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EXHIBIT 10.4
EXECUTION COPY
$110,000,000
CREDIT AGREEMENT
Dated as of August __, 1998
among
PRIVATE BUSINESS, INC.,
as Borrower,
THE BANKS, FINANCIAL INSTITUTIONS AND
OTHER INSTITUTIONAL LENDERS NAMED HEREIN,
as Initial Lenders,
FLEET NATIONAL BANK,
as Initial Issuing Bank,
as Swing Line Bank
and
as Administrative Agent
and
BANKBOSTON N.A.,
as Syndication Agent
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS.........................................................................2
SECTION 1.1 Certain Defined Terms.......................................................................2
SECTION 1.2 Computation of Time Periods................................................................27
SECTION 1.3 Accounting Terms...........................................................................27
ARTICLE 2
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT...............................................................................28
SECTION 2.1 The Advances...............................................................................28
SECTION 2.2 Making the Advances........................................................................30
SECTION 2.3 Issuance of and Drawings and Reimbursement Under Letters of Credit.........................32
SECTION 2.4 Repayment of Advances......................................................................34
SECTION 2.5 Termination or Reduction of the Commitments................................................37
SECTION 2.6 Prepayments................................................................................38
SECTION 2.7 Interest...................................................................................41
SECTION 2.8 Fees.......................................................................................42
SECTION 2.9 Conversion of Advances.....................................................................43
SECTION 2.10 Increased Costs, Etc.......................................................................44
SECTION 2.11 Payments and Computations..................................................................46
SECTION 2.12 Taxes......................................................................................47
SECTION 2.13 Sharing of Payments, Etc...................................................................50
SECTION 2.14 Use of Proceeds............................................................................50
SECTION 2.15 Defaulting Lenders.........................................................................51
SECTION 2.16 Removal of Lender..........................................................................53
ARTICLE 3
CONDITIONS OF LENDING...................................................................................54
SECTION 3.1 Conditions Precedent to Initial Extension of Credit........................................54
SECTION 3.2 Conditions Precedent to Each Borrowing and Issuance........................................61
SECTION 3.3 Determinations Under Section 3.1...........................................................62
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BORROWER..........................................................62
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SECTION 4.1 Organization................................................................................62
SECTION 4.2 Subsidiaries................................................................................63
SECTION 4.3 Corporate Power, Authorization.............................................................63
SECTION 4.4 Governmental Authorizations, Approvals......................................................63
SECTION 4.5 Due Execution, Validity, Enforceability.....................................................64
SECTION 4.6 Financial Statements........................................................................64
SECTION 4.7 Pro Forma Financial Statements..............................................................65
SECTION 4.8 Accurate Information........................................................................65
SECTION 4.9 Litigation..................................................................................65
SECTION 4.10 Regulation U...............................................................................65
SECTION 4.11 ERISA.....................................................................................65
SECTION 4.12 Casualty..................................................................................66
SECTION 4.13 Environmental Matters......................................................................66
SECTION 4.14 Burdensome Documents.......................................................................67
SECTION 4.15 Priority of Liens..........................................................................67
SECTION 4.16 Taxes......................................................................................67
SECTION 4.17 Compliance with Securities Laws...........................................................68
SECTION 4.18 Solvency...................................................................................68
SECTION 4.19 Debt.......................................................................................68
SECTION 4.20 No Defaults, Compliance with Laws..........................................................69
SECTION 4.21 Owned Real Property........................................................................69
SECTION 4.22 Leased Real Property.......................................................................69
SECTION 4.23 Material Contracts.........................................................................70
SECTION 4.24 Investments................................................................................70
SECTION 4.25 Intellectual Property......................................................................70
SECTION 4.26 Recapitalization Documents.................................................................70
SECTION 4.27 Fees.......................................................................................71
ARTICLE 5
AFFIRMATIVE COVENANTS...................................................................................71
SECTION 5.1 Compliance with Law.........................................................................71
SECTION 5.2 Payment of Taxes, Etc.......................................................................71
SECTION 5.3 Compliance with Environmental Laws..........................................................72
SECTION 5.4 Preparation of Environmental Reports........................................................72
SECTION 5.5 Maintenance of Insurance....................................................................73
SECTION 5.6 Preservation of Corporate Existence, Etc....................................................73
SECTION 5.7 Visitation Rights...........................................................................73
SECTION 5.8 Keeping of Books............................................................................73
SECTION 5.9 Maintenance of Properties, Etc..............................................................73
SECTION 5.10 Compliance with Terms of Leaseholds........................................................74
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SECTION 5.11 Performance of Material Contracts..........................................................74
SECTION 5.12 Transactions with Affiliates...............................................................74
SECTION 5.13 Agreement to Grant Additional Security.....................................................74
SECTION 5.14 Interest Rate Protection...................................................................76
SECTION 5.15 Performance of Recapitalization Documents..................................................76
SECTION 5.16 Year 2000 Compatibility....................................................................76
ARTICLE 6
NEGATIVE COVENANTS......................................................................................77
SECTION 6.1 Liens, Etc..................................................................................77
SECTION 6.2 Debt........................................................................................78
SECTION 6.3 Accounts Payable............................................................................78
SECTION 6.4 Fundamental Changes.........................................................................79
SECTION 6.5 Sales, Etc. of Assets.......................................................................79
SECTION 6.6 Investments in Other Persons................................................................80
SECTION 6.7 Dividends, Etc..............................................................................81
SECTION 6.8 Change in Nature of Business................................................................81
SECTION 6.9 Charter Amendments..........................................................................81
SECTION 6.10 Accounting Changes.........................................................................81
SECTION 6.11 Prepayments, Etc. of Debt..................................................................81
SECTION 6.12 Amendment, Etc. of Recapitalization Documents..............................................82
SECTION 6.13 Amendment, Etc. of Material Contracts......................................................82
SECTION 6.14 Negative Pledge............................................................................82
SECTION 6.15 Partnerships, New Subsidiaries.............................................................82
SECTION 6.16 Speculative Transactions...................................................................83
SECTION 6.17 Capital Expenditures.......................................................................83
SECTION 6.18 Payment of Management Fees.................................................................83
SECTION 6.19 Issuance of Stock..........................................................................83
ARTICLE 7
REPORTING REQUIREMENTS..................................................................................84
SECTION 7.1 Default Notice..............................................................................84
SECTION 7.2 Monthly Financials..........................................................................84
SECTION 7.3 Quarterly Financials........................................................................84
SECTION 7.4 Annual Financials...........................................................................85
SECTION 7.5 Annual Forecasts............................................................................86
SECTION 7.6 ERISA Events and ERISA Reports..............................................................86
SECTION 7.7 Plan Terminations...........................................................................86
SECTION 7.8 Actuarial Reports...........................................................................86
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SECTION 7.9 Plan Annual Reports.........................................................................86
SECTION 7.10 Annual Plan Summaries......................................................................86
SECTION 7.11 Multiemployer Plan Notices.................................................................87
SECTION 7.12 Litigation.................................................................................87
SECTION 7.13 Securities Reports.........................................................................87
SECTION 7.14 Reserved...................................................................................87
SECTION 7.15 Agreement Notices..........................................................................87
SECTION 7.16 Revenue Agent Reports......................................................................87
SECTION 7.17 Environmental Conditions...................................................................88
SECTION 7.18 Real Property..............................................................................88
SECTION 7.19 Insurance..................................................................................88
SECTION 7.20 Management Letters.........................................................................88
SECTION 7.21 Other Information..........................................................................88
ARTICLE 8
FINANCIAL COVENANTS.....................................................................................88
SECTION 8.1 Minimum EBITDA..............................................................................88
SECTION 8.2 Ratio of Consolidated Debt to EBITDA........................................................89
SECTION 8.3 Interest Coverage Ratio.....................................................................90
SECTION 8.4 Fixed Charge Coverage Ratio.................................................................91
ARTICLE 9
EVENTS OF DEFAULT.......................................................................................92
SECTION 9.1 Payment.....................................................................................92
SECTION 9.2 Representations and Warranties..............................................................92
SECTION 9.3 Certain Covenants...........................................................................92
SECTION 9.4 Other Covenants.............................................................................92
SECTION 9.5 Other Defaults..............................................................................92
SECTION 9.6 Bankruptcy, Etc.............................................................................93
SECTION 9.7 Judgments...................................................................................93
SECTION 9.8 Loan Documents..............................................................................93
SECTION 9.9 Liens.......................................................................................93
SECTION 9.10 Change of Control..........................................................................93
SECTION 9.11 ERISA Events...............................................................................94
ARTICLE 10
THE ADMINISTRATIVE AGENT................................................................................95
SECTION 10.1 Authorization and Action...................................................................95
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SECTION 10.2 Agent's Reliance, Etc......................................................................96
SECTION 10.3 Fleet and Affiliates.......................................................................96
SECTION 10.4 Lender Party Credit Decision...............................................................97
SECTION 10.5 Indemnification............................................................................97
SECTION 10.6 Successor Administrative Agents............................................................98
SECTION 10.7 Events of Default..........................................................................99
ARTICLE 11
MISCELLANEOUS...........................................................................................99
SECTION 11.1 Amendments, Etc............................................................................99
SECTION 11.2 Notices Etc...............................................................................100
SECTION 11.3 No Waiver; Remedies.......................................................................102
SECTION 11.4 Costs and Expenses........................................................................102
SECTION 11.5 Right of Set-off..........................................................................104
SECTION 11.6 Binding Effect............................................................................104
SECTION 11.7 Assignments and Participations............................................................104
SECTION 11.8 Execution in Counterparts.................................................................107
SECTION 11.9 No Liability of the Issuing Bank..........................................................107
SECTION 11.10 Confidentiality..........................................................................108
SECTION 11.11 Further Assurances......................................................................108
SECTION 11.12 JURISDICTION, ETC........................................................................108
SECTION 11.13 GOVERNING LAW............................................................................109
SECTION 11.14 WAIVER OF JURY TRIAL.....................................................................109
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EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Revolving Credit Note
Exhibit C - Form of Term A Note
Exhibit D - Form of Term B Note
Exhibit E - Form of Notice of Borrowing
Exhibit F - Form of Security Agreement
Exhibit G - Form of Collateral Assignment of Lease
Exhibit H - Form of Intellectual Property Security Agreement
Exhibit I - Form of Negative Pledge Agreement
Exhibit J - Form of Subsidiary Guaranty
SCHEDULES
Schedule I Commitments and Applicable Lending Offices
Schedule 3.1(a)(xi) States in which Loan Parties are Qualified to do Business
Schedule 3.1(e) Disclosed Litigation
Schedule 4.1 Organization
Schedule 4.2 Subsidiaries
Schedule 4.4 Required Authorizations and Approvals
Schedule 4.11 Welfare Plans
Schedule 4.13 Environmental Assessment Reports
Schedule 4.14 Burdensome Documents
Schedule 4.15 Priority of Liens; Pledged Foreign Subsidiaries
Schedule 4.16 Open Tax Years
Schedule 4.19(a) Existing Debt
Schedule 4.19(b) Surviving Debt
Schedule 4.20 No Defaults
Schedule 4.21 Owned Real Estate
Schedule 4.22 Leased Real Estate
Schedule 4.23 Material Contracts
Schedule 4.24 Investments
Schedule 4.25 Intellectual Property
Schedule 6.1(c) Liens
Schedule 6.6(a) Investments in Subsidiaries
Schedule 6.6(f) Existing Investments
Schedule 6.19 Existing Issuances, Etc. of Stock
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of August __, 1998 by and among
PRIVATE BUSINESS, INC., a Tennessee corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "Initial Lenders"), FLEET NATIONAL
BANK, as Initial Issuing Bank (the "Initial Issuing Bank"), FLEET NATIONAL BANK,
as the Swing Line Bank (the "Swing Line Bank"), FLEET NATIONAL BANK, as
administrative agent (together with any successor appointed pursuant to Article
10, the "Administrative Agent") for the Lender Parties (as hereinafter defined)
and BANKBOSTON N.A., as syndication agent.
PRELIMINARY STATEMENT:
(1) Pursuant to a Stock Purchase Agreement, dated as of July 24, 1998
(the "Recapitalization Agreement"), by and among the Borrower, the persons named
in Exhibit A attached thereto (collectively, the "Selling Stockholders") and the
investors names in Exhibit B thereto (collectively, the "Investors"), the
Borrower has agreed to redeem and the Selling Stockholders have agreed to sell
to the Borrower an aggregate of 4,963,751 shares of the Borrower's Common Stock,
without par value, for an aggregate purchase price of $138,340,358, and the
Borrower has agreed to sell and the Investors have agreed to purchase a total of
5,624,404 shares of the Borrower's Series A Convertible Preferred Stock, without
par value, for an aggregate purchase price of $60,000,000 (such transactions,
together with the other transactions described in Section 1 of the
Recapitalization Agreement, being hereinafter collectively called the
"Recapitalization");
(2) The Borrower has requested that the Lender Parties (as hereinafter
defined) make loans to the Borrower and issue letters of credit having an
aggregate principal and face amount at any one time outstanding of up to One
Hundred Ten Million Dollars ($110,000,000), to be used by the Borrower (i) to
finance, in part, the Recapitalization (ii) to pay fees and expenses incurred in
connection with the Recapitalization (iii) to refinance certain existing
indebtedness of the Borrower and (iv) to provide working capital for the
Borrower, and the Lender Parties have agreed to make such loans and issue such
letters of credit all on and subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
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ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Additional Collateral Documents" has the meaning specified in Section
5.13(e).
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Fleet at its
office at Fleet National Bank, Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Account No. 151035203156, Attention: Loan Administration.
"Advance" means a Term A Advance, a Term B Advance, a Revolving Credit
Advance, a Swing Line Advance or a Letter of Credit Advance.
"Affected Lender" has the meaning specified in Section 2.16.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 50% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"After-Acquired Mortgaged Property" means any parcel (or adjoining
parcels) of real property (including any leaseholds) acquired by any Loan Party
after the Closing Date subject to a Mortgage granted to the Administrative Agent
for the benefit of the Secured Parties pursuant to Section 5.13.
"Applicable Lending Office" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Prime Rate Advance
and such Lender Party's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
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"Applicable Margin" means at any time and from time to time a
percentage per annum determined pursuant to the last paragraph of this
definition by reference to the Ratio of Consolidated Debt to EBITDA at such
time, as set forth below:
Applicable Margin for Eurodollar Rate Advances
Ratio of Consolidated Revolving Credit Advances,
Debt to EBITDA Term A Advances Term B Advances
-------------- --------------- ---------------
Greater than 4.50 2.50% 2.75%
Greater than 3.50
less than or equal to 4.50 2.25% 2.50%
Greater than 3.00
less than or equal to 3.50 2.00% 2.50%
Greater than 2.50
less than or equal to 3.00 1.75% 2.25%
Less than or equal to 2.50 1.50% 2.25%
Applicable Margin for Prime Rate Advances
Ratio of Consolidated Revolving Credit Advances,
Debt to EBITDA Term A Advances Term B Advances
-------------- --------------- ---------------
Greater than 4.50 1.25% 1.50%
Greater than 3.50
less than or equal to 4.50 1.00% 1.25%
Greater than 3.00
less than or equal to 3.50 0.75% 1.25%
Greater than 2.50
less than or equal to 3.00 0.50% 1.00%
Less than or equal to 2.50 0.25% 1.00%
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Notwithstanding the above rates, prior to the date on which the
Administrative Agent receives the September 30, 1998 financial statements of the
Borrower, the Applicable Margin for (i) a Revolving Credit Advance and a Term A
Advance shall be 2.5% for a Eurodollar Rate Advance and 1.25% for a Prime Rate
Advance, and (ii) for a Term B Advance shall be 2.75% for a Eurodollar Rate
Advance and 1.5% for a Prime Rate Advance.
The Applicable Margin for each Prime Rate Advance and each Eurodollar
Rate Advance shall be determined by reference to the Ratio of Consolidated Debt
to EBITDA which shall be determined three Business Days after the date on which
the Administrative Agent receives financial statements pursuant to Section 7.3
or 7.4 and a certificate of the Chief Financial Officer of the Borrower
demonstrating the Ratio of Consolidated Debt to EBITDA. If the Borrower has not
submitted to the Administrative Agent the information described above as and
when required under Section 7.3 or 7.4, as the case may be, the Applicable
Margin shall be as determined by the Administrative Agent in its reasonable
discretion for so long as such information has not been received by the
Administrative Agent. The Applicable Margin shall be adjusted, if applicable, as
of the first day of the month following the date of determination described in
the two preceding sentences. In the event that the financial statements received
pursuant to Section 7.4 indicate that the Applicable Margin determined on the
basis of financial statements theretofore received pursuant to Section 7.3 is
different from the Applicable Margin that would have been determined on the
basis of the Section 7.4 financial statements, the Applicable Margin shall be
adjusted retroactively for the relevant period; provided, that such Section 7.4
financial statements restate the applicable quarterly information set forth in
the applicable Section 7.3 financial statements.
"Asset Disposition" shall mean the disposition of any or all of the
fixed assets of the Borrower or any of its Subsidiaries whether by sale, lease,
transfer, loss, damage, destruction, condemnation or otherwise; provided,
however, that for purposes of Section 2.6(b), the term "Asset Disposition" shall
not include any sale, lease, transfer or other disposition of Inventory in the
ordinary course of business; provided, further, that an Asset Disposition shall
not include cash receipts received from proceeds of insurance, condemnation
awards (and payments in lieu thereof) or indemnity payments to the extent that
such proceeds, awards or payments in respect of loss or damage to Equipment,
fixed assets or real property are applied (or in respect of which expenditures
were previously incurred) to replace or repair the Equipment, fixed assets or
real property in respect of which such proceeds, awards or payments were
received in accordance with the terms of the Loan Documents, so long as (a) such
application is made within one hundred twenty (120) days after such Person's
receipt of such proceeds, awards or payments and (b) such proceeds, awards or
payments are received by such Person within fifteen (15) months after the
occurrence of such damage or loss.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent and, so long as no Event of Default shall have occurred and
be continuing, by the Borrower, in accordance with Section 11.7 and in
substantially the form of Exhibit A hereto.
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"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing).
"Bank Hedge Agreement" means any interest rate Hedge Agreement required
or permitted under Section 5.14 that is entered into by and between the Borrower
and any Hedge Bank.
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrower's Account" means the account of the Borrower maintained by
the Borrower with Fleet National Bank at its office at Xxx Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Account No. 9415848223.
"Borrowing" means a Term A Borrowing, a Term B Borrowing, a Revolving
Credit Borrowing or a Swing Line Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in Boston, Massachusetts and New York, New York
and, if the applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period, the sum of
all expenditures made, directly or indirectly, by such Person or any of its
Subsidiaries during such period for Equipment, fixed assets, real property or
improvements, or for replacements or substitutions therefor or additions
thereto, that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or Equipment on a Consolidated balance sheet of
such Person; provided, that Capital Expenditures shall not include capital
expenditures to the extent that such expenditures constitute a reinvestment of
Net Cash Proceeds from any Asset Disposition or proceeds of insurance,
condemnation awards (and payments in lieu thereof) or indemnity payments in each
case permitted under this Agreement in similar fixed assets, which investment is
made before or within one hundred eighty (180) days after receipt of such Net
Cash Proceeds.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent owned by
the Borrower or any of its Subsidiaries, free and clear of all Liens other than
Liens created under the Collateral Documents: (a) readily marketable direct
obligations of the Government of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the full
faith and credit of the Government of the United States having a maturity of not
greater than 360 days from the date of issuance thereof, (b) insured
certificates of deposit of or time deposits having a maturity
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of not greater than 360 days from the date of issuance thereof with any
commercial bank that is a Lender Party or a member of the Federal Reserve System
that issues (or the parent of which issues) commercial paper rated as described
in clause (c) and is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1 billion or (c)
commercial paper having a maturity of not greater than 180 days from the date of
issuance thereof in an aggregate amount of no more than $2,500,000 per issuer
outstanding at any time, issued by any corporation organized under the laws of
any State of the United States and rated at least "Prime-1" (or the then
equivalent grade) by Xxxxx'x Investors Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's Ratings Group.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq., as amended from time to
time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental Protection
Agency.
"Change of Control" means the Equity Participants and their respective
Affiliates shall at any time cease to own at least 50% in the aggregate of the
capital stock of the Borrower owned by such Persons in the aggregate on the date
hereof after giving effect to the Recapitalization.
"Closing Date" means the date on which all of the conditions precedent
set forth in Section 3.1 to the Initial Extension of Credit shall have been
satisfied or waived.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to any
Lien in favor of the Administrative Agent for the benefit of the Secured
Parties.
"Collateral Assignment of Lease" has the meaning specified in Section
3.1.
"Collateral Documents" means the Security Agreement, the Intellectual
Property Security Agreement, each Collateral Assignment of Lease, the Mortgages
and any other agreement that creates or purports to create a Lien in favor of
the Administrative Agent for the benefit of the Secured Parties, including the
Additional Collateral Documents delivered pursuant to Section 5.13.
"Commitment" means a Term A Commitment, a Term B Commitment, a
Revolving Credit Commitment or a Letter of Credit Commitment.
"Confidential Information" means information that the Borrower
furnishes to the Administrative Agent or any Lender Party, but does not include
any such information that is or becomes generally available to the public other
than as a result of a breach by the Administrative Agent or any Lender Party of
its obligations hereunder or that is or becomes available to the
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Administrative Agent or such Lender Party from a source other than the Borrower
that is not, to the best of the Administrative Agent's or such Lender Party's
knowledge, acting in violation of a confidentiality agreement with the Borrower.
"Consolidated" refers to the consolidation of accounts, in accordance
with GAAP, of any Person and all of its Subsidiaries, and if not specified, the
Borrower and all of its Subsidiaries.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section 2.9 or
2.10.
"Current Assets" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a company
conducting a business the same as or similar to that of such Person, after
deducting adequate reserves in each case in which a reserve is proper in
accordance with GAAP.
"Current Liabilities" of any Person means (a) Debt of such Person,
except Funded Debt, that by its terms is payable on demand or matures within one
year after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year from such
date or arising under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year from
such date), (b) all amounts of Funded Debt of such Person required to be paid or
prepaid within one year after such date and (c) all other items (including taxes
accrued as estimated) that in accordance with GAAP would be classified as
current liabilities of such Person.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all Obligations of such Person for the
deferred purchase price of property or services, (c) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all Obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all Obligations of such Person as lessee under Capitalized
Leases, (f) all Obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities, (g) all Obligations of such
Person to purchase, redeem, retire, defease or otherwise make any payment in
respect of any capital stock of or other ownership or profit interest in such
Person or any other Person or any warrants, rights or options to acquire such
capital stock, (h) all Obligations of such Person in respect of Hedge
Agreements, (i) all Debt of others referred to in clauses (a) through (h) above,
and the Debt of others referred to in clause (j) below equal to the greater of
(x) the amount of Debt guaranteed as described in this clause (i) and (y) the
value of the property subject to Liens as described in clause (j) below,
guaranteed directly or indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (i) to pay
or purchase such Debt or to advance or supply funds for the payment or
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purchase of such Debt, (ii) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Debt or to assure the holder of such Debt
against loss, (iii) to supply funds to or in any other manner invest in the
debtor (including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (iv)
otherwise to assure a creditor against loss, and (j) all Debt referred to in
clauses (a) through (i) above of another Person secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts,
contract rights or inventory) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Debt, which Debt under this
clause (j) shall be limited to the value of the property subject to any such
Lien.
"Debt Issuance" means any issuance or sale or other incurrence by the
Borrower or any of its Subsidiaries of any Debt; provided, however, that for
purposes of determination of Net Cash Proceeds under Section 2.6(b)(iii), the
term "Debt Issuance" shall not include the incurrence of Debt permitted under
Section 6.2.
"Default" means any Event of Default or any event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
"Defaulted Advance" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party to the
Borrower pursuant to Section 2.1 or 2.2 at or prior to such time which has not
been made by such Lender Party or by the Administrative Agent for the account of
such Lender Party pursuant to Section 2.2(e) as of such time. In the event that
a portion of a Defaulted Advance shall be deemed made pursuant to Section
2.15(a), the remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section 2.1 on the
same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any time,
any amount required to be paid by such Lender Party to the Administrative Agent
or any other Lender Party hereunder or under any other Loan Document at or prior
to such time which has not been so paid as of such time, including, without
limitation, any amount required to be paid by such Lender Party to (a) the Swing
Line Bank pursuant to Section 2.2(b) to purchase a portion of a Swing Line
Advance made by the Swing Line Bank, (b) the Issuing Bank pursuant to Section
2.3(c) to purchase a portion of a Letter of Credit Advance made by the Issuing
Bank, (c) the Administrative Agent pursuant to Section 2.2(e) to reimburse the
Administrative Agent for the amount of any Advance made by the Administrative
Agent for the account of such Lender Party, (d) any other Lender Party pursuant
to Section 2.13 to purchase any participation in Advances owing to such other
Lender Party and (e) the Administrative Agent or the Issuing Bank pursuant to
Section 10.5 to reimburse the Administrative Agent or the Issuing Bank for such
Lender Party's ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or the Issuing Bank as provided therein. In
the
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event that a portion of a Defaulted Amount shall be deemed paid pursuant to
Section 2.15(b), the remaining portion of such Defaulted Amount shall be
considered a Defaulted Amount originally required to be paid hereunder or under
any other Loan Document on the same date as the Defaulted Amount so deemed paid
in part.
"Defaulting Lender" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take any
action or be the subject of any action or proceeding of a type described in
Section 9.6.
"Disclosed Litigation" has the meaning specified in Section 3.1(e).
"Disposal" means the discharge, deposit, injection, dumping, spilling,
leaking or placing of any solid waste or hazardous waste, as those terms are
defined by any federal, state, local or foreign law, into or on any land or
water so that such solid waste or hazardous waste or any constituents thereof
may enter the environment or be emitted into the air or discharged into any
waters, including ground waters.
