidential Information Memorandum
dated December 10, 2004, relating to the Borrowers and the Transactions.
"INTEREST ELECTION REQUEST" means a request by the Borrowers to
convert or continue a Revolving Borrowing or Term Loan Borrowing in accordance
with Section 2.07.
14
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan
(including a Swingline Loan), the last day of each March, June, September and
December and (b) with respect to any Eurodollar Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurodollar Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period.
"INTEREST PERIOD" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter (or twelve months thereafter if, at the time of the relevant
Borrowing, all Lenders participating therein agree to make an interest period of
such duration available), as the Borrowers may elect; PROVIDED, that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"ISSUING BANK" means JPMorgan Chase Bank, N.A., in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LAUNDRY FACILITY AGREEMENTS" means agreements and other documents
pursuant to which any of the Borrowers installs, operates and maintains certain
pay per use laundry equipment or rents such equipment to an owner, manager or
any other Person affiliated with the premises at which such equipment is
located.
"LC DISBURSEMENT" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrowers at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"LENDERS" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other
15
than any such Person that ceases to be a party hereto pursuant to an Assignment
and Assumption. Unless the context otherwise requires, the term "Lenders"
includes the Swingline Lender.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO RATE" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" means this Agreement, the Collateral Agreement and
the other Security Documents.
"LOAN PARTIES" means the Parent Borrower and the Subsidiary Loan
Parties.
"LOANS" means the loans made by the Lenders to the Borrowers pursuant
to this Agreement.
"LONG-TERM INDEBTEDNESS" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Parent Borrower and the Subsidiaries (after giving effect to the
Acquisition) taken as a whole or (b) the ability of any Loan Party to perform
any of its obligations under any Loan Document.
16
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of the Parent Borrower and the Subsidiaries in an aggregate
principal amount exceeding $2,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Parent Borrower
or any Subsidiary in respect of any Swap Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Parent Borrower or such Subsidiary would be required to pay if such Swap
Agreement were terminated at such time.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"MORTGAGED PROPERTY" means, initially, each parcel of real property
and the improvements thereto owned by a Loan Party and identified on Schedule
1.01, and includes each other parcel of real property and improvements thereto,
in each case with a fair market value in excess of $2,000,000, with respect to
which a Mortgage is granted pursuant to Section 5.12 or 5.13.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by the Parent Borrower and the
Subsidiaries to third parties (other than Affiliates) in connection with such
event, (ii) in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by the Parent Borrower and the Subsidiaries as a result of such event to
repay Indebtedness (other than Loans) secured by such asset or otherwise subject
to mandatory prepayment as a result of such event, and (iii) the amount of all
taxes paid (or reasonably estimated to be payable) by the Parent Borrower and
the Subsidiaries, and the amount of any reserves established by the Parent
Borrower and the Subsidiaries to fund contingent liabilities reasonably
estimated to be payable, in each case during the year that such event occurred
or such cash was received or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of the Parent Borrower).
"NET WORKING CAPITAL" means, at any date, (a) the consolidated current
assets of the Parent Borrower and the Subsidiaries as of such date (excluding
cash and Permitted Investments) minus (b) the consolidated current liabilities
of the Parent
17
Borrower and the Subsidiaries as of such date (excluding current liabilities in
respect of Indebtedness). Net Working Capital at any date may be a positive or
negative number. Net Working Capital increases when it becomes more positive or
less negative and decreases when it becomes less positive or more negative.
"OBLIGATIONS" has the meaning assigned to such term in the Collateral
Agreement.
"OTHER TAXES" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PARENT BORROWER" means Xxx-Xxxx Corporation.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERFECTION CERTIFICATE" means a certificate in the form of Exhibit D
or any other form approved by the Collateral Agent.
"PERMITTED ACQUISITION" means any acquisition by the Parent Borrower
or a wholly-owned Subsidiary Loan Party of all the outstanding Equity Interests
in, all or substantially all the assets of, or all or substantially all the
assets constituting a division or line of business of, a Person if (a) such
acquisition was not preceded by, or consummated pursuant to, a hostile offer
(including a proxy contest), (b) such Person is organized under the laws of, and
substantially all its assets are located in, the United States of America, any
State thereof or the District of Columbia, (c) no Default has occurred and is
continuing or would result therefrom, (d) all transactions related thereto are
consummated in accordance with applicable laws, (e) all actions required to be
taken with respect to such acquired or newly formed Subsidiary or assets under
Sections 5.12 and 5.13 shall have been taken, (f) the Parent Borrower and the
Subsidiaries, taken as a whole, are in compliance, on a Pro Forma Basis, with
the covenants contained in Sections 6.12, 6.13 and 6.14 recomputed as of the
last day of the most recently ended fiscal quarter of the Parent Borrower for
which financial statements are available, (g) after giving effect to such
acquisition, there shall be no less than $7,000,000 of aggregate unused and
available Revolving Commitments, (h) the business of such Person or such assets,
as the case may be, constitute a business permitted by Section 6.03(b) and (i)
the Borrowers have delivered to the Administrative Agent an officers'
certificate to the effect set forth in clauses (a), (b), (c), (d), (e), (f), (g)
and (h) above, together with all relevant financial information for the Person
or assets to be acquired.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
18
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) liens arising by operation of law to secure landlords or lessors
under leases made in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.05;
(f) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(g) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Parent Borrower or any
Subsidiary;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Xxxxx'x;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof that
has a combined capital and surplus and undivided profits of not less than
$500,000,000; and
19
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Parent
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"PREPAID COMMISSION EXPENSES" means the amount of any one-time upfront
payment required to be paid by the Parent Borrower or any Subsidiary to the
landlord or lessor under any Laundry Facility Agreement upon the commencement of
such Laundry Facility Agreement (but without duplication for any amount included
as a Capital Expenditure).
"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Parent
Borrower or any Subsidiary, other than dispositions described in clauses
(a)(i), (a)(ii) (solely to the extent such dispositions are made in the
ordinary course of business), (a)(iii), (b) and (d) of Section 6.05; or
(b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any property
or asset of the Parent Borrower or any Subsidiary;
(c) the issuance by the Parent Borrower or any Subsidiary of any
Equity Interests, or the receipt by the Parent Borrower or any Subsidiary
of any capital contribution, other than (i) any such issuance of Equity
Interests to, or receipt of any such capital contribution from, the Parent
Borrower or a Subsidiary and (ii) any such issuance of Equity Interests by
the Parent Borrower to any Person and any receipt by the Parent Borrower of
any capital contribution in each case pursuant to the terms of any stock
option, equity compensation, incentive or similar plan or agreement
approved by the board of directors of the Parent Borrower;
(d) the sale, transfer or other disposition of the Cambridge Property
as described in Section 6.05(c); or
(e) the incurrence by the Parent Borrower or any Subsidiary of any
Indebtedness, other than Indebtedness permitted pursuant to Section 6.01.
20
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its principal office in
New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"PRO FORMA BASIS" means, with respect to the calculation of the
financial covenants contained in Sections 6.12, 6.13 and 6.14 in connection with
a Permitted Acquisition that such calculation shall give pro forma effect to
such Permitted Acquisition, all other Permitted Acquisitions, all issuances,
incurrences or assumptions of Indebtedness (with any such Indebtedness being
deemed to be amortized over the applicable testing period in accordance with its
terms) and all dispositions that have occurred since the beginning of the four
consecutive fiscal quarter period for which such calculation is being made as if
it occurred on the first day of such four consecutive fiscal quarter period
(including (a) cost savings to the extent such cost savings would be permitted
to be reflected in pro forma financial information complying with the
requirements of GAAP and Article XI of Regulation S-X under the Securities Act
of 1933, as amended, as interpreted by the Staff of the SEC, and as certified by
a Financial Officer or (b) other cost savings to the extent such cost savings
would be acceptable to the Administrative Agent in its sole discretion).
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"REQUIREMENT OF LAW" means, with respect to any Person, (i) the
charter, articles or certificate of organization or incorporation and bylaws or
other organizational or governing documents of such Person and (ii) any statute,
law, treaty, rule, regulation, order, decree, writ, injunction or determination
of any arbitrator or court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
the Parent Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in the Parent Borrower or any Subsidiary or
any option, warrant or other right to acquire any such Equity Interests in the
Parent Borrower or any Subsidiary.
21
"REVOLVING AVAILABILITY PERIOD" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"REVOLVING COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum possible aggregate amount of such Lender's
Revolving Exposure hereunder, as such commitment may be (a) reduced from time to
time pursuant to Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Revolving Commitment is set forth on Schedule
2.01, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Revolving Commitment, as applicable. The initial aggregate
amount of the Lenders' Revolving Commitments is $120,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"REVOLVING LOAN" means a Loan made pursuant to clause (b) of Section
2.01.
"REVOLVING MATURITY DATE" means January 10, 2010.
"S&P" means Standard & Poor's Ratings Group, Inc.
"SEC" means the Securities and Exchange Commission or any Governmental
Authority succeeding to any of its principal functions.
"SECURITY DOCUMENTS" means the Collateral Agreement, any Mortgages and
each other security agreement or other instrument or document executed and
delivered pursuant to Section 5.12 or 5.13 to secure any of the Obligations.
"SERVICES" shall have the meaning assigned to such term in the
preamble.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute
22
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Parent Borrower.
"SUBSIDIARY LOAN PARTY" means any Subsidiary that is not a Foreign
Subsidiary other than TLP.
"SWAP AGREEMENT" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; PROVIDED that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Parent Borrower or the Subsidiaries shall be a Swap
Agreement. All Swap Agreements, if any, between the Borrowers (or any one of
them) and one or more Lenders (or Affiliates thereof) are independent agreements
governed by the written provisions of such Swap Agreements, which will remain in
full force and effect, unaffected by any repayment, prepayment, acceleration,
reduction, increase or change in the terms of the Loans.
"SWINGLINE EXPOSURE" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"SWINGLINE LENDER" means JPMorgan Chase Bank, N.A., in its capacity as
lender of Swingline Loans hereunder.
"SWINGLINE LOAN" means a Loan made pursuant to Section 2.04.
23
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM LOAN" means a Loan made pursuant to clause (a) of Section 2.01.
"TERM LOAN COMMITMENT" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder on the
Effective Date, expressed as an amount representing the maximum principal amount
of the Term Loan to be made by such Lender hereunder. The amount of each
Lender's Term Loan Commitment is set forth on Schedule 2.01. The aggregate
amount of the Lenders' Term Loan Commitments is $80,000,000.
"TERM LOAN LENDER" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"TERM LOAN MATURITY DATE" means January 10, 2010.
"TLP" means Tucson Laundry Partners, an Arizona limited partnership.
"TOTAL FUNDED DEBT" means, as of any date, the sum of (a) the
aggregate principal amount of Indebtedness of the Parent Borrower and the
Subsidiaries outstanding as of such date, in the amount that would be reflected
on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, plus (b) the aggregate principal amount of Indebtedness of
the Parent Borrower and the Subsidiaries outstanding as of such date that is not
required to be reflected on a balance sheet in accordance with GAAP, determined
on a consolidated basis, PROVIDED that, for purposes of clause (b) above, the
term "Indebtedness" shall not include contingent obligations of the Parent
Borrower or any Subsidiary as an account party in respect of any letter of
credit unless such letter of credit supports an obligation that constitutes
Indebtedness.
"TRANSACTIONS" means (a) the execution, delivery and performance by
each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of
Letters of Credit hereunder, (b) the Acquisition and the other transactions
contemplated by the Acquisition Documents, (c) the repayment in full of all
obligations under the Existing
Credit Agreement, the termination of all
commitments thereunder and the release of all liens in respect thereof and
(d) the payment of the Transaction Costs.
"TRANSACTION COSTS" has the meaning assigned to such term in the
preamble.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
24
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (E.G., a
"Revolving Loan") or by Type (E.G., a "Eurodollar Loan") or by Class and Type
(E.G., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (E.G., a "Revolving Borrowing") or by Type (E.G., a
"Eurodollar Borrowing") or by Class and Type (E.G., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the Borrowers notify the Administrative Agent that the Borrowers
request an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrowers that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. PRO FORMA BASIS. All calculations in respect of the
Funded Debt Ratio and Consolidated Cash Flow Coverage Ratio and Sections 4.01(q)
and (r) shall be computed on a Pro Forma Basis.
25
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions set
forth herein, each Lender agrees (a) to make a Term Loan to the Borrowers on the
Effective Date in a principal amount not exceeding its Term Loan Commitment and
(b) to make Revolving Loans to the Borrowers from time to time during the
Revolving Availability Period in an aggregate principal amount that will not
result in such Lender's Revolving Exposure exceeding such Lender's Revolving
Commitment. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.
Amounts repaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; PROVIDED that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and Term Loan
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrowers may request in accordance herewith. Each Swingline Loan shall be an
ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
PROVIDED that any exercise of such option shall not affect the obligation of the
Borrowers to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $4,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $500,000 and not less than $1,000,000. Each Swingline
Loan shall be in an amount that is an integral multiple of $250,000 and not less
than $250,000. Borrowings of more than one Type and Class may be outstanding at
the same time; PROVIDED that there shall not at any time be more than a total of
10 Eurodollar Borrowings outstanding. Notwithstanding anything to the contrary
herein, an ABR Revolving Borrowing or a Swingline Loan may be in an aggregate
amount that is equal to the entire unused balance of the total Revolving
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e).
(d) Notwithstanding any other provision of this Agreement, the Borrowers shall
not be entitled to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after the Revolving
Maturity Date or Term Loan Maturity Date, as applicable.
26
SECTION 2.03. REQUESTS FOR BORROWINGS. To request a Revolving
Borrowing or Term Loan Borrowing, the Borrowers shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar Borrowing,
not later than 11:00 a.m.,
New York City time, three Business Days before the
date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later
than 11:00 a.m.,
New York City time, one Business Day before the date of the
proposed Borrowing; PROVIDED that any such notice of an ABR Revolving Borrowing
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e) may be given not later than 10:00 a.m.,
New York City time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrowers. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing
or Term Loan Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the Borrowers' account to which funds
are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrowers
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. SWINGLINE LOANS. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrowers from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$5,000,000 or (ii) the total Revolving Exposures exceeding the total Revolving
Commitments; PROVIDED that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding
27
Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrowers shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon,
New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrowers. The Swingline Lender shall make each
Swingline Loan available to the Borrowers by means of a credit to the general
deposit account of the Borrowers maintained with the Swingline Lender (or, in
the case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank)
by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon,
New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Revolving Lender, specifying in such notice
such Lender's Applicable Percentage of such Swingline Loan or Swingline Loans.
Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt
of notice as provided above, to pay to the Administrative Agent, for the account
of the Swingline Lender, such Lender's Applicable Percentage of such Swingline
Loan or Swingline Loans. Each Revolving Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Lender shall comply with its obligation under this paragraph by wire
transfer of immediately available funds, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, MUTATIS MUTANDIS, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Revolving Lenders. The Administrative Agent
shall notify the Borrowers of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrowers (or other party
on behalf of the Borrowers) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan
28
pursuant to this paragraph shall not relieve the Borrowers of any default in the
payment thereof.
SECTION 2.05. LETTERS OF CREDIT. (a) GENERAL. Subject to the terms and
conditions set forth herein, the Borrowers may request the issuance of Letters
of Credit for the account of any one of them, in a form reasonably acceptable to
the Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrowers to, or entered into by the Borrowers with, the Issuing Bank relating
to any Letter of Credit, the terms and conditions of this Agreement shall
control.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrowers shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrowers
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrowers shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed $2,000,000
and (ii) the total Revolving Exposures shall not exceed the total Revolving
Commitments.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and
29
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender's Applicable Percentage of each LC Disbursement
made by the Issuing Bank and not reimbursed by the Borrowers on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Borrowers for any reason. Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) REIMBURSEMENT. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrowers shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 3:00 p.m.,
New York City time, on the date that such
LC Disbursement is made, if the Borrowers shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrowers prior to such time on such date,
then not later than (i) 3:00 p.m., New York City time, on the Business Day that
the Borrowers receive such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) 12:00 noon,
New York City time, on the Business Day immediately following the day that the
Borrowers receive such notice, if such notice is not received prior to 10:00
a.m., New York City time, on the day of receipt; PROVIDED that, if such LC
Disbursement is not less than $250,000, the Borrowers may, subject to the
conditions to borrowing set forth herein, request in accordance with
Section 2.03 or 2.04 that such payment be financed with an ABR Revolving
Borrowing or Swingline Loan in an equivalent amount and, to the extent so
financed, the Borrowers' obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing or Swingline Loan. If the
Borrowers fail to make such payment when due, the Administrative Agent shall
notify each Revolving Lender of the applicable LC Disbursement, the payment then
due from the Borrowers in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Revolving
Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the Borrowers, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall
apply, MUTATIS MUTANDIS, to the payment obligations of the Revolving Lenders),
and the Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrowers pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the
Borrowers of their obligation to reimburse such LC Disbursement.
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(f) OBLIGATIONS ABSOLUTE. The Borrowers' obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrowers' obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; PROVIDED that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrowers to the extent of any direct damages
(as opposed to consequential or punitive damages, claims in respect of which are
hereby waived by the Borrowers to the extent permitted by applicable law)
suffered by the Borrowers that are caused by the Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or wilful misconduct on
the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrowers by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; PROVIDED that any failure to give or
delay in giving such notice shall not relieve the Borrowers of their obligation
to reimburse the Issuing Bank and the Revolving Lenders with respect to any such
LC Disbursement.
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(h) INTERIM INTEREST. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrowers shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrowers reimburse such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
PROVIDED that, if the Borrowers fail to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) REPLACEMENT OF THE ISSUING BANK. The Issuing Bank may be replaced
at any time by written agreement among the Borrowers, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Borrowers shall pay
all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrowers receive notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrowers shall deposit in an account with the
Collateral Agent, in the name of the Collateral Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; PROVIDED that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrowers
described in clause (h) or (i) of Article VII. Each such deposit shall be held
by the Collateral Agent as collateral for the payment and performance of the
obligations of the Borrowers under this Agreement. The Collateral Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrowers' risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied
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by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements
for which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrowers for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrowers under this Agreement. If the Borrowers are
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrowers within three Business Days after
all Events of Default have been cured or waived.
SECTION 2.06. FUNDING OF BORROWINGS. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; PROVIDED that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
Borrowers by promptly crediting the amounts so received, in like funds, to an
account of one or more of the Borrowers maintained with the Administrative Agent
in New York City and designated by the Borrowers in the applicable Borrowing
Request; PROVIDED that ABR Revolving Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrowers a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrowers severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrowers to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrowers,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. INTEREST ELECTIONS. (a) Each Revolving Borrowing and
Term Loan Borrowing initially shall be of the Type specified in the applicable
Borrowing Request or designated by Section 2.03 and, in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such Borrowing
Request or designated by Section 2.03. Thereafter, the Borrowers may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrowers may
33
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrowers shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrowers were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrowers.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrowers shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrowers fail to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so
34
notifies the Borrowers, then, so long as an Event of Default is continuing (i)
no outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, (i) the Term Loan Commitments shall terminate at 5:00
p.m., New York City time, on the Effective Date and (ii) the Revolving
Commitments shall terminate on the Revolving Maturity Date.
(b) The Borrowers may at any time terminate, or from time to time
reduce, the Revolving Commitments; PROVIDED that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrowers shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the Revolving Exposures would exceed the total Revolving Commitments.
(c) The Borrowers shall notify the Administrative Agent of any
election to terminate or reduce the Revolving Commitments under paragraph (b) of
this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrowers pursuant to this Section shall be irrevocable; PROVIDED that a notice
of termination of the Revolving Commitments delivered by the Borrowers may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrowers (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Revolving
Commitments shall be permanent. Each reduction of the Revolving Commitments
shall be made ratably among the Lenders in accordance with their respective
Revolving Commitments.