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender Party, as the case may be, or such other office of such
Lender Party as such Lender Party may from time to time specify to the Borrower
and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
the United States of America or any State thereof.
"EBITDA" means, for any period, the sum, determined on a Consolidated
basis, of (i) net income (or net loss), (ii) Interest Expense, (iii) income tax
expense, (iv) depreciation expense, (v) extraordinary and nonrecurring losses
and (vi) amortization expense, minus extraordinary and nonrecurring gains (in
each case determined in accordance with GAAP).
"Eligible Assignee" means with respect to any Facility (other than the
Letter of Credit Facility), (a) a Lender; (b) an Affiliate of a Lender; and (c)
subject to the prior approval of the Administrative Agent and, so long as no
Event of Default shall have occurred and be continuing, the Borrower, such
approval by the Borrower not to be unreasonably withheld or delayed, (i) a
commercial bank organized under the laws of the United States, or any State
thereof, and having total assets in excess of $500,000,000; (ii) a savings and
loan association or savings bank organized under the laws of the United States,
or any State thereof, and having total assets in excess of $500,000,000; (iii) a
commercial bank organized under the laws of any other country that is a member
of the OECD or has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow or of the
Cayman Islands, or
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a political subdivision of any such country, and having total assets in excess
of $500,000,000, so long as such bank is acting through a branch or agency
located in the United States; (iv) the central bank of any country that is a
member of the OECD; and (v) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership, trust or
other entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and having total assets
in excess of $500,000,000; and, with respect to the Letter of Credit Facility, a
Person that is an Eligible Assignee under subclause (i) or (iii) of clause (C)
of this definition and is approved by the Administrative Agent and the Borrower,
such approval by the Borrower not to be unreasonably withheld or delayed;
provided, however, that no Loan Party or Affiliate of a Loan Party shall qualify
as an Eligible Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit or
Hazardous Material or arising from alleged injury or threat to public health and
safety or the environment, including, without limitation, (a) by any
governmental or regulatory authority or third party for enforcement, cleanup,
Removal, Response, Remedial or other actions or damages and (b) by any
governmental or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, writ, judgment, injunction,
decree or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment or natural resources, including,
without limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, threatened release, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, license or other
authorization required under any Environmental Law.
"Equipment" has the meaning specified in Section 1(a) of the Security
Agreement.
"Equity Issuance" means any sale or issuance for cash by the Borrower
or any of its Subsidiaries of any capital stock or other ownership of profit
interest, any securities convertible or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights or options to acquire
capital stock or other ownership or profit interest; provided, however, that for
purposes of determination of Net Cash Proceeds under Section 2.6(b)(iii), the
term "Equity Issuance" shall not include any issuance or sale of (a) capital
stock of the Borrower issued on or before the Closing Date in connection with
the Recapitalization; (b) common stock of the Borrower issued to any director of
the Borrower required by applicable law in connection with such person acting in
such capacity; and (c) common stock of the Borrower pursuant to a stock option
and/or restricted stock option plan or a similar employee benefit plan permitted
hereunder or the exercise of options issued
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pursuant thereto or the exercise of Outstanding Options (as defined in the
Recapitalization Agreement).
"Equity Participants" means TA Associates, Inc. and Summit Partners,
LLC and their respective Affiliates.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under common
control with any Loan Party, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC, or (ii) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and
an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c)
of ERISA is reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver with respect
to a Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan under ERISA Section 4041(c), pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of any Loan Party or any ERISA Affiliate in the circumstances described
in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307 of
ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to
time.
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
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"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per annum
(rounded upward, if necessary, to the nearest 1/32 of one percent) as determined
on the basis of the offered rates for deposits in U.S. dollars, for a period of
time comparable to such Interest Period which appears on the Telerate Page 3750
as of 11:00 a.m. (New York time) two Business Days before the first day of such
Interest Period; provided, however, that if the rate described above does not
appear on the Telerate System on any applicable interest determination date, the
Eurodollar Rate shall be the rate (rounded upward as described above, if
necessary) for deposits in U.S. dollars for a period substantially equal to the
interest period on the Reuters Page "LIBO" (or such other page as may replace
the LIBO page on that service for the purpose of displaying such rates), as of
11:00 a.m. (London time) two Business Days before the first day of such Interest
Period.
If both the Telerate and Reuters system are unavailable, then the rate
for that date will be determined on the basis of the offered rates for deposits
in U.S. dollars for a period of time comparable to such Interest Period which
are offered by four major banks in the London interbank market at approximately
11:00 a.m. (New York time) two Business Days before the first day of such
Interest Period as selected by the Administrative Agent. The principal London
office of each of the four major London banks will be requested to provide a
quotation of its U.S. dollar deposit offered rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested, the rate
for that date will be determined on the basis of the rates quoted for loans in
U.S. dollars to leading European banks for a period of time comparable to such
Interest Period offered by major banks in New York City at approximately 11:00
a.m. (New York time) two Business Days before the first day of such Interest
Period. In the event that the Administrative Agent is unable to obtain any such
quotation as provided above, it will be deemed that the Eurodollar Rate for such
Interest Rate cannot be determined.
In the event that the Board of Governors of the Federal Reserve System
shall impose a Eurodollar Rate Reserve Percentage with respect to Eurocurrency
Liabilities, the Eurodollar Rate for an Interest Period shall be equal to the
amount determined above for such Interest Period divided by a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.7(a)(ii).
"Eurodollar Rate Reserve Percentage" means, for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing, the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with
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13
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Article 9.
"Excess Cash Flow" means for any period the sum of (a) EBITDA of the
Borrower and its Subsidiaries for such period plus (b) the aggregate amount of
all non-cash charges deducted from Consolidated net income for such period, but
not added back in arriving at EBITDA plus (c) if there was a net increase in
Consolidated Current Liabilities of the Borrower and its Subsidiaries during
such period, the amount of such net increase other than arising out of Debt
permitted pursuant to Section 6.2 plus (d) if there was a net decrease in
Consolidated Current Assets (excluding cash and Cash Equivalents) of the
Borrower and its Subsidiaries during such period the amount of such net decrease
less (e) the aggregate amount of mandatory and optional prepayments (other than
optional prepayments of the Swing Line Advances, Letter of Credit Advances or
Revolving Credit Advances made pursuant to clause (i) of the second sentence of
Section 2.6(a)) or repayments of principal made by the Borrower and its
Subsidiaries on any Funded Debt of the Borrower and its Subsidiaries during such
period less (f) cash Capital Expenditures of the Borrower and its Subsidiaries
during such period less (g) the aggregate amount of all federal, state, local
and foreign taxes accrued or paid for such period less (h) the aggregate amount
of interest paid on any Debt of the Borrower and its Subsidiaries during such
period less (i) the aggregate amount of all non-cash credits included in
arriving at such EBITDA less (j) if there was a net decrease in Consolidated
Current Liabilities of the Borrower and its Subsidiaries during such period, the
amount of such net decrease less (k) if there was a net increase in Consolidated
Current Assets (excluding cash and Cash Equivalents) of the Borrower and its
Subsidiaries during such period the amount of such increase less (l) dividends
paid by the Borrower to the holders of its common stock during such period to
the extent that the Borrower is expressly permitted to pay such dividends under
this Agreement.
"Existing Debt" means Debt of the Borrower and its Subsidiaries
outstanding immediately before giving effect to the Transaction and described in
Schedule 4.19(a).
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person not in the ordinary course of business, including,
without limitation, tax refunds, pension plan reversions, proceeds of insurance
(other than proceeds of business interruption insurance to the extent such
proceeds constitute compensation for lost earnings), condemnation awards (and
payments in lieu thereof) and indemnity payments; provided, however, that an
Extraordinary Receipt shall not include cash receipts received from proceeds of
insurance, condemnation awards (and payments in lieu thereof) or indemnity
payments to the extent that such proceeds, awards or payments (a) in respect of
loss or damage to Equipment, fixed assets or real property are applied (or in
respect of which expenditures were previously incurred) to replace or repair the
Equipment, fixed assets or real property in respect of which such proceeds,
awards or payments were received in
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accordance with the terms of the Loan Documents, so long as (i) such application
is made within ninety (90) days after such Person's receipt of such proceeds,
awards or payments and (ii) such proceeds, awards or payments are received by
such Person within fifteen (15) months after the occurrence of such damage or
loss; or (b) are received by any Person in respect of any third party claim
against such Person and applied to pay (or to reimburse such Person for its
prior payment of) such claim and the costs and expenses of such Person with
respect thereto.
"Facility" means the Term A Facility, the Term B Facility, the
Revolving Credit Facility, the Letter of Credit Facility or the Swing Line
Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average 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.
"Fiscal Year" means a fiscal year of the Borrower and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"Fleet" means Fleet National Bank in its capacity as a Lender or
Issuing Bank.
"Foreign Subsidiary" means any Subsidiary organized under the laws of
any jurisdiction other than the United States of America or any State thereof.
"Funded Debt" means, with respect to the Borrower, the Advances, and
with respect to the Borrower and the other Loan Parties and any other Person,
all other Debt of such Person that by its terms matures more than one year after
the date of determination or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more than one
year after such date or arises under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period of more
than one year after such date, including the current portion of all such Debt.
"GAAP" has the meaning specified in Section 1.3.
"Guaranteed Obligations" has the meaning specified in the Guaranties.
"Guarantors" means each Person which shall have executed and delivered
or become a party to a Subsidiary Guaranty hereunder.
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15
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Hedge Bank" means any Lender Party in its capacity as a party to a
Bank Hedge Agreement.
"Indemnified Party" has the meaning specified in Section 11.4(b).
"Information Memorandum" means the information memorandum, dated July
1998, delivered by the Administrative Agent to the Lenders.
"Initial Extension of Credit" means the earlier to occur of the initial
Borrowing and the initial issuance of a Letter of Credit.
"Initial Issuing Bank" has the meaning specified in the recital of
parties to this Agreement.
"Initial Lenders" has the meaning specified in the recital of parties
to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Intellectual Property Security Agreement" has the meaning specified in
Section 3.1(a).
"Interest Expense" means, with respect to any Person for any period,
interest expense on all Debt of such Person for such period net of interest
income for such period, whether paid or accrued, determined on a Consolidated
basis for such Person and its Subsidiaries and in accordance with GAAP, and
including, without limitation, (a) in the case of the Borrower, interest expense
in respect of Debt resulting from Advances, (b) the interest component of all
obligations under Capitalized Leases, (c) commissions, discounts and other fees
and charges payable in connection with letters of credit (including, without
limitation, Letters of Credit), (d) the net payment, if any, payable in
connection with Hedge Agreements less the net credit, if any, received in
connection with Hedge Agreements and (e) all fees paid by the Borrower pursuant
to Section 2.8(a).
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or the date of the Conversion of any Prime Rate Advance into such
Eurodollar Rate Advance, and ending on the last
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16
day of the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected by
the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the Borrower may,
upon notice received by the Administrative Agent not later than 11:00 A.M. (New
York time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(a) The Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that ends after
any principal repayment installment date for such Facility unless,
after giving effect to such selection, the aggregate principal amount
of Prime Rate Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and payable on or
prior to such date;
(b) Whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day;
(c) Whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month; and
(d) Until the earlier of (i) 90 days after the Closing Date,
or (ii) the date on which the Administrative Agent notifies the
Borrower that the syndication of the Facilities has been completed,
only Interest Periods with a duration of seven days, if available to
all the Lenders, shall be available to the Borrower for Eurodollar Rate
Advances, or if such Interest Periods are not available to all the
Lenders, Interest Periods of such duration as may be selected by the
Administrative Agent and are acceptable to the other Lenders.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Inventory" of any person means all of such Person's now owned and
hereafter acquired inventory, goods, merchandise and other personal property,
wherever located, to be furnished under any contract of service or held for sale
or lease, all returned goods, raw materials, other materials and supplies of any
kind, nature or description which are or might be consumed in such Person's
business
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or used in connection with the packing, shipping, advertising, selling or
finishing of such goods, merchandise and such other personal property, and all
documents of title or other documents representing them.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock or other ownership or
profit interest, warrants, rights, options, obligations or other securities of
such Person, any capital contribution to such Person or any other investment in
such Person, including, without limitation, any arrangement pursuant to which
the investor incurs Debt of the types referred to in clause (i) or (j) of the
definition of "Debt" in respect of such Person.
"Issuing Bank" means the Initial Issuing Bank and each Eligible
Assignee to which Letter of Credit Commitment hereunder has been assigned
pursuant to Section 11.7.
"L/C Cash Collateral Account" has the meaning specified in the Security
Agreement.
"L/C Related Documents" has the meaning specified in Section
2.4(f)(ii)(A).
"Lender Party" means any Lender, the Issuing Bank or the Swing Line
Bank.
"Lenders" means the Initial Lenders and each Person that shall become a
Lender hereunder pursuant to Section 11.7.
"Letter of Credit" means any Letter of Credit issued hereunder (as
specified in Section 2.3(a)).
"Letter of Credit Advance" means an advance made by the Issuing Bank or
any Revolving Credit Lender pursuant to Section 2.3(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.3(a).
"Letter of Credit Commitment" means, with respect to the Issuing Bank,
the amount set forth opposite the Issuing Bank's name on Schedule I hereto under
the caption "Letter of Credit Commitment" or, if the Issuing Bank has entered
into one or more Assignments and Acceptances, set forth for the Issuing Bank in
the Register maintained by the Administrative Agent pursuant to Section 11.7(d)
as the Issuing Bank's "Letter of Credit Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.5.
"Letter of Credit Facility" means, at any time, an amount equal to the
amount of the Issuing Bank's Letter of Credit Commitment at such time, as such
amount may be reduced pursuant to Section 2.5.
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"Lien" means any lien, security interest or other charge or encumbrance
of any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Loan Documents" means (a) this Agreement, (b) the Notes, (c) each
Subsidiary Guaranty, (d) the Collateral Documents, (e) each Letter of Credit
Agreement, (f) each Bank Hedge Agreement, (g) the Negative Pledge Agreement, (h)
each Additional Collateral Document, and all other agreements, instruments and
documents executed in connection therewith, in each case as the same may at any
time be amended, supplemented, restated or otherwise modified and in effect.
"Loan Parties" means the Borrower, each Guarantor, and each other
Person (other than the Equity Participants and other Persons party to the
Negative Pledge Agreement) who shall, at any time, have executed and delivered a
Loan Document to the Administrative Agent.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in (a) the
business, condition (financial or otherwise), results of operations or
properties of any Loan Party and its Subsidiaries (taken as a whole), (b) the
ability of any Loan Party to perform its obligations under the Loan Documents to
which it is a party or (c) any material aspect of the Transaction.
"Material Adverse Effect" has the meaning specified in Section 3.1(e).
"Material Contract" means, with respect to any Person, each contract
listed on Schedule 4.23, each contract which is a replacement or a substitute
for any contract listed on such Schedule and each other contract to which such
Person is a party which is material to the business, condition (financial or
otherwise), operations, performance or properties of such Person.
"Mortgage" means each mortgage, deed of trust or other similar document
to be executed and delivered by the appropriate Loan Party, in form and
substance reasonably acceptable to the Administrative Agent and the Lenders in
order (a) to provide that such Loan Party is the mortgagor or grantor, (b) to
comply with and/or provide for specific laws of the jurisdictions in which the
property to be encumbered is located, and (c) to assure that the Administrative
Agent for the benefit of the Secured Parties has a perfected Lien on the
Mortgaged Property.
"Mortgage Policies" has the meaning assigned to that term in Section
3.1(a)(iii)(B).
"Mortgaged Property" shall have the meaning assigned to such term in
Section 4.21, and shall also include any parcel (or adjoining parcels) of real
property (including any leaseholds)
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acquired by any Loan Party after the Closing Date subject to a Mortgage granted
to the Administrative Agent for the benefit of the Secured Parties pursuant to
Section 5.13.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan
Party or any ERISA Affiliate and at least one Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.
"Negative Pledge Agreement" has the meaning specified in Section
3.1(a).
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any asset or any Debt Issuance or Equity Issuance by any
Person, or any Extraordinary Receipt received by or paid to or for the account
of any Person, the aggregate amount of cash received from time to time (whether
as initial consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a) reasonable
and customary brokerage commissions, underwriting fees and discounts, legal
fees, finder's fees and other similar out-of-pocket costs, (b) the amount of
taxes payable in connection with or as a result of such transaction and (c) the
amount of any Debt secured by a Lien on such asset that, by the terms of such
transaction, is required to be repaid upon such disposition, in each case to the
extent, but only to the extent, that the amounts so deducted are, at the time of
receipt of such cash, actually paid to a Person that is not an Affiliate of such
Person or any Loan Party or any Affiliate of any Loan Party and are properly
attributable to such transaction or to the asset that is the subject thereof.
"Note" means a Term A Note, a Term B Note or a Revolving Credit Note.
"Notice of Borrowing" has the meaning specified in Section 2.2(a).
"Notice of Issuance" has the meaning specified in Section 2.3(a).
"Notice of Renewal" has the meaning specified in Section 2.1(f).
"Notice of Swing Line Borrowing" has the meaning specified in Section
2.2(b).
"Notice of Termination" has the meaning specified in Section 2.1(f).
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"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the right
of any creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 9.4. Without limiting the generality of the foregoing, the Obligations
of the Loan Parties under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses, fees,
attorneys' fees and disbursements, indemnities and other amounts payable by any
Loan Party under any Loan Document, (b) the obligation of any Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender Party
may, after the occurrence and during the continuance of an Event of Default,
elect to pay or advance on behalf of such Loan Party, and (c) any other
obligations arising out of or under, based upon or relating to the Loan
Documents.
"OECD" means the Organization for Economic Cooperation and Development.
"Open Year" has the meaning specified in Section 4.16.
"Other Taxes" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) Liens for taxes, assessments and governmental charges or
levies not yet due and payable or which are being contested in good faith by
appropriate proceedings provided adequate reserves have been established in
accordance with GAAP; provided that provisions for the payment of such Liens has
been made on the books of such Person; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens and other
similar Liens arising in the ordinary course of business securing obligations
that are not overdue for a period of more than 60 days; provided that provisions
for the payment of such Liens has been made on the books of such Person; (c)
pledges or deposits to secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory obligations; provided that
provisions for the payment of such Liens has been made on the books of such
Person; and (d) Permitted Real Property Encumbrances.
"Permitted Real Property Encumbrances" means, with respect to any
particular Mortgaged Property, (i) those liens, encumbrances and other matters
affecting title to any Mortgaged Property listed in the Mortgage Policies in
respect thereof and as of the date of delivery of such Mortgage Policies to
Administrative Agent in accordance with the terms hereof, reasonably acceptable
to the
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Lenders, (ii) such easements, encroachments, covenants, rights of way, minor
defects, irregularities or encumbrances on title which do not arise out of the
incurrence of any Debt and which do not impair the use of such Mortgaged
Property for the purpose for which it is held by the mortgagor thereof, or the
Lien granted to the Administrative Agent for the benefit of the Secured Parties,
and (iii) municipal and zoning ordinances; provided that no violation exists
thereunder that could impair the use of the existing improvements and the
present use made by the mortgagor thereof of the Premises (as defined in the
respective Mortgage).
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pre-Commitment Information" has the meaning specified in Section
3.1(g).
"Prepayment Account" means an account established by the Borrower with
the Administrative Agent and over which the Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal for
application in accordance with Section 2.6(b)(v), which account shall be
interest bearing, if permitted by law, at rates then currently paid by Fleet for
deposits of similar amount and duration. The Borrower hereby grants to the
Administrative Agent for the benefit of the Secured Parties, a security interest
in the Prepayment Account to secure the Obligations of the Loan Parties under
the Loan Documents.
"Prime Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Fleet in
Boston, Massachusetts, from time to time, as Fleet's prime rate, which
is not necessarily the lowest rate made available by Fleet; or
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Prime Rate Advance" means an Advance that bears interest as provided
in Section 2.7(a)(i).
"Pro Rata Share" of any amount means, with respect to any Revolving
Credit Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Revolving Credit Commitment at
such time and the denominator of which is the Revolving Credit Facility at such
time.
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"Qualified Offering" shall mean the closing of the Borrower's first
underwritten offering to the public pursuant to an effective registration
statement (other than a registration statement on Form S-8) under the Securities
Act of 1933, as amended, provided that such registration statement covers the
offer and sale of common stock of the Borrower of which the aggregate gross
proceeds attributable to sales for the account of the Borrower exceed
$40,000,000.
"Ratio of Consolidated Debt to EBITDA" means, for any fiscal quarter of
the Borrower, a ratio of (a) Debt of the Borrower and its Subsidiaries as at the
end of such fiscal quarter to (b) EBITDA for the most recently completed four
fiscal quarters of the Borrower and its Subsidiaries.
"Recapitalization" has the meaning specified in the Preliminary
Statements.
"Recapitalization Agreement" has the meaning specified in the
Preliminary Statements.
"Recapitalization Date" means the date on which the Recapitalization
shall have been consummated in accordance with the Recapitalization Documents.
"Recapitalization Documents" means the Recapitalization Agreement and
the Stockholders Agreement, the Registration Rights Agreement, General Release
Agreements, Non-Competition Agreements, Escrow Agreement, Cendant Termination
and Non-Competition Agreement, Director Indemnification Agreements, Redemption
Notes, Final Excess Cash Notes (as each such term is defined in the
Recapitalization Agreement), the Transfer Restriction Agreement between the
Borrower and the Investors, and all schedules and exhibits related to each such
agreement.
"Receivables" means all Receivables referred to in Section 1(c) of the
Security Agreement.
"Reduction Amount" has the meaning specified in Section 2.6(b)(vi).
"Register" has the meaning specified in Section 11.7(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Release" means any release, spill, emission, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping
or disposing into the environment (including the abandonment or discarding of
barrels, containers and other closed receptacles containing any Hazardous
Materials) or into or from any property, including, without limitation, the
movement of any Hazardous Materials through the air, soil, surface waters or
ground water.
"Remedial" shall have the meaning as set forth in CERCLA at 42 U.S.C.
ss. 9601(24) and/or any other applicable Environmental Laws.
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"Removal" shall have the meaning as set forth in CERCLA at 42 U.S.C.
ss. 9601(23) and/or any other applicable Environmental Laws.
"Required Lenders" means at any time Lenders owed or holding greater
than 50% of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and (b) the aggregate Available Amount of all Letters
of Credit outstanding at such time, or, if no such principal amount and no
Letters of Credit are outstanding at such time, Lenders holding greater than 50%
of the aggregate of the Term A Commitments, Term B Commitments, Revolving Credit
Commitments; provided, however, that if any Lender shall be a Defaulting Lender
at such time, there shall be excluded from the determination of Required Lenders
at such time (i) the aggregate principal amount of the Advances owing to such
Lender (in its capacity as a Lender) and outstanding at such time, and (ii) the
aggregate Term A Commitment, Term B Commitment and Revolving Credit Commitment
of such Lender at such time. For purposes of this definition, the aggregate
principal amount of Swing Line Advances owing to the Swing Line Bank, Letter of
Credit Advances owing to the Issuing Bank and the Available Amount of each
Letter of Credit shall be considered to be owed to the Revolving Credit Lenders
ratably in accordance with their respective Revolving Credit Commitments.
"Response" shall have the meaning as set forth in CERCLA at 42 U.S.C.
ss. 9601(25) and/or any other applicable Environmental Laws.
"Responsible Officer" means, with respect to any Loan Party, the Chief
Executive Officer, the President, the Chief Financial Officer, any Vice
President, the Controller or the Treasurer of such Loan Party.
"Revolving Credit Advance" has the meaning specified in Section 2.1(c).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the Revolving
Credit Lenders.
"Revolving Credit Commitment" means, with respect to any Revolving
Credit Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or, if such
Lender has entered into one or more Assignments and Acceptances, set forth for
such Lender in the Register maintained by the Administrative Agent pursuant to
Section 11.7(d) as such Lender's "Revolving Credit Commitment," as such amount
may be reduced at or prior to such time pursuant to Section 2.5.
"Revolving Credit Facility" means, at any time, the aggregate amount of
the Revolving Credit Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Lender" means any Lender that has a Revolving Credit
Commitment.
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"Revolving Credit Note" means a promissory note of the Borrower payable
to the order of any Revolving Credit Lender, in substantially the form of
Exhibit B hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Revolving Credit Advances made by such Lender.
"Revolving Credit Termination Date" means the earlier of (a) the sixth
anniversary of the Closing Date, and (b) the Termination Date.
"Secured Obligations" has the meaning specified in the Security
Agreement.
"Secured Parties" means the Administrative Agent, the Lender Parties,
and the Hedge Banks and the other Persons the Obligations owing to which are or
are purported to be secured by the Collateral under the terms of the Collateral
Documents.
"Security Agreement" has the meaning specified in Section 3.1(a).
"Selling Stockholders" has the meaning specified in the Preliminary
Statements.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan
Party or any ERISA Affiliate and no Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of which any Loan Party
or any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
saleable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay such debts and liabilities as they mature and (d) such Person is
not engaged in business or a transaction, and is not about to engage in business
or a transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Standby Letter of Credit" means any Letter of Credit other than a
Trade Letter of Credit.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding
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capital stock having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time capital stock
of any other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the capital
or profits of such partnership, joint venture or limited liability company or
(c) the beneficial interest in such trust or estate, is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person's other Subsidiaries.
Unless otherwise specified herein, the term Subsidiary shall mean a Subsidiary
of the Borrower.
"Subsidiary Guaranty" has the meaning specified Section 3.1(a)
"Surviving Debt" shall have the meaning specified in Section 3.1(c).
"Swing Line Advance" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.1(e) or (b) any Revolving Credit Lender pursuant to
Section 2.2(b).
"Swing Line Bank" has the meaning specified in the recital of parties
to this Agreement.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section 2.1(e).