SECTION 2.09. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrowers
hereby unconditionally promise to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Maturity Date, (ii) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each Term
Loan of such Lender as provided in Section 2.10 and (iii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of
the Revolving Maturity Date and the first date after such Swingline Loan is made
that is the 15th or last day of a calendar month and is at least two Business
Days after such Swingline Loan is made; PROVIDED that on each date that a
Revolving Borrowing is made, the Borrowers shall repay all Swingline Loans that
were outstanding on the date such Borrowing was requested.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrowers to such
Lender
35
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrowers to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrowers shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. AMORTIZATION OF TERM LOANS. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the Borrowers shall repay Term Loan
Borrowings on each date set forth below in the aggregate principal amount set
forth opposite such date:
Date Amount
---- ------
March 31, 2005 $ 2,000,000
June 30, 2005 $ 2,000,000
September 30, 2005 $ 2,000,000
December 31, 2005 $ 2,000,000
March 31, 2006 $ 3,000,000
June 30, 2006 $ 3,000,000
September 30, 2006 $ 3,000,000
December 31, 2006 $ 3,000,000
March 31, 2007 $ 4,000,000
June 30, 2007 $ 4,000,000
September 30, 2007 $ 4,000,000
December 31, 2007 $ 4,000,000
March 31, 2008 $ 5,000,000
June 30, 2008 $ 5,000,000
September 30, 2008 $ 5,000,000
December 31, 2008 $ 5,000,000
March 31, 2009 $ 6,000,000
June 30, 2009 $ 6,000,000
September 30, 2009 $ 6,000,000
Term Loan Maturity Date $ 6,000,000
36
(b) To the extent not previously paid, all Term Loans shall be due and
payable on the Term Loan Maturity Date.
(c) Any prepayment of a Term Loan shall be applied (i) in the case of
a prepayment made pursuant to Section 2.11(a), to reduce the subsequent
scheduled payments of the Term Loans to be made pursuant to this Section, at the
option of the applicable Borrower, ratably or in the inverse order of maturity
and (ii) in the case of a prepayment made pursuant to Section 2.11(c) or
2.11(d), to reduce the subsequent scheduled payments of the Term Loans to be
made pursuant to this Section in the inverse order of maturity.
SECTION 2.11. PREPAYMENT OF LOANS. (a) The Borrowers shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) In the event and on such occasion that the Revolving Exposures
exceed the total Revolving Commitments, the Borrowers shall prepay Revolving
Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding,
deposit cash collateral in an account with the Collateral Agent pursuant to
Section 2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Parent Borrower or any Subsidiary in respect of
any Prepayment Event, the Borrowers shall, within five Business Days after such
Net Proceeds are received, prepay Term Loan Borrowings in an aggregate amount
equal to (i) in the case of a Prepayment Event described in clause (c) of the
definition of the term "Prepayment Event", 50% of such Net Proceeds, (ii) in the
case of a Prepayment Event described in clause (d) of the term "Prepayment
Event", 100% of such Net Proceeds in excess of $2,000,000 and (iii) in the case
of all other Prepayment Events, 100% of such Net Proceeds; PROVIDED that, in the
case of any event described in clause (a) or (b) of the definition of the term
"Prepayment Event", if the Borrowers shall deliver to the Administrative Agent a
certificate of a Financial Officer to the effect that the Parent Borrower and
the Subsidiaries intend to apply the Net Proceeds from such event (or a portion
thereof specified in such certificate), within 180 days after receipt of such
Net Proceeds, to acquire real property, equipment or other tangible assets to be
used in the business of the Parent Borrower and the Subsidiaries, and certifying
that no Default has occurred and is continuing, then no prepayment shall be
required pursuant to this paragraph in respect of the Net Proceeds in respect of
such event (or the portion of such Net Proceeds specified in such certificate,
if applicable) except to the extent of any such Net Proceeds therefrom that have
not been so applied by the end of such 180-day period,
37
at which time a prepayment shall be required in an amount equal to such Net
Proceeds that have not been so applied.
(d) Following the end of each fiscal year of the Parent Borrower,
commencing with the fiscal year ending December 31, 2005, the Borrowers shall
prepay Term Loan Borrowings in an aggregate amount equal to (i) for any fiscal
year for which the Funded Debt Ratio at the end of such fiscal year is greater
than or equal to 1.50 to 1.00, 50% of Excess Cash Flow for such fiscal year and
(ii) for any fiscal year for which the Funded Debt Ratio at the end of such
fiscal year is less than 1.50 to 1.00, 0% of Excess Cash Flow for such fiscal
year. Each prepayment pursuant to this paragraph shall be made on or before the
date on which financial statements are delivered pursuant to Section 5.01 with
respect to the fiscal year for which Excess Cash Flow is being calculated (and
in any event within 90 days after the end of such fiscal year).
(e) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrowers shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section.
(f) The Borrowers shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; PROVIDED that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13.
SECTION 2.12. FEES. (a) The Borrowers agree to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the average daily unused amount of the
Revolving Commitment of such Lender during the period from and including the
Effective Date to but excluding the date on which the Revolving Commitments
terminate. Accrued
38
commitment fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the date
hereof. All commitment fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). For purposes of computing commitment fees, a
Revolving Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).
(b) The Borrowers agree to pay (i) to the Administrative Agent for the
account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as interest on Eurodollar Revolving Loans on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Revolving Commitment terminates and the date on which such Lender ceases to have
any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue
at the rate of 0.25% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Revolving Commitments and the date on
which there ceases to be any LC Exposure, as well as the Issuing Bank's standard
fees with respect to the issuance, amendment, renewal or extension of any Letter
of Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the Effective Date;
PROVIDED that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) The Borrowers agree to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrowers and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
39
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrowers hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus
the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2.00% plus
the rate applicable to ABR Revolving Loans as provided in paragraph (a) of this
Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; PROVIDED that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
40
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. INCREASED COSTS. (a) Except with respect to Taxes which
shall be governed solely and exclusively by Section 2.17, if any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrowers will pay to such Lender or the Issuing Bank, as the case may be,
subject to Section 2.19, such additional amount or amounts as will compensate
such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank reasonably determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or on
the capital of such Lender's or the Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by the Issuing
Bank, to a level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing Bank's
policies and the policies of such Lender's or the Issuing Bank's holding company
with respect to capital adequacy), then from time to time the Borrowers will,
subject to Section 2.19, pay to such Lender or the Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section and
41
setting forth the basis for such amounts and a calculation thereof in reasonable
detail shall be delivered to the Borrowers and shall be conclusive absent
manifest error. The Borrowers shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 Business
Days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; PROVIDED
that the Borrowers shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; PROVIDED FURTHER that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrowers pursuant to
Section 2.19, then, in any such event, the Borrowers shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case of
a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest that would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest that would accrue on
such principal amount for such period at the interest rate that such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrowers and shall be conclusive absent manifest error. The Borrowers
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on account of any
obligation of the Borrowers hereunder or under any other Loan Document shall be
made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; PROVIDED that if the Borrowers shall be required to deduct any
Indemnified Taxes or
42
Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or Issuing Bank (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrowers shall make such deductions and (iii) the Borrowers shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrowers shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrowers hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability and setting forth in reasonable detail the calculation and basis for
such payment or liability delivered to the Borrowers by a Lender or the Issuing
Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender
or the Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrowers to a Governmental Authority, the Borrowers shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrowers are located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrowers (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrowers as will permit such payments to be
made without withholding or at a reduced rate.
(f) Each Lender, the Issuing Bank and Administrative Agent that is a
United States Person, as defined in section 7701(a)(30) of the Code (other than
Persons that are corporations or otherwise exempt from United States backup
withholding Tax), shall deliver at the time(s) and in the manner(s) prescribed
by applicable law, to the Borrowers and the Administrative Agent (as
applicable), a properly completed and duly executed United States Internal
Revenue Form W-9 or any successor form, certifying that
43
such Person is exempt from United States backup withholding Tax on payments made
hereunder.
(g) If the Administrative Agent, the Issuing Bank or a Lender
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by the Borrowers or with
respect to which the Borrowers have paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to the Borrowers (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrowers
under this Section 2.17 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent, the
Issuing Bank or such Lender and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund); PROVIDED,
that the Borrowers, upon the request of the Administrative Agent, the Issuing
Bank or such Lender, agree to repay the amount paid over to the Borrowers (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, the Issuing Bank or such Lender in the
event the Administrative Agent, the Issuing Bank or such Lender is required to
repay such refund to such Governmental Authority. This Section shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any information relating to its taxes which it deems
confidential) to the Borrowers or any other person.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) The Borrowers shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall be made in
dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties
44
entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans, Term Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans; PROVIDED that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrowers pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Parent
Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of
this paragraph shall apply). The Borrowers consent to the foregoing and agree,
to the extent they may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrowers' rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrowers
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrowers prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrowers will not make such payment, the Administrative
Agent may assume that the Borrowers have made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Bank, as the case may be, the amount due. In such event,
if the Borrowers have not in fact made such payment, then each of the Lenders or
the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
45
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(a) or (b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.15, or if the Borrowers are
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers
hereby agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrowers may, at their sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); PROVIDED that (i) the Borrowers
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank and Swingline
Lender), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrowers (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrowers to require such assignment and delegation cease to
apply.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Parent Borrower and
the Subsidiaries are duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, have all requisite corporate
power and authority to carry on its business as now conducted and as proposed to
be conducted and to execute, deliver and perform its obligations under each Loan
Document to which it is a party and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and are in good
standing in, every jurisdiction where such qualification is required for the
conduct of its business.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions to be
entered into by each Loan Party have been duly authorized by all necessary
corporate or other action and, if required, stockholder action. This Agreement
has been duly executed and delivered by each of the Borrowers and constitutes,
and each other Loan Document to which any Loan Party is to be a party, when
executed and delivered by such Loan Party, will constitute, a legal, valid and
binding obligation of the Borrowers or such Loan Party (as the case may be),
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and except filings necessary
to perfect Liens created under the Loan Documents, (b) will not violate any
Requirement of Law applicable to the Parent Borrower or any Subsidiary, (c) will
not violate or result in a default under any material indenture, material
agreement or other material instrument binding upon the Parent Borrower or any
Subsidiary or their assets, or give rise to a right thereunder to require any
payment to be made by the Parent Borrower or any Subsidiary or give rise to a
right of, or result in, termination, cancelation or acceleration of any
obligation thereunder, and (d) will not result in the creation or imposition of
any Lien on any asset of the Parent Borrower or any Subsidiary, except Liens
created under the Loan Documents.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE. (a) The
Parent Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and consolidated statements of income, stockholders equity and cash flows
(i) as of and for the fiscal years ended December 31, 2001, December 31, 2002
and December 31, 2003, reported on by PricewaterhouseCoopers LLP, independent
public accountants and (ii) as of and for the fiscal quarters and the portion of
the fiscal year ended March 31, 2004,
47
June 30, 2004 and September 30, 2004 (and for the comparable periods for the
prior fiscal year), certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Parent Borrower and its Subsidiaries
as of such dates and for such periods in accordance with GAAP consistently
applied, subject to year-end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (ii) above. The Parent Borrower
has heretofore furnished to the Lenders unaudited statements of income for the
Acquired Business for the nine-month period ended September 30, 2004 and the
fiscal year ended December 31, 2003. Such financial statements (i) except as
specifically noted therein, have been prepared in accordance with GAAP applied
consistently with the Company's past practices and (ii) are complete and correct
in all material respects, except as specifically noted therein, and present
fairly in all material respects the results of operations of the Acquired
Business as of such dates and for such periods covered thereby.
(b) The Parent Borrower has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of September 30, 2004, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has been prepared in good faith
based on the same assumptions used to prepare the pro forma financial statements
included in the Information Memorandum (which assumptions are believed by the
Parent Borrower to be reasonable), (ii) is based on the best information
available to the Parent Borrower after due inquiry, (iii) accurately reflects
all material adjustments necessary to give effect to the Transactions and (iv)
presents fairly, in all material respects, the pro forma financial position of
the Parent Borrower and the Subsidiaries as of September 30, 2004, as if the
Transactions had occurred on such date.
(c) Except as disclosed in the financial statements referred to above
or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters, after giving effect to the Transactions, none of the Parent
Borrower or the Subsidiaries has, as of the Effective Date, any material direct
or contingent liabilities, unusual long-term commitments or unrealized losses.
(d) No event, change or condition has occurred that has had, or could
reasonably be expected to have, a materially adverse effect on the business,
operations, properties, assets, condition (financial or otherwise), liabilities
or prospects of the Parent Borrower and the Subsidiaries (after giving effect to
the Acquisition), taken as a whole, whether or not covered by insurance, since
December 31, 2003.
SECTION 3.05. PROPERTIES. (a) Each of the Parent Borrower and the
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business (including the Mortgaged
Properties), except for (i) minor defects in title that do not interfere with
its ability to conduct its business as currently conducted or as proposed to be
conducted or to utilize such properties for their intended purposes and (ii)
leaseholds subject to all superior title matters and all matters which encumber
the landlord's or ground lessor's interest.
48
(b) Each of the Parent Borrower and the Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Parent Borrower and the Subsidiaries does not infringe upon the rights of any
other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) Schedule 3.05 sets forth the address of each real property that is
owned or leased by the Parent Borrower or any Subsidiary (other than addresses
of the locations to which the Laundry Facility Agreements relate) as of the
Effective Date after giving effect to the Transactions.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Parent Borrower,
threatened against the Parent Borrower or any of its Subsidiaries (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Parent Borrower nor
any Subsidiary (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Schedule 3.06 of Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Parent
Borrower and the Subsidiaries is in compliance with all Requirements of Law
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither the
Parent Borrower nor any Subsidiary is (a) an "investment company" as defined in,
or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
49
SECTION 3.09. TAXES. Each of the Parent Borrower and the Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) any Taxes that are being contested in good faith by
appropriate proceedings and for which the Parent Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $250,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $250,000 the fair market value of
the assets of all such underfunded Plans.
SECTION 3.11. DISCLOSURE. The Borrowers have disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which the
Parent Borrower or any Subsidiary is subject, and all other matters known to any
of them, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. Neither the Information Memorandum nor any
of the other reports, financial statements, certificates or other information
furnished by or on behalf of any Loan Party to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or any other Loan
Document or delivered hereunder or thereunder (as modified or supplemented by
other information so furnished) contains, when taken as a whole, any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED that, with respect to projected financial
information, the Parent Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time delivered and, if such projected financial information was delivered prior
to the Effective Date, as of the Effective Date.
SECTION 3.12. SUBSIDIARIES. Schedule 3.12 sets forth the name of, and
the ownership interest of the Parent Borrower in, each Subsidiary of the Parent
Borrower and identifies each Subsidiary that is a Subsidiary Loan Party, in each
case as of the Effective Date.
SECTION 3.13. INSURANCE. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of the Parent Borrower and the Subsidiaries
as of the Effective Date. As of the Effective Date, all premiums in respect of
such insurance have been paid. The Borrowers believe that the insurance
maintained by or on behalf of the Parent Borrower and the Subsidiaries is
adequate.
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SECTION 3.14. LABOR MATTERS. As of the Effective Date, there are no
strikes, lockouts or slowdowns against the Parent Borrower or any Subsidiary
pending or, to the knowledge of the Parent Borrower, threatened. The hours
worked by and payments made to employees of the Parent Borrower and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such matters.
All payments of a material amount due from the Parent Borrower or any
Subsidiary, or for which any reasonably foreseeable claim may be made against
the Parent Borrower or any Subsidiary, on account of wages and employee health
and welfare insurance and other benefits (other than routine claims for
benefits), have been paid or accrued as a liability on the books of the Parent
Borrower or such Subsidiary. The consummation of the Transactions will not give
rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which the Parent Borrower or
any Subsidiary is bound.
SECTION 3.15. SOLVENCY. Immediately after the consummation of the
Transactions to occur on the Effective Date, (a) the fair value of the assets of
the Loan Parties, taken as a whole, at a fair valuation, will exceed their debts
and liabilities, subordinated, contingent or otherwise, (b) the present fair
saleable value of the property of the Loan Parties, taken as a whole, will be
greater than the amount that will be required to pay the probable liability of
their debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured, (c) the Loan
Parties will be able to pay their debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured and (d) the Loan Parties will not have unreasonably small capital with
which to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted following the Effective Date.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of Xxxxxxx Procter LLP, counsel for the Borrowers,
substantially in the form of Exhibit C, covering such other matters
relating to the Loan Parties,
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the Loan Documents or the Transactions as the Required Lenders shall
reasonably request. The Borrowers hereby request such counsel to deliver
such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party, the authorization of the Transactions and any other legal
matters relating to the Loan Parties, the Loan Documents or the
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Parent Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all reasonable
out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel) required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been satisfied
and the Administrative Agent shall have received a completed Perfection
Certificate or Perfection Certificates dated the Effective Date and signed
by a Financial Officer or legal officer of the Parent Borrower. The
Administrative Agent shall have received the results of a search of the
Uniform Commercial Code (or equivalent) filings made with respect to the
Loan Parties in the jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements
(or similar documents) are permitted by Section 6.02 or have been released.
(g) The Administrative Agent shall have received evidence that the
insurance required by Section 5.07 and the Security Documents is in effect.
(h) The Administrative Agent shall be reasonably satisfied as to the
amount and nature of any contingent liabilities (including but not limited
to environmental and employee health and safety exposures) to which the
Parent Borrower and the Subsidiaries may be subject after giving effect to
the Acquisition, and with the plans of the Parent Borrower or such
subsidiaries with respect thereto.
(i) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Acquisition
shall have been obtained, and all applicable waiting periods and appeal
periods
52
(including any extensions thereof) shall have expired and there shall be no
governmental or judicial action, actual or threatened, that could
reasonably be expected to restrain, prevent or impose burdensome conditions
on the Transactions.
(j) The Lenders shall have received a pro forma consolidated balance
sheet of the Parent Borrower as of September 30, 2004, reflecting all pro
forma adjustments as if the Transactions had been consummated on such date,
and such pro forma consolidated balance sheet shall be consistent in all
material respects with the forecasts and other information previously
provided to the Lenders.
(k) The Lenders shall have received (i) audited consolidated balance
sheets and related statements of income, stockholders' equity and cash
flows of the Parent Borrower for the fiscal years ended December 31, 2001,
December 31, 2002 and December 31, 2003, and (ii) unaudited consolidated
balance sheets and related statements of income, stockholders' equity and
cash flows of the Parent Borrower as of and for the fiscal quarters and
portion of the fiscal year ended March 31, 2004, June 30, 2004, and
September 30, 2004 (and for the comparable periods for the prior fiscal
year), which financial statements described in clauses (i) and (ii) shall
not be materially inconsistent with the financial statements or forecasts
previously provided to the Lenders.
(l) The Lenders shall have received unaudited balance sheets of the
Acquired Business as of September 30, 2003, December 31, 2003 and September
30, 2004 and unaudited statements of income of the Acquired Business for
the nine-month period ended September 30, 2004 (and for the comparable
period for the prior fiscal year), in each case which financial statements
shall not be materially inconsistent with the financial statements or
forecasts previously provided to the Lenders.
(m) The Transactions shall have been consummated or shall be
consummated simultaneously with the initial funding of Loans on the
Effective Date in accordance with applicable law, the Acquisition Agreement
and all other related documentation (without giving effect to any
amendments or waivers to or of such documents that are adverse to the
Lenders and not approved by the Lenders).
(n) All commitments under the Existing
Credit Agreement shall have
been terminated, and all loans, interest and other amounts accrued or owing
thereunder shall have been repaid in full and all liens granted in respect
thereof shall have been released and the terms and conditions of any such
release shall be satisfactory to the Administrative Agent. The
Administrative Agent shall have received a payoff and release letter in
form and substance reasonably satisfactory to the Administrative Agent from
Citizens Bank of Massachusetts. After giving effect to the Transactions,
neither the Parent Borrower nor any of its Subsidiaries shall have
outstanding any shares of preferred stock or any Indebtedness, other than
(i) Indebtedness incurred under the Loan Documents and (ii) Indebtedness
53
set forth on Schedule 6.01. The terms and conditions of all Indebtedness to
remain outstanding after the Effective Date (including terms and conditions
relating to interest rates, fees, amortization, maturity, redemption,
subordination, covenants, events of default and remedies) shall be
satisfactory in all respects to the Lenders.