"Taxes" has the meaning specified in Section 2.12(a).
"Term A Advance" has the meaning specified in Section 2.1(a).
"Term A Borrowing" means a borrowing consisting of simultaneous Term A
Advances of the same Type made by the Term A Lenders.
"Term A Commitment" means, with respect to any Term A Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Term A Commitment" or, if such Lender has entered into one or
more Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 11.7(d) as such
Lender's "Term A Commitment," as such amount may be reduced at or prior to such
time pursuant to Section 2.5.
"Term A Facility" means, at any time, the aggregate amount of the Term
A Lenders' Term A Commitments at such time.
"Term A Lender" means any Lender that has a Term A Commitment.
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"Term A Note" means a promissory note of the Borrower payable to the
order of any Term A Lender, in substantially the form of Exhibit C hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from the
Term A Advance made by such Lender.
"Term B Advance" has the meaning specified in Section 2.1(b).
"Term B Borrowing" means a borrowing consisting of simultaneous Term B
Advances of the same Type made by the Term B Lenders.
"Term B Commitment" means, with respect to any Term B Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Term B Commitment" or, if such Lender has entered into one or
more Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 11.7 as such Lender's
"Term B Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.5.
"Term B Facility" means, at any time, the aggregate amount of the Term
B Lenders' Term B Commitments at such time.
"Term B Lender" means any Lender that has a Term B Commitment.
"Term B Note" means a promissory note of the Borrower payable to the
order of any Term B Lender, in substantially the form of Exhibit D hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from the
Term B Advance made by such Lender.
"Term Facilities" means the Term A Facility and the Term B Facility.
"Termination Date" means the date of termination in whole of the
Commitments pursuant to Section 2.5 or Article 9.
"Trade Letter of Credit" means any Letter of Credit that is issued for
the benefit of a supplier of Inventory to the Borrower or any of its
Subsidiaries to effect payment for such Inventory, the conditions to drawing
under which include the presentation to the Issuing Bank of negotiable bills of
lading, invoices and related documents sufficient, in the judgment of the
Issuing Bank, to create a valid and perfected lien on or security interest in
such Inventory, bills of lading, invoices and related documents in favor of the
Issuing Bank.
"Transaction" means the transactions contemplated by the
Recapitalization Documents and the Loan Documents.
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"Type" refers to the distinction between Advances bearing interest at
the Prime Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender, at any time, (a) such Lender's Revolving Credit
Commitment at such time minus (b) the sum of (i) the aggregate principal amount
of all Revolving Credit Advances and Letter of Credit Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time, plus (ii)
such Lender's Pro Rata Share of (A) the aggregate Available Amount of all
Letters of Credit outstanding at such time and (B) the aggregate principal
amount of all Letter of Credit Advances made by the Issuing Bank pursuant to
Section 2.3(c) and outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of which
any Loan Party could have liability.
"Withdrawal Liabilities" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.2 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
SECTION 1.3 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.6 ("GAAP").
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ARTICLE 2
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.1 The Advances.
(a) The Term A Advances. Each Term A Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (a "Term A
Advance") to the Borrower on the Closing Date in an amount not to exceed such
Lender's Term A Commitment at such time. The Term A Borrowing shall consist of
Term A Advances made simultaneously by the Term A Lenders ratably according to
their Term A Commitments. Amounts borrowed under this Section 2.1(a) and repaid
or prepaid may not be reborrowed.
(b) The Term B Advances. Each Term B Lender severally agrees, on the
terms and conditions hereinafter set forth, to make a single advance (a "Term B
Advance") to the Borrower on the Closing Date in an amount not to exceed such
Lender's Term B Commitment at such time. The Term B Borrowing shall consist of
Term B Advances made simultaneously by the Term B Lenders ratably according to
their Term B Commitments. Amounts borrowed under this Section 2.1(b) and repaid
or prepaid may not be reborrowed.
(c) The Revolving Credit Advances. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Revolving Credit Advance") to the Borrower from time to time
on any Business Day during the period from the date hereof until the Revolving
Credit Termination Date in an amount for each such Advance not to exceed such
Lender's Unused Revolving Credit Commitment at such time; provided, however,
that no Revolving Credit Lender shall have any obligation to make a Revolving
Credit Advance under this Section 2.1(c) to the extent such Revolving Credit
Advance would cause the aggregate amount of Revolving Credit Advances
outstanding (after giving effect to any immediate application of the proceeds
thereof) plus (ii) Swing Line Advances outstanding, plus (iii) Letter of Credit
Advances outstanding, plus (iv) the Aggregate Available Amount of all Letters of
Credit then outstanding to exceed the Revolving Credit Facility. Each Revolving
Credit Borrowing shall be in an aggregate amount of $400,000 or an integral
multiple of $100,000 (other than, in each case, a Borrowing the proceeds of
which shall be used solely to repay or prepay in full outstanding Swing Line
Advances or outstanding Letter of Credit Advances) and shall consist of
Revolving Credit Advances made simultaneously by the Revolving Credit Lenders
ratably according to their Revolving Credit Commitments. Within the limits of
each Revolving Credit Lender's Unused Revolving Credit Commitment in effect from
time to time, the Borrower may borrow, repay and reborrow Revolving Credit
Advances.
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(d) The Swing Line Advances. The Borrower may request the Swing Line
Bank to make, and the Swing Line Bank shall make, on the terms and conditions
hereinafter set forth, Swing Line Advances to the Borrower from time to time on
any Business Day during the period from the date hereof until the Revolving
Credit Termination Date (i) in an aggregate amount not to exceed at any time
outstanding $3,000,000 (the "Swing Line Facility") and (ii) in an amount for
each such Swing Line Borrowing not to exceed the aggregate of the Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time. No
Swing Line Advance shall be used for the purpose of funding the payment of
principal of any other Swing Line Advance. Each Swing Line Borrowing shall be
made as a Prime Rate Advance. Within the limits of the Swing Line Facility and
within the limits referred to in clause (ii) above, so long as the Swing Line
Bank makes Swing Line Advances, the Borrower may borrow and reborrow under this
Section 2.1(d) and may repay or prepay the Swing Line Advances at such times
prior to the Termination Date, and in such integral multiples, as the Borrower
may elect.
(e) Letters of Credit. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit for the account of
the Borrower from time to time on any Business Day during the period from the
Closing Date until sixty (60) days before the Revolving Credit Termination Date
(i) in an aggregate Available Amount for all Letters of Credit not to exceed at
any time the Issuing Bank's Letter of Credit Commitment at such time and (ii) in
an Available Amount for each such Letter of Credit not to exceed an amount equal
to the Unused Revolving Credit Commitments of the Revolving Credit Lenders at
such time. No Letter of Credit shall have an expiration date (including all
rights of the Borrower or the beneficiary to require renewal) later than (A) the
earlier of sixty (60) days before the Revolving Credit Termination Date, (B) in
the case of a Standby Letter of Credit, 365 days after the date of issuance
thereof and (C) in the case of a Trade Letter of Credit, 180 days after the date
of issuance thereof. The foregoing notwithstanding, any Standby Letter of Credit
may, by its terms, be renewable annually upon notice (a "Notice of Renewal")
given to the Issuing Bank and the Administrative Agent on or prior to any date
for notice of renewal set forth in such Letter of Credit (but in any event at
least five (5) Business Days prior to the date of the proposed renewal of such
Standby Letter of Credit) and upon fulfillment of the applicable conditions set
forth in Article 3 unless such Issuing Bank shall have notified the Borrower
(with a copy to the Administrative Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit (but in any event at least thirty
(30) Business Days prior to the date of automatic renewal) of its election not
to renew such Standby Letter of Credit (a "Notice of Termination"); provided
that the terms of each Standby Letter of Credit that is automatically renewable
annually shall not permit the expiration date (after giving effect to any
renewal) of such Standby Letter of Credit in any event to be extended to a date
later than sixty (60) days before the Revolving Credit Termination Date. If
either a Notice of Renewal is not given by the Borrower or a Notice of
Termination is given by the Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal, the Issuing Bank may, in its
discretion unless instructed to the contrary by the
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Administrative Agent or the Borrower, deem that a Notice of Renewal had been
timely delivered and, in such case, a Notice of Renewal shall be deemed to have
been so delivered for all purposes under this Agreement. Within the limits of
the Letter of Credit Facility, and subject to the limits referred to above, the
Borrower may request the issuance of Letters of Credit under this Section
2.1(e), repay any Letter of Credit Advances resulting from drawings under
Letters of Credit pursuant to Section 2.3(c) and request the issuance of
additional Letters of Credit under this Section 2.1(e).
SECTION 2.2 Making the Advances. (a) Except as otherwise provided in
Section 2.3 or, with respect to Swing Line Advances, in Section 2.2(b), each
Borrowing shall be made on notice, given not later than 11:00 A.M. (New York
time) on the third Business Day prior to the date of the proposed Borrowing in
the case of Eurodollar Rate Advances and on the first Business Day prior to the
date of the proposed Borrowing in the case of Prime Rate Advances by the
Borrower to the Administrative Agent, which shall give to each appropriate
Lender prompt notice thereof by telex or telecopier. Each such notice of a
Borrowing (a "Notice of Borrowing") may be by telephone, confirmed immediately
in writing, or telex or telecopier in substantially the form of Exhibit E
hereto, specifying therein the requested (i) date of such Borrowing, (ii)
Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each appropriate Lender shall, before 11:00 A.M.
(New York time) on the date of such Borrowing, make available for the account of
its Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of such
Borrowing in accordance with the respective Commitments under the applicable
Facility of such Lender and the other appropriate Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article 3, the Administrative Agent will make
such funds available to the Borrower by crediting the Borrower's Account;
provided, however, that in the case of any Revolving Credit Borrowing, the
Administrative Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Swing Line Advances and Letter of Credit
Advances made by the Swing Line Bank, the Issuing Bank and by any other
Revolving Credit Lender and outstanding on the date of such Revolving Credit
Borrowing, plus interest accrued and unpaid thereon to and as of such date,
available to the Swing Line Bank, the Issuing Bank and such other Revolving
Credit Lenders for repayment of such Swing Line Advances and Letter of Credit
Advances.
(b) Each Swing Line Borrowing shall be made either (x) on notice, given
not later than 11:00 A.M. (New York time) on the date of the proposed Swing Line
Borrowing, by the Borrower to the Swing Line Bank and the Administrative Agent
or (y) pursuant to other arrangements, including, by way of example and not of
limitation, arrangements for daily repayments and borrowings on each Business
Day, which are satisfactory in form and substance to the Swing Line Bank, the
Administrative Agent and the Borrower. Each notice of a Swing Line Borrowing
pursuant to clause (x) in the immediately preceding sentence (a "Notice of Swing
Line Borrowing") shall be
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by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (i) date of such Borrowing, (ii) amount of such
Borrowing and (iii) maturity of such Borrowing (which maturity shall be no later
than the seventh day after the requested date of such Borrowing). If, in its
discretion, it elects to make a requested Swing Line Advance, the Swing Line
Bank will make the amount thereof available to the Administrative Agent at the
Administrative Agent's Account, in same day funds. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article 3, the Administrative Agent will make such funds available
to the Borrower by crediting the Borrower's Account. Upon written demand by the
Swing Line Bank, with a copy of such demand to the Administrative Agent, each
other Revolving Credit Lender shall purchase from the Swing Line Bank, and the
Swing Line Bank shall sell and assign to each such other Revolving Credit
Lender, such other Lender's Pro Rata Share of all outstanding Swing Line
Advances as of the date of such demand, by deposit to the Administrative Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of Swing Line Advances to be purchased by such Lender. The
Borrower hereby agrees to each such sale and assignment. Each Revolving Credit
Lender agrees to purchase its Pro Rata Share of outstanding Swing Line Advances
on (i) the Business Day on which demand therefor is made by the Swing Line Bank;
provided that notice of such demand is given not later than 3:00 P.M. (New York
time) on such Business Day, or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon any such
assignment by the Swing Line Bank to any other Revolving Credit Lender of a
portion of a Swing Line Advance, the Swing Line Bank represents and warrants to
such other Lender that the Swing Line Bank is the legal and beneficial owner of
such interest being assigned by it, but makes no other representation or
warranty and assumes no responsibility with respect to such Swing Line Advance,
the Loan Documents or any Loan Party. If and to the extent that any Revolving
Credit Lender shall not have so made the amount of such Swing Line Advance
available to the Administrative Agent, such Revolving Credit Lender agrees to
pay to the Administrative Agent, for the account of the Swing Line Bank,
forthwith on demand such amount together with interest thereon, for each day
from the date of demand by the Swing Line Bank until the date such amount is
paid to the Administrative Agent, at the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such amount for the account of the Swing
Line Bank on any Business Day, such amount so paid in respect of principal shall
constitute a Swing Line Advance made by such Lender on such Business Day for
purposes of this Agreement, and the outstanding principal amount of the Swing
Line Advance made by the Swing Line Bank shall be reduced by such amount on such
Business Day.
(c) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances if the obligation of
the appropriate Lenders to make Eurodollar Rate Advances shall then be suspended
pursuant to Section 2.9 or Section 2.10, and (ii) the Eurodollar Rate Advances
made on any date may not be outstanding as part of more than ten (10) separate
Borrowings.
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(d) Each Notice of Borrowing and Notice of Swing Line Borrowing shall
be irrevocable and binding on the Borrower. In the case of any Borrowing that
the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each appropriate Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on
or before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article 3, including, without limitation, any
loss (including loss of anticipated profits as reasonably determined by such
Lender), cost or expense incurred by reason of the liquidation or redeployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing when such Advance, as a result of
such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from an
appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) or (b) of this Section 2.2 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for
each day from the date such amount is made available to the Borrower until the
date such amount is repaid or paid to the Administrative Agent, at (i) in the
case of the Borrower, the interest rate applicable at such time under Section
2.7 to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute such Lender's
Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.3 Issuance of and Drawings and Reimbursement Under Letters of
Credit.
(a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York time) on the fifth Business
Day prior to the date of the proposed issuance of such Letter of Credit, by the
Borrower to the Issuing Bank, which shall give to the Administrative Agent and
each Revolving Credit Lender prompt notice thereof by telex or telecopier. Each
such notice of issuance of a Letter of Credit (a "Notice of Issuance") shall be
by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested
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(i) date of such issuance (which shall be a Business Day), (ii) Available Amount
of such Letter of Credit, (iii) expiration date of such Letter of Credit, (iv)
name and address of the beneficiary of such Letter of Credit and (v) form of
such Letter of Credit, and shall be accompanied by such application and
agreement for letter of credit as the Issuing Bank may specify to the Borrower
for use in connection with such requested Letter of Credit (a "Letter of Credit
Agreement"). If the requested form of such Letter of Credit is acceptable to the
Issuing Bank, in its sole discretion, the Issuing Bank will, upon fulfillment of
the applicable conditions set forth in Article 3, make such Letter of Credit
available to the Borrower at its office referred to in Section 11.2 or as
otherwise agreed with the Borrower in connection with such issuance. In the
event and to the extent that the provisions of any such Letter of Credit
Agreement shall conflict with this Agreement, the provisions of this Agreement
shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish (i) to the
Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
previous week and drawings during such week under all Letters of Credit, (ii) to
the Administrative Agent, the Borrower and each Revolving Credit Lender on the
first Business Day of each month a written report summarizing issuance and
expiration dates of Letters of Credit issued during the preceding month and
drawings during such month under all Letters of Credit and (iii) to the
Administrative Agent, the Borrower and each Revolving Credit Lender on the first
Business Day of each calendar quarter a written report setting forth the average
daily aggregate Available Amount during the preceding calendar quarter of all
Letters of Credit.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance which
shall be a Prime Rate Advance in the amount of such draft. Each of the Borrower,
the Administrative Agent and each Revolving Credit Lender hereby acknowledges
and agrees that Letter of Credit Advances may be made, or deemed made, by the
Issuing Bank in respect of any Letter of Credit and to participate in Letter of
Credit Advances made hereunder as provided herein. The Borrower shall reimburse
the Issuing Bank each Letter of Credit Advance, using its own funds or the
proceeds of a Revolving Credit Borrowing or Swing Line Borrowing on the same
Business Day on which the Letter of Credit is drawn. To the extent the Borrower
does not reimburse the Issuing Bank, upon written demand by the Issuing Bank,
with a copy of such demand to the Administrative Agent, each Revolving Credit
Lender shall purchase from the Issuing Bank, and the Issuing Bank shall sell and
assign to each such Revolving Credit Lender, such Lender's Pro Rata Share of
such outstanding Letter of Credit Advance as of the date of such purchase, by
making available (for the account of its Applicable Lending Office) to the
Administrative Agent (for the account of the Issuing Bank), by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Lender. Promptly after receipt thereof, the Administrative
Agent shall transfer such funds to the Issuing Bank. The Borrower hereby agrees
to each such sale and assignment. Each Revolving Credit Lender agrees to
purchase its Pro Rata
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Share of an outstanding Letter of Credit Advance on (i) the Business Day on
which demand therefor is made by the Issuing Bank; provided that notice of such
demand is given not later than 11:00 A.M. (New York time) on such Business Day
or (ii) the first Business Day next succeeding such demand if notice of such
demand is given after such time. Upon any such assignment by the Issuing Bank to
any other Revolving Credit Lender of a portion of a Letter of Credit Advance,
the Issuing Bank represents and warrants to such other Lender that the Issuing
Bank is the legal and beneficial owner of such interest being assigned by it,
free and clear of any liens, but makes no other representation or warranty and
assumes no responsibility with respect to such Letter of Credit Advance, the
Loan Documents or any Loan Party. If and to the extent that any Revolving Credit
Lender shall not have so made the amount of such Letter of Credit Advance
available to the Administrative Agent, such Revolving Credit Lender agrees to
pay to the Administrative Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by the Issuing Bank until
the date such amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of the Issuing Bank, as applicable. If such
Lender shall pay to the Administrative Agent such amount for the account of the
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Letter of Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by the Issuing Bank shall be reduced by such
amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of any
Lender to make any Letter of Credit Advance to be made by it on the date
specified in Section 2.3(c) shall not relieve any other Lender of its obligation
hereunder to make its Letter of Credit Advance on such date, but no Lender shall
be responsible for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.
SECTION 2.4 Repayment of Advances.
(a) Term A Advances. The Borrower shall repay to the Administrative
Agent for the ratable account of the Term A Lenders the aggregate outstanding
principal amount of the Term A Advances on the following dates in the amounts
indicated (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.6):
Date Amount
---- ------
December 31, 1998 $ 750,000
March 31, 1999 $ 750,000
June 30, 1999 $ 750,000
September 30, 1999 $ 750,000
December 31, 1999 $1,000,000
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March 31, 2000 $1,000,000
June 30, 2000 $1,000,000
September 30, 2000 $1,000,000
December 31, 2000 $1,500,000
March 31, 2001 $1,500,000
June 30, 2001 $1,500,000
September 30, 2001 $1,500,000
December 31, 2001 $2,000,000
March 31, 2002 $2,000,000
June 30, 2002 $2,000,000
September 30, 2002 $2,000,000
December 31, 2002 $2,250,000
March 31, 2003 $2,250,000
June 30, 2003 $2,250,000
September 30, 2003 $2,250,000
December 31, 2003 $2,500,000
March 31, 2004 $2,500,000
June 30, 2004 $2,500,000
Sixth Anniversary of
the Closing Date $2,500,000
provided, however, that the final principal installment shall be in an amount
equal to the aggregate principal amount of the Term A Advances outstanding on
such date.
(b) Term B Advances. The Borrower shall repay to the Administrative
Agent for the ratable account of the Term B Lenders the aggregate outstanding
principal amount of the Term B Advances on the following dates in the amounts
indicated (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.6):
Date Amount
---- ------
December 31, 1998 $125,000
March 31, 1999 $125,000
June 30, 1999 $125,000
September 30, 1999 $125,000
December 31, 1999 $125,000
March 31, 2000 $125,000
June 30, 2000 $125,000
September 30, 2000 $125,000
December 31, 2000 $125,000
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March 31, 2001 $ 125,000
June 30, 2001 $ 125,000
September 30, 2001 $ 125,000
December 31, 2001 $ 125,000
March 31, 2002 $ 125,000
June 30, 2002 $ 125,000
September 30, 2002 $ 125,000
December 31, 2002 $ 125,000
March 31, 2003 $ 125,000
June 30, 2003 $ 125,000
September 30, 2003 $ 125,000
December 31, 2003 $ 125,000
March 31, 2004 $ 125,000
June 30, 2004 $ 125,000
September 30, 2004 $ 125,000
December 31, 2004 $5,625,000
March 31, 2005 $5,625,000
June 30, 2005 $5,625,000
September 30, 2005 $5,625,000
December 31, 2005 $7,375,000
March 31, 2006 $7,375,000
June 30, 2006 $7,375,000
Eighth Anniversary of
the Closing Date $7,375,000
provided, however, that the final principal installment shall be equal to the
aggregate principal amount of the Term B Advances outstanding on such date.
(c) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Revolving Credit Termination Date the aggregate principal amount of the
Revolving Credit Advances then outstanding.
(d) Swing Line Advances. The Borrower shall repay to the Administrative
Agent for the account of the Swing Line Bank and each other Revolving Credit
Lender that has made a Swing Line Advance the outstanding principal amount of
each Swing Line Advance made by each of them on the earlier of the maturity date
for such Swing Line Advance (which maturity date shall be no later than the
seventh day after the requested date of such Swing Line Advance) and the
Revolving Credit Termination Date.
(e) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter
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of Credit Advance on the earlier of demand and the Revolving Credit Termination
Date the outstanding principal amount of each Letter of Credit Advance made by
each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any
Loan Document, any Letter of Credit Agreement, any Letter of Credit or
any other agreement or instrument relating to any of the foregoing (all
of the foregoing being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations of
the Borrower in respect of any L/C Related Document or any other
amendment or waiver of or any consent to departure from all or any of
the L/C Related Documents;
(C) the existence of any claim, set-off, defense or
other right that the Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any Persons for
whom any such beneficiary or any such transferee may be acting), the
Issuing Bank, or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or
(E) any exchange, release or non-perfection of any
Collateral or other collateral, or any release or amendment or waiver
of or consent to departure from any Guaranty or any other guarantee,
for all or any of the Obligations of the Borrower in respect of the L/C
Related Documents.
SECTION 2.5 Termination or Reduction of the Commitments.
(a) Optional. The Borrower may, upon at least three Business Days'
notice to the Administrative Agent, terminate in whole or reduce in part the
unused portions of the Unused Revolving Credit Commitments; provided, however,
that each partial reduction of a Facility (i) shall be in an aggregate amount of
$1,000,000 or an integral multiple of $250,000 in excess thereof, and
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(ii) shall be made ratably among the appropriate Lenders in accordance with
their Commitments with respect to such Facility.
(b) Mandatory. (i) On the date of the Term A Borrowing, after giving
effect to such Term A Borrowing, and from time to time thereafter upon each
repayment or prepayment of the Term A Advances, the aggregate Term A Commitments
of the Term A Lenders shall be automatically and permanently reduced, on a pro
rata basis, by an amount equal to the amount by which the aggregate Term A
Commitments immediately prior to such reduction exceed the aggregate unpaid
principal amount of the Term A Advances then outstanding; provided, however,
that the Term A Commitments shall terminate, and all Advances made thereunder
shall be repaid in full, no later than the sixth anniversary of the Closing
Date.
(ii) On the date of the Term B Borrowing, after giving effect
to such Term B Borrowing, and from time to time thereafter upon each repayment
or prepayment of the Term B Advances, the aggregate Term B Commitments of the
Term B Lenders shall be automatically and permanently reduced, on a pro rata
basis, by an amount equal to the amount by which the aggregate Term B
Commitments immediately prior to such reduction exceed the aggregate unpaid
principal amount of the Term B Advances then outstanding; provided, however,
that the Term B Commitments shall terminate, and all Advances made thereunder
shall be repaid in full, no later than the eighth anniversary of the Closing
Date.
(iii) On and after the date that all Term A Advances and Term
B Advances shall have been repaid in full, the Revolving Credit Facility shall
be automatically and permanently reduced on each date on which prepayment
thereof is required to be made pursuant to Section 2.6(b)(i), (ii), (iii) or
(iv) in an amount equal to the applicable Reduction Amount, provided that each
such reduction of the Revolving Credit Facility shall be made ratably among the
Revolving Credit Lenders in accordance with their Revolving Credit Commitments.
(iv) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Revolving Credit
Facility by the amount, if any, by which the amount of the Letter of Credit
Facility exceeds the Revolving Credit Facility after giving effect to such
reduction of the Revolving Credit Facility.
(v) In the event the Closing Date shall not have occurred by
September 30, 1998, then all of the Commitments shall be automatically
terminated and this Agreement shall be of no further force or effect.
SECTION 2.6 Prepayments.
(a) Optional. The Borrower may, without premium or penalty, upon at
least One (1) Business Day's notice in the case of Prime Rate Advances and three
(3) Business Days' notice in the
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case of Eurodollar Rate Advances, in each case to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given, the Borrower shall, prepay the outstanding aggregate
principal amount of the Advances, in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal
amount prepaid; provided, however, that (i) each partial prepayment shall be in
an aggregate principal amount of $500,000 or an integral multiple of $250,000 in
excess thereof and (ii) no such prepayment of a Eurodollar Rate Advance shall be
made other than on the last day of an Interest Period therefor without payment
by the Borrower of the amounts provided for in Section 11.4(c). Each prepayment
made pursuant to this Section 2.6(a) shall, at the Borrower's option, be applied
either to (i) repay the Facilities in the following manner: first, to prepay
Swing Line Advances then outstanding until such Advances are paid in full;
second, to prepay Letter of Credit Advances then outstanding until such Advances
are paid in full; and third, to prepay Revolving Credit Advances then
outstanding until such Advances are paid in full; or (ii) repay the Facilities
in the following manner: first, ratably to the Term A Facility and the Term B
Facility, and ratably to each unpaid installment of principal of each of the
Term Facilities until such installments are paid in full; second, to prepay
Swing Line Advances then outstanding until such Advances are paid in full;
third, to prepay Letter of Credit Advances then outstanding until such Advances
are paid in full; fourth, to prepay Revolving Credit Advances then outstanding
(whereupon the Revolving Credit Facility shall be permanently reduced as set
forth in Section 2.5(b)(iii)) until such Revolving Credit Advances are paid in
full; and fifth, deposited in the L/C Cash Collateral Account to cash
collateralize 100% of the Available Amount of the Letters of Credit then
outstanding. Upon the drawing of any Letter of Credit for which funds are on
deposit in the L/C Cash Collateral Account, such funds shall be applied to
reimburse the Issuing Bank or the Revolving Credit Lenders, as applicable.