(o) The Lenders shall have received a certificate from the chief
financial officer of the Parent Borrower, in form and substance
satisfactory to the Lenders, certifying as to the solvency of the Parent
Borrower and its Subsidiaries on a consolidated basis after giving effect
to the Transactions.
(p) The Lenders shall have received a detailed business plan of the
Parent Borrower and its Subsidiaries for the fiscal years 2005 through 2009
(including quarterly projections for the fiscal quarters ending March 31,
2005, June 30, 2005, September 30, 2005 and December 31, 2005).
(q) The Lenders shall have received a certificate of a Financial
Officer certifying that the Parent Borrower's pro forma Consolidated EBITDA
(determined in accordance with Regulation S-X under the Securities Act of
1933, as amended) for the twelve-month period ended September 30, 2004 (the
"EFFECTIVE DATE CONSOLIDATED EBITDA"), is greater than $53,000,000.
(r) The Administrative Agent shall be satisfied that the ratio of
Total Funded Debt on the Effective Date to the Effective Date Consolidated
EBITDA shall be no more than 3.50 to 1.00.
The Administrative Agent shall notify the Borrowers and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 5:00 p.m., New York City time, on January 31, 2005 (and, in the
event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make
a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct (i) to the extent such
representation or warranty is modified or qualified based on the terms
"materially" or "material" or by reference to the term "Material Adverse
Effect", in any respect and (ii) to the extent such representation or warranty
is not so modified or qualified, in any material respect, in each case on and as
of the date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
54
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrowers on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees, expenses and other amounts
payable under any Loan Document shall have been paid in full and all Letters of
Credit shall have expired or been terminated and all LC Disbursements shall have
been reimbursed, the Borrowers covenant and agree with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrowers will furnish to the Administrative Agent on behalf of each Lender:
(a) within 90 days after the end of each fiscal year of the Parent
Borrower, its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or
other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and without
any qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Parent
Borrower and the Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Parent Borrower, its consolidated
balance sheet and related statements of operations, stockholders' equity
and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by a Financial Officer as presenting fairly in
all material respects the financial condition and results of operations of
the Parent Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer (i)
certifying as to whether a
55
Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto,
(ii) setting forth reasonably detailed calculations (A) demonstrating
compliance with Sections 6.12, 6.13 and 6.14 and (B) in the case of
financial statements delivered under clause (a) above, beginning in 2006
with respect to the fiscal year ending December 31, 2005, of Excess Cash
Flow and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the Parent Borrower's audited
financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default
under Sections 6.12, 6.13 or 6.14 and, if such knowledge has been obtained,
describing such Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) within 45 days after the commencement of each fiscal year of the
Parent Borrower, a detailed consolidated budget for such fiscal year
(including a projected consolidated balance sheet and related statements of
projected operations and cash flow as of the end of and for such fiscal
year and setting forth the assumptions used for purposes of preparing such
budget) and, promptly when available, any significant revisions of such
budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Parent Borrower or any Subsidiary with the SEC or with any national
securities exchange, as the case may be; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Parent Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrowers will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or, to the
knowledge of an executive officer or the Parent Borrower or any Subsidiary
or a Financial Officer, affecting the Borrowers or any Affiliate thereof
that, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
56
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Parent Borrower and its Subsidiaries in an
aggregate amount exceeding $250,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Parent Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
SECTION 5.03. INFORMATION REGARDING COLLATERAL. (a) The Borrowers will
furnish to the Collateral Agent prompt written notice of any change (i) in any
Loan Party's corporate name, (ii) in the jurisdiction of incorporation or
organization of any Loan Party or (iii) in any Loan Party's organizational
identification number. The Borrowers agree not to effect or permit any change
referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Collateral Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral. The Borrowers also
agree promptly to notify the Collateral Agent if any material portion of the
Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of financial statements
pursuant to Section 5.01, the Borrowers shall deliver to the Collateral Agent a
certificate of a Financial Officer or chief legal officer of the Parent Borrower
setting forth the information required pursuant to the Perfection Certificate or
confirming that there has been no change in such information since the date of
the Perfection Certificate delivered on the Effective Date or the date of the
most recent certificate delivered pursuant to this Section.
SECTION 5.04. EXISTENCE; CONDUCT OF BUSINESS. The Parent Borrower
will, and will cause each Subsidiary to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business;
PROVIDED that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.
SECTION 5.05. PAYMENT OF OBLIGATIONS. The Parent Borrower will, and
will cause each Subsidiary to, pay its Material Indebtedness and other material
obligations, including Tax liabilities, before the same shall become delinquent
or in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) the Parent Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of
57
any Lien securing such obligation and (d) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.06. MAINTENANCE OF PROPERTIES. The Parent Borrower will, and
will cause each Subsidiary to, keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted.
SECTION 5.07. INSURANCE. The Parent Borrower will, and will cause each
Subsidiary to, maintain, with financially sound and reputable insurance
companies (a) insurance in such amounts (with no greater risk retention) and
against such risks as are customarily maintained by companies of established
repute engaged in the same or similar businesses operating in the same or
similar locations and (b) all insurance required to be maintained pursuant to
the Security Documents. The Borrowers will furnish to the Lenders, upon request
of the Administrative Agent, information in reasonable detail as to the
insurance so maintained.
SECTION 5.08. CASUALTY AND CONDEMNATION. The Borrowers (a) will
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any material portion of the Collateral or
the commencement of any action or proceeding for the taking of any material
portion of or any material interest in the Collateral under power of eminent
domain or by condemnation or similar proceeding and (b) will ensure that the Net
Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of the Security Documents.
SECTION 5.09. BOOKS AND RECORDS; INSPECTION AND AUDIT RIGHTS. The
Parent Borrower will, and will cause each Subsidiary to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The Parent
Borrower will, and will cause each Subsidiary to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.
SECTION 5.10. COMPLIANCE WITH LAWS. The Parent Borrower will, and will
cause each of its Subsidiaries to, comply with all Requirements of Law
(including Environmental Law) applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.11. USE OF PROCEEDS AND LETTERS OF CREDIT. The proceeds of
the Term Loans and Revolving Loans made on the Effective Date will be used (a)
to repay all loans, interest and other amounts accrued or owing under the
Existing
Credit Agreement, (b) to pay the fees and expenses payable in
connection with the Transactions and (c) to pay the Acquisition Consideration.
The proceeds of the Revolving Loans and
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Swingline Loans drawn after the Effective Date will be used only for working
capital and general corporate purposes (including Permitted Acquisitions). No
part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations G, U and X. Letters of Credit will be used only for
general corporate purposes.
SECTION 5.12. ADDITIONAL SUBSIDIARIES. If any additional Subsidiary is
formed or acquired after the Effective Date, the Parent Borrower will, within
five Business Days after such Subsidiary is formed or acquired, notify the
Collateral Agent and the Lenders thereof and cause the Collateral and Guarantee
Requirement to be satisfied with respect to such Subsidiary (if it is a
Subsidiary Loan Party) and with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.
SECTION 5.13. FURTHER ASSURANCES. (a) The Parent Borrower will, and
will cause each Subsidiary Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), that may be required
under any applicable law, or that the Collateral Agent or the Required Lenders
may reasonably request, to cause the Collateral and Guarantee Requirement to be
and remain satisfied, all at the expense of the Loan Parties. The Borrowers also
agree to provide to the Collateral Agent, from time to time upon request,
evidence reasonably satisfactory to the Collateral Agent as to the perfection
and priority of the Liens created or intended to be created by the Security
Documents.
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrowers or
any Subsidiary Loan Party after the Effective Date (other than assets
constituting Collateral under the Collateral Agreement that become subject to
the Lien of the Collateral Agreement upon acquisition thereof), the Borrowers
will notify the Collateral Agent and the Lenders thereof, and, if requested by
the Collateral Agent or the Required Lenders, the Borrowers will cause such
assets to be subjected to a Lien securing the Obligations and will take, and
cause the Subsidiary Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Collateral Agent to grant and perfect such Liens,
including actions described in paragraph (a) of this Section, all at the expense
of the Loan Parties.
SECTION 5.14. INTEREST RATE PROTECTION. As promptly as practicable,
and in any event within 120 days after the Effective Date, the Borrowers will
enter into, and thereafter for a period of not less than three years will
maintain in effect, Swap Agreements with one or more Lenders (or Affiliates
thereof or other Person approved by the Administrative Agent), the effect of
which is that at least 50% of the Total Funded Debt will bear interest at a
fixed rate or the interest cost in respect of which will be fixed, in each case
on terms and conditions reasonably acceptable to the Administrative Agent.
SECTION 5.15. POST-CLOSING MATTERS. (a) On or prior to the date that
is (i) 45 days after the Effective Date (or such later date as is acceptable to
the
59
Administrative Agent in its sole discretion), the Parent Borrower will, or will
cause the Subsidiaries to, deliver to the Administrative Agent executed landlord
waivers in respect of each of the Parent Borrower's and the Subsidiaries'
regional sales and service facilities (prior to the Acquisition) listed on
Schedule 5.15, each in form and substance satisfactory to the Administrative
Agent, (ii) 90 days after the Effective Date (or such later date as is
acceptable to the Administrative Agent in its sole discretion), the Parent
Borrower will, or will cause the Subsidiaries to, deliver to the Administrative
Agent a list of regional sales and service facilities relating to the Acquired
Business that the Borrowers intend to use on a going forward basis and (iii) 120
days after the Effective Date (or such later date as is acceptable to the
Administrative Agent in its sole discretion), the Parent Borrower will, or will
cause the Subsidiaries to, use commercially reasonable efforts (without undue
expense to the Parent Borrower or applicable Subsidiary) to deliver to the
Administrative Agent executed landlord waivers in respect of each of the
regional sales and service facilities identified pursuant to subsection (ii)
above, each in form and substance satisfactory to the Administrative Agent.
(b) On or prior to the date that is 45 days after the Effective Date
(or such later date as is acceptable to the Administrative Agent in its sole
discretion), the Parent Borrower will, or will cause the Subsidiaries to,
deliver to the Administrative Agent executed Deposit Account Control Agreements
(as and to the extent required in the Collateral Agreement), each in form and
substance satisfactory to the Collateral Agent.
(c) On or prior to the date that is 120 days after the Effective Date
(or such later date as is acceptable to the Administrative Agent in its sole
discretion), the Parent Borrower will, or will cause the Subsidiaries to,
establish and maintain a centralized cash management system of a type and on
terms reasonably satisfactory to the Administrative Agent at the Administrative
Agent, any Lender or any of their respective Affiliates.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees, expenses and other amounts
payable under any Loan Document have been paid in full and all Letters of Credit
have expired or been terminated and all LC Disbursements shall have been
reimbursed, the Borrowers covenant and agree with the Lenders that:
SECTION 6.01. INDEBTEDNESS; CERTAIN EQUITY SECURITIES. (a) The Parent
Borrower will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness; PROVIDED
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that such extending, renewal or replacement Indebtedness (A) shall not be
Indebtedness of an obligor that was not an obligor with respect to the
Indebtedness being extended, renewed or replaced, (B) shall not be in a
principal amount that exceeds the principal amount of Indebtedness being
extended, renewed or replaced (plus accrued interest and premium thereon),
(C) shall not have an earlier maturity date or decreased weighted average
life than the Indebtedness being extended, renewed or replaced and (D)
shall be subordinated to the Obligations on the same terms as the
Indebtedness being extended, renewed or replaced;
(iii) Indebtedness of the Parent Borrower to any Subsidiary and of any
Subsidiary to the Parent Borrower or any other Subsidiary; PROVIDED (A)
that Indebtedness of any Subsidiary that is not a Loan Party to the Parent
Borrower or any Subsidiary Loan Party shall be subject to Section 6.04 and
(B) Indebtedness of any Borrower to any Subsidiary (other than another
Borrower) and Indebtedness of any Subsidiary Loan Party to any Subsidiary
that is not a Subsidiary Loan Party shall be subordinated to the
Obligations on terms reasonably satisfactory to the Administrative Agent;
(iv) Guarantees by the Parent Borrower of Indebtedness of any
Subsidiary and by any Subsidiary of Indebtedness of the Parent Borrower or
any other Subsidiary; PROVIDED that (A) the Indebtedness so Guaranteed is
permitted by this Section 6.01 (other than Section 6.01(a)(ii)), (B)
Guarantees by the Parent Borrower or any Subsidiary Loan Party of
Indebtedness of any Subsidiary that is not a Loan Party shall be subject to
Section 6.04 and (C) Guarantees permitted under this clause (iv) shall be
subordinated to the Obligations of the applicable Subsidiary on the same
terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(v) Indebtedness of the Parent Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured by
a Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof (plus accrued interest and premium
thereon); PROVIDED that (A) such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (v) shall not exceed $5,000,000 at
any time outstanding;
(vi) (A) Indebtedness of any Person that becomes a Subsidiary after
the date hereof; PROVIDED that (1) such Indebtedness exists at the time
such Person becomes a Subsidiary and is not created in contemplation of or
in connection with such Person becoming a Subsidiary and (2) the aggregate
principal amount of Indebtedness permitted by this clause (vi) shall not
exceed $2,000,000 at any time outstanding and (B) any refinancings,
renewals and replacements of any such
61
Indebtedness pursuant to the preceding clause (A) that do not increase the
outstanding principal amount (plus accrued interest and premium) thereof;
(vii) other unsecured Indebtedness in an aggregate principal amount
not exceeding $1,000,000 at any time outstanding; PROVIDED that the
aggregate principal amount of Indebtedness of the Subsidiaries that are not
Subsidiary Loan Parties permitted by this clause (viii) shall not exceed
$500,000 at any time outstanding;
(viii) Indebtedness owed to any Person (including obligations in
respect of letters of credit for the benefit of such Person) providing
workers' compensation, health, disability or other employee benefits or
property, casualty or liability insurance, pursuant to reimbursement or
indemnification obligations to such Person, in each case incurred in the
ordinary course of business;
(ix) Indebtedness of the Borrower or any Subsidiary in respect of
performance bonds, bid bonds, appeal bonds, surety bonds, performance and
completion guarantees and similar obligations, in each case provided in the
ordinary course of business; and
(x) Indebtedness in respect of Swap Agreements permitted by
Section 6.07.
(b) The Parent Borrower will not, and will not permit any Subsidiary
to issue preferred Equity Interests.
SECTION 6.02. LIENS. The Parent Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Parent Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
PROVIDED that (i) such Lien shall not apply to any other property or asset
of the Parent Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations that it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof (plus accrued interest and premium thereon);
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Parent Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary; PROVIDED
that (A) such Lien is not created in contemplation of or in connection with
such acquisition or such Person
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becoming a Subsidiary, as the case may be, (B) such Lien shall not apply to
any other property or assets of the Parent Borrower or any Subsidiary and
(C) such Lien shall secure only those obligations that it secures on the
date of such acquisition or the date such Person becomes a Subsidiary, as
the case may be, and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof (plus accrued
interest and premium thereon);
(v) Liens on fixed or capital assets acquired, constructed or improved
by the Parent Borrower or any Subsidiary; PROVIDED that (A) such security
interests secure Indebtedness permitted by clause (v) of Section 6.01(a),
(B) such security interests and the Indebtedness secured thereby are
incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (C) the Indebtedness
secured thereby does not exceed the lesser of the cost of acquiring,
constructing or improving such fixed or capital asset or its fair market
value at the time such security interest attaches, and in any event, such
Indebtedness does not exceed $5,000,000 at any time outstanding and (D)
such security interests shall not apply to any other property or assets of
the Parent Borrower or any Subsidiary;
(vi) Liens of a collecting bank arising in the ordinary course of
business under Section 4-208 of the Uniform Commercial Code in effect in
the relevant jurisdiction covering only the items being collected upon;
(vii) Liens granted by a Subsidiary that is not a Loan Party in favor
of the Parent Borrower or another Loan Party in respect of Indebtedness
owed by such Subsidiary.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) The Parent Borrower will not,
and will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
Subsidiary may merge into a Borrower in a transaction in which a Borrower is the
surviving corporation, (ii) any Subsidiary (other than a Borrower) may merge
into any Subsidiary (other than a Borrower) in a transaction in which the
surviving entity is a Subsidiary and (if any party to such merger is a
Subsidiary Loan Party) is a Subsidiary Loan Party and (iii) any Subsidiary
(other than a Subsidiary Loan Party) may liquidate or dissolve if the Parent
Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Parent Borrower and is not materially disadvantageous to
the Lenders; PROVIDED that any such merger involving a Person that is not a
wholly owned Subsidiary immediately prior to such merger shall not be permitted
unless also permitted by Section 6.04.
(b) The Parent Borrower will not, and will not permit any of the
Subsidiaries to, engage to any material extent in any business other than
businesses of the
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type conducted by the Parent Borrower and the Subsidiaries on the date of
execution of this Agreement and businesses reasonably related thereto.
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. The Parent Borrower will not, and will not permit any of the
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger) any
Equity Interests in or evidences of indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions; PROVIDED that the aggregate purchase
price, which shall be deemed to include (i) any amounts actually paid
pursuant to any post-closing payment adjustments, earn-outs or non-compete
payments and (ii) the principal amount of Indebtedness that is assumed
pursuant to Section 6.01(a)(vi) or otherwise incurred in connection with
such Permitted Acquisition, shall not exceed $12,000,000 in any fiscal year
and $20,000,000 in the aggregate plus, in each case (without duplication)
an amount equal to any returns of capital or sale proceeds actually
received in cash in respect of any such Permitted Acquisition (which amount
shall not exceed the purchase price paid (including the principal amount of
Indebtedness assumed pursuant to Section 6.01(a)(vi) in connection
therewith) in respect of such Permitted Acquisition);
(c) investments existing on the date hereof and set forth on
Schedule 6.04;
(d) investments by the Parent Borrower and its Subsidiaries in Equity
Interests in their respective Subsidiaries; PROVIDED that (i) any such
Equity Interests held by a Loan Party shall be pledged pursuant to the
Collateral Agreement (subject to the limitations applicable to common stock
of a Foreign Subsidiary referred to in the definition of "Collateral and
Guarantee Requirement") and (ii) the aggregate amount of investments by
Loan Parties in Subsidiaries that are not Loan Parties (together with
outstanding intercompany loans permitted under clause (ii) to the proviso
to Section 6.04(e) and outstanding Guarantees permitted under the proviso
to Section 6.04(g)) shall not exceed $500,000 at any time outstanding (in
each case determined without regard to any write-down or write-offs);
(e) loans or advances made by the Parent Borrower to any Subsidiary
and made by any Subsidiary to the Parent Borrower or any other Subsidiary;
PROVIDED that (i) any such loans and advances made by a Loan Party shall be
evidenced by a promissory note pledged pursuant to the Collateral Agreement
and (ii) the amount of such loans and advances made by Loan Parties to
Subsidiaries that are
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not Loan Parties (together with investments permitted under clause (ii) of
Section 6.04(d) and outstanding Guarantees permitted under the proviso to
Section 6.04(g) shall not exceed $500,000 at any time outstanding (in each
case determined without regard to any write-down or write-offs);
(f) loans or advances to employees made in the ordinary course of
business of the Parent Borrower or a Subsidiary not exceeding $250,000 in
the aggregate outstanding at any time, PROVIDED that no such advances to
any single employee shall exceed $50,000 in the aggregate outstanding
(determined without regard to any write-downs or write-offs of such loans
or advances).