(b) Mandatory. (i) Within ninety (90) days following the end of each
Fiscal Year in which the Ratio of Consolidated Debt to EBITDA at the end of such
Fiscal Year exceeds 4.25:1, the Borrower shall execute and deliver to the
Administrative Agent a certificate of the Borrower's Chief Executive Officer or
Chief Financial Officer demonstrating its calculation of Excess Cash Flow for
such Fiscal Year along with a prepayment of the then outstanding Advances equal
to seventy-five percent (75%) of the annual Excess Cash Flow; provided, however,
that (i) if the Ratio of Consolidated Debt to EBITDA, measured at the end of
such Fiscal Year of the Borrower, for such Fiscal Year of the Borrower, is less
than or equal to 4.25:1 but greater than 3.00:1, then the required prepayment of
the then outstanding Advances shall be in the amount of fifty percent (50%) of
the annual Excess Cash Flow for such Fiscal Year and (ii) if the Ratio of the
Consolidated Debt to EBITDA, measured at the end of such Fiscal Year of the
Borrower, for such Fiscal Year of the Borrower, is equal to or less than 3.00:1,
then there shall be no required prepayment out of annual Excess Cash Flow for
such Fiscal Year.
(ii) Within fifteen (15) days after receipt by any Loan Party
or any of its Subsidiaries of Net Cash Proceeds from Asset Dispositions, the
Borrower shall prepay the then outstanding
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Advances in an amount equal to one-hundred percent (100%) of such Net Cash
Proceeds in excess of $500,000 in any Fiscal Year.
(iii) Within fifteen (15) days after receipt by any Loan Party
or any of its Subsidiaries of Net Cash Proceeds from any Debt Issuance or Equity
Issuance, the Borrower shall prepay the then outstanding Advances in an amount
equal to, with respect to any (x) Debt Issuance, one hundred percent (100%) and
(y) Equity Issuance, fifty percent (50%), of such Net Cash Proceeds.
(iv) Within fifteen (15) days after receipt of Net Cash
Proceeds by any Loan Party or any of its Subsidiaries from any Extraordinary
Receipt received by or paid to or for the account of any Loan Party or any of
its Subsidiaries and not otherwise included in clause (i), (ii) or (iii) above,
the Borrower shall prepay the then outstanding Advances in an amount equal to
one hundred percent (100%) of such Net Cash Proceeds in excess of $500,000 in
the aggregate.
(v) Each prepayment made pursuant to clause (i), (ii), (iii)
or (iv) shall be applied to prepay the Facilities in the following manner:
first, ratably to the Term A Facility and the Term B Facility, and ratably to
each unpaid installment of principal of each of the Term Facilities until such
installments are paid in full; second, to prepay Swing Line Advances then
outstanding until such Advances are paid in full; third, to prepay Letter of
Credit Advances then outstanding until such Advances are paid in full; fourth,
to prepay Revolving Credit Advances then outstanding (whereupon the Revolving
Credit Facility shall be permanently reduced as set forth in Section
2.5(b)(iii)) until such Revolving Credit Advances are paid in full; and fifth,
deposited in the L/C Cash Collateral Account to cash collateralize 100% of the
Available Amount of the Letters of Credit then outstanding. The portion of each
such application allocable to Eurodollar Rate Advances may, at the option of the
Borrower (A) be applied to prepay such Advances immediately, even if such
application shall occur on other than the last day of an applicable Interest
Period (in which case the Borrower shall pay the amounts provided for in Section
11.4(c)) or (B) be deposited in the Prepayment Account and applied on the last
day of the applicable Interest Periods to prepay the Eurodollar Rate Advances
that would otherwise have been prepaid by the amounts deposited in the
Prepayment Account. Upon the drawing of any Letter of Credit for which funds are
on deposit in the L/C Cash Collateral Account, such funds shall be applied to
reimburse the Issuing Bank or the Revolving Credit Lenders, as applicable. The
amount remaining (if any) after the required prepayment of the Advances then
outstanding and the 100% cash collateralization of the aggregate Available
Amount of Letters of Credit then outstanding (the sum of such prepayment
amounts, cash collateralization amounts and remaining amount being referred to
herein as the "Reduction Amount") may be retained by the Borrower. Upon the
drawing of any Letter of Credit for which funds are on deposit in the L/C Cash
Collateral Account, such funds shall be applied to reimburse the Issuing Bank or
the Revolving Credit Lenders, as applicable. Upon the termination of all of the
Commitments and the indefeasible payment in full of all Obligations, including,
without limitation, termination or expiration of all Letters of Credit and the
indefeasible payment in full of all
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Obligations in respect of all Letters of Credit, then all amounts remaining on
deposit in the L/C Cash Collateral Account shall be returned to the Borrower.
(vi) The Borrower shall, within fifteen (15) days following
the end of each month in each Fiscal Year, pay to the Administrative Agent for
deposit in the L/C Cash Collateral Account an amount sufficient to cause the
aggregate amount on deposit in such Account to equal the amount by which the
aggregate Available Amount of all Letters of Credit then outstanding exceeds the
Letter of Credit Facility on such Business Day.
(vii) At any time that the aggregate amount of Revolving
Credit Advances plus Swing Line Advances, plus Letter of Credit Advances, plus
the aggregate Available Amount of all Letters of Credit then outstanding exceeds
the Revolving Credit Facility, the Borrower shall immediately repay Revolving
Credit Advances to the extent necessary to reduce the principal balance of
Revolving Credit Borrowings to an amount equal to or less than the Revolving
Credit Availability.
(viii) The foregoing notwithstanding, the provisions of this
Section 2.6(b) shall not be construed to permit any Equity Issuance, Debt
Issuance or Asset Disposition otherwise prohibited under the terms of this
Agreement.
(c) Application of Prepayments to the Term A Facility and the Term B
Facility. Upon receipt of any amounts to be applied to the prepayment in respect
of the Term A Facility and the Term B Facility pursuant to this Section 2.6, the
Administrative Agent shall apply such amounts to the prepayment of the Term A
Advances and Term B Advances ratably; provided, however, that if within five (5)
Business Days of receiving notice from the Administrative Agent of a prepayment
any Term B Lender notifies the Administrative Agent that it elects to refuse to
accept the prepayment of its Term B Advances, and the Borrower upon five (5)
Business Days' notice consents to such refusal, the Administrative Agent shall
apply the portion of such prepayment that would have been allocated to the
repayment of such Lender's Term B Advances, to the prepayment of the Advances of
the Lenders under the Term A Facility and of the Advances of the Term B Lenders
which have not so refused ratably to each unpaid installment of principal of
each such Facility (and, if all Lenders under the Term B Facility elect to
refuse their ratable share of such prepayment, only to the Advances of the
Lenders under the Term A Facility). If any Term B Lender shall not give notice
to the Administrative Agent within such five (5) Business Day period, the
Administrative Agent shall assume that such Lender shall have accepted such
prepayment.
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SECTION 2.7 Interest.
(a) Scheduled Interest. The Borrower shall pay to the Administrative
Agent, for the benefit of the Lenders, interest on the unpaid principal amount
of each Advance owing to each Lender from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) Prime Rate Advances. During such periods as such Advance
is a Prime Rate Advance, a rate per annum equal at all times to the sum of (x)
the Prime Rate in effect from time to time plus (y) the Applicable Margin for
such Advance in effect from time to time, payable in arrears monthly on the last
day of each month during such periods and on the date such Prime Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (x) the Eurodollar Rate for
such Interest Period for such Advance plus (y) the Applicable Margin for such
Advance in effect on the first day of such Interest Period, payable in arrears
on the last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period and on the
date such Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. (i) With respect to any principal amount of any
Advance not paid when due by the Borrower (whether at the stated maturity, by
acceleration or otherwise), the Borrower shall pay interest on such unpaid
principal amount, in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on such Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) with respect to the amount of any
interest, fee or other amount payable hereunder not paid when due (whether at
the stated maturity, by acceleration or otherwise) the Borrower shall pay
interest on such amount to the fullest extent permitted by law from the date
such amount shall be due until such amount shall be paid in full, in arrears on
the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid,
in the case of interest, on the Type of Advance on which such interest has
accrued pursuant to clause (a)(i) or (a)(ii) above, and, in all other cases, on
Prime Rate Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.2(a), the Administrative Agent shall give notice
to the Borrower and each appropriate Lender of the applicable interest rate
determined by the Administrative Agent for purposes of clause (a)(i) or (ii).
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SECTION 2.8 Fees.
(a) Commitment Fees. The Borrower shall pay to the Administrative
Agent, for the account of the Lenders, commitment fees, from the Closing Date in
the case of each Initial Lender and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender, until the Revolving Credit Termination Date payable in
arrears quarterly on the last Business Day of each March, June, September and
December, commencing on September 30, 1998, and on the Revolving Credit
Termination Date at a rate per annum equal to 0.50% per annum on the average
daily Unused Revolving Credit Commitment of such Lender for any periods when the
Ratio of Consolidated Debt to EBITDA is greater than 3.50:1; provided, however,
the commitment fee set forth above shall be decreased (i) to 0.40% for any
periods when the Ratio of Consolidated Debt to EBITDA is greater than 3.00:1 but
equal to or less than 3.50:1, (ii) to 0.35% for any periods when the Ratio of
Consolidated Debt to EBITDA is greater than 2.50:1 but equal to or less than
3.00:1 and (iii) to 0.30% for any periods when the Ratio of Consolidated Debt to
EBITDA is equal to or less than 2.50:1. Notwithstanding the above, the
Commitment Fee shall be 0.50% per annum on the average daily Unused Revolving
Credit Commitment of such Lender during the first six months following the
Closing Date. For purposes of this clause (a), Swing Line Advances shall not
constitute utilization of the Revolving Credit Commitments of the Revolving
Credit Lenders.
(b) Letter of Credit Fees. (i) The Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last Business Day of each March,
June, September and December, commencing on September 30, 1998 and on the
earliest to occur of the full drawing, expiration, termination or cancellation
of any such Letter of Credit and on the Revolving Credit Termination Date, on
such Lender's Pro Rata Share of the average daily aggregate Available Amount
during such quarter of all Letters of Credit outstanding from time to time at
the rate per annum equal to the Applicable Margin then in effect for Eurodollar
Advances under the Revolving Credit Facility.
(ii) In addition to the foregoing fees described in (i) above,
the Borrower shall pay to the Issuing Bank, for its own account, (x) on the
Available Amount of each Letter of Credit, a fronting fee, for the period from
the date of issuance of such Letter of Credit to and including the termination
thereof, computed at the rate of one quarter of one percent (1/4%) per annum,
payable in arrears quarterly on the last Business Day of each March, June,
September and December of each year and on the date of termination thereof and
(y) transfer fees and other customary fees and charges in connection with the
issuance or administration of each Letter of Credit as the Borrower and the
Issuing Bank shall agree.
(c) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed upon between the Borrower and the Administrative Agent.
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SECTION 2.9 Conversion of Advances.
(a) Optional. The Borrower may on any Business Day, upon notice given
to the Administrative Agent not later than 11:00 A.M. (New York time) on the
third Business Day prior to the date of the proposed Conversion and subject to
the provisions of Sections 2.7 and 2.10, Convert all or any portion of the
Advances of one Type comprising the same Borrowing into Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Prime Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances unless the Borrower pays the amounts, if any,
provided for in Section 11.4(c), any Conversion of Prime Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.1(c), no Conversion of any Advances shall result in more
separate Borrowings than permitted under Section 2.2(c) and each Conversion of
Advances comprising part of the same Borrowing under any Facility shall be made
ratably among the appropriate Lenders in accordance with their Commitments under
such Facility. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $250,000, such Advances shall
automatically Convert into Prime Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.1, the
Administrative Agent will forthwith so notify the Borrower and the appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Prime
Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default and the acceleration of the Notes, interest thereon and other
amounts payable by the Borrower under this Agreement and the other Loan
Documents pursuant to Article 9, (x) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Prime Rate Advance and (y) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10 Increased Costs, Etc.
(a) If, due to either (i) the introduction of or any change in reserve
requirements included in the Eurodollar Rate Reserve Percentage, or in the
interpretation of any law or regulation, or
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(ii) the compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender Party of agreeing to make or of making,
funding or maintaining Eurodollar Rate or Prime Rate Advances or of agreeing to
issue or of issuing or maintaining Letters of Credit or of agreeing to make or
of making or maintaining Letter of Credit Advances (excluding for purposes of
this Section 2.10 any such increased costs resulting from (x) Taxes or Other
Taxes (as to which Section 2.12 shall govern) and (y) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender Party
is organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost; provided,
however, that a Lender Party claiming additional amounts under this Section
2.10(a) agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue and would
not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. A certificate in reasonable detail as to
the amount of such increased cost, submitted to the Borrower by such Lender
Party, shall be conclusive and binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or reasonably expected to be maintained by any Lender
Party or any corporation controlling such Lender Party as a result of or based
upon the existence of such Lender Party's commitment to lend or to issue Letters
of Credit hereunder and other commitments of such type or the issuance or
maintenance of the Letters of Credit (or similar contingent obligations), then,
upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender Party, from time to time as specified by such Lender
Party, additional amounts sufficient to compensate such Lender Party in the
light of such circumstances, to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party's commitment to lend or to issue Letters of Credit hereunder or to
the issuance or maintenance of any Letters of Credit. A certificate in
reasonable detail as to such amounts submitted to the Borrower by such Lender
Party shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed greater than 50% of the then aggregate unpaid principal
amount thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the appropriate
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Lenders, whereupon (i) each such Eurodollar Rate Advance under any Facility will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Prime Rate Advance and (ii) the obligation of the appropriate
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower that such
Lenders have determined that the circumstances causing such suspension no longer
exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Prime Rate Advance and (ii) the obligation of the
appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to find or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.11 Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the Notes,
irrespective of any right of counterclaim or set-off (except as otherwise
provided in Section 2.15), not later than 11:00 A.M. (New York time) on the day
when due in U.S. dollars to the Administrative Agent at the Administrative
Agent's Account in same day funds. The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by the
Borrower is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender
Party, to such Lender Parties for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment by the
Borrower is in respect of any Obligation then payable hereunder to one Lender
Party, to such Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 11.7(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder,
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and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent shall distribute
such funds to each Lender Party ratably in accordance with such Lender Party's
proportionate share of the principal amount of all outstanding Advances and the
Available Amount of all Letters of Credit then outstanding in repayment or
prepayment of such of the outstanding Advances or other Obligations owed to such
Lender Party, and for application to such principal installments, as the
Administrative Agent shall direct.
(c) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in
the case of a Lender, under the Note held by such Lender, to charge from time to
time against any or all of the Borrower's accounts with such Lender Party any
amount so due.
(d) All computations of interest, fees and Letter of Credit commissions
shall be made by the Administrative Agent on the basis of a year of 360 days in
the case of computations with respect to the Eurodollar Rate, and 365 days in
the case of computations with respect to the Prime Rate, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(e) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such
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Lender Party until the date such Lender Party repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.12 Taxes.
(a) Any and all payments by the Borrower hereunder or under the Notes
shall be made, in accordance with Section 2.11, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Lender Party and the Administrative Agent, net income taxes
that are imposed by the United States and net income taxes (or franchise taxes
imposed in lieu thereof) that are imposed on such Lender Party or the
Administrative Agent by the state or foreign jurisdiction under the laws of
which such Lender Party or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof and, in the case of each Lender
Party, net income taxes (or franchise taxes imposed in lieu thereof) that are
imposed on such Lender Party by the state or foreign jurisdiction of such Lender
Party's Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender Party or the Administrative Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) such Lender Party or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender Party and the
Administrative Agent for the full amount of Taxes and Other Taxes, and for the
full amount of taxes imposed by any jurisdiction on amounts payable under this
Section 2.12, imposed on or paid by such Lender Party or the Administrative
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto, except
with respect to any Lender Party or the Administrative Agent, as the case may
be, for such a liability arising from such Lender Party's or the Administrative
Agent's, as the case may be, willful misconduct or gross negligence. This
indemnification shall be made within thirty (30) days from the date such Lender
Party or the Administrative Agent, as the case may be, makes written demand
specifying in reasonable detail the basis therefor.
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(d) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 11.2, the original receipt of payment thereof or a certified copy of
such receipt. In the case of any payment hereunder or under the Notes by or on
behalf of the Borrower through an account or branch outside the United States or
by or on behalf of the Borrower by a payor that is not a United States person,
if the Borrower determines that no Taxes are payable in respect thereof, the
Borrower shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender or Initial Issuing
Bank, as the case may be, and on the date of the Assignment and Acceptance
pursuant to which it became a Lender Party in the case of each other Lender
Party, and from time to time thereafter as requested in writing by the Borrower
or the Administrative Agent (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide each of the Administrative Agent and
the Borrower with two (2) original Internal Revenue Service forms 1001 or 4224,
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the forms provided by a Lender Party at the time such
Lender Party first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender Party becomes a party
to this Agreement, the Lender Party assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, that the Lender Party reasonably considers to be confidential, the Lender
Party shall give written notice thereof to the Borrower and shall not be
obligated to include in such form or document such confidential information.
(f) For any period with respect to which a Lender Party has failed to
provide the Borrower with the appropriate form described in subsection (e)
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or
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if such form otherwise is not required under subsection (e)), such Lender Party
shall not be entitled to indemnification under subsection (a) or (c) with
respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because of
its failure to deliver a form required hereunder, the Borrower shall take such
steps as such Lender Party shall reasonably request to assist such Lender Party
to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable pursuant
to this Section 2.12 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
SECTION 2.13 Sharing of Payments, Etc. If any Lender Party shall obtain
at any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) (i) on account of Obligations due and
payable to such Lender Party hereunder or under the Notes at such time in excess
of its ratable share (according to the proportion of (x) the amount of such
Obligations due and payable to such Lender Party at such time to (y) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder or under the Notes
at such time obtained by all the Lender Parties at such time or (ii) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (x) the amount of such Obligations owing to such Lender Party
at such time to (y) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such participations in the Obligations due and payable or
owing to them, as the case may be, as shall be necessary to cause such
purchasing Lender Party to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender Party, such purchase from each
other Lender Party shall be rescinded and each such other Lender Party shall
repay to the purchasing Lender Party the purchase price to the extent of such
Lender Party's ratable share (according to the proportion of (x) the purchase
price paid to such Lender Party to (y) the aggregate purchase price paid to all
Lender Parties) of such recovery together with an amount equal to such Lender
Party's ratable share (according to the proportion of (x) the amount of such
other Lender Party's required repayment to (y) the total amount of such required
repayments to the purchasing Lender Party) of any interest or other amount paid
or payable by the purchasing Lender Party in respect of the total amount so
recovered.
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The Borrower agrees that any Lender Party so purchasing a participation from
another Lender Party pursuant to this Section 2.13 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such participation.
SECTION 2.14 Use of Proceeds. The proceeds of the Advances and
issuances of Letters of Credit shall be available, and the Borrower shall use
such proceeds and Letters of Credit solely (a) to finance in part the
Recapitalization, (b) to pay fees and expenses incurred in connection with the
Recapitalization, (c) to refinance certain existing indebtedness of the Borrower
and (d) to provide working capital for the Borrower.
SECTION 2.15 Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by the Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date under the Facility pursuant
to which such Defaulted Advance was originally required to have been made
pursuant to Section 2.1. Such Advance shall be a Prime Rate Advance and shall be
considered, for all purposes of this Agreement, to comprise part of the
Borrowing in connection with which such Defaulted Advance was originally
required to have been made pursuant to Section 2.1, even if the other Advances
comprising such Borrowing shall be Eurodollar Rate Advances on the date such
Advance is deemed to be made pursuant to this subsection (a). The Borrower shall
notify the Administrative Agent at any time the Borrower exercises its right of
set-off pursuant to this subsection (a) and shall set forth in such notice (i)
the name of the Defaulting Lender and the Defaulted Advance required to be made
by such Defaulting Lender and (ii) the amount set off and otherwise applied in
respect of such Defaulted Advance pursuant to this subsection (a). Any portion
of such payment otherwise required to be made by the Borrower to or for the
account of such Defaulting Lender which is paid by the Borrower, after giving
effect to the amount set off and otherwise applied by the Borrower pursuant to
this subsection (a), shall be applied by the Administrative Agent as specified
in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
the Administrative Agent or any of the other Lender Parties and (iii) the
Borrower shall make any payment hereunder or under any other
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Loan Document to the Administrative Agent for the account of such Defaulting
Lender, then the Administrative Agent may, on its behalf or on behalf of such
other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by the Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative Agent
shall constitute for all purposes of this Agreement and the other Loan
Documents, payment, to such extent, of such Defaulted Amount on such date. Any
such amount so applied by the Administrative Agent shall be retained by the
Administrative Agent or distributed by the Administrative Agent to such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent and such
other Lender Parties and, if the amount of such payment made by the Borrower
shall at such time be insufficient to pay all Defaulted Amounts owing at such
time to the Administrative Agent and the other Lender Parties, in the following
order of priority:
(i) first, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) second, to the Lender Parties for any Defaulted Amounts
then owing to such Lender Parties, ratably in accordance with such respective
Defaulted Amounts then owing to such Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrower, the Administrative Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such other Lender Party shall pay such amount to
the Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in an account
with Fleet, in the name and under the control of the Administrative Agent, but
subject to the provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be Fleet's standard terms
applicable to escrow accounts maintained with it. Any interest credited to such
account from time to time shall be held by the Administrative Agent in escrow
under, and applied by the Administrative
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Agent from time to time in accordance with the provisions of, this subsection
(c). The Administrative Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to the Administrative Agent or any other Lender
Party, as and when such Advances or amounts are required to be made or paid and,
if the amount so held in escrow shall at any time be insufficient to make and
pay all such Advances and amounts required to be made or paid at such time, in
the following order of priority:
(i) first, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the Lender Parties for any amount then due and
payable by such Defaulting Lender to such Lender Parties hereunder, ratably in
accordance with such respective amounts then due and payable to such Lender
Parties; and
(iii) third, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents in such manner as the Administrative
Agent shall reasonably direct.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that the Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.16 Removal of Lender. In the event that any Lender Party (an
"Affected Lender") (a) demands payment of costs or additional amounts pursuant
to Section 2.10 or Section 2.12 or (b) asserts, pursuant to Section 2.10(d) that
it is unlawful for such Affected Lender to make Eurodollar Rate Advances, then
(subject to such Affected Lender's right to rescind such demand or assertion
within 10 days after the notice from the Borrower referred to below and so long
as no Event of Default exists) the Borrower may, upon 20 days' prior written
notice to such Affected Lender and the Administrative Agent, with the reasonable
assistance of the Administrative Agent, elect to cause such Affected Lender to
assign all of its rights and obligations under the Agreement (including, without
limitation, all of its Commitment or Commitments, the Advances owing to it and
the Note or Notes held by it) to an Eligible Assignee selected by the Borrower
which is reasonably
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satisfactory to the Administrative Agent, so long as such Affected Lender
receives payment in full in cash of the outstanding principal amount of all
Advances made by it and all accrued and unpaid interest thereon and all other
amounts due and payable to such Affected Lender as of the effective date of such
assignment (including, without limitation, amounts owing to such Affected Lender
pursuant to Section 2.3, 2.4, 2.7, 2.8, 2.10 or 2.12) and in such case such
Affected Lender agrees to make such assignment, and such assignee shall agree to
accept such assignment and assume all the obligations of such Affected Lender
hereunder, in accordance with Section 11.7. Until the consummation of an
assignment in accordance with the foregoing provisions of this Section 2.16, the
Borrower shall continue to pay to the Affected Lender any Obligations as they
become due and payable.
ARTICLE 3
CONDITIONS OF LENDING
SECTION 3.1 Conditions Precedent to Initial Extension of Credit. The
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of each of the following conditions precedent before
or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the day
of the Initial Extension of Credit the following (except that with respect to
the deliveries and conditions specified in clause (iv) below, the Administrative
Agent shall have received such deliveries and such conditions shall be satisfied
as soon as possible, but in any event not later than 90 days following the date
of the Initial Extension of Credit), each dated such day (unless otherwise
specified), in form and substance satisfactory to the Administrative Agent, and
in sufficient copies (except for the Notes), for each Lender Party:
(i) The Notes payable to the order of the Lenders duly
executed by the Borrower.
(ii) A security agreement in substantially the form of Exhibit
F granting to the Administrative Agent, for the ratable benefit of the Lenders,
a first and only priority security interest in all of the personal property and
assets of the Borrower and each Guarantor (together with each other security
agreement delivered pursuant to Section 5.13, in each case as amended,
supplemented or otherwise modified from time to time in accordance with its
terms, each a "Security Agreement"), duly executed by the Borrower and each
Guarantor, together with:
(A) proper, duly executed financing statements under
the Uniform Commercial Code of all jurisdictions that the
Administrative Agent may deem necessary or
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desirable in order to perfect and protect the first and only priority
Liens and security interests created under the Security Agreement,
covering the Collateral described in the Security Agreement;
(B) completed requests for information, dated on or
before the date of the Initial Extension of Credit, listing all
effective financing statements filed that name the Borrower or any
other Loan Party as debtor, together with copies of such financing
statements;
(C) evidence of the completion of all other
recordings and filings of or with respect to the Security Agreement
that the Administrative Agent may deem necessary or desirable in order
to perfect and protect the Liens created thereby;
(D) evidence of the insurance required by the terms
of the Security Agreement;
(E) copies of the Assigned Agreements, if any,
referred to in the Security Agreement, together with a consent to such
assignments, if any, in substantially the form of Exhibit C to the
Security Agreement, duly executed by each party to such Assigned
Agreements other than the Borrower;
(F) certificates representing the Pledged Shares
referred to in the Security Agreement, accompanied by undated stock
powers executed in blank and irrevocable proxies; and
(G) evidence that all other action that the
Administrative Agent may deem reasonably necessary or desirable in
order to perfect and protect the first and only priority liens and
security interests created under the Security Agreement has been taken.
(iii) A collateral assignment of lease in substantially the
form of Exhibit G assigning to the Administrative Agent, for the ratable benefit
of the Lenders, the Borrower's interest in the lease of its facilities located
in Brentwood, Tennessee and Franklin, Tennessee (each a "Collateral Assignment
of Lease"), each duly executed by the Borrower, together with a recognition
agreement duly executed by the applicable property owner pursuant to which such
property owner shall (A) consent to such collateral assignment, (B) acknowledge
the interest of the Administrative Agent, for the ratable benefit of the Secured
Parties and (C) permit the Administrative Agent or its assignee to become the
successor in interest to the Borrower under such lease.
(iv) (A) Fully executed counterparts of Mortgages duly
executed by the applicable Loan Party, together with evidence that counterparts
of the Mortgages have been delivered to a title insurance company (reasonably
acceptable to the Administrative Agent) insuring
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the Lien of the Mortgages for recording in all places to the extent necessary or
desirable, in the reasonable judgment of the Administrative Agent, to create a
valid and enforceable first priority lien on each Mortgaged Property listed on
Schedule 4.21 (subject only to Permitted Real Property Encumbrances) in favor of
Administrative Agent (or a trustee acting on behalf of Administrative Agent
required or desired under local law) for the benefit of the Secured Parties;
(B) Mortgagee title insurance policies (or binding
commitments to issue such title insurance policies) which shall (1) be
issued to Administrative Agent for the benefit of the Secured Parties
by title insurance companies reasonably satisfactory to the
Administrative Agent (the "Mortgage Policies") in amounts reasonably
satisfactory to the Administrative Agent insuring that the Mortgages
are valid and enforceable first priority mortgage liens on the
respective Mortgaged Properties, free and clear of all defects,
encumbrances and other Liens except Permitted Real Property
Encumbrances, (2) be in form and substance reasonably satisfactory to
the Administrative Agent (3) include, as appropriate, an endorsement
for future advances under this Agreement, the Notes and the Mortgages
and such other endorsements that the Administrative Agent in its
discretion may reasonably request, (4) not include an exception for
mechanics' liens, and (5) provide for affirmative insurance and such
reinsurance (including direct access agreements) as the Administrative
Agent in its discretion may reasonably request; and
(C) Surveys, in form and substance satisfactory to
the Administrative Agent, of each Mortgaged Property listed on Schedule
4.21, dated a recent date reasonably acceptable to the Administrative
Agent, certified by a licensed professional surveyor in a manner
satisfactory to the Administrative Agent for the benefit of the
Lenders.
(v) An intellectual property security agreement in
substantially the form of Exhibit H hereto granting to the Administrative Agent
for the ratable benefit of the Lenders a first and only priority security
interest in all of the Borrower's and each Guarantor's intellectual property
(together with each other intellectual property security agreement delivered
pursuant to Section 5.13, in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms, each an "Intellectual
Property Security Agreement"), duly executed by the Borrower and each Guarantor,
together with evidence that all action that the Administrative Agent may deem
reasonably necessary or desirable in order to perfect and protect the first and
only priority Liens and security interests created under the Intellectual
Property Security Agreement has been taken.
(vi) A negative pledge agreement in substantially the form of
Exhibit I hereto (as hereafter amended, supplemented or otherwise modified from
time to time in accordance with its terms, the "Negative Pledge Agreement")
pursuant to which each Selling Stockholder, each Equity Participant and Cendant
Corporation shall grant to the Administrative Agent, for the ratable benefit of
the Lenders, a negative pledge with respect to the shares of capital stock of
the Borrower owned by such Person.
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(vii) A guaranty in substantially the form of Exhibit J hereto
(as hereafter amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "Subsidiary Guaranty"), duly executed by each
Subsidiary of the Borrower.
(viii) Certified copies of resolutions of the Board of
Directors of each Loan Party approving the Recapitalization, this Agreement, the
Notes, and each other Loan Document and Recapitalization Document to which it is
or is to be a party, and of all documents evidencing other necessary corporate
action and governmental and other third party approvals and consents, if any,
with respect to the Recapitalization, this Agreement, the Notes, and each other
Loan Document and Recapitalization Document.
(ix) A copy of the charter of each Loan Party and each
amendment thereto, certified (as of a date reasonably near the date of the
Initial Extension of Credit) by the Secretary of State of the jurisdiction of
its incorporation as being a true and correct copy thereof.
(x) A copy of a certificate of the Secretary of State (or
other appropriate state agency) of the jurisdiction of its incorporation, dated
within ten (10) Business Days of the date of the Initial Extension of Credit,
listing the charter of each Loan Party and each amendment thereto on file in its
office and certifying that (A) such amendments are the only amendments to such
Loan Party's charter on file in its office, (B) such Loan Party has paid all
franchise taxes to the date of such certificate and (C) such Loan Party is duly
incorporated and in good standing under the laws of the State of the
jurisdiction of its incorporation.
(xi) A copy of a certificate of the Secretary of State of each
State listed on Schedule 3.01(a)(xi), dated reasonably near the date of the
Initial Extension of Credit, stating that each Loan Party is duly qualified and
in good standing as a foreign corporation in such State and has filed all annual
reports required to be filed to the date of such certificate.
(xii) A certificate of each Loan Party signed on behalf of
such Loan Party by a Responsible Officer and the Secretary or an Assistant
Secretary of such Loan Party, dated the date of the Initial Extension of Credit
(the statements made in such certificate shall be true on and as of the date of
the Initial Extension of Credit), certifying as to (A) the absence of any
amendments to the charter of such Loan Party since the date of the Secretary of
State's certificate referred to in Section 3.1(a)(xi), (B) a true and correct
copy of the bylaws of such Loan Party as in effect on the date of the Initial
Extension of Credit, (C) the due incorporation and good standing of such Loan
Party as a corporation organized under the laws of the jurisdiction of its
incorporation, and the absence of any proceeding for the dissolution or
liquidation of such Loan Party, (D) the truth in all material respects of the
representations and warranties contained in the Information Memorandum, any
Pre-Commitment Information, the Loan Documents and the Recapitalization
Documents as though made on and as of the date of the Initial Extension of
Credit, (E) the absence of any event occurring and continuing, or resulting from
the Initial Extension of Credit, that constitutes a Default
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and (F) the names and true signatures of the officers of such Loan Party
authorized to sign this Agreement, the Notes, each other Loan Document to which
they are or are to be parties and the other documents to be delivered hereunder
and thereunder.
(xiii) Such financial, business and other information
regarding each Loan Party and each such Person's Subsidiaries as the
Administrative Agent shall have reasonably requested, including, without
limitation, information as to possible contingent liabilities, tax matters,
Environmental Actions, Environmental Permits, obligations under Plans,
Multiemployer Plans and Welfare Plans, collective bargaining agreements and
other arrangements with employees, audited annual financial statements dated
December 31, 1997, interim financial statements dated the end of the most recent
fiscal month for which financial statements are available for the fiscal year to
the end of such month, pro forma financial statements as to each of the Loan
Parties and forecasts prepared by management of the Borrower, all in form and
substance reasonably satisfactory to the Administrative Agent.
(xiv) A Notice of Borrowing with respect to each Facility
pursuant to which the Borrower shall request an Initial Extension of Credit in
an aggregate amount of not more than $99,100,000.
(b) The Administrative Agent shall be satisfied with the corporate and
legal structure and capitalization of each Loan Party and each of their
Subsidiaries after the Recapitalization, including, without limitation, the
terms and conditions of the charter, by-laws and each class of capital stock of
each Loan Party and each such Subsidiary and of each agreement or instrument
relating to such structure or capitalization.
(c) The Administrative Agent shall be satisfied that all Existing Debt,
other than the Debt identified on Schedule 4.19(b) (the "Surviving Debt"), has
been (or, upon consummation of the Recapitalization will be) prepaid, redeemed
or defeased in full or otherwise satisfied and extinguished and that all
Surviving Debt shall be on terms and conditions satisfactory to the Initial
Lenders.
(d) There shall have occurred no Material Adverse Change in the
business, condition (financial or otherwise), results of operations or
properties of the Borrower and its Subsidiaries, taken as a whole, since
December 31, 1997.
(e) Other than the litigation described in Schedule 3.1(e) (the
"Disclosed Litigation"), there shall exist no action, suit, investigation,
litigation or proceeding pending or threatened in any court or before any
arbitrator or governmental or regulatory agency or authority that is reasonably
likely to (i) have a material adverse effect on the business, condition
(financial or otherwise), results of operations or properties of the Borrower
and its Subsidiaries, taken as a whole, (ii) adversely affect the ability of the
Borrower or any Guarantor to perform its obligations under the Loan Documents or
(iii) materially and adversely affect the rights and remedies of the
Administrative
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Agent and the Lender Parties under the Loan Documents (collectively, a "Material
Adverse Effect"); and there shall have been no Material Adverse Change in the
status, or financial effect on the Borrower or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.1(e).
(f) All governmental and third party consents and approvals necessary
in connection with each aspect of the Recapitalization and the Facilities shall
have been obtained (without the imposition of any conditions that are not
acceptable to the Initial Lenders) and shall remain in effect; all applicable
waiting periods shall have expired without any adverse action being taken by any
competent authority; and no law or regulation shall be applicable in the
reasonable judgment of the Initial Lenders that restrains, prevents or imposes
materially adverse conditions upon any aspect of the Recapitalization or the
Facilities.
(g) The Borrower and each of the Guarantors shall have given the
Administrative Agent such access to their respective books and records as the
Administrative Agent may have requested upon reasonable notice in order to carry
out its investigations, appraisals and analyses, and the Administrative Agent
shall have received all additional financial, business and other information
regarding the Borrower and its properties as they shall have reasonably
requested. All of the information (other than projections), taken as a whole,
provided by or on behalf of the Borrower to the Administrative Agent and the
Initial Lenders prior to their commitment in respect of the Facilities (the
"Pre-Commitment Information") shall be true and correct in all material
respects, and no development or change shall have occurred, and no additional
information shall have come to the attention of the Administrative Agent or the
Initial Lenders, that (i) has resulted in or could reasonably be expected to
result in a material change in, or material deviation from, the Pre-Commitment
Information, taken as a whole, or (ii) has had or is reasonably likely to have a
Material Adverse Effect.
(h) The Borrower and each Guarantor shall have delivered a certificate,
in form and substance reasonably satisfactory to the Administrative Agent,
attesting to the Solvency of the Borrower or Guarantor, as applicable,
immediately before and immediately after giving effect to the Transaction, from
its respective Chief Financial Officer.
(i) The Borrower shall have demonstrated to the Administrative Agent's
reasonable satisfaction that: (i) the operations of the Borrower and its
Subsidiaries comply in all material respects with applicable Environmental Laws
and health and safety statutes and regulations, including, without limitation,
regulations promulgated under the Federal Resource Conservation and Recovery
Act; (ii) such operations are not the subject of any federal, state or local
investigation evaluating the need for remedial action involving an expenditure
to respond to such Environmental Actions; (iii) neither the Borrower nor any
Guarantor has or could it reasonably be expected to have any material contingent
liability in connection with any Environmental Action; (iv) the Borrower has
completed such environmental audits and investigations (including "Phase I"
environmental
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audits), as the Administrative Agent may reasonably request with respect to the
operations of the Borrower and its Subsidiaries and such audits and
investigations have not uncovered any condition or conditions not disclosed in
the Pre-Commitment Information which is reasonably likely to have a Material
Adverse Effect on the Borrower and its Subsidiaries.
(j) The Administrative Agent shall be satisfied that (i) the Borrower
and its Subsidiaries will be able to meet in all material respects their
respective obligations under all employee and retiree welfare plans, (ii) the
employee benefit plans of the Borrower and its Subsidiaries are, in all material
respects, funded in accordance with the minimum statutory requirements, (iii) no
material "reportable event" (as defined in ERISA, but excluding events for which
reporting has been waived) has occurred as to any such employee benefit plan and
(iv) no termination of, or withdrawal from, any such employee benefit plan has
occurred or is contemplated that could reasonably be expected to result in a
material liability. The Borrower shall have delivered to the Administrative
Agent certified copies of each employment agreement and other compensation
arrangement with each executive officer of each Loan Party.
(k) The Administrative Agent shall be reasonably satisfied with the
amount, types and terms and conditions of all insurance maintained by the
Borrower and its Subsidiaries in accordance with Section 5.5 and the
Administrative Agent shall have received endorsements naming the Administrative
Agent, on behalf of the Lenders, as loss payee or an additional insured, as
applicable, under all insurance policies to be maintained with respect to the
properties of the Borrower and its Subsidiaries forming any part of the Lenders'
Collateral under the Security Agreement and the other Loan Documents and
Collateral Documents.
(l) The Administrative Agent shall have received satisfactory opinions
of counsel for the Borrower and the Guarantors and local and special counsel to
the extent reasonably requested by the Administrative Agent, as to the
Transaction.
(m) There shall exist no Default or Event of Default under any of the
Loan Documents, and all legal matters incident to the Initial Extension of
Credit shall be satisfactory to counsel for the Administrative Agent.
(n) All accrued reasonable fees and expenses of the Administrative
Agent (including the fees and expenses of counsel for the Administrative Agent
and local counsel for the Administrative Agent) shall have been paid.
(o) The Recapitalization shall have been consummated (prior to the
Initial Extension of Credit) pursuant to the terms and conditions of the
Recapitalization Agreement (and none of the material terms or conditions of the
Recapitalization Agreement shall have been waived or modified except with the
consent of the Administrative Agent) and in compliance with all applicable laws
and with all necessary consents and approvals. The final terms and conditions of
the Recapitalization
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Documents and the resulting corporate structure of the Borrower and its
Subsidiaries following the Recapitalization shall be satisfactory in all
respects to the Administrative Agent, and the Administrative Agent shall have
received certified copies of each of the Recapitalization Documents, each of
which shall be satisfactory to the Administrative Agent and in full force and
effect.
(p) The Administrative Agent shall have been satisfied with
management's response to the management letters provided by the accounting firm
of Xxxxxx Xxxxxxxx LLP and with Xxxxxx Xxxxxxxx LLP's response to such
management letters.
(q) The Equity Participants, their respective Affiliates and the
Investor Assignees (as defined in the Recapitalization Agreement) shall have
invested cash of at least $50,000,000 in equity in the Borrower, Cendant
Corporation shall have invested cash of at least $10,000,000 in equity in the
Borrower and the existing stockholders of the Borrower shall have retained a
portion of their existing equity in the Borrower equal to at least 47% of the
outstanding capital stock of the Borrower, each on terms acceptable to the
Lenders. In addition, at Closing, the Borrower shall not have drawn more than
$99,100,000 under the Facilities.
(r) All Advances made under this Agreement shall be in full compliance
with all applicable requirements of law, including, without limitation, Federal
Reserve Regulations T, U, and X.
(s) The Administrative Agent shall have received a duly executed and
delivered counterparts of landlord waivers from all landlords and leasehold
mortgage holders and bailee letters from all warehousemen and bailees with
respect to any Inventory located at a location that is not owned by the
Borrower, as deemed necessary or desirable in the Administrative Agent's sole
discretion, to preserve or otherwise in respect of the Administrative Agent's
rights in Collateral. The Administrative Agent shall also have received such
bank consent agreements, third party consents, intercreditor agreements or other
agreements, as deemed necessary or desirable in the Administrative Agent's sole
discretion, to preserve or otherwise in respect of the Administrative Agent's
rights in the Collateral.
SECTION 3.2 Conditions Precedent to Each Borrowing and Issuance. The
obligation of each appropriate Lender to make an Advance (other than a Letter of
Credit Advance made by the Issuing Bank or a Revolving Credit Lender pursuant to
Section 2.3(c) and a Swing Line Advance made by a Revolving Credit Lender
pursuant to Section 2.2(b)), and the obligation of the Issuing Bank to issue a
Letter of Credit (including the initial issuance thereof) or renew a Letter of
Credit and the right of the Borrower to request the issuance or renewal of a
Letter of Credit, shall each be subject to the further conditions precedent that
on the date of each such Borrowing or issuance or renewal:
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(a) Each of the conditions precedent listed in Section 3.1 shall have
been satisfied or waived in accordance with this Agreement.
(b) The following statements shall be true and the Administrative Agent
shall have received a certificate signed by a duly authorized Responsible
Officer of the Borrower, dated the date of such Borrowing or issuance or
renewal, stating that (and each of the giving of the applicable Notice of
Borrowing, Notice of Swing Line Borrowing, or Notice of Issuance or Notice of
Renewal and the acceptance by the Borrower of the proceeds of a Borrowing or of
a Letter of Credit or the renewal of a Letter of Credit shall constitute a
representation and warranty by the Borrower that both on the date of such notice
and on the date of such Borrowing or issuance or renewal such statements are
true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date in all material respects, before and
after giving effect to such Borrowing or issuance or renewal and to the
application of the proceeds therefrom, as though made on and as of such date;
and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.3 Determinations Under Section 3.1. For purposes of
determining compliance with the conditions specified in Section 3.1, each
Initial Lender shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Initial Lenders
unless an officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received written notice from such
Initial Lender prior to the Initial Extension of Credit specifying its objection
thereto and, if the Initial Extension of Credit consists of a Borrowing, such
Initial Lender shall not have made available to the Administrative Agent such
Initial Lender's ratable portion of such Borrowing.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower represents and warrants as follows:
SECTION 4.1 Organization. Each Loan Party (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (b) except as set forth on Schedule 4.1
hereto, is duly qualified and in good standing as a foreign corporation in each
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other jurisdiction in which it owns or leases property or in which the conduct
of its business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed is not reasonably likely to have a Material
Adverse Effect and (c) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
SECTION 4.2 Subsidiaries. Set forth on Schedule 4.2 hereto is a
complete and accurate list of all Subsidiaries of each Loan Party, showing as of
the date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock authorized,
and the number outstanding, on the date hereof and the percentage of the
outstanding shares of each such class owned (directly or indirectly) by such
Loan Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof. All of the outstanding capital stock of all of such Subsidiaries has
been validly issued, is fully paid and non-assessable and is owned by such Loan
Party or one or more of its Subsidiaries free and clear of all Liens, except
those created under the Collateral Documents. Each such Subsidiary (a) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, (b) except as set forth on Schedule
4.2 hereto, is duly qualified and in good standing as a foreign corporation in
each other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed, except where
the failure to so qualify or be licensed is not reasonably likely to have a
Material Adverse Effect, and (c) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and other
approvals) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
SECTION 4.3 Corporate Power, Authorization. The execution, delivery and
performance by each Loan Party of this Agreement, the Notes, each other Loan
Document and each Recapitalization Document to which it is or is to be a party,
and the consummation of the Transaction, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action, and do not
(a) contravene such Loan Party's charter or bylaws, (b) violate any law
(including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule,
regulation (including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award, (c) conflict with or result in the breach of, or
constitute a default under, any material contract, loan agreement, indenture,
mortgage, deed of trust, lease or other material instrument or agreement binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
respective properties or (d) except for the Liens created under the Collateral
Documents, result in or require the creation or imposition of any Lien upon or
with respect to any of the properties of any Loan Party or any of its
Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any
such law, rule, regulation, order, writ, judgment, injunction,
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decree, determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument or
agreement, the violation or breach of which is reasonably likely to have a
Material Adverse Effect.
SECTION 4.4 Governmental Authorizations, Approvals. No authorization or
approval or other action by, and no notice to or filing (other than to perfect
Liens under the Loan Documents) with, any governmental authority or regulatory
body or any other third party is or was required for (a) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes, any other Loan Document or any Recapitalization Document
to which it is or is to be a party, or for the consummation of the Transaction,
(b) the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (c) the perfection or maintenance of the Liens created by
the Collateral Documents (including the first and only priority nature thereof
except Permitted Liens and Permitted Real Property Encumbrances) or (d) the
exercise by the Administrative Agent or any Lender Party of its rights under the
Loan Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals, actions, notices
and filings listed on Schedule 4.4, all of which have been duly obtained, taken,
given or made and are in full force and effect. All applicable waiting periods
in connection with the Transaction have expired without any action having been
taken by any competent authority restraining, preventing or imposing materially
adverse conditions upon the Transaction or the rights of the Loan Parties or
their Subsidiaries freely to transfer or otherwise dispose of, or to create any
Lien on, any properties now owned or hereafter acquired by any of them.
SECTION 4.5 Due Execution, Validity, Enforceability. This Agreement and
each Recapitalization Document has been, and each of the Notes and each other
Loan Document has been or when delivered hereunder will have been, duly executed
and delivered by each Loan Party party thereto. This Agreement and each
Recapitalization Document is, and each of the Notes and each other Loan Document
has been or when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan Party
in accordance with its terms, subject to the effect of bankruptcy, fraudulent
conveyance or transfer, insolvency, reorganization, arrangement, liquidation,
conservatorship, and moratorium laws and subject to limitations imposed by other
laws and judicial decisions relating to or affecting the rights of creditors or
secured creditors generally.
SECTION 4.6 Financial Statements. The consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as at December 31, 1997 and
the related consolidated and consolidating statements of income and consolidated
and consolidating statements of cash flows of the Borrower and its Subsidiaries
for the Fiscal Year then ended, accompanied by (in the case of such Consolidated
financial statements) an opinion of Xxxxxx Xxxxxxxx, independent public
accountants, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at May 31, 1998 and the related Consolidated statement of income
and Consolidated statement of cash flows of the Borrower and its Subsidiaries
for the five (5) months then ended, duly certified by the Chief
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Financial Officer of the Borrower, copies of which have been furnished to each
Lender Party, fairly present, subject, in the case of said balance sheet as at
May 31, 1998 and said statements of income and cash flows for the five (5)
months then ended, to normal year-end audit adjustments, the Consolidated (and,
with respect to the balance sheets dated December 31, 1997, consolidating)
financial condition of the Borrower and its Subsidiaries as at such dates and
the Consolidated (and, with respect to the statements of income dated December
31, 1997, consolidating) results of the operations of the Borrower and its
Subsidiaries for the period ended on such date, all in accordance with GAAP
applied on a consistent basis, and, since December 31, 1997, there has been no
Material Adverse Change.
SECTION 4.7 Pro Forma Financial Statements. The Consolidated pro forma
balance sheet of the Borrower and its Subsidiaries as at June 30, 1998,
certified by the Chief Financial Officer of the Borrower, copies of which have
been furnished to each Initial Lender, fairly present the Consolidated pro forma
financial condition of the Borrower and its Subsidiaries as at such date and the
Consolidated pro forma results of operations of the Borrower and its
Subsidiaries for the period ended on such date, in each case after giving effect
to the Transaction, all in accordance with GAAP.
SECTION 4.8 Accurate Information. None of the Information Memorandum,
any Pre-Commitment Information or any information, exhibit or report furnished
by any Loan Party to the Administrative Agent or any Lender Party in connection
with the Loan Documents or pursuant to the terms of the Loan Documents, in each
case excluding projections and other similar forward looking information,
contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements made therein not misleading. The Lender
Parties have been advised by the Borrower, the Selling Stockholders and the
Investors that the Borrower and certain of the Investors have received a report
(the "D&T Report"), or portions thereof, of Deloitte & Touche LLP ("D&T") that
analyzes the Borrower's operations and financial statements and includes
possible revenue down-side scenarios and certain other matters. The terms of
such Investors' engagement letters with D&T prohibit disclosure to the Lender
Parties of the D&T Report or its contents, including in connection with any
litigation.
SECTION 4.9 Litigation. Other than the Disclosed Litigation, there is
no action, suit, investigation, litigation or proceeding affecting the Borrower,
any other Loan Party or any of their respective Subsidiaries, including, without
limitation, any Environmental Action, pending or to its knowledge threatened
before any court, governmental agency or arbitrator that is reasonably likely to
have a Material Adverse Effect, and there has been no Material Adverse Change in
the status, or financial effect on any Loan Party or any of its Subsidiaries, of
the Disclosed Litigation from that described on Schedule 3.1(e).
SECTION 4.10 Regulation U. Neither the Borrower nor any other Loan
Party nor any of their respective Subsidiaries is engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.
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SECTION 4.11 ERISA.
(a) Except as set forth on Schedule 4.11 hereto, neither the Borrower
nor any of its ERISA Affiliates maintains or has maintained any Plans or
Multiemployer Plans. Set forth on Schedule 4.11 is a complete and accurate list
of all Welfare Plans and all defined contribution plans in respect of which any
Loan Party could have liability.
(b) Except as set forth in the financial statements referred to in this
Section 4.6 and in Article 7, neither the Borrower, any of the other Loan
Parties nor any of their respective Subsidiaries has any material liability with
respect to "expected post retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
SECTION 4.12 Casualty. Neither the business nor the properties of any
Loan Party or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance) that is reasonably likely to have a
Material Adverse Effect.
SECTION 4.13 Environmental Matters.
(a) The operations and properties of each Loan Party and each of its
Subsidiaries comply in all known material respects with all applicable
Environmental Laws and Environmental Permits, all known past non-compliance with
such Environmental Laws and Environmental Permits has been resolved without
ongoing material obligations or costs, and no circumstances exist that could
reasonably be expected to (i) form the basis of an Environmental Action against
any Loan Party or any of its Subsidiaries or any of their properties that is
reasonably likely to have a Material Adverse Effect or (ii) cause any such
property to be subject to any material restrictions on ownership, occupancy, use
or transferability under any Environmental Law.
(b) Except as disclosed in the environmental assessment reports listed
on Schedule 4.13 hereto, (i) none of the properties currently or formerly owned
or operated by any Loan Party or any of its Subsidiaries is listed or proposed
for listing on the NPL or on the CERCLIS or any analogous foreign, state or
local list or is adjacent to any such property; (ii) there are no and, to the
best of its knowledge, never have been any underground or aboveground storage
tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which
Hazardous Materials are being or, to the best of its knowledge, have been
treated, stored or disposed on any property currently owned or operated by any
Loan Party or any of its Subsidiaries or on any property formerly owned or
operated by any Loan Party or any of its Subsidiaries; (iii) there is no
asbestos or asbestos-containing material on any property currently owned or
operated by any Loan Party or any of its Subsidiaries other than in compliance
with applicable Environmental Laws; and (iv) to the best of its knowledge,
Hazardous Materials have not been released, discharged or disposed of on any
property currently owned or
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operated by any Loan Party or any of its Subsidiaries, or any property formerly
owned or operated by any Loan Party or any of its Subsidiaries.
(c) Except as disclosed in the environmental assessment reports listed
on Schedule 4.13, no Loan Party nor any of its Subsidiaries is undertaking or
has not completed, either individually or together with other potentially
responsible parties, any investigation or assessment or Remedial, Response or
Removal action relating to any actual or threatened release, discharge or
disposal of Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any governmental or regulatory authority
or the requirements of any Environmental Law; and to the best of its knowledge,
all Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently owned or operated by any Loan
Party or any of its Subsidiaries or any property formerly owned or operated by
any Loan Party or any of its Subsidiaries have been disposed of in a manner not
reasonably expected to result in material liability to any Loan Party or any of
its Subsidiaries.
SECTION 4.14 Burdensome Documents. Except as set forth on Schedule 4.14
or under the Recapitalization Documents, no Loan Party nor any of its
Subsidiaries is a party to any indenture, loan or credit agreement or any lease
or other agreement or instrument or subject to any charter or corporate
restriction that is reasonably likely to have a Material Adverse Effect.
SECTION 4.15 Priority of Liens. Except as set forth on Schedule 4.15
hereto, the Collateral Documents create in favor of the Administrative Agent,
for the ratable benefit of the Lenders, a valid and perfected first priority
security interest in the Collateral subject to Permitted Liens and Permitted
Real Property Encumbrances (which Collateral includes all of the assets and real
and personal property, whether now owned or hereafter acquired and all of the
products and proceeds of any of the foregoing, of the Borrower, and all of the
outstanding capital stock of the Borrower's Domestic Subsidiaries and 65% of the
capital stock of such of the Borrower's Foreign Subsidiaries as are listed on
Schedule 4.15), securing the payment of the Obligations, and all filings and
other actions necessary or reasonably desirable to perfect and protect such
security interest have been duly taken. The Loan Parties are the legal and
beneficial owners of the Collateral free and clear of any Lien, except for the
liens and security interests created or expressly permitted under the Loan
Documents.
SECTION 4.16 Taxes.
(a) Except as set forth on Schedule 4.16, each Loan Party and each of
its Subsidiaries has filed, has caused to be filed or has been included in all
tax returns (Federal, state, local and foreign) required to be filed and has
paid all taxes shown thereon to be due, together with applicable interest and
penalties.
(b) Set forth on Schedule 4.16 is a complete and accurate list of each
taxable year of each Loan Party and each of its Subsidiaries for which Federal
income tax returns have been filed and for
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which the expiration of the applicable statute of limitations for assessment or
collection has not occurred by reason of extension or otherwise (an "Open
Year").
(c) There is no unpaid amount of adjustments to the Federal income tax
liability of any Loan Party or any of its Subsidiaries proposed by the Internal
Revenue Service with respect to Open Years except where such adjustments are
being contested in good faith by appropriate proceedings provided adequate
reserves have been established in accordance with GAAP. No issues have been
raised by the Internal Revenue Service in respect of Open Years that, in the
aggregate, is reasonably likely to have a Material Adverse Effect.
(d) Except as set forth on Schedule 4.16, there is no unpaid amount of
adjustments to the state, local and foreign tax liability of each Loan Party and
each of its Subsidiaries proposed by any state, local or foreign taxing
authorities (other than amounts arising from adjustments to Federal income tax
returns) except where such adjustments are being contested in good faith by
appropriate proceedings provided adequate reserves have been established in
accordance with GAAP. No issues have been raised by such taxing authorities
that, individually or in the aggregate, is reasonably likely to have a Material
Adverse Effect.
(e) No "ownership change" as defined in Section 382(g) of the Internal
Revenue Code, and no event that would result in the application of the "separate
return limitation year" or "consolidated return change of ownership" limitations
under the Federal income tax consolidated return regulations, has occurred with
respect to any Loan Party.
SECTION 4.17 Compliance with Securities Laws. No Loan Party and none
any Loan Party's Subsidiaries is an "investment company," or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended. Neither the making of any Advances, nor the issuance of any Letters of
Credit, nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the Transaction, will violate any provision of
such Act or any rule, regulation or order of the Securities and Exchange
Commission thereunder or any takeover, disclosure or other federal, state or
foreign securities law or Regulations T, U or X of the Federal Reserve Board.
The Borrower is not subject to regulation under any federal, state or foreign
statute or regulation which limits its ability to incur Debt.
SECTION 4.18 Solvency. Each Loan Party is, individually and together
with its Subsidiaries, Solvent.
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SECTION 4.19 Debt.
(a) Set forth on Schedule 4.19(a) is a complete and accurate list of
all Existing Debt the principal amount of which is greater than $250,000,
showing as of the date hereof the principal amount outstanding thereunder, the
maturity date thereof and the amortization schedule therefor.
(b) Set forth on Schedule 4.19(b) is a complete and accurate list of
all Surviving Debt the principal amount of which is greater than $100,000,
showing as of the date hereof the principal amount outstanding thereunder, the
maturity date thereof and the amortization schedule therefor.
SECTION 4.20 No Defaults, Compliance with Laws.
(a) Except as set forth on Schedule 4.20 hereto, no Loan Party is in
default under any agreement, ordinance, resolution, decree, bond, note,
indenture, order or judgment to which it is a party or by which it is bound, or
any other agreement or other instrument by which any of the properties or assets
owned by it or used in the conduct of its business is affected, which default is
reasonably likely to have a Material Adverse Effect.
(b) Each Loan Party and each professional officer, director, employee
or contractor of any of the foregoing (in so far as related to services provided
in respect of the Borrower or any Subsidiary by any such officer, director,
employee or contractor) has complied and is in compliance in all respects with
all applicable laws, ordinances and regulations, resolutions, ordinances,
decrees and other similar documents and instruments of all courts and
governmental authorities, bureaus and agencies, domestic and foreign and all
applicable Environmental Laws and Regulations, non-compliance with which is
reasonably likely to have a Material Adverse Effect.
SECTION 4.21 Owned Real Property. Set forth on Schedule 4.21 is a
complete and accurate list of all real property owned by any Loan Party or any
of its Subsidiaries or in which any Loan Party has an interest (each a
"Mortgaged Property" and, collectively, the "Mortgaged Properties"), showing as
of the date hereof the street address, county or other relevant jurisdiction,
state and record owner thereof. Such Loan Party or such Subsidiary has good,
marketable and insurable fee simple title to such Mortgaged Property, free and
clear of all Liens, other than Permitted Real Property Encumbrances. The
Mortgages create, as security for the obligations purported to be secured
thereby, a valid and enforceable perfected security interest in and Lien on all
of the Mortgaged Property (and will create a valid and enforceable perfected
security interest in and Lien on all fixtures and improvements related to such
Mortgaged Property and affixed or added thereto on or after the Closing Date) in
favor of the Administrative Agent (or such other trustees that may be named
therein) for the benefit of the Secured Parties, superior to and prior to the
rights of all third Persons (except that the security interest created in the
Mortgaged Property may be subject to the Permitted Real Property Encumbrances
related thereto) and subject to no other Liens (other than Permitted Real
Property Encumbrances).
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SECTION 4.22 Leased Real Property. Set forth on Schedule 4.22 is a
complete and accurate list of all leases of real property under which any Loan
Party or any of its Subsidiaries is the lessee, showing as of the date hereof
the street address, county or other relevant jurisdiction, state, lessor,
lessee, expiration date and annual rental cost thereof. To the best knowledge of
each Loan Party, each such lease is the legal, valid and binding obligation of
the lessor thereof, enforceable in accordance with its terms.
SECTION 4.23 Material Contracts. Set forth on Schedule 4.23 is a
complete and accurate list of all Material Contracts of each Loan Party and its
Subsidiaries, showing as of the date hereof the parties, subject matter and term
thereof. Except as is not reasonably likely to have a Material Adverse Effect,
each such Material Contract has been duly authorized, executed and delivered by
each Loan Party party thereto and to the best knowledge of each Loan Party, all
other parties thereto, has not been amended or otherwise modified, is in full
force and effect and is binding upon and enforceable against each Loan Party
party thereto and to the best knowledge of each Loan Party, all other parties
thereto in accordance with its terms. There exists no material default under any
Material Contract by the Borrower or any of its Subsidiaries party thereto and,
to the best knowledge of each Loan Party, there exists no default under any
Material Contract by any other party thereto.
SECTION 4.24 Investments. Set forth on Schedule 4.24 is a complete and
accurate list of all Investments in excess of $250,000 held by any Loan Party or
any of its Subsidiaries, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
SECTION 4.25 Intellectual Property. Set forth on Schedule 4.25 is a
complete and accurate list of all registered patents, trademarks, trade names,
service marks and copyrights, and all applications therefor and licenses
thereof, of each Loan Party or any of its Subsidiaries, showing as of the date
hereof the jurisdiction in which registered, the registration number, the date
of registration and the expiration date. Each Loan Party and each of their
respective Subsidiaries owns or has rights to use all patents, trademarks, trade
names, service marks, copyrights and other intellectual property necessary to
conduct its business as now or heretofore conducted by it or proposed to be
conducted by it except, in any case, where the failure to so own or have rights,
either individually or in the aggregate, is not reasonably likely to have a
Material Adverse Effect. Each Loan Party and each of their respective
Subsidiaries conducts its business and affairs without infringement of or
interference with any patent, trademark, trade name, service xxxx, copyright or
other intellectual property of any other Person that is reasonably likely to
have a Material Adverse Effect or as otherwise disclosed on Schedule 4.25. The
Intellectual Property Security Agreement creates, as security for the
obligations purported to be secured thereby, a valid and enforceable perfected
security interest in and Lien on all of the Collateral purported to be covered
thereby in favor of the Administrative Agent for the benefit of the Secured
Parties, superior to and prior to the rights of all third Persons other than
Permitted Liens.
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SECTION 4.26 Recapitalization Documents. Each Recapitalization Document
to which any Loan Party or any of its respective Subsidiaries is a party has
been duly executed and delivered by such Loan Party or such Subsidiary, as the
case may be, and, to the best knowledge of the Borrower, each Recapitalization
Document has been duly executed and delivered by the parties thereto other than
the Borrower and its Subsidiaries, and is in full force and effect. The
representations and warranties of any Loan Party and each of its respective
Subsidiaries contained in each Recapitalization Document to which such Loan
Party or such Subsidiary, as the case may be, is a party are true and correct in
all material respects on the date hereof and will be true and correct in all
material respects on the Closing Date and the Recapitalization Date, as if made
on each of such dates, and the Administrative Agent and each Lender Party shall
be entitled to rely upon such representations and warranties with the same force
and effect as if they were incorporated in this Agreement and made to the
Administrative Agent and each Lender Party directly as of the date hereof, the
Closing Date, and the Recapitalization Date.
SECTION 4.27 Fees. No broker's or finder's fees or commissions or any
similar fees or commissions will be payable by any Loan Party or any of its
Subsidiaries with respect to the incurrence and maintenance of the Obligations,
any other transaction contemplated by the Loan Documents or any services
rendered in connection with any such transactions. The Borrower hereby covenants
and agrees to indemnify the Administrative Agent and each Lender Party against
and hold the Administrative Agent and each Lender Party harmless from any claim,
demand or liability for broker's or finder's fees or similar fees or
commissions.
The Borrower may, at any time and from time to time, amend any one or
more of the Schedules referred to in this Agreement (other than Schedule I) and
any representation or warranty contained herein which refers to any such
Schedule shall from and after the date of any such amendment refer to such
Schedule as so amended; provided, however, that in no event may the Borrower
amend any such Schedule if such amendment would reflect or evidence or disclose
any act, item or omission that would create a Default or Event of Default.
ARTICLE 5
AFFIRMATIVE COVENANTS
So long as any Advance shall remain unpaid, any Letter of Credit shall
be outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower will:
SECTION 5.1 Compliance with Law. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA.
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SECTION 5.2 Payment of Taxes, Etc. Timely pay and discharge, and cause
each of its Subsidiaries to timely pay and discharge, (a) all taxes, assessments
and governmental charges or levies imposed upon it or upon its property and (b)
all lawful claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that the Borrower and its Subsidiaries shall not be required
to pay or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained.
SECTION 5.3 Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause each of
its Subsidiaries to obtain and renew all Environmental Permits reasonably
necessary for its operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any investigation, study, sampling and testing, and
undertake any Removal, Remedial or other Response action necessary and required
under applicable Environmental Laws to remove and clean up all Hazardous
Materials above applicable standards from any of its properties, in accordance
with the requirements of all Environmental Laws; provided, however, that the
Borrower and its Subsidiaries shall not be required to undertake any such
cleanup, Removal, Remedial or Response action to the extent that its obligation
to do so is being contested in good faith and by proper proceedings and adequate
reserves as determined by the Administrative Agent are being maintained with
respect to such circumstances.
SECTION 5.4 Preparation of Environmental Reports. The Borrower agrees
that the Administrative Agent may, upon reasonable prior notice, from time to
time in its reasonable discretion, retain, at the Borrower's expense, an
independent professional consultant to prepare environmental site assessment
reports for the Borrower or any of its Subsidiaries and/or to review any report
relating to Hazardous Materials prepared by or for the Borrower and, upon a
reasonable belief that the Borrower or any of its Subsidiaries has breached any
covenant or representation with respect to environmental matters or that there
has been a material violation of Environmental Laws by the Borrower or one of
its Subsidiaries, the Administrative Agent may conduct its own reasonable
investigation of such matter at any facility or property currently owned,
leased, operated or used by the Borrower or one of its Subsidiaries and the
Borrower agrees to use its best efforts to obtain permission for the
Administrative Agent's professional consultant to conduct its own reasonable
investigation of any such matter at any facility or property previously owned,
leased, operated or used by the Borrower or one of its Subsidiaries. The
Borrower and its Subsidiaries hereby grant to the Administrative Agent, its
employees, consultants and contractors, the right to enter into or onto the
facilities or properties currently owned, leased, operated or used by the
Borrower or its Subsidiaries upon reasonable notice to the Borrower to perform
such assessments on such property as are necessary to conduct such a review
and/or investigation. Any such investigation of any such facility or property
shall be conducted, unless otherwise agreed to by the Borrower and the
Administrative Agent, during normal business hours and, to the extent reasonably
practicable, shall be conducted so as not to interfere with the ongoing
operations at any facility or property or to cause
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any damage or loss to any facility or property. The Borrower and the
Administrative Agent hereby acknowledge and agree that any report of any
investigation conducted at the request of the Administrative Agent will be
obtained and shall be used by the Administrative Agent and Lender Parties for
the purpose of internal credit decisions to monitor the Advances and/or protect
the Administrative Agent's and Lender Parties' security interests in the
Collateral. The Administrative Agent agrees to deliver a copy of any such report
to the Borrower in a timely manner with the understanding that the Borrower
acknowledges and agrees that (i) the Borrower will indemnify and hold harmless
the Administrative Agent and each Lender Party from any costs, losses or
liabilities relating to the Borrower's use of or reliance on such report and
(ii) neither the Administrative Agent nor any Lender Party makes any
representation or warranty with respect to such report.
SECTION 5.5 Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or such Subsidiary operates.
SECTION 5.6 Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain its (i)
existence, legal structure, legal name and rights (charter and statutory) and
(ii) permits, licenses, approvals, privileges and franchises except where the
failure to preserve or maintain any such permit, license, approval, privilege or
franchise is not reasonably likely to have a Material Adverse Effect.
SECTION 5.7 Visitation Rights.
(a) At any reasonable time and from time to time during normal business
hours, upon reasonable notice, permit the Administrative Agent, or, after the
occurrence of a Default, the Lender Parties, or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and books
of account of and visit the properties of the Borrower and its Subsidiaries, and
to discuss the affairs, finances and accounts of the Borrower and any such
Subsidiaries with any of their officers or directors; provided, however, that so
long as no Default has occurred and is continuing, the Administrative Agent may
not conduct in excess of three (3) such examinations and visits per annum.
(b) Permit the Administrative Agent and the Lender Parties to conduct
such commercial finance examinations and/or Collateral audits of the Borrower
and its Subsidiaries during each calendar year as the Administrative Agent may
reasonably request; provided, however, that so long as no Default has occurred
and is continuing, the Administrative Agent may not conduct in excess of three
(3) such examinations and audits per annum.
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SECTION 5.8 Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Borrower and each Subsidiary in accordance with GAAP.
SECTION 5.9 Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its properties
that are reasonably necessary in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
SECTION 5.10 Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real property to
which the Borrower or any of its Subsidiaries is a party, keep such leases in
full force and effect and not allow such leases to lapse or be terminated or any
rights to renew such leases to be forfeited or canceled, notify the
Administrative Agent of any default by any party with respect to such leases and
cooperate with the Administrative Agent in all respects to cure any such
default, and cause each of its Subsidiaries to do so except, in any case, where
the failure to do so, either individually or in the aggregate, is not reasonably
likely to have a Material Adverse Effect.
SECTION 5.11 Performance of Material Contracts. Perform and observe,
and cause each of its Subsidiaries to perform and observe, all of the terms and
provisions of each Material Contract to be performed or observed by it,
maintain, and cause each of its Subsidiaries to maintain, each such Material
Contract in full force and effect, and enforce, and cause each of its
Subsidiaries to enforce, each such Material Contract in accordance with its
terms.
SECTION 5.12 Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates on terms that are fair and reasonable and
no less favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arms-length transaction with a Person not an Affiliate.
SECTION 5.13 Agreement to Grant Additional Security.
(a) Promptly, and in any event within thirty (30) days after the
acquisition of assets of the type that would have constituted Collateral at the
date hereof and investments of the type that would have constituted Collateral
on the date hereof (other than assets with a fair market value of less than
$50,000), including the capital stock of any direct or indirect Subsidiary of
the Borrower, notify the Administrative Agent of the acquisition of such assets
or investments to the extent not already Collateral in which the Administrative
Agent has a perfected security interest pursuant to the Collateral Documents,
such assets and investments will become additional Collateral hereunder to the
extent the Administrative Agent deems the pledge of such assets practicable (the
"Additional Collateral"), and the Borrower will, and will cause each of its
direct and indirect Subsidiaries to, take all reasonably necessary action,
including the filing of appropriate financing statements under the provisions of
the UCC, applicable foreign, domestic or local laws, rules or regulations in
each of the
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offices where such filing is necessary or appropriate to grant Administrative
Agent a perfected Lien in such Collateral (or comparable interest under foreign
law in the case of foreign Collateral) pursuant to and to the full extent
required by the Collateral Documents and this Agreement.
(b) Promptly, and in any event no later than thirty (30) days after a
request with respect thereto, cause each of the Borrower's direct and indirect
Subsidiaries as the Administrative Agent shall request to become party to, or
to execute and deliver, a Subsidiary Guaranty, guarantying to the Administrative
Agent and the Lenders the prompt payment, when and as due, of all Obligations of
the Loan Parties under the Loan Documents, including all obligations under any
Hedge Agreements or other hedging agreements.
(c) Promptly, and in any event no later than thirty (30) days after a
request with respect thereto, cause each Guarantor created or established after
the date hereof to grant to the Administrative Agent, for the ratable benefit of
the Lenders, a first priority Lien on all property (tangible and intangible) of
such Guarantor, including, without limitation, all of the capital stock of any
of its Domestic Subsidiaries and 65% of the stock of any of its Foreign
Subsidiaries, upon terms substantially similar to those set forth in the
Collateral Documents and otherwise satisfactory in form and substance to
Administrative Agent. The Borrower shall cause each Guarantor, at its own
expense, to become a party to a Security Agreement, an Intellectual Property
Security Agreement, a Mortgage and any other Collateral Document and to execute,
acknowledge and deliver, or cause the execution, acknowledgment and delivery of,
and thereafter register, file or record in any appropriate governmental office,
any document or instrument reasonably deemed by Administrative Agent to be
necessary or desirable for the creation and perfection of the foregoing Liens
(including legal opinion, title insurance, consents, corporate documents and any
additional or substitute security agreements or mortgages or deeds of trust).
The Borrower will cause each such Guarantor to take all actions requested by
Administrative Agent (including, without limitation, the filing of UCC-1's) in
connection with the granting of such security interests.
(d) Promptly, and in any event not later than thirty (30) days after a
request with respect thereto, (i) deliver to the Administrative Agent the
original of all instruments, documents and chattel paper, and all other
Collateral of which the Administrative Agent reasonably determines it should
have physical possession in order to perfect and protect its security interest
therein, duly pledged, endorsed or assigned to the Administrative Agent without
restriction; (ii) use reasonable efforts to obtain landlord waivers, in form and
substance satisfactory to the Administrative Agent, with respect to any
Inventory or other Collateral located at a location that is not owned by the
Borrower or a Subsidiary; (iii) use reasonable efforts to deliver to the
Administrative Agent warehouse receipts covering any portion of the Inventory or
other Collateral located in warehouses and for which warehouse receipts are
issued; (iv) when an Event of Default exists and is continuing, transfer
Inventory to locations designated by the Administrative Agent; (v) if any
Collateral is at any time in the possession or control of any warehousemen,
bailee or the Borrower's agents or processors, notify the Administrative Agent
thereof and notify such person of the Administrative Agent's
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security interest in such Collateral and use reasonable efforts to obtain a
landlord waiver or bailee letter, in form and substance reasonably satisfactory
to the Administrative Agent, from such person and instruct such person to hold
all such Collateral for the Administrative Agent's account subject to the
Administrative Agent's instructions; (vi) if at any time any Inventory or other
Collateral is located on any real property of the Borrower which is subject to a
mortgage or other Lien, use reasonable efforts to obtain a mortgagee waiver, in
form and substance reasonably satisfactory to the Administrative Agent, from the
holder of each mortgage or other Lien on such real property; and (vii) take all
such other actions and obtain all such other agreements as the Administrative
Agent may reasonably deem necessary or desirable to perfect its Lien of any
Collateral.
(e) The security interests required to be granted pursuant to this
Section shall be granted pursuant to the Collateral Documents or, in the
Administrative Agent's discretion, such other security documentation (which
shall be substantially similar to the Collateral Documents already executed and
delivered by the Borrower and the Guarantors) as is reasonably satisfactory in
form and substance to Administrative Agent (the "Additional Collateral
Documents") and shall constitute valid and enforceable perfected security
interests prior to the rights of all third Persons and subject to no other Liens
except Liens permitted under Section 6.1. The Additional Collateral Documents
and other instruments related thereto shall be duly recorded or filed in such
manner and in such places and at such times as are required by law to establish,
perfect, preserve and protect the Liens, in favor of Administrative Agent, for
the benefit of the Lender Parties, granted pursuant to the Additional Collateral
Documents and, all taxes, fees and other charges payable in connection therewith
shall be paid in full by the Borrower. At the time of the execution and delivery
of Additional Collateral Documents, the Borrower shall cause to be delivered to
Administrative Agent such agreements, opinions of counsel, and other related
documents as may be reasonably requested by the Administrative Agent or the
Required Lenders to assure themselves that this Section has been complied with.
SECTION 5.14 Interest Rate Protection. On or prior to the expiration of
60 days following the Closing Date, the Borrower shall obtain and thereafter
keep in effect one or more interest rate Bank Hedge Agreements (the terms and
other provisions of all such Bank Hedge Agreements to be subject to the prior
written consent of the Administrative Agent) covering at least 50% of the Term A
and Term B Advances outstanding on the Closing Date for an aggregate period of
not less than three (3) years commencing on the Closing Date.
SECTION 5.15 Performance of Recapitalization Documents. Perform and
observe, or cause the relevant Subsidiary to perform and observe, all of the
terms and provisions of each Recapitalization Document to be performed or
observed by it or such Subsidiary, maintain each such Recapitalization Document
in full force and effect and enforce each such Recapitalization Document in
accordance with its terms.
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SECTION 5.16 Year 2000 Compatibility. Take all action necessary to
assure that its computer based systems, hardware and software (other than (i)
version 4.4 of the Business Manager(R) software which is no longer in
distribution and (ii) "off-the-shelf" software which is generally commercially
available and which does not need to be year 2000 compatible for any Loan Party
to operate its business) used in each Loan Party's business and operations are
able to operate and effectively receive, transmit, process, store, retrieve or
retransmit data including dates on and after January 1, 2000, and, at the
request of the Administrative Agent, the Loan Parties shall provide evidence to
the reasonable satisfaction of the Administrative Agent of such year 2000
compatibility.
ARTICLE 6
NEGATIVE COVENANTS
So long as any Advance shall remain unpaid, any Letter of Credit shall
be outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower will not, at any time, without the prior consent of the Required
Lenders:
SECTION 6.1 Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character (including,
without limitation, Accounts, Inventory and other Collateral) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform Commercial
Code or any other statute of any jurisdiction, a financing statement that names
the Borrower or any of its Subsidiaries as debtor, or sign or suffer to exist,
or permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file any such financing
statement, or assign, or permit any of its Subsidiaries to assign, any accounts
or other right to receive income, excluding, however, from the operation of the
foregoing restrictions the following:
(a) Liens created under the Loan Documents;
(b) Permitted Liens;
(c) Liens existing on the date hereof and described on Schedule
6.1(c);
(d) Purchase money Liens securing Debt permitted under Section
6.2(c)(i) upon real property or Equipment acquired or held by the Borrower or
any of its Subsidiaries in the ordinary course of business to secure the
purchase price of such real property or Equipment or to secure Debt incurred
solely for the purpose of financing the acquisition, construction or improvement
of any such real property
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or Equipment to be subject to such Liens, or Liens existing on any such real
property or Equipment at the time of acquisition (other than any such Liens
created in contemplation of such acquisition that do not secure the purchase
price), or extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount; provided, however, that no such Lien shall extend to or
cover any property other than the real property or Equipment being acquired,
constructed or improved, and no such extension, renewal or replacement shall
extend to or cover any property not theretofore subject to the Lien being
extended, renewed or replaced;
(e) Liens arising in connection with Capitalized Leases permitted under
Section 6.2(c)(ii); provided, that no such Lien shall extend to or cover any
Collateral or any assets other than the assets subject to such Capitalized
Leases;
(f) The replacement, extension or renewal of any Lien permitted by
clauses (c) through (e) above upon or in the same property theretofore subject
thereto in connection with the replacement, extension or renewal (without
increase in the amount or any change in any direct or contingent obligor) of the
Debt secured thereby.
SECTION 6.2 Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt
other than:
(a) In the case of the Borrower, Debt incurred pursuant to the Loan
Documents and the Recapitalization Agreement;
(b) In the case of any of the Subsidiaries of the Borrower, Debt owed
to the Borrower or to a wholly-owned Subsidiary of the Borrower; provided, that
such Debt shall be evidenced by a promissory note, such promissory note shall be
pledged to the Administrative Agent pursuant to the terms of the Security
Agreement and there shall be no restrictions whatsoever on the ability of such
Subsidiary to repay such Debt;
(c) In the case of the Borrower and any of its Subsidiaries:
(i) Debt (A) secured by Liens permitted by Section 6.1(d) and
(B) Capitalized Leases, collectively not to exceed in the aggregate
$2,000,000 at any time outstanding;
(ii) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(iii) Unsecured Debt not to exceed $1,000,000 at any time
outstanding; and
(iv) the Surviving Debt.
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SECTION 6.3 Accounts Payable. No accounts payable of the Borrower or
any of its Subsidiaries arising from the purchase of property or services,
including, without limitation, Inventory acquired for resale shall be
outstanding for longer than 120 days from the date of incurrence, except (a)
accounts payable which by their terms become payable after 120 days from
incurrence or (b) all accounts payable owing to any Person where all or any
portion of such accounts payable are subject to good faith dispute by the
Borrower.
SECTION 6.4 Fundamental Changes.
(a) Merge into or consolidate with any Person or permit any Person to
merge into it, or permit any of its Subsidiaries to do so, except that so long
as no Default or Event of Default shall have occurred and be continuing and so
long as no Default or Event of Default would result therefrom, any Subsidiary of
the Borrower may merge into or consolidate with any other Subsidiary of the
Borrower or the Borrower, as the case may be, provided that in the case of any
such merger or consolidation, the Person resulting from such merger or
consolidation shall be the Borrower or a wholly-owned Subsidiary of the
Borrower, as the case may be;
(b) Liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), convey, sell, assign, lease, transfer or otherwise dispose of (or
agree to do any of the foregoing at any future time) all or substantially all of
its property, business or assets, or permit any of its Subsidiaries to do any of
the foregoing; or
(c) Acquire or permit any Subsidiary to acquire all or substantially
all of the assets of any other Person (including capital stock), except that the
Borrower may consummate such acquisitions so long as (i) no Default of Event of
Default then exists and is continuing and (ii) the aggregate consideration for
all such acquisitions during the term of this Agreement does not exceed
$5,000,000; provided, that the Borrower shall not consummate any such
acquisition until such time as the Borrower shall have made any mandatory
prepayments required by Section 2.6(b)(i) applicable for the most recently ended
Fiscal Year.
SECTION 6.5 Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets or grant any option or other right to purchase,
lease or otherwise acquire any assets, except:
(a) Sales of Inventory in the ordinary course of business;
(b) Sales of obsolete Equipment in the ordinary course of business;
(c) The sale of any asset by the Borrower or any Guarantor to the
Borrower or any other Guarantor; provided that if such asset consists of
Equipment or Inventory (as such terms are defined
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in the Security Agreement), the Person selling such asset shall provide the
Administrative Agent with the notices as and when required by Section 10(a) of
the Security Agreement; or
(d) The sale of any asset by the Borrower or any of its Subsidiaries
(other than an asset included in Section 6.5(a), (b) or (c)) so long as (i) the
purchase price paid to the Borrower or such Subsidiary for such asset shall be
no less than the fair market value of such asset at the time of such sale, (ii)
the purchase price for such asset shall be paid to the Borrower or such
Subsidiary solely in cash and (iii) the aggregate purchase price paid to the
Borrower and all of its Subsidiaries for such asset and all other assets sold by
the Borrower and its Subsidiaries (other than an asset included in Section
6.5(a), (b) or (c)) (1) since the Closing Date pursuant to this clause (d) shall
not exceed $2,500,000 and (2) in any Fiscal Year pursuant to this clause (d)
shall not exceed $500,000;
provided that in the case of sales of assets pursuant to Section 6.5(d), the
Borrower shall, on the date of receipt thereof, apply the entire Net Cash
Proceeds from such sale in accordance with Section 2.6(b)(ii).
SECTION 6.6 Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person other than:
(a) Investments by the Borrower and its Subsidiaries in their
Subsidiaries outstanding on the date hereof and described on Schedule 6.6(a),
and additional investments in Subsidiaries of the Borrower; provided, however,
that no more than an aggregate amount equal to $250,000 shall be invested from
the date hereof in Foreign Subsidiaries; and, provided, further, that with
respect to Investments in any newly acquired or created wholly-owned Subsidiary,
any such Subsidiary shall become a Guarantor pursuant to the terms of the
Subsidiary Guaranty and an additional grantor pursuant to the terms of the
Security Agreement and Intellectual Property Security Agreement;
(b) Loans and advances to officers and other employees in the ordinary
course of the business (including, without limitation, to permit such officers
and employees to purchase restricted stock of the Borrower) of the Borrower and
its Subsidiaries in an aggregate principal amount not to exceed $500,000 at any
time outstanding;
(c) Investments by the Borrower and its Subsidiaries in Cash
Equivalents;
(d) Investments by the Borrower and its Subsidiaries in Bank Hedge
Agreements permitted under Section 5.14;
(e) Investments consisting of intercompany Debt permitted under Section
6.2(b);
(f) Investments existing on the date hereof and described on Schedule
6.6(f) hereto;
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(g) Investments by the Borrower and its Subsidiaries in deposit
accounts opened in the ordinary course of business;
(h) Investments by the Borrower and its Subsidiaries in joint ventures
in an aggregate amount not to exceed $500,000;
(i) Investments consisting of accounts receivable in the ordinary
course of business;
(j) Investments in connection with the Recapitalization in the form of
certain bonus payments made in accordance with the terms of the Recapitalization
Agreement; and
(k) Investments in the form of acquisitions to the extent expressly
permitted by Section 6.4(c).
SECTION 6.7 Dividends, Etc. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its capital stock
or any warrants, rights or options to acquire such capital stock, now or
hereafter outstanding, return any capital to its stockholders as such, make any
distribution of assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit any of its
Subsidiaries to do any of the foregoing or permit any of its Subsidiaries to
purchase, redeem, retire, defease or otherwise acquire for value any capital
stock of the Borrower or any warrants, rights or options to acquire such capital
stock or to issue or sell any such capital stock or any warrants, rights or
options to acquire such capital stock, except:
(a) The Borrower may declare and pay dividends and distributions
payable solely in common stock of the Borrower;
(b) A Subsidiary of the Borrower may declare and pay dividends and
distributions to the Borrower;
(c) The Borrower may consummate the Recapitalization; and
(d) For issuances of stock expressly permitted by Section 6.19.
SECTION 6.8 Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
SECTION 6.9 Charter Amendments. Amend, or permit any of its
Subsidiaries to amend, its certificate or articles of incorporation or bylaws if
such amendment could impair the interests or rights of the Administrative Agent
or any Lender Party.
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SECTION 6.10 Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any (a) material change in accounting policies
or reporting practices, except as mandated by GAAP, or (b) change in its Fiscal
Year.
SECTION 6.11 Prepayments, Etc. of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof (a) in any
manner, or make any payment in violation of any subordination terms of, any
Debt, other than (i) the prepayment the Advances in accordance with the terms of
this Agreement, (ii) regularly scheduled or required repayments or redemptions
of Surviving Debt and (iii) so long as no Default or Event of Default then
exists and is continuing or would result therefrom, the prepayment of Debt
permitted under Section 6.2 (other than under the Excess Cash Flow Notes (as
defined in the Recapitalization Agreement)), (b) amend, modify or change in any
manner any term or condition of any Existing Debt or Surviving Debt, or (c)
permit any of its Subsidiaries to do any of the foregoing other than to repay
any Debt payable to the Borrower.
SECTION 6.12 Amendment, Etc. of Recapitalization Documents. Cancel or
terminate any Recapitalization Document or consent to or accept any cancellation
or termination thereof, amend, modify or change in any manner any material term
or condition of any Recapitalization Document or give any consent, waiver or
approval thereunder, waive any default under or any breach of any material term
or condition of any Recapitalization Document or take any other action in
connection with any Recapitalization Document that would, in any such case,
impair the value of the interests or rights of the Borrower thereunder, or would
impair the interests or rights of the Administrative Agent or any Lender Party,
or permit any of its Subsidiaries to do any of the foregoing.
SECTION 6.13 Amendment, Etc. of Material Contracts. Cancel or terminate
any Material Contract or consent to or accept any cancellation or termination
thereof, amend or otherwise modify any Material Contract or give any consent,
waiver or approval thereunder, waive any default under or breach of any Material
Contract or take any other action in connection with any Material Contract that
would materially impair the value of the interests or rights of the Borrower
thereunder or that could impair the interests or rights of the Administrative
Agent or any Lender Party, or permit any of their Subsidiaries to do any of the
foregoing.
SECTION 6.14 Negative Pledge. Enter into or suffer to exist, or permit
any of the Subsidiaries of the Borrower to enter into or suffer to exist, any
agreement prohibiting or conditioning the creation or assumption of any Lien
upon any of its properties or assets, other than as provided in the Loan
Documents.
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SECTION 6.15 Partnerships, New Subsidiaries.
(a) Become a general partner in any general or limited partnership or
joint venture (other than as expressly permitted pursuant to Section 6.6(a) or
(h)), or permit any of its Subsidiaries to do so, or
(b) Create any new Subsidiary, unless such newly created Subsidiary
shall become a Guarantor pursuant to the terms of the Subsidiary Guaranty and an
additional grantor pursuant to the terms of the Security Agreement and
Intellectual Property Security Agreement and all shares of the capital stock of
such Subsidiary are pledged to the Administrative Agent pursuant to the Security
Agreement.
SECTION 6.16 Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or derivatives or any similar speculative transactions, except
for Bank Hedge Agreements expressly permitted under Section 5.14.
SECTION 6.17 Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the aggregate of
all such Capital Expenditures made by the Borrower and its Subsidiaries in any
period set forth below to exceed the amount set forth below for such period.
Period Amount
------ ------
Closing Date through December 31, 1998 $3,000,000
Fiscal Year 1999 $3,500,000
Fiscal Year 2000 $4,000,000
Fiscal Year 2001 $4,000,000
Fiscal Year 2002 $4,000,000
Fiscal Year 2003 $4,000,000
Fiscal Year 2004 $4,000,000
Fiscal Year 2005 $4,000,000
Fiscal Year 2006 $4,000,000
; provided, however, that amounts permitted to be expended in a Fiscal Year that
are not expended in such fiscal year, but not in excess of fifty (50%) percent
of such prior year's unused amount (not including any amount permitted to be
carried forward from a prior year) shall be permitted to be expended in (but
only in) the subsequent fiscal year.
SECTION 6.18 Payment of Management Fees. Pay, or permit any of its
Subsidiaries to pay, any management fees or other compensation to any Equity
Participant or Affiliate thereof.
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SECTION 6.19 Issuance of Stock. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, issue, sell, assign,
pledge or otherwise encumber or dispose of any shares of capital stock of the
Borrower or any Subsidiary of the Borrower, except (a) to the Borrower, (b) to
qualify directors if required by applicable law, (c) as set forth in Schedule
6.19, (d) pursuant to the Recapitalization in accordance with the
Recapitalization Documents, (e) common stock of the Borrower issued to holders
of Outstanding Options (as defined in the Recapitalization Agreement), (f)
common stock of the Borrower issued pursuant to a stock option and/or restricted
stock option plan or a similar employee benefit plan, in each case the terms of
which are reasonably satisfactory to the Administrative Agent, or the exercise
of options issued pursuant thereto, (g) pursuant to the Loan Documents, or (h)
the Borrower may consummate a Qualified Offering.
ARTICLE 7
REPORTING REQUIREMENTS
So long as any Advance shall remain unpaid, any Letter of Credit shall
be outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower will furnish to the Administrative Agent and Lender Parties:
SECTION 7.1 Default Notice. As soon as possible and in any event within
two (2) Business Days after a Responsible Officer of the Borrower obtains
knowledge of the occurrence of any Default or any event, development or
occurrence reasonably likely to have a Material Adverse Effect, a statement of
the Chief Financial Officer of the Borrower setting forth details of such
Default or event, development or occurrence and the action that the Borrower has
taken and proposes to take with respect thereto.
SECTION 7.2 Monthly Financials. As soon as available and in any event
within thirty (30) days after the end of each month which is not a fiscal
quarter end, a Consolidated balance sheet of the Borrower and its Subsidiaries,
as of the end of such month and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries, and
consolidating statements of income of the Borrower and its Subsidiaries, for the
period commencing at the end of the previous month and ending with the end of
such month and Consolidated statement of income and a Consolidated statement of
cash flows of the Borrower and its Subsidiaries, and consolidating statements of
income of the Borrower and its Subsidiaries, for the period commencing at the
end of the previous Fiscal Year and ending with the end of such month, setting
forth in each case in comparative form the corresponding figures for the
corresponding period of the prior Fiscal Year, all in reasonable detail and duly
certified by the chief financial officer of the Borrower.
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SECTION 7.3 Quarterly Financials. As soon as available and in any event
within forty-five (45) days (except that with respect to the fiscal quarter
ending December 31, 1998, within thirty (30) days) after the end of each fiscal
quarter of each Fiscal Year, a Consolidated balance sheet of the Borrower and
its Subsidiaries, and consolidating balance sheets of the Borrower and its
Subsidiaries, as of the end of such quarter and a Consolidated statement of
income and a Consolidated statement of cash flows of the Borrower and its
Subsidiaries, and consolidating statements of income and consolidating
statements of cash flows of the Borrower and its Subsidiaries, for the period
commencing at the end of the previous fiscal quarter and ending with the end of
such fiscal quarter and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries and consolidating
statements of income and consolidating statements of cash flows of the Borrower
and its Subsidiaries for the period commencing at the end of the previous Fiscal
Year and ending with the end of such fiscal quarter, setting forth in each case
in comparative form the corresponding figures for the corresponding period of
the preceding Fiscal Year and the corresponding figures from the budgets for
such period and for the Fiscal Year which includes such period, all in
reasonable detail and duly certified by the Chief Financial Officer of the
Borrower as having been prepared in accordance with GAAP (subject to normal
year-end audit adjustments), together with (i) management's discussion and
analysis of financial condition and results of operations, (ii) a certificate of
said officer stating that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to take with respect thereto
and (iii) a schedule in form satisfactory to the Administrative Agent of the
computations used by the Borrower in determining compliance with the financial
covenants contained in Article 8, provided, that in the event of any change in
GAAP used in the preparation of such financial statements, the Borrower shall
also provide, if necessary for the determination of compliance with Article 8, a
statement of reconciliation conforming such financial statements to GAAP.
SECTION 7.4 Annual Financials. As soon as available and in any event
within ninety (90) days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries, including
therein a Consolidated balance sheet of the Borrower and its Subsidiaries, and
consolidating balance sheets of Borrower and its Subsidiaries, as of the end of
such Fiscal Year and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries, and consolidating
statements of income and consolidating statements of cash flows of the Borrower
and its Subsidiaries, for such Fiscal Year, in each case setting forth in
comparative form the corresponding figures for the prior Fiscal Year and the
corresponding figures from the budget for such Fiscal Year and in each case
accompanied (in the case of such Consolidated financial statements) by an
opinion acceptable to the Administrative Agent of Xxxxxx Xxxxxxxx or other
independent certified public accountants of recognized national standing
acceptable to the Administrative Agent, with the consent of the Required Lenders
(not to be unreasonably withheld), together with (a) management's discussion and
analysis of financial condition and results of operations, (b) a letter of such
accounting firm to the Administrative Agent and Lender Parties stating that in
the course of the regular audit of the business of the Borrower and
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its Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting firm has
obtained no knowledge that a Default has occurred and is continuing, or if, in
the opinion of such accounting firm, a Default has occurred and is continuing,
a statement as to the nature thereof, (c) a schedule in form satisfactory to the
Administrative Agent of the computations used by such accountants in
determining, as of the end of such Fiscal Year, compliance with the covenants
contained in Article 8, provided, that in the event of any change in GAAP used
in the preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Article 8, a
statement of reconciliation conforming such financial statements to GAAP and (d)
a certificate of the Chief Financial Officer of the Borrower stating that no
Default has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that the
Borrower has taken and proposes to take with respect thereto.
SECTION 7.5 Annual Forecasts. As soon as available and in any event no
later than sixty (60) days after the end of each Fiscal Year, (i) forecasts
prepared by management of the Borrower, including balance sheets, income
statements and cash flow statements on a quarterly basis, and (ii) a business
plan, in each case for the Fiscal Year following such Fiscal Year then ended and
in form reasonably satisfactory to the Administrative Agent.
SECTION 7.6 ERISA Events and ERISA Reports. (i) Promptly and in any
event within twenty (20) days after any Loan Party or any ERISA Affiliate knows
or has reason to know that any ERISA Event has occurred, a statement of the
Chief Financial Officer of the Borrower describing such ERISA Event and the
action, if any, that such Loan Party or such ERISA Affiliate has taken and
proposes to take with respect thereto and (ii) on the date any records,
documents or other information must be furnished to the PBGC with respect to any
Plan pursuant to Section 4010 of ERISA, a copy of such records, documents and
information.
SECTION 7.7 Plan Terminations. Promptly and in any event within five
(5) Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any Plan or
correspondence from the PBGC indicating it is considering termination of any
Plan.
SECTION 7.8 Actuarial Reports. Promptly upon receipt thereof by any
Loan Party or any ERISA Affiliate, a copy of the annual actuarial valuation
report for each Plan the funded current liability percentage (as defined in
Section 302(d)(8)(B) of ERISA) of which is less than 90% or the unfunded current
liability (as defined in Section 302(d)(8)(A) of ERISA) of which exceeds
$500,000 or the present value of benefit liabilities as of the latest actuarial
valuation date for such Plan (but not prior to 12 months prior to the date
hereof), determined on the basis of a shut down of the company in accordance
with actuarial assumptions used by the PBGC in single-employer plan
terminations, exceeds the market value of assets exclusive of any contributions
due to the Plan by $500,000.
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SECTION 7.9 Plan Annual Reports. Upon the request, from time to time,
of the Administrative Agent, promptly and in any event within thirty (30) days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Plan.
SECTION 7.10 Annual Plan Summaries. As soon as available and in any
event within ninety (90) days after the end of each Fiscal Year, an annual
summary of actuarial valuation and other information with respect to each Plan
in form, substance and detail satisfactory to the Administrative Agent.
SECTION 7.11 Multiemployer Plan Notices. Promptly and in any event
within five (5) Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning, or other correspondence with respect to, (i) the imposition of
Withdrawal Liability by any such Multiemployer Plan, (ii) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (iii) the amount of liability incurred, or that may be incurred, by such
Loan Party or any ERISA Affiliate in connection with any event described in
clause (i) or (ii).
SECTION 7.12 Litigation. Promptly after the commencement thereof,
notice of all material actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission, board,
bureau, agency or instrumentality, Federal, state, local or foreign, affecting
any Loan Party or any of its Subsidiaries and, promptly after the occurrence
thereof, notice of any Material Adverse Change in the financial effect on any
Loan Party or any of its Subsidiaries of the Disclosed Litigation from that
described on Schedule 3.1(e).
SECTION 7.13 Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports that
any Loan Party or any of its Subsidiaries sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration statements,
that any Loan Party or any of its Subsidiaries files with the Securities and
Exchange Commission or any other governmental authority or with any national
securities exchange.
SECTION 7.14 reserved.
SECTION 7.15 Agreement Notices. Promptly upon receipt thereof, copies
of all notices, requests and other documents received by any Loan Party or any
of its Subsidiaries under or pursuant to any Material Contract or indenture,
loan or credit agreement or similar agreement or instrument regarding or related
to any breach or default by any party thereto or any event that could materially
impair the value of the interests or the rights of any Loan Party or any of its
Subsidiaries or otherwise have a Material Adverse Effect and copies of any
amendment, modification or waiver of any provision of any Contract or indenture,
loan or credit agreement or similar agreement or
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indenture and, from time to time upon request by the Administrative Agent, such
information and reports regarding the foregoing as the Administrative Agent may
reasonably request.
SECTION 7.16 Revenue Agent Reports. Within ten (10) days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form 886), or
other written proposals of the Internal Revenue Service, that propose, determine
or otherwise set forth any adjustments to the Federal income tax liability of
the affiliated group (within the meaning of Section 1504(a)(1) of the Internal
Revenue Code) of which the Borrower is a member aggregating $250,000 or more.
SECTION 7.17 Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that is reasonably likely to have a
Material Adverse Effect.
SECTION 7.18 Real Property. Upon the request, from time to time, of the
Administrative Agent, promptly and in any event within thirty (30) days after
any such request, a report supplementing Schedules 4.21 and 4.22 hereto,
including an identification of all real and leased property disposed of by the
Borrower or any of its Subsidiaries during such Fiscal Year, a list and
description (including the street address, county or other relevant
jurisdiction, state, record owner and, in the case of leases of property,
lessor, lessee, expiration date and annual rental cost thereof) of all real
property acquired or leased during such Fiscal Year and a description of such
other changes in the information included in such Schedules as may be necessary
for such Schedules to remain accurate and complete in all respects.
SECTION 7.19 Insurance. Upon the request, from time to time, of the
Administrative Agent, promptly and in any event within thirty (30) days after
any such request, a report summarizing the insurance coverage (specifying type,
amount and carrier) in effect for each Loan Party and its Subsidiaries and
containing such additional information as the Administrative Agent may
reasonably request.
SECTION 7.20 Management Letters. As soon as available and in any event
within five (5) Business Days after the receipt thereof, copies of any
"management letter" or similar letter received by the Borrower or its Board of
Directors (or any Committee thereof) from its independent public accountants.
SECTION 7.21 Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance or
properties of any Loan Party or any of its Subsidiaries or the Collateral as the
Administrative Agent or any Lender Party (through the Administrative Agent) may
from time to time reasonably request.
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ARTICLE 8
FINANCIAL COVENANTS
So long as any Advance shall remain unpaid, any Letter of Credit shall
be outstanding or any Lender Party shall have any Commitment hereunder, the
Borrower will:
SECTION 8.1 Minimum EBITDA. Maintain for each period set forth below
EBITDA at not less than the respective amounts set forth below:
Four Fiscal Quarters ending on or about: Minimum EBITDA
---------------------------------------- --------------
December 31, 1998 $20,000,000
March 31, 1999 $20,000,000
June 30, 1999 $20,000,000
September 30, 1999 $21,000,000
December 31, 1999 $22,500,000
March 31, 2000 $22,500,000
June 30, 2000 $22,500,000
September 30, 2000 $23,000,000
December 31, 2000 $24,000,000
March 31, 2001 $24,000,000
June 30, 2001 $24,000,000
September 30, 2001 $25,000,000
December 31, 2001 $26,000,000
March 31, 2002 $26,000,000
June 30, 2002 $26,000,000
September 30, 2002 $26,000,000
December 31, 2002 $27,500,000
March 31, 2003 $27,500,000
June 30, 2003 $28,000,000
September 30, 2003 $29,000,000
December 31, 2003 and thereafter $30,000,000
SECTION 8.2 Ratio of Consolidated Debt to EBITDA. Maintain as of the
end of each fiscal quarter of the Borrower a Ratio of Consolidated Debt to
EBITDA for the most recently completed four fiscal quarters of the Borrower of
not more than the ratio set forth below:
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Four Fiscal Quarters ending on or about: Ratio
---------------------------------------- -----
December 31, 1998 4.85:1
March 31, 1999 4.75:1
June 30, 1999 4.75:1
September 30, 1999 4.50:1
December 31, 1999 4.25:1
March 31, 2000 4.25:1
June 30, 2000 4.00:1
September 30, 2000 4.00:1
December 31, 2000 3.75:1
March 31, 2001 3.75:1
June 30, 2001 3.75:1
September 30, 2001 3.50:1
December 31, 2001 3.25:1
March 31, 2002 3.25:1
June 30, 2002 3.25:1
September 30, 2002 3.25:1
December 31, 2002 3.00:1
March 31, 2003 3.00:1
June 30, 2003 3.00:1
September 30, 2003 3.00:1
December 31, 2003 and thereafter 2.75:1
SECTION 8.3 Interest Coverage Ratio. Maintain as of each date set forth
below, a ratio of (i) EBITDA for the most recently completed four fiscal
quarters of the Borrower to (ii) Consolidated cash Interest Expense for such
period (except that in respect of the first three testing periods referred to
below, actual amounts expended for cash Interest Expense, in each case since the
Closing Date shall be computed on an annualized basis) of not less than the
ratio set forth below for such period:
Four Fiscal Quarters ending on or about: Ratio
---------------------------------------- -----
December 31, 1998 2.25:1
March 31, 1999 2.25:1
June 30, 1999 2.25:1
September 30, 1999 2.50:1
December 31, 1999 2.75:1
March 31, 2000 2.75:1
June 30, 2000 2.75:1
September 30, 2000 2.75:1
December 31, 2000 and thereafter 3.00:1
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SECTION 8.4 Fixed Charge Coverage Ratio. Maintain as of the end of each
fiscal quarter of the Borrower a ratio of (i) EBITDA for the most recently
completed four fiscal quarters of the Borrower, less Capital Expenditures made
by the Borrower and its Subsidiaries during such period (except that in respect
of the first three testing periods referred to below, the amount of Capital
Expenditures shall be deemed to be equal to the lesser of (x) actual amounts
expended for Capital Expenditures, in each case since the Closing Date, computed
on an annualized basis and (y) $3,500,000), less the aggregate amount of
federal, state, local and foreign taxes paid by the Borrower and its
Subsidiaries in cash during such period, less cash dividends paid by the
Borrower to the holders of its common stock during such period, to the (ii) sum
of (x) cash interest payable by the Borrower and its Subsidiaries on all Debt
during such period (except that in respect of the first three testing periods
referred to below, actual amounts expended for cash Interest Expense, in each
case since the Closing Date shall be computed on an annualized basis), plus (y)
principal amounts of all Debt payable by the Borrower and its Subsidiaries
during such period (except that in respect of the first three testing periods
referred to below, such principal amounts payable in each case since the Closing
Date, computed on an annualized basis, shall be deemed to be equal to
$3,000,000), of not less than the ratio set forth below for such period:
Four Fiscal Quarters ending on or about: Ratio
---------------------------------------- -----
December 31, 1998 1.10:1
March 31, 1999 1.10:1
June 30, 1999 1.10:1
September 30, 1999 1.10:1
December 31, 1999 1.10:1
March 31, 2000 1.10:1
June 30, 2000 1.10:1
September 30, 2000 1.10:1
December 31, 2000 1.15:1
March 31, 2001 1.15:1
June 30, 2001 1.15:1
September 30, 2001 1.15:1
December 31, 2001 and thereafter 1.20:1
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ARTICLE 9
EVENTS OF DEFAULT
If any of the following ("Events of Default") shall occur and be
continuing:
SECTION 9.1 Payment. (a) The Borrower shall fail to pay any principal
of any Advance when the same shall become due and payable or (b) the Borrower
shall fail to pay any interest on any Advance, or any Loan Party shall fail to
make any other payment under any Loan Document, in each case under this clause
(b) within two (2) Business Days after the same becomes due and payable; or
SECTION 9.2 Representations and Warranties. Any representation or
warranty made by any Loan Party (or any of its officers) under or in connection
with any Loan Document shall prove to have been incorrect in any material
respect when made or confirmed; or
SECTION 9.3 Certain Covenants. The Borrower shall fail to perform or
observe any term, covenant or agreement contained in Section 2.14, 5.6, 5.7,
5.13, 5.14 or 5.15, Article 6 or Article 8; or
SECTION 9.4 Other Covenants. Any Loan Party shall fail to perform any
other term, covenant or agreement contained in any Loan Document on its part to
be performed or observed if such failure shall remain unremedied for thirty (30)
days after the earlier of the date on which (a) a Responsible Officer of any
Loan Party becomes aware of such failure or (b) written notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender Party;
or
SECTION 9.5 Other Defaults. Any Loan Party or any of its Subsidiaries
shall fail to pay any principal of, premium or interest on or any other amount
payable in respect of any Debt that is outstanding in a principal or notional
amount of at least $1,000,000 either individually or in the aggregate (but
excluding Debt outstanding hereunder) of such Loan Party or such Subsidiary (as
the case may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise); or any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt, in each case if the effect of such event or condition
is to accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to
mature; or any such Debt shall be declared to be due and payable or required to
be prepaid or redeemed (other than by a regularly scheduled required prepayment
or redemption), purchased or defeased, or an offer to prepay, redeem, purchase
or defease such Debt shall be required to be made, in each case prior to the
stated maturity thereof; or
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SECTION 9.6 Bankruptcy, Etc. Any Loan Party or any of its Subsidiaries
shall generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against any Loan Party or any of its Subsidiaries seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it) that is being diligently contested by it in good
faith, either such proceeding shall remain undismissed or unstayed for a period
of sixty (60) days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur, or any Loan Party or any of its
Subsidiaries shall take any corporate action to authorize any of the actions set
forth above in this subsection (f); or
SECTION 9.7 Judgments.
(a) Any judgment or order for the payment of money in excess of
$500,000 (other than such a judgment or order which is fully covered by
insurance for which the appropriate insurer has acknowledged responsibility in
writing) shall be rendered against any Loan Party or any of its Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be a period of seven (7)
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(b) Any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that is reasonably likely to have a
Material Adverse Effect; or
SECTION 9.8 Loan Documents. Any material provision of any Loan Document
after delivery thereof shall for any reason cease to be valid and binding on or
enforceable against any Loan Party which is party to it, or any such Loan Party
shall so state in writing; or
SECTION 9.9 Liens. Any Collateral Document after delivery thereof shall
for any reason cease to or otherwise not create a valid and perfected first and
only priority lien (subject to Permitted Liens and Permitted Real Property
Encumbrances) on and security interest in the Collateral purported to be covered
thereby; or
SECTION 9.10 Change of Control. Any Change of Control shall occur;
provided, however, that if (i) as of the date of consummation of a proposed
Change of Control, the Ratio of Consolidated Debt to EBITDA is less than 3.00:1
and (ii) the Borrower consummates such Change of Control on
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such date, then a Change of Control shall not at any time thereafter constitute
an Event of Default; provided, further, that if at any time the Borrower
consummates a Qualified Offering, a Change of Control shall not at any time
thereafter constitute an Event of Default; or
SECTION 9.11 ERISA Events.
(a) Any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of the last such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or the
liability of the Loan Parties and the ERISA Affiliates related to such ERISA
Events) exceeds $500,000; or
(b) Any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount that, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Loan Parties and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of such
notification), exceeds $500,000 or requires payments exceeding $200,000 per
annum; or
(c) Any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and as a result of such reorganization or termination the aggregate annual
contributions of the Loan Parties and the ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years of such Multiemployer Plans immediately preceding the plan year in which
such reorganization or termination occurs by an amount exceeding $200,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each appropriate Lender (other than the Commitment in
respect of Letter of Credit Advances by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.3(c) and Swing Line Advances by a Revolving Credit
Lender pursuant to Section 2.2(b)) and of the Issuing Bank to issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Lenders, (A) by
notice to the Borrower, declare the Notes, all interest thereon and all other
amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Notes, all such interest and all such
other amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower and (B) by notice to each party required
under the terms of any agreement in support of which a Standby Letter of Credit
is issued, request that all Obligations under such agreement be declared to be
due and payable; provided, however, that in the event of an actual or deemed
entry of an order for relief with
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respect to any Loan Party or any of its Subsidiaries under the Federal
Bankruptcy Code, (x) the obligation of each Lender to make Advances (other than
Letter of Credit Advances by the Issuing Bank or a Revolving Credit Lender
pursuant to Section 2.3(c) and Swing Line Advances by a Revolving Credit Lender
pursuant to Section 2.2(b)) and of the Issuing Bank to issue Letters of Credit
shall automatically be terminated and (y) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Article 9
or otherwise, make demand upon the Borrower to, and forthwith upon such demand
the Borrower will, pay to the Administrative Agent on behalf of the Lender
Parties in same day funds at the Administrative Agent's office designated in
such demand, for deposit in the L/C Cash Collateral Account, an amount equal to
the aggregate Available Amount of all Letters of Credit then outstanding. If at
any time the Administrative Agent determines that any funds held in the L/C Cash
Collateral Account are subject to any right or claim of any Person other than
the Administrative Agent and the Lender Parties or that the total amount of such
funds is less than the aggregate Available Amount of all Letters of Credit, the
Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be free
and clear of any such right and claim.
ARTICLE 10
THE ADMINISTRATIVE AGENT
SECTION 10.1 Authorization and Action. Each Lender Party (in its
capacities as a Lender, the Issuing Bank, the Swing Line Bank and any Hedge
Bank) hereby appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability
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or that is contrary to this Agreement, any other Loan Document or applicable
law. The Administrative Agent agrees to give to each Lender Party prompt notice
of each notice given to it by the Borrower pursuant to the terms of this
Agreement. The Administrative Agent shall not be a trustee or fiduciary for any
Lender.
SECTION 10.2 Agent's Reliance, Etc. Neither the Administrative Agent
nor any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Administrative Agent: (a) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 11.7; (b) may consult
with legal counsel (including counsel for any Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with the Loan Documents; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Loan Document on the part of any Loan
Party or to inspect the property (including the books and records) of any Loan
Party; (e) shall not be responsible to any Lender Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 10.3 Fleet and Affiliates. With respect to its Commitments, the
Advances made by it and the Notes issued to it, Fleet shall have the same rights
and powers under the Loan Documents as any other Lender Party and may exercise
the same as though it were not the Administrative Agent; and the term "Lender
Party" or "Lender Parties" shall, unless otherwise expressly indicated, include
Fleet in its individual capacity. Fleet and its affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with, any
Loan Party, any of its Subsidiaries and any Person who may do business with or
own securities of any Loan Party or any such Subsidiary, all as if Fleet were
not the Administrative Agent and without any duty to account therefor to the
Lender Parties.
SECTION 10.4 Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender Party and
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based on the financial statements referred to in Section 4.6 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender Party also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 10.5 Indemnification.
(a) Each Lender Party severally agrees to indemnify the Administrative
Agent (to the extent not promptly reimbursed by the Borrower) from and against
such Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of any of the Loan Documents or any action taken or
omitted by the Administrative Agent under any of the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender Party agrees to reimburse the Administrative Agent promptly upon demand
for its ratable share of any costs and expenses (including, without limitation,
fees and expenses of counsel) payable by the Borrower under Section 11.4, to the
extent that the Administrative Agent is not promptly reimbursed for such costs
and expenses by the Borrower.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of any of the Loan Documents or any action taken or
omitted by the Issuing Bank under any of the Loan Documents; provided, however,
that no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Issuing Bank's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender Party
agrees to reimburse the Issuing Bank promptly upon demand for its ratable share
of any costs and expenses (including, without limitation, fees and expenses of
counsel) payable by the Borrower under Section 11.4, to the extent that the
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Borrower.
(c) For purposes of Sections 10.5(a) and 10.5(b), the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender
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Parties, (ii) their respective Pro Rata Shares of the aggregate Available Amount
of all Letters of Credit outstanding at such time, (iii) the aggregate unused
portions of their respective Term A Commitments and Term B Commitments at such
time and (iv) their respective Unused Revolving Credit Commitments at such time;
provided, that the aggregate principal amount of Swing Line Advances owing to
the Swing Line Bank and Letter of Credit Advances owing to the Issuing Bank
shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments. In the event that
any Defaulted Advance shall be owing by any Defaulting Lender at any time, such
Lender Party's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 10.5 to the extent of the amount of such
Defaulted Advance. The failure of any Lender Party to reimburse the
Administrative Agent or the Issuing Bank, as the case may be, promptly upon
demand for its ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or the Issuing Bank, as the case may be, as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse the Administrative Agent or the Issuing Bank, as the case
may be, for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse the
Administrative Agent or the Issuing Bank, as the case may be, for such other
Lender Party's ratable share of such amount. Without prejudice to the survival
of any other agreements of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 10.5 shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 10.6 Successor Administrative Agents. The Administrative Agent
may resign as to any or all of the Facilities at any time by giving written
notice thereof to the Lender Parties and the Borrower and may be removed as to
all of the Facilities at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Administrative Agent as to such of the Facilities as to
which the Administrative Agent has resigned or been removed subject to the
Borrower's consent which shall not be unreasonably withheld. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lender Parties, appoint a successor Administrative
Agent subject to the Borrower's consent which shall not be unreasonably
withheld, which shall be a Lender which is a commercial bank organized under the
laws of the United States or of any State thereof and having a combined capital
and surplus of at least $250,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to all of
the Facilities and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices, as may
be necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers,
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discretion, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations under this Agreement and the other Loan Documents. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to less than all of the Facilities and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Administrative Agent shall succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Administrative Agent as to such Facilities, other than with respect to
funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Administrative Agent with respect to the Letter of Credit
Facility) and payments by the Borrower in respect of such Facilities, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent as to all of the Facilities, the provisions of this Article
10 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent as to any Facilities under this Agreement.
SECTION 10.7 Events of Default. The Administrative Agent shall not be
deemed to have knowledge of the occurrence of a Default (other than the
non-payment of principal of or interest on Loans) unless the Administrative
Agent has received notice from a Lender or the Borrower specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give notice thereof to the Lenders (and shall give
each Lender notice of each such non-payment). The Administrative Agent shall
(subject to Section 10.1(b) hereof) take such action with respect to such
Default as shall be directed by the Required Lenders.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders and Revolving Credit Lenders
holding greater than 50% of the aggregate Revolving Credit
Commitments, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that (a) no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders (other than any Lender Party that is, at such time,
a Defaulting
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Lender), do any of the following at any time: (i) change the percentage of (A)
the Commitments, (B) the aggregate unpaid principal amount of the Advances or
(C) the aggregate Available Amount of outstanding Letters of Credit that, in
each case, shall be required for the Lenders or any of them to take any action
hereunder; (ii) release all or substantially all of the Collateral in any
transaction or series of related transactions or permit the creation,
incurrence, assumption or existence of any Lien on any material portion of the
Collateral in any transaction or series of related transactions to secure any
liabilities or obligations other than Obligations owing to the Secured Parties
under the Loan Documents; (iii) release any of the Guarantors from their
Guaranty, except to the extent any Guarantor merges with and into the Borrower
in accordance with this Agreement; (iv) amend this Section 11.1; or (v) limit
the liability of any Loan Party under any of the Loan Documents and (b) no
amendment, waiver or consent shall, unless in writing and signed by the Required
Lenders and each Lender that has a Commitment under the Term A Facility, Term B
Facility or Revolving Credit Facility if affected by such amendment, waiver or
consent, (i) increase the Commitments of such Lender or subject such Lender to
any additional obligations, (ii) reduce the principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender, (iii) change any date fixed for any payment of principal of, or interest
on, the Notes held by such Lender or any fees or other amounts payable hereunder
to such Lender or (iv) change the order of application of any prepayment set
forth in Section 2.6 in any manner that materially affects such Lender;
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Bank or the Issuing Bank, as the case may be, in
addition to the Lenders required above to take such action, affect the rights or
obligations of the Swing Line Bank or the Issuing Bank, as the case may be,
under this Agreement or any other Loan Document; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any other Loan Document.
SECTION 11.2 Notices Etc. All notices and other communications provided
for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered,
(a) if to the Borrower:
Private Business, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Read
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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with a copy to:
Xxxxxxx Xxxxxx Xxxx Xxxxxxx & Manner, P.C.
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) if to the Administrative Agent:
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(c) if to any Initial Lender or the Initial Issuing Bank, at
its Domestic Lending Office specified opposite its name on Schedule I
attached hereto.
(d) if to any other Lender Party, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it
became a Lender Party;
or, as to the Borrower or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties and,
as to each other party, at such other address as shall be designated by such
party in a written notice to the Borrower and the Administrative Agent. All such
notices and communications shall, when mailed by certified mail, return receipt
requested, telegraphed, telecopied or telexed, be effective 3 days after
mailing, upon delivery to the telegraph company, upon transmission by telecopier
or upon confirmation by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article 2, 3 or 10 shall
not be effective until received by the Administrative Agent. Delivery by
telecopier
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of an executed counterpart of this Agreement, the Notes or any other Loan
Document or of any Exhibit hereto or thereto or of any amendment or waiver of
any provision thereof shall be as effective as delivery of a manually executed
counterpart thereof.
SECTION 11.3 No Waiver; Remedies. No failure on the part of any Lender
Party or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note or under any other Loan Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law or in equity.
SECTION 11.4 Costs and Expenses.
(a) The Borrower agrees to pay on demand (i) all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of the Loan
Documents (including, without limitation, (A) all reasonable due diligence,
collateral review, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses, and (B) the
reasonable fees and expenses of counsel for the Administrative Agent with
respect thereto, with respect to advising the Administrative Agent as to its
rights and responsibilities, or the perfection, protection or preservation of
rights or interests under the Loan Documents, with respect to negotiations with
any Loan Party or with other creditors of any Loan Party or any of its
Subsidiaries arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar
proceeding involving creditors' rights generally and any proceeding ancillary
thereto) and (ii) all reasonable costs and expenses of the Administrative Agent
and the Lender Parties in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation or any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally or otherwise
(including, without limitation, the reasonable fees and expenses of counsel for
the Administrative Agent and each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender Party and each of their respective Affiliates
and their respective officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that are incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Transaction, (ii) any acquisition or proposed
acquisition or similar business combination or proposed business combination by
the Borrower or any of its Subsidiaries or other Affiliates of all
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or any portion of the shares of capital stock or substantially all of the
property and assets of any other Person, (iii) the Facilities, the actual or
proposed use of the proceeds of the Advances or the Letters of Credit by the
Borrower or any of its Subsidiaries or other Affiliates and any of the other
transactions contemplated by the Loan Documents, or (iv) the actual or alleged
presence of Hazardous Materials on any property of any Loan Party or any of its
Subsidiaries or any Environmental Action relating in any way to any Loan Party
or any of its Subsidiaries, in each case whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors, officers,
employees, stockholders or creditors or an Indemnified Party or any Indemnified
Party is otherwise a party thereto and whether or not the Transaction is
consummated, except to the extent such claim, damage, loss, liability or expense
resulted from such Indemnified Party's gross negligence or willful misconduct.
The Borrower also agrees not to assert any claim against the Administrative
Agent, any Lender Party or any of their respective Affiliates, or any of their
respective officers, directors, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Facilities, the actual or proposed use of
the proceeds of the Advances or the Letters of Credit, the Loan Documents or any
of the Transaction, other than claims for direct, as opposed to consequential,
damages.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.9(b)(i) or 2.10(d) or a
prepayment pursuant to Section 2.6(a) or (b), acceleration of the maturity of
the Notes pursuant to Article 9 or for any other reason, the Borrower shall,
upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds required by any Lender Party to fund or
maintain such Advance.
(d) If any Loan Party fails to pay when due (subject to any notice and
cure periods) any costs, expenses or other amounts payable by it under any Loan
Document, including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of such Loan Party by the
Administrative Agent, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
11.4 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 11.5 Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Article
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9 to authorize the Administrative Agent to declare the Notes due and payable
pursuant to the provisions of Article 9, each Lender Party and each of its
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final other than
payroll accounts) at any time held and other indebtedness at any time owing by
such Lender Party or such Affiliate to or for the credit or the account of the
Borrower or any of its Subsidiaries against any and all of the Obligations of
the Borrower now or hereafter existing under this Agreement and the Note or
Notes (if any) held by such Lender Party, irrespective of whether such Lender
Party shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. Each Lender Party agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have at law, in equity
or otherwise.
SECTION 11.6 Binding Effect This Agreement shall become effective when
it shall have been executed by the Borrower and the Administrative Agent and
when the Administrative Agent shall have been notified by each Initial Lender
and the Initial Issuing Bank that each such Initial Lender and the Initial
Issuing Bank has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent and each Lender Party and
their respective successors and assigns, except that the Borrower shall not have
the right to assign any of its rights hereunder or any interest herein without
the prior written consent of the Lender Parties.
SECTION 11.7 Assignments and Participations.
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or Commitments, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $5,000,000, (ii) no such assignments shall be permitted
without the prior consent of the Administrative Agent (which may be withheld for
any reason) until the Administrative Agent shall have notified the Lender
Parties that syndication of the Commitments hereunder has been completed, but in
any event not later than 90 days following the Closing Date, (iii) no such
assignment shall be permitted if, immediately after giving effect thereto, the
Borrower would be required to make payments to or on behalf of the assignee
Lender Party pursuant to Section 2.10(a) or (b) and the assignor Lender Party
was not, at the time of such assignment, entitled to receive any payment
pursuant to Section 2.10(a) or (b), and (iv) the parties to each such
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assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,000. Assignments pursuant to this Section 11.7(a) may be
non pro rata.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (y) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's or Issuing Bank's rights and obligations under this Agreement, such
Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the
Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.6 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to the Administrative Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in
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accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Lender or Issuing Bank, as the
case may be.
(d) The Administrative Agent shall maintain at its address referred to
in Section 11.2 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment and the appropriate processing and reconciliation fee, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit A hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. In the case of any
assignment by a Lender, within five (5) Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note to
the order of such Eligible Assignee in an amount equal to the Commitment assumed
by it under a Facility pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder under such Facility, a new
Note to the order of the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit B, C or D
hereto, as the case may be.
(f) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) each such assignment shall
be to an Eligible Assignee and (ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,000.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances
owing to it and the Note or Notes, if any, held by it); provided, however, that
(i) such Lender Party's obligations under this Agreement (including, without
limitation, its Commitments) shall remain unchanged, (ii) such Lender Party
shall remain solely responsible to the other parties hereto for the
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performance of such obligations, (iii) such Lender Party shall remain the holder
of any such Note for all purposes of this Agreement, (iv) the Borrower, the
Administrative Agent and the other Lender Parties shall continue to deal solely
and directly with such Lender Party in connection with such Lender Party's
rights and obligations under this Agreement and (v) no participant under any
such participation shall have any right to approve any amendment, waiver or
other modification of any provision of this Agreement or any other Loan
Document, or any consent to any departure by any Loan Party therefrom, except to
the extent that such amendment, waiver, modification or consent would reduce the
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, postpone
any date fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable hereunder, in each case to the extent subject to
such participation, or release all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
11.7, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 11.8 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be as effective as delivery of a manually executed counterpart
of this Agreement.
SECTION 11.9 No Liability of the Issuing Bank. The Borrower assumes all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any of its officers, directors, employees or agents shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d)
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any other circumstances whatsoever in making or failing to make payment under
any Letter of Credit, except that the Borrower shall have a claim against the
Issuing Bank, and the Issuing Bank shall be liable to the Borrower, to the
extent of any direct, but not consequential, damages suffered by the Borrower
that the Borrower proves were caused by (i) the Issuing Bank's willful
misconduct or gross negligence in determining whether documents presented under
any Letter of Credit comply with the terms of the Letter of Credit or (ii) the
Issuing Bank's willful failure to make lawful payment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying with
the terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 11.10 Confidentiality. Neither the Administrative Agent nor any
Lender Party shall disclose any Confidential Information to any Person without
the consent of the Borrower, other than (a) to the Administrative Agent's or
such Lender Party's Affiliates and their officers, directors, employees, agents
and advisors and to actual or prospective Eligible Assignees and participants,
and then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
SECTION 11.11 Further Assurances. At any time and from time to time,
upon the request of the Administrative Agent, the Borrower shall execute,
deliver and acknowledge or cause to be executed, delivered and acknowledged,
such further documents and instruments and do such other acts and things as the
Administrative Agent may reasonably request in order to fully effect the
purposes of this Agreement, the other Loan Document and any other agreements,
instruments and documents delivered pursuant hereto or in connection with the
Facilities.
SECTION 11.12 JURISDICTION, ETC.
(a) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY
NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN
NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY, 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 ANY SUCH NEW YORK STATE COURT 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
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JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY LENDER PARTY MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS IN THE COURTS OF ANY JURISDICTION.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT
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 OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY IN ANY NEW YORK STATE OR FEDERAL COURT. 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.
SECTION 11.13 GOVERNING LAW. THIS AGREEMENT, THE NOTES AND THE OTHER
LOAN DOCUMENTS (OTHER THAN THE MORTGAGES WHICH SHALL BE GOVERNED BY THE LAW OF
THE JURISDICTION WHERE THE PROPERTY COVERED THEREBY IS LOCATED) SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO ITS RULES PERTAINING TO CONFLICTS OF LAWS
OTHER THAN GENERAL OBLIGATIONS LAW SECTION 5-1401.
SECTION 11.14 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE LOAN
PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
PRIVATE BUSINESS, INC.
By
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Title:
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FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT,
AS INITIAL ISSUING BANK AND
AS SWING LINE BANK
By
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Title:
-------------------------------------
BANKBOSTON N.A.
AS SYNDICATION AGENT
By
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Title:
-------------------------------------
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INITIAL LENDERS
FLEET NATIONAL BANK
By
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Title:
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BANKBOSTON N.A.
By
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Title:
-------------------------------------
PILGRIM AMERICA PRIME RATE TRUST
By: Pilgrim America Investments, Inc.,
as its Investment Manager
By
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Title:
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STATE STREET BANK AND TRUST COMPANY
By
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Title:
-------------------------------------