(g) Guarantees constituting Indebtedness permitted by Section 6.01;
PROVIDED that the aggregate principal amount of Indebtedness of
Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party
(together with investments permitted under clause (ii) of Section 6.04(d)
and outstanding intercompany loans permitted under clause (ii) to the
proviso to Section 6.04(c)) shall not exceed $500,000 at any time
outstanding (in each case determined without regard to any write-downs or
write-offs);
(h) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(i) investments in the form of Swap Agreements permitted by
Section 6.07;
(j) investments of any Person existing at the time such Person becomes
a Subsidiary of the Borrower or consolidates or merges with the Borrower or
any of the Subsidiaries (including in connection with a Permitted
Acquisition) so long as such investments were not made in contemplation of
such Person becoming a Subsidiary or of such consolidation or merger;
(k) investments received in connection with the dispositions of assets
permitted by Section 6.05;
(l) other investments, loans and advances by the Parent Borrower or
any Subsidiary in an aggregate amount, as valued at cost at the time each
such investment is made and including all related commitments for future
advances, not exceeding $250,000 in the aggregate for all such investments
made from and after the Effective Date plus an amount equal to any returns
of capital actually received in cash in respect of any such investments
(which amount shall not exceed the amount of such investment valued at cost
at the time such investment was made).
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SECTION 6.05. ASSET SALES. The Parent Borrower will not, and will not
permit any of its Subsidiaries to, sell, transfer, lease or otherwise dispose of
any asset, including any Equity Interest owned by it, nor will the Parent
Borrower permit any Subsidiary to issue any additional Equity Interest in such
Subsidiary, except:
(a) sales, transfers and other dispositions of (i) inventory, (ii)
used or surplus equipment and (iii) Permitted Investments in the ordinary
course of business;
(b) sales, transfers and other dispositions to the Parent Borrower or
a Subsidiary; PROVIDED that any such sales, transfers or dispositions
involving a Subsidiary that is not a Loan Party shall be made in compliance
with Section 6.09;
(c) the sale, transfer or other disposition of the Cambridge Property;
(d) sales, transfers and other dispositions of accounts receivable in
connection with the compromise, settlement or collection thereof consistent
with past practice;
(e) sales, transfers and other dispositions of property to the extent
such property constitutes an investment permitted by clauses (a), (h), (i)
and (k) of Section 6.04;
(f) sale and leaseback transactions permitted by Section 6.06;
(g) dispositions resulting from any casualty or other insured damage
to, or any taking under power of eminent domain or by condemnation or
similar proceeding of, any property or asset of the Borrower or any
Subsidiary; and
(h) sales, transfers and other dispositions of assets (other than
Equity Interests in a Subsidiary unless all Equity Interests in such
Subsidiary (other than a Borrower) are sold) that are not permitted by any
other clause of this Section; PROVIDED that the aggregate fair market value
of all assets sold, transferred or otherwise disposed of in reliance upon
this clause (h) shall not exceed $500,000 during any fiscal year of the
Parent Borrower;
PROVIDED that all sales, transfers, leases and other dispositions permitted
hereby (other than those permitted by clause (b), (d) and (g) above) shall be
made for fair value and (other than those permitted by clause (b)) for at least
75% cash consideration.
SECTION 6.06. SALE AND LEASEBACK TRANSACTIONS. The Parent Borrower
will not, and will not permit any of the Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred, except for any such sale of any fixed or
capital assets that is made for cash consideration in an amount not less than
the
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fair value of such fixed or capital asset and is consummated within 90 days
after the Parent Borrower or such Subsidiary acquires or completes the
construction of such fixed or capital asset.
SECTION 6.07. SWAP AGREEMENTS. The Parent Borrower will not, and will
not permit any of the Subsidiaries to, enter into any Swap Agreement, except (a)
Swap Agreements entered into to hedge or mitigate risks to which the Parent
Borrower or any Subsidiary has actual exposure (other than those in respect of
shares of capital stock or other equity ownership interests of the Parent
Borrower or any of its Subsidiaries) and (b) Swap Agreements entered into in
order to effectively cap, collar or exchange interest rates (from floating to
fixed rate, from fixed to floating rates, from one floating rate to another
floating rate or otherwise) with respect to any interest-bearing liability or
investment of the Parent Borrower or any Subsidiary.
SECTION 6.08. RESTRICTED PAYMENTS; CERTAIN PAYMENTS OF INDEBTEDNESS.
(a) The Parent Borrower will not, and will not permit any Subsidiary to, declare
or make, or agree to pay or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, except (i)
the Subsidiaries may declare and pay dividends ratably with respect to their
Equity Interests, (ii) the Parent Borrower may declare and pay dividends with
respect to its common stock payable solely in additional shares of its common
stock, (iii) the Parent Borrower may make Restricted Payments, not exceeding
$2,000,000 during any fiscal year, pursuant to and in accordance with stock
option plans or other benefit plans for management or employees of the Parent
Borrower and its Subsidiaries or the Stockholders' Agreement dated as of June
26, 1997, by and among Xxx-Xxxx Corporation (formerly known as Mac-Gray II,
Inc.) and certain shareholders of Xxx-Xxxx Corporation (as amended as of the
date hereof) and (iv) TLP may make distributions to its limited partner pursuant
to the terms of the agreement of limited partnership of TLP or the Put Option
Agreement, dated as of May 1, 2001, between the limited partner and the general
partner of TLP (each, as amended to the date hereof, but without giving effect
to any amendment, modification or waiver in respect to such agreement after the
date hereof).
(b) The Parent Borrower will not, and will not permit any Subsidiary
to, make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect of
principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) scheduled payments of principal or interest with respect to
Indebtedness to the extent permitted by Section 6.01; and
(iii) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness.
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SECTION 6.09. TRANSACTIONS WITH AFFILIATES. The Parent Borrower will
not, and will not permit any Subsidiary to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions in the ordinary course of business and are
at prices and on terms and conditions not less favorable to the Parent Borrower
or such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties, (b) transactions between or among the Parent Borrower
and the Subsidiary Loan Parties not involving any other Affiliate, (c) any
investment permitted by Sections 6.04(d) and 6.04(e), (d) any Indebtedness
permitted under Section 6.01(a)(iii), (e) loans or advances to employees
permitted under Section 6.04, (f) the payment of reasonable fees to directors of
the Parent Borrower or any Subsidiary who are not employees of the Parent
Borrower or any Subsidiary, and compensation and employee benefit arrangements
paid to, and indemnities provided for the benefit of, directors, officers or
employees of the Parent Borrower or its Subsidiaries in the ordinary course of
business, (g) any issuances of securities or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment
agreements, stock options and stock ownership plans approved by the Parent
Borrower's Board of Directors, (h) employment and severance arrangements entered
into in the ordinary course of business and approved by the Parent Borrower's
Board of Directors between the Parent Borrower or any Subsidiary and any
employee thereof and (i) any Restricted Payment permitted by Section 6.08.
SECTION 6.10. RESTRICTIVE AGREEMENTS. The Parent Borrower will not,
and will not permit any Subsidiary to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Parent Borrower or any
Subsidiary to create, incur or permit to exist any Lien upon any of its property
or assets, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or
repay loans or advances to the Parent Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Parent Borrower or any other Subsidiary; PROVIDED
that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by any Loan Document, (ii) the foregoing shall not apply to restrictions
and conditions existing on the date hereof identified on Schedule 6.10 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, PROVIDED such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
SECTION 6.11. AMENDMENT OF MATERIAL DOCUMENTS. The Parent Borrower
will not, and will not permit any Subsidiary to, amend, modify or waive any of
its rights under (a) its certificate of incorporation, by-laws or other
organizational
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documents or (b) any Acquisition Document, in each case only to the extent
adverse to the Lenders.
SECTION 6.12. MINIMUM NET WORTH. As of the end of each fiscal quarter
of the Parent Borrower, the Parent Borrower shall not permit the Consolidated
Net Worth of the Borrowers to be less than $70,000,000, PLUS, on a cumulative
basis, an amount equal to 50% of the net after tax profit of the Borrowers
earned in each fiscal year of the Parent Borrower commencing with the fiscal
year ending on December 31, 2005.
SECTION 6.13. FUNDED DEBT RATIO. As of the end of each fiscal quarter
of the Parent Borrower, the Parent Borrower will not permit the Funded Debt
Ratio as of each date set forth below to exceed the ratio set forth opposite
such date:
Date Ratio
---- -----
March 31, 2005 3.75 to 1.00
June 30, 2005 3.75 to 1.00
September 30, 2005 3.75 to 1.00
December 31, 2005 3.50 to 1.00
March 31, 2006 3.50 to 1.00
June 30, 2006 3.50 to 1.00
September 30, 2006 3.50 to 1.00
December 31, 2006 and 3.00 to 1.00
thereafter
SECTION 6.14. CONSOLIDATED CASH FLOW COVERAGE RATIO. As of the end of
each fiscal quarter of the Parent Borrower, the Parent Borrower will not permit
the Consolidated Cash Flow Coverage Ratio for the four consecutive fiscal
quarter period ended on the last day of such fiscal quarter to be less than 1.00
to 1.00.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the Borrowers shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
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same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrowers shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, when
and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Parent Borrower or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or
in any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
incorrect (i) to the extent such representation or warranty is modified or
qualified based on the terms "materially" or "material" or by reference to
the term "Material Adverse Effect", in any respect and (ii) to the extent
such representation or warranty is not so modified or qualified, in any
material respect, in each case when made or deemed made;
(d) the Borrowers shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 or 5.04 (with
respect to the existence of the Borrowers) or 5.11 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrowers (which notice will be given at
the request of any Lender);
(f) the Parent Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due
and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; PROVIDED that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in
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respect of the Parent Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent Borrower or
any Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Parent Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Parent Borrower or any Subsidiary or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Parent Borrower or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $2,000,000 shall be rendered against the Parent
Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the
Parent Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Parent
Borrower and its Subsidiaries in an aggregate amount exceeding (i) $500,000
in any year or (ii) $1,000,000 for all periods;
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral, having a value in excess of $500,000,
with the priority required by the applicable Security Document, except (i)
as a result of the sale or other disposition of the applicable Collateral
in a transaction permitted under the Loan Documents or (ii) as a result of
the Administrative Agent's failure to maintain possession of any stock
certificates, promissory notes and failure to file continuation statements
or other instruments delivered to it under the Collateral Agreement;
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(n) any Loan Document shall for any reason be asserted by any Loan
Party not to be a legal, valid and binding obligation of any party thereto;
(o) the Guarantees of the Obligations by Parent Borrower and the
Subsidiary Loan Parties pursuant to the Collateral Agreement shall cease to
be in full force and effect (other than in accordance with the terms of the
Loan Documents) or shall be asserted by Parent Borrower or any Subsidiary
Loan Party not to be in effect or not to be legal, valid and binding
obligations; or
(p) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrowers
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrowers, take either
or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrowers accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers;
and in case of any event with respect to the Borrowers described in clause (h)
or (i) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrowers accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto. For purposes of this
Article VIII, all references to the Administrative Agent shall be deemed to be
references to both the Administrative Agent and the Collateral Agent.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business
72
with the Parent Borrower or any Subsidiary or other Affiliate thereof as if it
were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Parent Borrower or any of its Subsidiaries that
is communicated to or obtained by the bank serving as Administrative Agent or
any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrowers or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or in
connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrowers), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such
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sub-agent and to the Related Parties of each Administrative Agent and any such
subagent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time upon notice to the Lenders, the Issuing Bank and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right,
in consultation with the Borrowers, to appoint a successor. If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on behalf
of the Lenders and the Issuing Bank, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrowers to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrowers, to them c/o Xxx-Xxxx Corporation, 00 Xxxxx
Xxxxxx, Xxxxxxxxx, XX 00000, Attention of Xxxxxxx Xxxx, Chief Financial
Officer, and Xxxxxx Xxxxx, corporate counsel (Telecopy No.: (617)
492-5386);
(b) if to the Administrative Agent, the Issuing Bank or the Swingline
Lender, to JPMorgan Chase Bank, N.A., 0 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, XX 00000, Attention of Xxxxx Xxxxxx (E-mail:
xxxxx.xxxxxx@xxxxxxxx.xxx, Telecopy No.: (000) 000-0000);
(c) if to the Collateral Agent, to JPMorgan Chase Bank, N.A., 000 X.
Xxxxxxxx Xxxxxx, Xxxxx 0, Xxxxxxx, XX 00000, Attention of Xxxxx
Xxxxxxxx-Xxxxxxxx (E-mail: xxxxx_xxxxxxxx@xxxxxxx.xxx, Telecopy No.:
(000) 000-0000);
(d) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent, the Issuing Bank, the Collateral Agent or any Lender in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Bank, the Collateral Agent and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, the
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Issuing Bank, the Collateral Agent or any Lender may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Loan Party or Loan Parties that are
parties thereto, in each case with the consent of the Required Lenders; PROVIDED
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the maturity of any Loan, or any scheduled date of payment of the
principal amount of any Term Loan under Section 2.10, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any
interest or fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change Section
2.18(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of
the provisions of this Section or the percentage set forth in the definition of
"Required Lenders" or any other provision of any Loan Document specifying the
number or percentage of Lenders (or Lenders of any Class) required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender (or each Lender
of such Class, as the case may be), (vi) release any Subsidiary Loan Party from
its Guarantee under the Collateral Agreement (except as expressly provided in
the Collateral Agreement), or limit its liability in respect of such Guarantee,
without the written consent of each Lender, (vii) release all or substantially
all the Collateral from the Liens of the Security Documents, without the written
consent of each Lender or (viii) change any provisions of any Loan Document in a
manner that by its terms adversely affects the rights in respect of payments due
to Lenders holding Loans of any Class differently than those holding Loans of
any other Class, without the written consent of Lenders holding a majority in
interest of the outstanding Loans and unused Commitments of each affected Class;
PROVIDED FURTHER that (A) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Issuing Bank or the
Swingline Lender without the prior written consent of the Administrative Agent,
the Issuing Bank or the Swingline Lender, as the case may be, and (B) any
waiver, amendment or modification of this Agreement that by its terms affects
the rights or duties under this Agreement of the Revolving Lenders (but not the
Term Loan Lenders) or the Term Loan Lenders (but not the Revolving Lenders) may
be effected by an agreement or agreements in writing entered into by the
Borrowers and requisite percentage in interest of the affected Class of Lenders
that would be required to consent thereto under this Section if such Class of
Lenders were the only Class of Lenders hereunder at the time.
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SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrowers
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder and (iii) all out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Bank, the Collateral Agent or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) The Borrowers (and, in the case of the Collateral Agreement, the
Grantors and Guarantors) shall jointly and severally indemnify the
Administrative Agent, the Issuing Bank, the Collateral Agent, each Lender and
each Related Party of any of the foregoing Persons (each such Person being
called an "INDEMNITEE") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee by any third party or by the Parent Borrower
or any other Loan Party arising out of, in connection with, or as a result of
(i) the execution or delivery of any Loan Document or any other agreement or
instrument contemplated hereby (other than, in the case of the Lenders, costs
associated with the preparation and administration of the Loan Documents), the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any Mortgaged Property or any other property currently or formerly
owned or operated by the Parent Borrower or any Subsidiary, or any Environmental
Liability related in any way to the Parent Borrower or any Subsidiary, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing or to the Collateral, whether based on
contract, tort or any other theory, whether brought by a third party or by the
Parent Borrower or any other Loan Party and regardless of whether any Indemnitee
is a party thereto; PROVIDED that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final judgment to have resulted from the gross negligence,
wilful misconduct or bad faith of such Indemnitee.
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(c) To the extent that the Borrowers (and, in the case of the
Collateral Agreement, the Grantors and Guarantors) fail to pay any amount
required to be paid by them to the Administrative Agent, the Issuing Bank, the
Collateral Agent or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the
Issuing Bank, the Collateral Agent or the Swingline Lender, as the case may be,
such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank, the Collateral Agent or the
Swingline Lender in its capacity as such. For purposes hereof, a Lender's "pro
rata share" shall be determined based upon its share of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrowers (and, in
the case of the Collateral Agreement, the Grantors and Guarantors) shall not
assert, and hereby waive, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
three Business Days after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i)
the Borrowers may not assign or otherwise transfer any of their rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrowers without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld or delayed) of (A) the Borrowers;
PROVIDED that no consent of the Borrowers shall be required for an assignment to
a Lender, an Affiliate of a Lender, an Approved
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Fund (as defined below) or, if a Default has occurred and is continuing, any
other assignee, (B) the Administrative Agent; PROVIDED that no consent of the
Administrative Agent shall be required for an assignment of all or any portion
of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund and (C)
the Issuing Bank, PROVIDED that no consent of the Issuing Bank shall be required
for an assignment of all or any portion of a Term Loan.
(ii) Assignments shall be subject to the following additional
conditions: (A) except in the case of an assignment to a Lender, an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment or Loans of any Class, the amount of the Commitment or Loans
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 or, in the case
of a Term Loan, $1,000,000, unless each of Borrowers and the Administrative
Agent otherwise consent (such consent not to be unreasonably withheld or
delayed), PROVIDED that no such consent of the Borrowers shall be required if a
Default has occurred and is continuing, (B) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement, PROVIDED that this clause (B) shall
not be construed to prohibit assignment of a proportionate part of all the
assigning Lender's rights and obligations in respect of one Class of Commitments
or Loans; (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500 and (D) the assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.
For purposes of this Section 9.04(b), the term "Approved Fund" and
"CLO" have the following meanings:
"APPROVED FUND" means (a) a CLO and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"CLO" means an entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an Affiliate of such
Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(v) of this Section, from and after the effective date specified in
each Assignment and Assumption the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender's rights and obligations under this
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Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment
or transfer by a Lender of rights or obligations under this Agreement that does
not comply with this Section 9.04 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c)(i) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive, absent manifest error, and the Borrowers, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrowers, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "PARTICIPANT") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
PROVIDED that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrowers, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
PROVIDED that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17
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to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Sections 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrowers' prior written consent. A Participant shall not be entitled to the
benefits of Section 2.17 unless the Borrowers are notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Sections 2.17(e) or (f) as though it were a Lender.
(d) Any Lender may 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 Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, 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 Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents and any separate letter agreements with respect to fees payable
to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof
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and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been executed by
the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrowers against any of and all the obligations of the Borrowers now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(a) Each of the Borrowers hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any
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action or proceeding relating to this Agreement or any other Loan Document
against the Borrowers or their properties in the courts of any jurisdiction.
(b) Each of the Borrowers hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder,
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(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrowers or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other the Borrowers.
For the purposes of this Section, "INFORMATION" means all information received
from the Borrowers relating to the Borrowers or their business, other than any
such information that is available to the Administrative Agent, the Issuing Bank
or any Lender on a nonconfidential basis prior to disclosure by the Borrowers.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "CHARGES"), shall exceed the
maximum lawful rate (the "MAXIMUM RATE") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. USA PATRIOT ACT. Each Lender hereby notifies the
Borrowers that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "ACT"), it is required
to obtain, verify and record information that identifies the Borrowers, which
information includes the name and address of the Borrowers and other information
that will allow such Lender to identify the Borrowers in accordance with the
Act.
SECTION 9.15. OBLIGATIONS JOINT AND SEVERAL. Each Borrower agrees that
it shall, jointly with each other Borrower and severally, be liable for all the
Obligations. Each Borrower further agrees that the Obligations of any other
Borrower may be extended and renewed, in whole or in part, without notice to or
further assent from it, and that it will remain bound upon its agreement
hereunder notwithstanding any extension or renewal of any Obligation of any
other Borrower. Upon payment by a Borrower of any sums as provided above, all
rights of indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in
cash of the Obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
XXX-XXXX CORPORATION,
by
---------------------------
Name:
Title:
XXX-XXXX SERVICES, INC.,
by
---------------------------
Name:
Title:
INTIRION CORPORATION,
by
---------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
by
---------------------------
Name:
Title:
[OTHER BANKS],
by
---------------------------
Name:
Title:
