EXHIBIT 10.1
CREDIT AGREEMENT
Dated as of April 5, 2005
among
VERMONT PURE HOLDINGS, LTD.,
CRYSTAL ROCK LLC,
THE LENDERS LISTED ON SCHEDULE 1 HERETO
and
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
TABLE OF CONTENTS
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1. DEFINITIONS AND RULES OF INTERPRETATION....................................................... 1
1.1. Definitions.......................................................................... 1
1.2. Rules of Interpretation.............................................................. 24
2. THE REVOLVING CREDIT FACILITY................................................................. 25
2.1. Commitment to Lend................................................................... 25
2.2. Revolving Credit Commitment Fee...................................................... 26
2.3. Reduction of Total Revolving Credit Commitment....................................... 26
2.4. The Revolving Credit Notes........................................................... 26
2.5. Interest on Revolving Credit Loans................................................... 26
2.6. Requests for Revolving Credit Loans.................................................. 27
2.6.1. General..................................................................... 27
2.6.2. Swing Line.................................................................. 27
2.7. Conversion Options................................................................... 28
2.7.1. Conversion to Different Type of Revolving Credit Loan....................... 28
2.7.2. Continuation of Type of Revolving Credit Loan............................... 28
2.7.3. LIBOR Rate Loans............................................................ 28
2.8. Funds for Revolving Credit Loans..................................................... 29
2.8.1. Funding Procedures.......................................................... 29
2.8.2. Advances of Revolving Credit Loans by Administrative Agent.................. 29
2.9. Settlements.......................................................................... 30
2.9.1. General..................................................................... 30
2.9.2. Failure to Make Funds Available............................................. 30
2.9.3. No Effect on Other Lenders.................................................. 31
3. REPAYMENT OF THE REVOLVING CREDIT LOANS....................................................... 31
3.1. Maturity............................................................................. 31
3.2. Mandatory Repayments of Revolving Credit Loans....................................... 31
3.3. Optional Repayments of Revolving Credit Loans........................................ 31
4. THE ACQUISITION LOAN FACILITY................................................................. 32
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4.1. Commitment to Lend................................................................... 32
4.2. Acquisition Loan Commitment Fee...................................................... 32
4.3. Reduction of Total Acquisition Loan Commitment....................................... 32
4.4. The Acquisition Loan Notes........................................................... 33
4.5. Interest on Acquisition Loans........................................................ 33
4.6. Requests for Acquisition Loans....................................................... 33
4.7. Funds for Acquisition Loans.......................................................... 34
4.7.1. Funding Procedures.......................................................... 34
4.7.2. Acquisition Advances by Administrative Agent................................ 34
4.7.3. Notification by Borrowers................................................... 35
4.8. Repayments and Prepayments of Acquisition Loans...................................... 35
4.8.1. Repayment................................................................... 35
4.8.2. Prepayment.................................................................. 35
5. THE TERM LOAN................................................................................. 36
5.1. Commitment to Lend................................................................... 36
5.2. The Term Notes....................................................................... 36
5.3. Mandatory Prepayment of Term Loans................................................... 36
5.3.1. Schedule of Installment Payments of Principal of Term Loan.................. 37
5.3.2. Excess Cash Flow Recapture.................................................. 37
5.3.3. Proceeds of Certain Events.................................................. 37
5.3.4. Application of Payments..................................................... 38
5.4. Optional Prepayment of Term Loan..................................................... 38
5.5. Interest on Term Loan................................................................ 38
5.5.1. Interest Rates.............................................................. 39
5.5.2. Notification by Borrowers................................................... 39
5.5.3. Amounts, etc................................................................ 39
6. LETTERS OF CREDIT............................................................................. 39
6.1. Letter of Credit Commitments......................................................... 39
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6.1.1. Commitment to Issue Letters of Credit....................................... 39
6.1.2. Letter of Credit Applications............................................... 40
6.1.3. Terms of Letters of Credit.................................................. 40
6.1.4. Reimbursement Obligations of Lenders........................................ 40
6.1.5. Participations of Lenders................................................... 41
6.2. Reimbursement Obligations of the Borrowers........................................... 41
6.3. Letter of Credit Payments............................................................ 41
6.4. Obligations Absolute................................................................. 42
6.5. Reliance by Issuer................................................................... 42
6.6. Letter of Credit Fee................................................................. 43
7. CERTAIN GENERAL PROVISIONS.................................................................... 43
7.1. Closing Fees......................................................................... 43
7.2. Administrative Agent's Fee........................................................... 43
7.3. Funds for Payments................................................................... 43
7.3.1. Payments to Administrative Agent............................................ 43
7.3.2. No Offset, etc.............................................................. 43
7.4. Computations......................................................................... 44
7.5. Inability to Determine LIBOR Rate.................................................... 44
7.6. Illegality........................................................................... 44
7.7. Additional Costs, etc................................................................ 45
7.8. Capital Adequacy..................................................................... 46
7.9. Certificate.......................................................................... 46
7.10. Indemnity............................................................................ 46
7.11. Interest After Default............................................................... 47
7.11.1. Overdue Amounts............................................................. 47
7.11.2. Amounts Not Overdue......................................................... 47
7.12. Concerning Joint and Several Liability of the Borrowers.............................. 47
8. COLLATERAL SECURITY........................................................................... 49
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8.1. Security of Borrowers................................................................ 49
9. REPRESENTATIONS AND WARRANTIES................................................................ 49
9.1. Corporate Authority.................................................................. 49
9.1.1. Incorporation; Organization; Good Standing.................................. 49
9.1.2. Authorization............................................................... 49
9.1.3. Enforceability.............................................................. 49
9.2. Governmental Approvals............................................................... 49
9.3. Title to Properties; Leases.......................................................... 50
9.4. Financial Statements and Projections................................................. 50
9.4.1. Fiscal Year................................................................. 50
9.4.2. Financial Statements........................................................ 50
9.4.3. Projections................................................................. 50
9.5. No Material Adverse Changes, etc..................................................... 50
9.6. Franchises, Patents, Copyrights, etc................................................. 50
9.7. Litigation........................................................................... 51
9.8. No Materially Adverse Contracts, etc................................................. 51
9.9. Compliance with Other Instruments, Laws, etc......................................... 51
9.10. Tax Status........................................................................... 51
9.11. No Event of Default.................................................................. 51
9.12. Holding Company and Investment Company Acts.......................................... 51
9.13. Absence of Financing Statements, etc................................................. 51
9.14. Perfection of Security Interest...................................................... 52
9.15. Certain Transactions................................................................. 52
9.16. Employee Benefit Plans............................................................... 52
9.16.1. In General.................................................................. 52
9.16.2. Terminability of Welfare Plans.............................................. 52
9.16.3. Guaranteed Pension Plans.................................................... 52
9.16.4. Multiemployer Plans......................................................... 53
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9.17. Use of Proceeds...................................................................... 53
9.17.1. General..................................................................... 53
9.17.2. Regulations U and X......................................................... 53
9.17.3. Ineligible Securities....................................................... 53
9.18. Environmental Compliance............................................................. 53
9.19. Subsidiaries, etc.................................................................... 55
9.20. Bank Accounts........................................................................ 55
9.21. Disclosure........................................................................... 55
9.22. Foreign Assets Control Regulations, Etc.............................................. 55
9.23. Employment Contracts................................................................. 56
10. AFFIRMATIVE COVENANTS......................................................................... 56
10.1. Punctual Payment..................................................................... 56
10.2. Maintenance of Office................................................................ 56
10.3. Records and Accounts................................................................. 56
10.4. Financial Statements, Certificates and Information................................... 56
10.5. Notices.............................................................................. 58
10.5.1. Defaults.................................................................... 58
10.5.2. Environmental Events........................................................ 58
10.5.3. Notification of Claim against Collateral.................................... 58
10.5.4. Notice of Litigation and Judgments.......................................... 58
10.5.5. Material Agreements......................................................... 58
10.6. Existence; Maintenance of Properties................................................. 59
10.7. Insurance............................................................................ 59
10.8. Taxes................................................................................ 59
10.9. Inspection of Properties and Books, etc.............................................. 59
10.9.1. General..................................................................... 59
10.9.2. Communications with Accountants............................................. 60
10.10. Compliance with Laws, Contracts, Licenses, and Permits............................... 60
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10.11. Employee Benefit Plans............................................................... 60
10.12. Use of Proceeds...................................................................... 60
10.13. Mortgaged Property................................................................... 60
10.14. Bank Accounts........................................................................ 61
10.15. Interest Rate Protection............................................................. 61
10.16. Water Contracts and Licenses......................................................... 61
10.17. Clean Down........................................................................... 61
10.18. Additional Subsidiaries.............................................................. 61
10.19. Further Assurances................................................................... 62
11. CERTAIN NEGATIVE COVENANTS.................................................................... 62
11.1. Restrictions on Indebtedness......................................................... 62
11.2. Restrictions on Liens................................................................ 62
11.2.1. Permitted Liens............................................................. 62
11.2.2. Restrictions on Upstream Limitations........................................ 64
11.3. Restrictions on Investments.......................................................... 64
11.4. Restricted Payments.................................................................. 65
11.5. Merger, Consolidation and Disposition of Assets...................................... 65
11.5.1. Mergers and Acquisitions.................................................... 65
11.5.2. Disposition of Assets....................................................... 65
11.6. Sale and Leaseback................................................................... 65
11.7. Compliance with Environmental Laws................................................... 65
11.8. Subordinated Debt.................................................................... 65
11.9. Employee Benefit Plans............................................................... 66
11.10. Business Activities.................................................................. 66
11.11. Fiscal Year.......................................................................... 66
11.12. Transactions with Affiliates......................................................... 66
11.13. Bank Accounts........................................................................ 67
11.14. Employment Contract Amendments....................................................... 67
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12. FINANCIAL COVENANTS........................................................................... 67
12.1. Consolidated Adjusted Operating Cash Flow to Senior Debt Service..................... 67
12.2. Consolidated Adjusted Operating Cash Flow to Total Debt Service...................... 67
12.3. Senior Funded Debt to EBITDA......................................................... 67
13. CLOSING CONDITIONS............................................................................ 68
13.1. Loan Documents etc................................................................... 68
13.1.1. Loan Documents.............................................................. 68
13.1.2. Subordination Documents..................................................... 68
13.2. Certified Copies of Governing Documents.............................................. 68
13.3. Corporate or Other Action............................................................ 68
13.4. Incumbency Certificate............................................................... 68
13.5. Validity of Liens.................................................................... 68
13.6. Perfection Certificates and UCC Search Results....................................... 69
13.7. Landlord Consents.................................................................... 69
13.8. Certificates of Insurance............................................................ 69
13.9. Opinions of Counsel.................................................................. 69
13.10. Payment of Fees...................................................................... 69
13.11. Capital Structure.................................................................... 69
13.12. Payoff Letter........................................................................ 69
13.13. Disbursement Instructions............................................................ 69
14. CONDITIONS TO ALL BORROWINGS.................................................................. 69
14.1. Representations True; No Event of Default............................................ 70
14.2. No Legal Impediment.................................................................. 70
14.3. Proceedings and Documents............................................................ 70
15. EVENTS OF DEFAULT; ACCELERATION; ETC.......................................................... 70
15.1. Events of Default and Acceleration................................................... 70
15.2. Termination of Commitments........................................................... 73
15.3. Remedies............................................................................. 74
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15.4. Distribution of Collateral Proceeds.................................................. 74
16. THE ADMINISTRATIVE AGENT...................................................................... 75
16.1. Authorization........................................................................ 75
16.2. Employees and Administrative Agents.................................................. 75
16.3. No Liability......................................................................... 75
16.4. No Representations................................................................... 76
16.4.1. General..................................................................... 76
16.4.2. Closing Documentation, etc.................................................. 76
16.5. Payments............................................................................. 76
16.5.1. Payments to Administrative Agent............................................ 76
16.5.2. Distribution by Administrative Agent........................................ 77
16.5.3. Delinquent Lenders.......................................................... 77
16.6. Holders of Notes..................................................................... 77
16.7. Indemnity............................................................................ 77
16.8. Administrative Agent as Lender....................................................... 78
16.9. Resignation.......................................................................... 78
16.10. Administrative Agent May File Proofs of Claim........................................ 78
17. SUCCESSORS AND ASSIGNS........................................................................ 79
17.1. General Conditions................................................................... 79
17.2. Assignments.......................................................................... 79
17.3. Register............................................................................. 80
17.4. Participations....................................................................... 80
17.5. Payments to Participants............................................................. 81
17.6. Miscellaneous Assignment Provisions.................................................. 81
17.7. Assignee or Participant Affiliated with the Borrowers................................ 81
18. PROVISIONS OF GENERAL APPLICATION............................................................. 82
18.1. Setoff............................................................................... 82
18.2. Expenses............................................................................. 82
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18.3. Indemnification...................................................................... 83
18.4. Treatment of Certain Confidential Information........................................ 84
18.4.1. Confidentiality............................................................. 84
18.4.2. Prior Notification.......................................................... 84
18.4.3. Other....................................................................... 85
18.5. Survival of Covenants, Etc........................................................... 85
18.6. Notices.............................................................................. 85
18.7. Governing Law........................................................................ 86
18.8. Headings............................................................................. 86
18.9. Counterparts......................................................................... 86
18.10. Entire Agreement, Etc................................................................ 86
18.11. Waiver of Jury Trial................................................................. 87
18.12. Consents, Amendments, Waivers, Etc................................................... 87
18.13. Severability......................................................................... 88
18.14. USA Patriot Act...................................................................... 88
18.15. COMMERCIAL TRANSACTION; PREJUDGMENT REMEDY WAIVER.................................... 89
18.16. Interest Rate........................................................................ 89
18.17. Loss of Notes........................................................................ 90
18.18. Replacement of Lenders............................................................... 90
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EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Loan Request
Exhibit C Form of Acquisition Loan Note
Exhibit D Form of Term Note
Exhibit E Form of Compliance Certificate
Exhibit F Assignment and Acceptance
SCHEDULES
Schedule 1 Lenders and Commitments
Schedule 6.1.1 Existing Letters of Credit
Schedule 9.3 Title to Properties; Leases
Schedule 9.7 Litigation
Schedule 9.15 Affiliate Transactions
Schedule 9.18 Environmental Compliance
Schedule 9.19 Subsidiaries Etc.
Schedule 9.20 Bank Accounts
Schedule 11.1 Existing Indebtedness
Schedule 11.2 Existing Liens
Schedule 11.3 Existing Investments
CREDIT AGREEMENT
This CREDIT AGREEMENT is made as of April 5, 2005, by and among Vermont
Pure Holdings, Ltd. ("Holdings"), a Delaware corporation, having its principal
place of business at 00 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx 00000, Crystal Rock LLC
("Crystal Rock" and together with Holdings, collectively, the "Borrowers"), a
Delaware limited liability company, having its principal place of business at 00
Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx 00000, Bank of America, N.A., a national banking
association ("Bank of America"), and the other lending institutions listed on
Schedule 1, and Bank of America as administrative agent for itself and such
other lending institutions.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set forth in
this Section 1 or elsewhere in the provisions of this Credit Agreement referred
to below:
Accounts Receivable. All rights of either Borrower or any of its
Subsidiaries to payment for goods sold, leased or otherwise marketed and all
rights of either Borrower or any of its Subsidiaries to payment for services
rendered and all sums of money or other proceeds due thereon pursuant to
transactions with account debtors, except for that portion of the sum of money
or other proceeds due thereon that relate to sales, use or property taxes in
conjunction with such transactions, recorded on books of account in accordance
with GAAP.
Acquired Company EBITDA. For any period, an amount equal to Consolidated
EBITDA of the Person or assets acquired by Holdings or any of its Subsidiaries
in a Permitted Acquisition for the portion of such period preceding the date of
such acquisition, calculated on a Pro Forma Basis.
Acquisition Advance. See Section 4.6.
Acquisition Loan Commitment Fee. See Section 4.2.
Acquisition Loan Maturity Date. The maturity date of any Acquisition Loan
in accordance with the provisions of Section 4.8.1.
Acquisition Loan Termination Date. April 5, 2008.
Acquisition Loans. Acquisition loans made or to be made by the Lenders to
the Borrowers pursuant to Section 4.
Acquisition Note Record. A Record with respect to an Acquisition Loan
Note.
Acquisition Loan Notes. See Section 4.4.
Adjustment Date. The first day of the month immediately following the
month in which a Compliance Certificate is to be delivered by the Borrowers
pursuant to Section 10.4(c).
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Administrative Agent. Bank of America, N.A., acting as agent for the
Lenders and each other Person appointed as the successor Administrative Agent in
accordance with Section 16.9.
Administrative Agent's Office. The Administrative Agent's office located
at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, or at such other location as
the Administrative Agent may designate from time to time.
Administrative Agent's Fee. See Section 7.2.
Administrative Agent's Special Counsel. Xxxxxxx XxXxxxxxx LLP or such
other counsel as may be approved by the Administrative Agent.
Administrative Questionnaire. An Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affiliate. Any Person that would be considered to be an affiliate of any
other Person under Rule 144(a) of the Rules and Regulations of the Securities
and Exchange Commission, as in effect on the date hereof, if such other Person
were issuing securities.
Amortized Acquisition Loan Amount. As of any date, an amount equal to
twenty percent (20%) of the aggregate amount of Acquisition Loans outstanding on
such date that have not been converted into Section 4.8.1 Acquisition Loans.
Applicable Margin. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Senior Leverage Ratio, as determined for the
Reference Period of Holdings and its Subsidiaries ending on the fiscal quarter
ended immediately prior to the applicable Rate Adjustment Period.
REVOLVING
CREDIT AND
ACQUISITION
BASE LOAN LETTER OF TERM LOAN
SENIOR LEVERAGE RATE LIBOR CREDIT LIBOR RATE
LEVEL RATIO LOANS RATE LOANS FEES LOAN
----- ----------------------- ----- ------------ --------- ----------
I Less than or equal to
1.74:1.00 0.00% 1.25% 1.25% 1.50%
II Greater than 1.74:1.00
but less than 2.25:1.00 0.00% 1.50% 1.50% 1.75%
III Greater than or equal
to 2.25:1.00 but less 0.00% 1.65% 1.65% 1.90%
than 2.50:1.00
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IV Greater than or equal
to 2.50:1.00 but less
than 2.75:1.00 0.00% 1.90% 1.90% 2.15%
V Greater than or equal
to 2.75:1:00 0.00% 2.25% 2.25% 2.50%
Notwithstanding the foregoing, (a) for the Loans outstanding and the
Letter of Credit Fees and the Commitment Fees payable during the period
commencing on the Closing Date through the date immediately preceding the first
Adjustment Date to occur after the fiscal quarter ending April 30, 2005, the
Applicable Margin shall be the Applicable Margin set forth in Level V above, and
(b) if the Borrowers fail to deliver any Compliance Certificate pursuant to
Section 10.4(c) hereof then, for the period commencing on the next Adjustment
Date to occur subsequent to such failure through the date immediately following
the date on which such Compliance Certificate is delivered, the Applicable
Margin shall be the highest Applicable Margin set forth above.
Approved Fund. Any Fund that is administered or managed by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
Asset Sale. Any one or series of related transactions in which either
Borrower or any of its Subsidiaries conveys, sells, leases, licenses or
otherwise disposes of, directly or indirectly, any of its properties, businesses
or assets (including the sale or issuance of Capital Stock of any Subsidiary
other than to a Borrower or any Subsidiary of a Borrower but excluding any
Excluded Assets) whether owned on the Closing Date or thereafter acquired.
Assignment and Acceptance. An assignment and acceptance entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is
required by Section 17.2), and accepted by the Administrative Agent, in
substantially the form of Exhibit F or any other form approved by the
Administrative Agent.
Assumed Senior Amortization Amount. $3,000,000.
Assumed Senior Debt Service Amount. An amount equal to the sum of (a) the
Assumed Senior Amortization Amount and (b) the Assumed Senior Interest Expense
Amount.
Assumed Senior Interest Expense Amount. $1,800,000.
Assumed Total Amortization Amount. $3,000,000.
Assumed Total Debt Service Amount. An amount equal to the sum of (a) the
Assumed Total Amortization Amount and (b) the Assumed Total Interest Expense
Amount.
Assumed Total Interest Expense Amount. $3,500,000.
Bakers. Collectively, Xxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxx Xxxxx, Xxxx X.
Xxxxx and trusts holding Capital Stock of Holdings for the children of any of
the foregoing persons and their heirs, executors, administrators, personal
representatives and assigns.
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Balance Sheet Date. October 31, 2004.
Bank of America. Bank of America, N.A., a national banking association, in
its individual capacity.
Base Rate. For any day a fluctuating rate per annum equal to the higher of
(a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect
for such day as publicly announced from time to time by the Administrative Agent
as its "prime rate." The "prime rate" is a rate set by the Administrative Agent
based upon various factors including the Administrative Agent's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by the Administrative
Agent shall take effect at the opening of business on the day specified in the
public announcement of such change.
Base Rate Loans. Revolving Credit Loans, Acquisition Loans and all or any
portion of the Term Loan, in each case bearing interest calculated by reference
to the Base Rate.
Borrowers. As defined in the preamble hereto.
Business Day. Any day (a) other than a Saturday, Sunday or a day on which
banking institutions in Hartford, Connecticut, are not authorized to transact
banking business and (b) in the case of LIBOR Rate Loans, which is also a LIBOR
Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with GAAP.
Capital Expenditures. Amounts paid or Indebtedness incurred by the
Borrowers or any of their Subsidiaries in connection with (i) the purchase or
lease by a Borrower or any of its Subsidiaries of Capital Assets that would be
required to be capitalized and shown on the balance sheet of such Person in
accordance with GAAP or (ii) the lease of any assets by a Borrower or any of its
Subsidiaries as lessee under any Synthetic Lease to the extent that such assets
would have been Capital Assets had the Synthetic Lease been treated for
accounting purposes as a Capitalized Lease.
Capitalized Leases. Leases under which a Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
Capital Stock. Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
membership, partnership and other equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options to
purchase any of the foregoing.
Casualty Event. With respect to any property (including any interest in
property) of either Borrower or any of its Subsidiaries, any loss of, damage to,
or condemnation or other taking of, such property for which such Borrower or
such Subsidiary receives insurance proceeds, proceeds of a condemnation award or
other compensation.
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CERCLA. See Section 9.18(a).
Change of Control. An event or series of events by which (a) any person or
group of persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934) other than the Bakers shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) of twenty percent (20%) or more of the
Capital Stock of Holdings; or, during any period of twelve consecutive calendar
months, individuals who were directors of Holdings on the first day of such
period shall cease to constitute a majority of the board of directors of
Holdings unless any new directors were nominated by a majority of such existing
directors or (b) Holdings owns of record or beneficially, directly or
indirectly, less than one hundred percent (100%) of the Capital Stock of Crystal
Rock or less than 100% of the Capital Stock of any other Person that may
hereafter become a Subsidiary of either Borrower.
Clean Down Amount. $1,500,000.
Closing Date. The first date on which the conditions set forth in Section
13 have been satisfied and any Loans are to be made or any Letter of Credit is
to be issued hereunder.
Closing Fee. See Section 7.1.
Code. The Internal Revenue Code of 1986, as amended from time to time.
Collateral. All of the property, rights and interests of the Borrowers and
their Subsidiaries that are or are intended to be subject to the Liens created
by the Security Documents.
Collateral Assignment of Leases. The Collateral Assignment of Leases,
dated or to be dated on or prior to the Closing Date, between the Borrowers and
the Administrative Agent and in form and substance satisfactory to the Lenders
and the Administrative Agent.
Commitment. With respect to each Lender, the amount set forth on Schedule
1 hereto as the amount of such Lender's commitment to make Revolving Credit
Loans and/or Acquisition Loans to, and to participate in the issuance, extension
and renewal of Letters of Credit for the account of, the Borrowers, as the same
may be reduced from time to time as the context may require; or if such
commitment is terminated pursuant to the provisions hereof, zero.
Commitment Fees. Collectively, the Acquisition Loan Commitment Fee and the
Revolving Credit Commitment Fee.
Commitment Percentage. With respect to each Lender (a) with respect to
Revolving Credit Loans, the percentage set forth on Schedule 1 hereto as such
Lender's percentage of the aggregate Commitments of all of the Lenders in
respect of Revolving Credit Loans, (b) with respect to Acquisition Loans, the
percentage set forth on Schedule 1 hereto as such Lender's percentage of the
aggregate Commitments of all of the Lenders in respect of Acquisition Loans and
(c) with respect to the Term Loan, the percentage amount set forth on Schedule 1
reflecting such Lender's commitment to make the Term Loan.
Compliance Certificate. See Section 10.4(c).
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Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of Holdings and its
Subsidiaries, consolidated in accordance with GAAP.
Consolidated Adjusted EBITDA. For any period, an amount equal to the sum
of (a) Consolidated EBITDA of Holdings and its Subsidiaries for such period
(excluding the Consolidated EBITDA of any Subsidiary (or with respect to an
asset acquisition, the acquired assets) for the period prior to the acquisition
of such Subsidiary (or assets) by Holdings or any of its Subsidiaries), plus (b)
an amount equal to seventy-five percent (75%) of Acquired Company EBITDA for
such period.
Consolidated Adjusted Operating Cash Flow. For any period, an amount equal
to the sum of (a) Consolidated Operating Cash Flow for such period, plus (b) an
amount equal to seventy-five percent (75%) of Acquired Company EBITDA for such
period.
Consolidated EBITDA. With respect to any Person for any period, an amount
equal to the sum of (a) Consolidated Net Income of such Person and its
Subsidiaries for such fiscal period, plus (b) in each case to the extent
deducted in the calculation of such Person's Consolidated Net Income and without
duplication, (i) depreciation and amortization for such period, plus (ii) income
tax expense for such period, plus (iii) Consolidated Total Interest Expense of
such Person and its Subsidiaries required to be paid or accrued during such
period, plus (iv) other noncash charges for such period, all as determined in
accordance with GAAP.
Consolidated Excess Cash Flow. With respect to Holdings and its
Subsidiaries and any particular period, an amount equal to (a) Consolidated
Operating Cash Flow for such period less (b) the result of (i) sum of (A)
Consolidated Total Interest Expense of Holdings and its Subsidiaries paid in
cash during such period, plus (B) any mandatory repayments (whether scheduled or
otherwise) of principal on any Indebtedness of Holdings or any of its
Subsidiaries paid or due and payable during such period, multiplied by (ii)
1.50.
Consolidated Net Income (or Deficit). With respect to any Person for any
period, the consolidated net income (or deficit) of such Person and its
Subsidiaries, after deduction of all expenses, taxes, and other proper charges,
determined in accordance with GAAP, after eliminating therefrom all
extraordinary and nonrecurring items of income.
Consolidated Operating Cash Flow. For any period, an amount equal to (a)
Consolidated EBITDA of Holdings and its Subsidiaries for such period (excluding
the Consolidated EBITDA of any Subsidiary (or with respect to an asset
acquisition, the acquired assets) for the period prior to the acquisition of
such Subsidiary (or assets) by Holdings or any of its Subsidiaries), less (b)
the sum of (i) cash payments for all income taxes paid during such period, plus
(ii) to the extent not already deducted in the determination of Consolidated
EBITDA of Holdings and its Subsidiaries, Capital Expenditures made during such
period (excluding Capital Expenditures made with the proceeds of Indebtedness
(other than the Loans) during such period), plus (iii) the aggregate amount of
Distributions made by Holdings during such period.
Consolidated Senior Interest Expense. For any period, Consolidated Total
Interest Expense of Holdings and its Subsidiaries less the aggregate amount of
interest required to be paid or accrued by Holdings and its Subsidiaries during
such period on Subordinated Debt.
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Consolidated Senior Debt Service. With respect to Holdings and its
Subsidiaries and for any period, the sum, without duplication, of (a)
Consolidated Senior Interest Expense for such period plus (b) any and all
scheduled repayments of principal during such period in respect of Indebtedness
(other than Subordinated Debt) that become due and payable during such period
pursuant to any agreement or instrument to which Holdings or any of its
Subsidiaries is a party plus (c) the Amortized Acquisition Loan Amount as of the
end of such period. Demand obligations shall be deemed to be due and payable
during any fiscal period during which such obligations are outstanding.
Notwithstanding the foregoing, (x) for any fiscal quarter ending during the
first twelve months after the Closing Date, Consolidated Senior Debt Service for
each such fiscal quarter will be deemed to be the greater of (a) an amount equal
to the sum of (i) the Assumed Senior Debt Service Amount for such quarter and
(ii) the Amortized Acquisition Loan Amount as of the end of such quarter and (b)
an amount equal the sum of (i) the Assumed Senior Amortization Amount, (ii)
Consolidated Senior Interest Expense (determined in a Pro Forma basis, if
applicable) for the Reference Period ended on such date and (iii) the Amortized
Acquisition Loan Amount and (y) for any fiscal quarter ending during the first
twelve months after the conversion of any Acquisition Loan into a Section 4.8.1
Loan, an amount equal to the result of (1) twenty percent (20%) of the original
principal amount of such Section 4.8.1 Loan minus (2) any scheduled repayments
of principal that become due during such period in respect of such Section 4.8.1
Loan, shall be added to Consolidated Senior Debt Service.
Consolidated Total Debt Service. With respect to Holdings and its
Subsidiaries and for any period, the sum, without duplication, of (a)
Consolidated Total Interest Expense of Holdings and its Subsidiaries for such
period plus (b) any and all scheduled repayments of principal during such period
in respect of Indebtedness that become due and payable during such period
pursuant to any agreement or instrument to which Holdings or any of its
Subsidiaries is a party plus (c) the Amortized Acquisition Loan Amount as of the
end of such period. Demand obligations shall be deemed to be due and payable
during any fiscal period during which such obligations are outstanding.
Notwithstanding the foregoing, (x) for any fiscal quarter ending during the
first twelve months after the Closing Date, Consolidated Total Debt Service for
each such fiscal quarter will be deemed to be the greater of (a) an amount equal
to the sum of (i) the Assumed Total Debt Service Amount for such quarter and
(ii) the Amortized Acquisition Loan Amount as of the end of such quarter and (b)
an amount equal to the sum of (i) the Assumed Total Amortization Amount, (ii)
Consolidated Total Interest Expense (determined in a Pro Forma basis, if
applicable) for the Reference Period ended on such date and (iii) the Amortized
Acquisition Loan Amount and (y) for any fiscal quarter ending during the first
twelve months after the conversion of any Acquisition Loan into a Section 4.8.1
Loan, an amount equal to the result of (1) twenty percent (20%) of the original
principal amount of such Section 4.8.1 Loan minus (2) any scheduled repayments
of principal that become due during such period in respect of such Section 4.8.1
Loan, shall be added to Consolidated Total Debt Service.
Consolidated Total Funded Debt. With respect to Holdings and its
Subsidiaries, the sum, without duplication, of (a) the aggregate amount of
Indebtedness of Holdings and its Subsidiaries, on a consolidated basis, relating
to (i) the borrowing of money or the obtaining of credit, including the issuance
of notes or bonds, (ii) the deferred purchase price of assets (other than trade
payables incurred in the ordinary course of business), (iii) any Synthetic
Leases or any Capitalized Leases, and (iv) the maximum drawing amount of all
letters of credit outstanding, plus (b) Indebtedness of the type referred to in
clause (a) of another Person guaranteed by Holdings or any of its Subsidiaries.
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Consolidated Total Interest Expense. With respect to any Person and for
any period, the aggregate amount of interest required to be paid or accrued by
such Person and its Subsidiaries during such period on all Indebtedness of such
Person and its Subsidiaries outstanding during all or any part of such period,
whether such interest was or is required to be reflected as an item of expense
or capitalized, including payments consisting of interest in respect of any
Capitalized Lease or any Synthetic Lease, and including commitment fees, agency
fees, facility fees, balance deficiency fees and similar fees or expenses in
connection with the borrowing of money.
Conversion Request. A notice given by the Borrowers to the Administrative
Agent of the Borrowers' election to convert or continue a Loan in accordance
with Section 2.7, Section 4.7.3 or Section 5.5.2.
Credit Agreement. This Credit Agreement, including the Schedules and
Exhibits hereto.
Default. See Section 15.1.
Delinquent Lender. See Section 16.5.3.
Disbursement Period. See Section 4.6.
Distribution. The declaration or payment of any dividend on or in respect
of any Capital Stock of Holdings, other than dividends payable solely in shares
of common stock of Holdings; the purchase, redemption, defeasance, retirement or
other acquisition of any shares of any class of Capital Stock of Holdings,
directly or indirectly through a Subsidiary of Holdings or otherwise (including
the setting apart of assets for a sinking or other analogous fund to be used for
such purpose); the return of capital by Holdings to its shareholders as such; or
any other distribution on or in respect of any shares of any class of Capital
Stock of Holdings.
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Lending Office. Initially, the office of each Lender designated
as such in Schedule 1 hereto; thereafter, such other office of such Lender, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Drawdown Date. The date on which any Revolving Credit Loan, any
Acquisition Loan or the Term Loan is made or is to be made, and the date on
which any Revolving Credit Loan is converted or continued in accordance with
Section 2.7, any Acquisition Loan is converted on continued in accordance with
Section 4.7.3 or all or any portion of the Term Loan is converted or continued
in accordance with Section 5.5.2.
Eligible Assignee. Any of (a) a Lender, (b) an Affiliate of a Lender that
has total assets in excess of $1,000,000,000, (c) an Approved Fund that has
total assets in excess of $1,000,000,000 and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent and (ii) unless a
Default or an Event of Default has occurred and is continuing, the Borrowers
(each such approval not to be unreasonably withheld or delayed).
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by either Borrower or any
ERISA Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See Section 9.18(a).
-9-
EPA. See Section 9.18(b).
Equity Issuance. The sale or issuance by either Borrower or any of its
Subsidiaries of any of its Capital Stock.
ERISA. The Employee Retirement Income Security Act of 1974, as amended
from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
either Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder, other than a reportable event as to which the
requirement of 30 days notice has been waived.
Eurocurrency Reserve Rate. For any day with respect to a LIBOR Rate Loan,
the maximum rate (expressed as a decimal) at which any bank subject thereto
would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D), if such liabilities were outstanding. The
Eurocurrency Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Rate.
Event of Default. See Section 15.1.
Excluded Assets. With respect to the Borrowers or any of their
Subsidiaries (a) inventory sold in the ordinary course of business consistent
with past practices and (b) equipment or other assets no longer used or useful
in such Person's business provided that such asset is not sold to an Affiliate
of the seller and the aggregate fair market value of all such assets referred to
in this clause (b) which are sold in any one calendar year which will be deemed
to be Excluded Assets shall not exceed $250,000.
Excluded Indebtedness Indebtedness permitted to be incurred pursuant to
the provisions of Section 11.1.
Existing Letters of Credit. See Section 6.1.1.
Existing Swap. That certain interest rate swap agreement dated June 11,
2003 between Xxxxxxx Bank, National Association and Holdings in the original
notional amount of $10,000,000.
Federal Funds Rate. For any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%)
-10-
charged to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
Fee Letter. The fee letter dated as of March 9, 2005 among the Borrowers
and the Administrative Agent.
Fees. Collectively, the Commitment Fees, the Letter of Credit Fees, the
Administrative Agent's Fee and the Closing Fee.
Financial Affiliate. A Subsidiary of the bank holding company controlling
any Lender, which Subsidiary is engaging in any of the activities permitted by
Section 4(e) of the Bank Holding Company Act of 1956 (12 U.S.C. Section 1843).
Fund. Any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its
business.
GAAP or generally accepted accounting principles. (a) When used in Section
12 (or any defined term used therein), or in the definition of Applicable Margin
whether directly or indirectly through reference to a capitalized term used
therein, means (i) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(ii) to the extent consistent with such principles, the accounting practice of
Holdings and its Subsidiaries reflected in its financial statements for the year
ended on the Balance Sheet Date, and (b) when used in general, other than as
provided above, means principles that are (i) consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, as in effect from time to time, and (ii) consistently applied with
past financial statements of Holdings adopting the same principles (except where
otherwise required by such principles), provided that in each case referred to
in this definition of "GAAP" a certified public accountant would, insofar as the
use of such accounting principles is pertinent, be in a position to deliver an
unqualified opinion (other than a qualification regarding changes in GAAP) as to
financial statements in which such principles have been properly applied.
Governing Documents. With respect to any Person, its certificate or
articles of incorporation, certificate of formation, or, as the case may be,
certificate of limited partnership, its by-laws, operating agreement or, as the
case may be, partnership agreement or other constitutive documents and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of its Capital Stock.
Governmental Authority. Any foreign, federal, state, regional, local,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by either Borrower
or any ERISA Affiliate the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
Hazardous Substances. See Section 9.18(b).
-11-
Hedging Agreement. The Existing Swap and any other interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate futures contract, interest rate option agreement, interest rate exchange
agreement, forward currency exchange agreement, forward rate currency agreement
or other similar agreement or arrangement to which the Borrowers or any of their
Subsidiaries and the Administrative Agent (or any Affiliate of the
Administrative Agent) is a party, designed to protect the Borrowers or any of
their Subsidiaries against fluctuations in interest rates, exchange rates or
forward rates.
Holdings. As defined in the preamble hereto.
Indebtedness As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed,
(b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses,
(c) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person,
(d) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business),
(e) every principal component of any Capitalized Lease of such
Person,
(f) every obligation of such Person under any Synthetic Lease,
(g) all sales by such Person of (i) accounts or general intangibles
for money due or to become due, (ii) chattel paper, instruments or
documents creating or evidencing a right to payment of money or (iii)
other receivables (collectively "receivables"), whether pursuant to a
purchase facility or otherwise, other than in connection with the
disposition of the business operations of such Person relating thereto or
a disposition of defaulted receivables for collection and not as a
financing arrangement, and together with any obligation of such Person to
pay any discount, interest, fees, indemnities, penalties, recourse,
expenses or other amounts in connection therewith,
(h) every obligation of such Person (an "equity related purchase
obligation") to purchase, redeem, retire or otherwise acquire for value
any shares of Capital Stock issued by such Person or any rights measured
by the value of such Capital Stock,
(i) every obligation of such Person under any forward contract,
futures contract, swap, option or other financing agreement or arrangement
(including, without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon interest rates, currency
exchange rates, commodities or other indices (a "derivative contract"),
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(j) every obligation in respect of Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to
the extent that such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent that the terms of such Indebtedness provide that such
Person is not liable therefor and such terms are enforceable under
applicable law,
(k) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of clauses
(a) through (j) (the "primary obligation") of another Person (the "primary
obligor"), in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase of) any security for the
payment of such primary obligation, (ii) to purchase property, securities
or services for the purpose of assuring the payment of such primary
obligation, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (t) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with GAAP, (u) any
Capitalized Lease shall be the principal component of the aggregate of the
rentals obligation under such Capitalized Lease payable over the term thereof
that is not subject to termination by the lessee, (v) any sale of receivables
shall be the amount of unrecovered capital or principal investment of the
purchaser (other than the Borrowers or any of their wholly-owned Subsidiaries)
thereof, excluding amounts representative of yield or interest earned on such
investment, (w) any Synthetic Lease shall be the stipulated loss value,
termination value or other equivalent amount, (x) any derivative contract shall
be the maximum amount of any termination or loss payment required to be paid by
such Person if such derivative contract were, at the time of determination, to
be terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred, (y) any equity related purchase obligation shall be the
maximum fixed redemption or purchase price thereof inclusive of any accrued and
unpaid dividends to be comprised in such redemption or purchase price and (z)
any guaranty or other contingent liability referred to in clause (k) shall be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such guaranty or other contingent obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
Indebtedness Issuance. The issuance of any notes or other debt securities
or the incurrence of any Indebtedness by either Borrower or any of its
Subsidiaries.
Ineligible Securities. Securities which may not be underwritten or dealt
in by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of the
calendar month with respect to interest accrued during such calendar month,
including, without limitation, the calendar month which includes the Drawdown
Date of such Base Rate Loan; and (b) as to any LIBOR Rate Loan in respect of
which the Interest Period is (i) 3 months or less, the last day of
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such Interest Period and (ii) more than 3 months, the date that is 3 months from
the first day of such Interest Period and, in addition, the last day of such
Interest Period.
Interest Period. With respect to each Revolving Credit Loan, each
Acquisition Loan or all or any relevant portion of the Term Loan, (a) initially,
the period commencing on the Drawdown Date of such Loan and ending on the last
day of one of the periods set forth below, as selected by the Borrowers in a
Loan Request or as otherwise required by the terms of this Credit Agreement: (i)
for any Base Rate Loan, the last day of the calendar month; and (ii) for any
LIBOR Rate Loan, 1, 2 or 3 months; and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such Revolving
Credit Loan, such Acquisition Loan or all or such portion of the Term Loan and
ending on the last day of one of the periods set forth above, as selected by the
Borrowers in a Conversion Request; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a LIBOR Rate
Loan would otherwise end on a day that is not a LIBOR Business
Day, that Interest Period shall be extended to the next
succeeding LIBOR Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end
on the immediately preceding LIBOR Business Day;
(B) if any Interest Period with respect to a Base Rate
Loan would end on a day that is not a Business Day, that
Interest Period shall end on the next succeeding Business Day;
(C) if the Borrowers shall fail to give notice as
provided in Section 2.7, Section 4.7.3 or Section 5.5.2, the
Borrowers shall be deemed to have requested a conversion of
the affected LIBOR Rate Loan to a Base Rate Loan and the
continuance of all Base Rate Loans as Base Rate Loans on the
last day of the then current Interest Period with respect
thereto;
(D) any Interest Period relating to any LIBOR Rate Loan
that begins on the last LIBOR Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last LIBOR Business Day of a calendar month;
and
(E) any Interest Period that would otherwise extend
beyond the Revolving Credit Loan Maturity Date (if comprising
a Revolving Credit Loan), the Acquisition Loan Maturity Date
(if comprising an Acquisition Loan) or the Term Loan Maturity
Date (if comprising the Term Loan or a portion thereof) shall
end on the Revolving Credit Loan Maturity Date, the
Acquisition Loan Maturity Date or the Term Loan Maturity Date
(as the case may be).
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (a) the amount of any
Investment
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represented by a guaranty shall be taken at not less than the principal amount
of the obligations guaranteed and still outstanding; (b) there shall be included
as an Investment all interest accrued with respect to Indebtedness constituting
an Investment unless and until such interest is paid; (c) there shall be
deducted in respect of each such Investment any amount received as a return of
capital (but only by repurchase, redemption, retirement, repayment, liquidating
dividend or liquidating distribution); (d) there shall not be deducted in
respect of any Investment any amounts received as earnings on such Investment,
whether as dividends, interest or otherwise, except that accrued interest
included as provided in the foregoing clause (b) may be deducted when paid; and
(e) there shall not be deducted from the aggregate amount of Investments any
decrease in the value thereof.
Lender Affiliate. With respect to any Lender, (a) an Affiliate of such
Lender or (b) any Approved Fund.
Lenders. Bank of America and the other lending institutions listed on
Schedule 1 hereto and any other Person who becomes an assignee of any rights and
obligations of a Lender pursuant to Section 17.
Letter of Credit. See Section 6.1.1.
Letter of Credit Application. See Section 6.1.1.
Letter of Credit Fee. See Section 6.6.
Letter of Credit Participation. See Section 6.1.4.
LIBOR Business Day. Any day other than a Saturday, Sunday or a day on
which banking institutions are not authorized to transact international banking
business (including dealings in Dollar deposits) in London or such other
eurodollar interbank market as may be selected by the Administrative Agent in
its sole discretion acting in good faith.
LIBOR Lending Office. Initially, the office of each Lender designated as
such in Schedule 1 hereto; thereafter, such other office of such Lender, if any,
that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan, the
rate of interest equal to (a) the rate determined by the Administrative Agent at
which Dollar deposits for such Interest Period are offered based on information
presented on Page 3750 of the Dow Xxxxx Market Service (formerly known as the
Telerate Service) as of 11:00 a.m. London time on the second LIBOR Business Day
prior to the first day of such Interest Period, divided by (b) a number equal to
1.00 minus the Eurocurrency Reserve Rate. If the rate described above does not
appear on the Dow Xxxxx Market Service on any applicable interest determination
date, the LIBOR Rate shall be the rate (rounded upward, if necessary, to the
nearest one hundred-thousandth of a percentage point), determined on the basis
of the offered rates for deposits in Dollars for a period of time comparable to
such LIBOR Rate Loan which are offered by four major banks in the London
interbank market at approximately 11:00 a.m. London time, on the second LIBOR
Business Day prior to the first day of such Interest Period as selected by the
Administrative Agent. The principal London office of four major London banks
will be requested to provide a quotation of its 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
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two quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in 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 City time,
on the second LIBOR Business Day prior to 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 considered that LIBOR Rate pursuant to a
LIBOR Rate Loan cannot be determined.
LIBOR Rate Loans. Revolving Credit Loans, Acquisition Loans and all or any
portion of the Term Loan bearing interest calculated by reference to the LIBOR
Rate.
Lien. Any mortgage, deed of trust, security interest, pledge,
hypothecation, assignment, attachment, deposit arrangement, encumbrance, lien
(statutory, judgment or otherwise), or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any Capitalized Lease, any Synthetic Lease, any
financing lease involving substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC or comparable
law of any jurisdiction).
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, the Existing Letters of Credit, the Hedging
Agreements, the Subordination Agreements and the Security Documents.
Loan Request. See Section 2.6.
Loans. Collectively, the Revolving Credit Loans, the Acquisition Loans and
the Term Loan.
Material Adverse Effect. With respect to any event or occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration or governmental investigation or proceeding):
(a) a material adverse effect on the business, properties,
prospects, condition (financial or otherwise), assets, operations or
income of either Borrower, individually or the Borrowers and their
Subsidiaries, taken as a whole;
(b) an adverse effect on the ability of either Borrower or any of
its Subsidiaries, individually and taken as a whole, to perform any of
their respective Obligations under any of the Loan Documents to which it
is a party; or
(c) any impairment of the validity, binding effect or enforceability
of this Credit Agreement or any of the other Loan Documents, any
impairment of the rights, remedies or benefits available to the
Administrative Agent or any Lender under any Loan Document or any
impairment of the attachment, perfection or priority of any Lien of the
Administrative Agent under the Security Documents.
In determining whether any individual event could have or result in a Material
Adverse Effect, notwithstanding that such event does not of itself have such
effect, a Material Adverse Effect shall be deemed to have occurred if the
cumulative effect of such event and all other then existing events could have or
result in a Material Adverse Effect.
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Material Agreement. Collectively, (a) (i) that certain Amended and
Restated Spring Water License and Supply Agreement (the "Pristine Supply
Agreement"), dated as of April 13, 1999, between Pristine Mountain Springs of
Vermont, Inc. a Vermont corporation ("Pristine"), and AmSource LLC, a New
Hampshire limited liability company ("AmSource"), (ii) that certain Addendum to
Amended and Restated Spring Water License and Supply Agreement and
Acknowledgement, dated as of December 15, 1999, by and among Holdings, Pristine,
AmSource, Barton Lord and Xxxxxx Xxxxxx, and (iii) that certain Settlement
Agreement, dated December 1, 1999, among Holdings, Pristine, AmSource, Barton
Lord and Xxxxxx Xxxxxx, relating to the Pristine Supply Agreement, (b) that
certain Contract, dated January 6, 2003, by and between Crystal Rock (as
successor in interest to Holdings, successor by merger to Vermont Pure Springs,
Inc.) and the Town of Bennington and (c) that certain Lease of Water Rights,
dated as of November 6, 1997, by and among Crystal Rock (as successor in
interest to Holdings, successor by warranty xxxx of sale to the rights of
Sagamon Spring Water of Vermont, Inc.), Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit and the
Existing Letters of Credit, as such aggregate amount may be reduced from time to
time pursuant to the terms of the Letters of Credit and the Existing Letters of
Credit.
Minimum One Month LIBOR Amount. As of any date, an amount equal to
seventy-five percent (75%) of the principal amount of the Term Loan outstanding
on such date.
Xxxxx'x. Xxxxx'x Investors Services, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by either Borrower or any ERISA
Affiliate.
Net Cash Equity Issuance Proceeds. With respect to any Equity Issuance by
any Person, the excess of the gross cash proceeds received by such Person for
such Equity Issuance after deduction of all reasonable and customary transaction
expenses (including, without limitation, underwriting discounts and commissions)
actually incurred in connection with such Equity Issuance.
Net Cash Indebtedness Issuance Proceeds. With respect to any Indebtedness
Issuance, the excess of the gross cash proceeds received by such Person for such
Indebtedness Issuance after deduction of all reasonable and customary
transaction expenses actually incurred in connection with such Indebtedness
Issuance.
Net Cash Sale Proceeds. The net cash proceeds received by a Person in
respect of any Asset Sale, less the sum of (a) all reasonable out-of-pocket
fees, commissions and other reasonable and customary direct expenses (including,
without limitation, counsel fees) actually incurred in connection with such
Asset Sale, including the amount of any transfer or documentary taxes required
to be paid by such Person in connection with such Asset Sale, and (b) the
aggregate amount of cash so received by such Person which is required to be used
to retire (in whole or in part) any Indebtedness (other than under the Loan
Documents) of such Person permitted by this Credit Agreement that was secured by
a lien or security interest permitted by this Credit Agreement having priority
over the liens and security interests (if any) of the Administrative Agent (for
the benefit of the Administrative Agent and the Lenders) with respect to such
assets transferred and which is required to be repaid in whole or in part (which
repayment,
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in the case of any other revolving credit arrangement or multiple advance
arrangement, reduces the commitment thereunder) in connection with such Asset
Sale.
Notes. The Term Notes, the Acquisition Loan Notes and the Revolving Credit
Notes.
Obligations. All indebtedness, obligations and liabilities of any of the
Borrowers and their Subsidiaries to any of the Lenders and the Administrative
Agent, individually or collectively, existing on the date of this Credit
Agreement or arising thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan Documents or any
Hedging Agreement or in respect of any of the Loans made or Reimbursement
Obligations incurred or any of the Notes, Letter of Credit Applications, Letters
of Credit, the Existing Letters of Credit or other instruments at any time
evidencing any thereof.
Operating Account. See Section 2.6.2.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
Participant. See Section 17.4.
Payment Schedule Election Notice. See Section 4.8.1.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
Perfection Certificates. The Perfection Certificates as defined in the
Security Agreement.
Permitted Acquisition. The acquisition of any Person, business, division,
or specified group of assets by either Borrower or any of its Subsidiaries,
provided that each of the following conditions is met with respect to any such
acquisition:
(a) immediately prior to and after giving effect to such
acquisition, no Default or Event of Default shall then exist, and the
Borrowers shall have delivered to the Administrative Agent a statement
certified by the principal financial or accounting officer of the
Borrowers to the effect that immediately prior to and after giving effect
to such acquisition, (x) no Default or Event of Default exists and
attaching, in reasonable detail, computations evidencing on a Pro Forma
Basis compliance (on a consolidated basis) with the covenants contained in
Section 12 as of the end of the most recently completed fiscal quarter,
immediately prior to and after giving effect to such acquisition, and (y)
for the twelve (12) month period immediately following such acquisition,
each of which shall be acceptable to the Administrative Agent in its sole
but reasonable discretion;
(b) the aggregate consideration (including, without limitation,
assumption of Indebtedness (including, without limitation, any
Subordinated Debt) and any earn-out and/or non-compete payments) paid or
to be paid by either Borrower or any of its Subsidiaries in connection
with such acquisitions after Closing Date, as to any individual
acquisition or group of related (through common ownership) acquisitions,
shall not, without the prior written consent of the Administrative Agent,
exceed $4,000,000.
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(c) the consideration for such acquisition shall not include the
assumption of Indebtedness by either Borrower or any of its Subsidiaries,
other than Indebtedness (i) in existence prior to the date of such
acquisition, (ii) which was not incurred in connection with or in
contemplation of, such acquisition, (iii) which is permitted pursuant to
Section 11.1(c) or Section 11.1(d) and (iv) which is otherwise on terms
and conditions satisfactory to the Administrative Agent;
(d) such acquisition shall have been approved by the board of
directors (or other managing board) and, if required, shareholders or
members (as the case may be) of the Person so acquired;
(e) the aggregate amount of Acquisition Loans made to either
Borrower in respect of any such acquisition shall not exceed the lower of
(i) seventy-five percent (75%) of the aggregate consideration payable at
the closing of such acquisition (including any permitted assumed
Indebtedness) and (ii) the actual cash consideration to be paid at the
closing by either Borrower or any of its Subsidiaries in connection with
such acquisition;
(f) not less than ten (10) Business Days prior to the closing of
such acquisition, the Borrowers shall notify the Administrative Agent of
the terms thereof and shall provide to the Administrative Agent such
information and documents as may be deemed by the Administrative Agent to
be necessary in order for the Administrative Agent to determine if the
acquisition is a Permitted Acquisition;
(g) no more than three (3) of such acquisitions shall be consummated
in any twelve (12) month period; and
(h) either (i) such acquisition is the acquisition of assets only
(for use in the same line of business as (or a line of business
substantially similar to) the line of business of the Borrowers and their
Subsidiaries and in which assets the Administrative Agent shall
concurrently with the closing of the acquisition be granted, for the
benefit of the Lenders and the Administrative Agent, a perfected, first
priority security interest (subject only to Permitted Liens) or (ii) such
acquisition involves the purchase of the Capital Stock of a Person and
each of the following conditions is met:
(A) such acquisition is the acquisition of one hundred
percent (100%) of each of the Capital Stock and Voting Stock
of such Person, and the structure of such acquisition is
acceptable to the Administrative Agent and;
(B) such Person is in the same line of business (or a
substantially similar line of business) as the Borrowers and
their Subsidiaries, and
(C) contemporaneously with the occurrence of such
acquisition, the Borrowers shall (I) cause such Person to
guaranty all of the Obligations hereunder pursuant to a
guaranty in form and substance reasonably satisfactory to the
Administrative Agent, which such guaranty shall be a Security
Document hereunder, (II) cause such Person to take all steps
as may be necessary or advisable in the reasonable opinion of
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the Administrative Agent to grant to the Administrative Agent,
for the benefit of the Lenders and the Administrative Agent, a
first priority, perfected security interest in all of its
assets (except that there may exist liens thereon permitted by
Section 11.2 hereof and there may exist a prior lien on those
assets which secure Indebtedness assumed by the Borrowers or
any of their Subsidiaries in connection with such Permitted
Acquisition, to the extent permitted under Section 11.1
hereof) as collateral security for such guaranty, pursuant to
security documents, mortgages, pledges and other documents in
form and substance reasonably satisfactory to the
Administrative Agent, each of which documents shall be
Security Documents hereunder, and (III) cause such Person to
deliver to the Lenders and the Administrative Agent (aa)
evidence of proper corporate authorization and (bb) if
required by the Administrative Agent, legal opinions with
respect to each of the matters and documents set forth in this
clause (C), in each case, in form and substance reasonably
satisfactory to the Administrative Agent.
Permitted Liens. Liens permitted by Section 11.2.
Person. Any individual, corporation, limited liability company,
partnership, limited liability partnership, trust, other unincorporated
association, business, or other legal entity, and any Governmental Authority.
Pledge Agreement. The Pledge Agreement, dated or to be dated on or prior
to the Closing Date, between Holdings and the Administrative Agent and in form
and substance satisfactory to the Lenders and the Administrative Agent.
Pro Forma Basis. In connection with any Permitted Acquisition or proposed
Permitted Acquisition, (a) the calculation of the financial covenants set forth
in Section 12 hereof by the Borrowers and their Subsidiaries (including the
Person or assets to be acquired) with reference to the audited historical
financial results of such Person, if available, and if not so available, then
with reference to such management certified financial results of such Person
(or, if an acquisition of assets, the financial results attributable to such
assets) as shall be acceptable to the Administrative Agent, in its sole but
reasonable discretion, for the applicable period ending immediately prior to the
date of such acquisition, after giving effect on a pro forma basis to such
Permitted Acquisition in the manner described below, and (b) as at the end of
each of the three fiscal quarters of the Borrowers immediately following such
Permitted Acquisition, the calculation of compliance with the financial
covenants set forth in Section 12 hereof by the Borrowers and their Subsidiaries
(including the Person or assets(s) to be acquired) with reference to the audited
historical financial results of such Person, if available, and if not so
available, such management certified financial results of such Person (or, if an
acquisition of assets, the financial results attributable to such assets) as
shall be acceptable to the Administrative Agent, in its sole but reasonable
discretion:
(i) all Indebtedness (whether under this Credit Agreement or
otherwise) and any other balance sheet adjustments incurred or made
in connection with the Permitted Acquisition shall be deemed to have
been incurred or made on the first day of the Test Period (or, with
respect to the determination as to whether an acquisition is a
Permitted Acquisition at the beginning of the applicable Reference
Period), and all Indebtedness of the Person acquired or to be
acquired in such Permitted Acquisition which was or will have been
repaid in
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connection with the consummation of the Permitted Acquisition shall
be deemed to have been repaid concurrently with the deemed
incurrence of the Indebtedness incurred in connection with the
Permitted Acquisition;
(ii) all Indebtedness assumed to have been incurred pursuant
to the preceding clause (i) shall be deemed to have borne interest
at the arithmetic mean of (x) the LIBOR Rate for LIBOR Rate Loans
having an Interest Period of one month in effect on the first day of
the Test Period plus two and one-quarter of one percent (2.25%) and
(y) the LIBOR Rate for LIBOR Rate Loans having an Interest Period of
one month in effect on the last day of the Test Period plus two and
one-quarter of one percent (2.25%) (after giving effect to the
Permitted Acquisition on a Pro Forma Basis); and
(iii) all adjustments resulting from due diligence and removal
of "owner's costs", as documented and utilized in the financial
analysis prepared by the Borrowers and all costs and adjustments
relating to the inclusion of the acquired Person within the
consolidated financial statements and tax returns of the Borrowers
(including, but not limited to, income taxes, management fees,
insurance and benefit costs, and professional service fees), all as
shall be acceptable to the Administrative Agent, in its sole, but
reasonable discretion. In no event shall these adjustments exceed
20% of the acquired Person's Consolidated EBITDA for the most
recently ended Reference Period.
RCRA. See Section 9.18(a).
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by either Borrower or any of its Subsidiaries.
Record. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Lender
with respect to any Loan referred to in such Note.
Reference Period. As of any date of determination, the period of four (4)
consecutive fiscal quarters of the Borrowers and their Subsidiaries ending on
such date, or if such date is not a fiscal quarter end date, the period of four
(4) consecutive fiscal quarters most recently ended (in each case treated as a
single accounting period).
Register. See Section 17.3.
Reimbursement Obligation. The Borrowers' joint and several obligation to
reimburse the Administrative Agent and the Lenders on account of any drawing
under any Letter of Credit or any Existing Letter of Credit as provided in
Section 6.2.
Related Parties. With respect to any specified Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
Required Lenders. As of any date, the Lender or Lenders holding at least a
majority of the outstanding principal amount of the Notes on such date; and if
no such principal is outstanding, the Lender whose aggregate Commitments
constitutes at least a majority of the Total
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Commitment; provided that if there are two or less Lenders party to this Credit
Agreement, then Required Lenders shall mean all Lenders party to this Credit
Agreement.
Restricted Payment. In relation to the Borrowers and their Subsidiaries,
any (a) Distribution, (b) payment or prepayment whether in cash, securities or
other property by a Borrower or its Subsidiaries to such Borrower's or any
Subsidiary's shareholders (or other equity holders), in each case, other than
(u) to a Borrower, (v) to any Subsidiary of a Borrower, (w) payments or
prepayments by a Subsidiary to either Borrower or another wholly-owned
Subsidiary of a Borrower or by Crystal Rock to Holdings, (x) lease payments
permitted under Section 11.12, (y) employment compensation payments made under
the Senior Management Employment Agreements or to other employees who are
shareholders of Holdings for services rendered, (z) any payment to any Seller
Subordinated Debt Holder permitted pursuant to Section 11.8 hereof or (aa)
payments made to shareholders other than the Bakers for services rendered or
products sold as permitted by Section 11.12 (assuming, for purposes hereof, that
any such shareholder is an Affiliate) or (c) derivatives or other transactions
with any financial institution, commodities or stock exchange or clearinghouse
(a "Derivatives Counterparty") obligating a Borrower or any Subsidiary to make
payments to such Derivatives Counterparty as a result of any change in market
value of any Capital Stock of such Borrower or such Subsidiary.
Revolving Credit Commitment Fee. See Section 2.2.
Revolving Credit Loan Maturity Date. April 5, 2008.
Revolving Credit Loans. Revolving credit loans made or to be made by the
Lenders to the Borrowers pursuant to Section 2.
Revolving Credit Note Record. A Record with respect to a Revolving Credit
Note.
Revolving Credit Notes. See Section 2.4.
XXXX. See Section 9.18(a).
Section 4.8.1 Acquisition Loan. See Section 4.8.1.
Security Agreement. The Security Agreement, dated or to be dated on or
prior to the Closing Date, between the Borrowers and the Administrative Agent
and in form and substance satisfactory to the Lenders and the Administrative
Agent.
Security Documents. The Security Agreement, the Collateral Assignment of
Leases, the Trademark Assignment, the Pledge Agreement and all other instruments
and documents, including without limitation Uniform Commercial Code financing
statements, required to be executed or delivered pursuant to any Security
Document.
Seller Subordinated Debt. Collectively, the Indebtedness of Holdings in
the aggregate principal amount outstanding on the Closing Date of $14,000,000 as
evidenced by the Seller Subordinated Notes.
Seller Subordinated Debt Holders. Collectively, Xxxxx X. Xxxxx, Xxxx X.
Xxxxx, Xxxx X. Xxxxx and Xxxxx X. Xxxxx.
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Seller Subordinated Notes. Collectively, the Second Amended and Restated
Subordinated Promissory Notes, each dated April 5, 2005 in the aggregate
principal amount of $14,000,000 executed and delivered by Holdings in favor of
the respective Seller Subordinated Debt Holders.
Senior Funded Debt. At any time of determination, the sum of Consolidated
Total Funded Debt minus Subordinated Debt.
Senior Leverage Ratio. At any date of determination, the ratio of (a)
Senior Funded Debt outstanding on such date to (b) Consolidated EBITDA of
Holdings and its Subsidiaries for the Reference Period ending on such date.
Senior Management. Collectively, Xxxxxxx X. Xxxxxx, Xxxxx X. XxxXxxxxx,
Xxxx Xxxxx and Xxxxx Xxxxx and any other person who may from time to time
perform for Holdings or any of its Subsidiaries management services of the kind
performed as of the Closing Date by any of the foregoing.
Senior Management Employment Agreements. Collectively, the employment
agreements between Holdings and each of the members of Senior Management.
Settlement. The making or receiving of payments, in immediately available
funds, by the Lenders, to the extent necessary to cause each Lender's actual
share of the outstanding amount of Revolving Credit Loans (after giving effect
to any Loan Request) to be equal to such Lender's Commitment Percentage of the
outstanding amount of such Revolving Credit Loans (after giving effect to any
Loan Request), in any case where, prior to such event or action, the actual
share is not so equal.
Settlement Amount. See Section 2.9.1.
Settlement Date. (a) The Drawdown Date relating to any Loan Request, (b)
Friday of each week, or if a Friday is not a Business Day, the Business Day
immediately following such Friday, (c) at the option of the Administrative
Agent, on any Business Day following a day on which the account officers of the
Administrative Agent active upon the Borrowers' account become aware of the
existence of an Event of Default, (d) any Business Day on which the amount of
Revolving Credit Loans outstanding from the Swing Line Lender plus the Swing
Line Lender's Commitment Percentage of the sum of the Maximum Drawing Amount and
any Unpaid Reimbursement Obligations is equal to or greater than the Swing Line
Lender's Commitment Percentage of the Total Revolving Credit Commitment, (e) the
Business Day immediately following any Business Day on which the amount of
Revolving Credit Loans outstanding increases or decreases by more than $250,000
as compared to the previous Settlement Date, (f) any day on which any conversion
of a Base Rate Loan to a LIBOR Rate Loan occurs, or (g) any Business Day on
which (i) the amount of outstanding Revolving Credit Loans decreases and (ii)
the amount of the Administrative Agent's Revolving Credit Loans outstanding
equals zero Dollars ($0).
Settling Lender. See Section 2.9.1.
S&P. Standard & Poor's Ratings Group.
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Subordinated Debt. Collectively, (a) the Seller Subordinated Debt and (b)
other Indebtedness of the Borrowers or any of their Subsidiaries that is
unsecured and is expressly subordinated and made junior to the payment and
performance in full of the Obligations, and evidenced as such by a written
instrument containing subordination provisions in form and substance approved by
the Required Lenders in writing.
Subordination Agreements. Collectively, (a) the Subordination and Pledge
Agreements, each dated or to be dated on or prior to the Closing Date, among the
Administrative Agent, the Lenders, the Seller Subordinated Debt Holders and Xxxx
X. Xxxxxxxx, not individually, but as Trustee of the Xxxxx Xxxxx Life Insurance
Trust u/t/a dated July 7, 1992, the Xxxx Xxxxx Insurance Trust u/t/a dated July
7, 1992 and the Xxxx Xxxxx and Xxxxx Xxxxx Irrevocable Trust u/t/a dated
December 16, 1991, as agent (the "Subordinated Agent"), each in form and
substance satisfactory to the Lenders and the Administrative Agent and (b) the
Amended and Restated Security Agreement, dated or to be dated on or prior to the
Closing Date, among Holdings, the Seller Subordinated Debt Holders and the
Subordinated Agent.
Subordination Documents. Collectively, the Subordination Agreements and
the Seller Subordinated Notes.
Subsidiary. Any corporation, limited liability company, partnership,
association, trust, or other business entity of which the designated parent
shall at any time own directly or indirectly through a Subsidiary or
Subsidiaries at least a majority (by number of votes) of the outstanding Voting
Stock.
Swing Line Lender. Bank of America, or any other Lender designated by the
Administrative Agent as the Swing Line Lender which has accepted such
designation.
Swing Line Sublimit. An amount equal to the lesser of (a) $1,000,000 and
(b) the Total Revolving Credit Commitment. The Swing Line Sublimit is part of,
and not in addition to, the Total Revolving Credit Commitment.
Synthetic Lease. Any lease of goods or other property, whether real or
personal, which is treated as an operating lease under GAAP and as a loan or
financing for U.S. income tax purposes.
Term Loan. The term loan made or to be made by the Lenders to the
Borrowers on the Closing Date in the aggregate principal amount of $28,000,000
pursuant to Section 5.1.
Term Loan Maturity Date. April 5, 2012.
Term Notes. See Section 5.2.
Term Note Record. A Record with respect to a Term Note.
Test Period. In connection with the calculation of the financial covenants
set forth in Section 12 hereof following any Permitted Acquisition, the period
of all fiscal quarters (and any portion of a fiscal quarter) prior to the date
of such Permitted Acquisition included in the calculation of such financial
covenant (or any component thereof).
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Total Acquisition Loan Commitment. The sum of the Commitments of the
Lenders in respect of Acquisition Loans minus the aggregate amounts of the
Acquisition Loans converted into term loans pursuant to Section 4.8.1, as in
effect from time to time.
Total Commitment. The sum of the Total Acquisition Loan Commitments and
Total Revolving Credit Commitments of the Lenders, as in effect from time to
time.
Total Revolving Credit Commitment. The sum of the Commitments of the
Lenders in respect of Revolving Credit Loans, as in effect from time to time.
Trademark Assignment. The Trademark Collateral Security and Pledge
Agreement, dated or to be dated on or prior to the Closing Date, made by Crystal
Rock in favor of the Administrative Agent and the Assignment of Trademarks and
Service Marks executed in connection therewith, all in form and substance
satisfactory to the Lenders and the Administrative Agent.
Tranche Ending Date. See Section 4.8.1.
Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
the Borrowers do not reimburse the Administrative Agent and the Lenders on the
date specified in, and in accordance with, Section 6.2.
Voting Stock. Stock or other equity interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, limited liability company,
partnership, association, trust or other business entity involved, whether or
not the right so to vote exists by reason of the happening of a contingency.
Xxxxxxx Loan. See Section 9.13.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
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(g) All terms not specifically defined herein or by GAAP, which
terms are defined in the Uniform Commercial Code as in effect in the State
of New York, have the meanings assigned to them therein, with the term
"instrument" being that defined under Article 9 of the Uniform Commercial
Code.
(h) Reference to a particular "Section" refers to that section of
this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including," the words "to" and "until" each mean
"to but excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the same
or similar matters. All such limitations, tests and measurements are,
however, cumulative and are to be performed in accordance with the terms
thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to, among
others, the Administrative Agent and the Borrowers and are the product of
discussions and negotiations among all parties. Accordingly, this Credit
Agreement and the other Loan Documents are not intended to be construed
against the Administrative Agent or any of the Lenders merely on account
of the Administrative Agent's or any Lender's involvement in the
preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Lenders severally agrees to lend to the
Borrowers and each Borrower may borrow, repay, and reborrow from time to time
from the Closing Date up to but not including the Revolving Credit Loan Maturity
Date upon notice by a Borrower to the Administrative Agent given in accordance
with Section 2.6, such sums as are requested by such Borrower up to a maximum
aggregate amount outstanding (after giving effect to all amounts requested) at
any one time equal to such Lender's Commitment minus such Lender's Commitment
Percentage of the sum of the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations, provided that the sum of the outstanding amount of the Revolving
Credit Loans (after giving effect to all amounts requested) plus the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall not at any time
exceed the Total Revolving Credit Commitment at such time. The Revolving Credit
Loans shall be made pro rata in accordance with each Lender's Commitment
Percentage. Each request for a Revolving Credit Loan hereunder shall constitute
a representation and warranty by the Borrowers that the conditions set forth in
Section 13 and Section 14, in the case of the initial Revolving Credit Loans to
be made on the Closing Date, and Section 14, in the case of all other Revolving
Credit Loans, have been satisfied on the date of such request.
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2.2. REVOLVING CREDIT COMMITMENT FEE. The Borrowers agree to pay to the
Administrative Agent for the accounts of the Lenders in accordance with their
respective Commitment Percentages a commitment fee (the "Revolving Credit
Commitment Fee") calculated at the rate of one-quarter of one percent (0.25%)
per annum on the average daily amount during each calendar quarter or portion
thereof from the date hereof to the Revolving Credit Loan Maturity Date by which
the Total Revolving Credit Commitment minus the sum of the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations exceeds the outstanding amount
of Revolving Credit Loans during such calendar quarter. The Revolving Credit
Commitment Fee shall be payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar quarter commencing on
the first such date following the date hereof, with a final payment on the
Revolving Credit Loan Maturity Date or any earlier date on which the Commitments
in respect of Revolving Credit Loans shall terminate.
2.3. REDUCTION OF TOTAL REVOLVING CREDIT COMMITMENT. The Borrowers shall
have the right at any time and from time to time upon five (5) Business Days
prior written notice to the Administrative Agent to reduce by $250,000 or an
integral multiple thereof or to terminate entirely the Total Revolving Credit
Commitment, whereupon the Commitments of the Lenders in respect of Revolving
Credit Loans shall be reduced pro rata in accordance with their respective
Commitment Percentages of the amount specified in such notice or, as the case
may be, terminated. Promptly after receiving any notice of the Borrowers
delivered pursuant to this Section 2.3, the Administrative Agent will notify the
Lenders of the substance thereof. Upon the effective date of any such reduction
or termination, the Borrowers shall pay to the Administrative Agent for the
respective accounts of the Lenders the full amount of any Revolving Credit
Commitment Fee then accrued on the amount of the reduction. No reduction or
termination of the Commitments in respect of Revolving Credit Loans may be
reinstated. In addition, the Total Revolving Credit Commitment shall be reduced
in accordance with Section 5.3.4.
2.4. THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrowers in substantially the
form of Exhibit A hereto (each a "Revolving Credit Note"), dated as of the
Closing Date (or such other date on which a Lender may become a party hereto in
accordance with Section 17 hereof) and completed with appropriate insertions.
One Revolving Credit Note shall be payable to the order of each Lender in a
principal amount equal to such Lender's Commitment in respect of Revolving
Credit Loans or, if less, the outstanding amount of all Revolving Credit Loans
made by such Lender, plus interest accrued thereon, as set forth below. The
Borrowers irrevocably authorize each Lender to make or cause to be made, at or
about the time of the Drawdown Date of any Revolving Credit Loan or at the time
of receipt of any payment of principal on such Lender's Revolving Credit Note,
an appropriate notation on such Lender's Revolving Credit Note Record reflecting
the making of such Revolving Credit Loan or (as the case may be) the receipt of
such payment. The outstanding amount of the Revolving Credit Loans set forth on
such Lender's Revolving Credit Note Record shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Lender, but the failure to
record, or any error in so recording, any such amount on such Lender's Revolving
Credit Note Record shall not limit or otherwise affect the joint and several
obligations of the Borrowers hereunder or under any Revolving Credit Note to
make payments of principal of or interest on any Revolving Credit Note when due.
2.5. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided in
Section 7.11:
(a) Each Revolving Credit Loan which is a Base Rate Loan shall bear
interest for the period commencing with the Drawdown Date thereof and
ending on the
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last day of the Interest Period with respect thereto at the rate per annum
equal to the Base Rate plus the Applicable Margin with respect to Base
Rate Loans as in effect from time to time.
(b) Each Revolving Credit Loan which is a LIBOR Rate Loan shall bear
interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at the
rate per annum equal to the LIBOR Rate determined for such Interest Period
plus the Applicable Margin with respect to LIBOR Rate Loans as in effect
from time to time.
The Borrowers promise to pay interest on each Revolving Credit Loan in
arrears on each Interest Payment Date with respect thereto.
2.6. REQUESTS FOR REVOLVING CREDIT LOANS.
2.6.1. GENERAL. The Borrowers shall give to the Administrative Agent
written notice in the form of Exhibit B hereto (or telephonic notice
confirmed in a writing in the form of Exhibit B hereto) of each Revolving
Credit Loan requested hereunder (a "Loan Request") (a) no later than 11:00
a.m. (Hartford time) on the proposed Drawdown Date of any Base Rate Loan
and (b) no less than three (3) LIBOR Business Days prior to the proposed
Drawdown Date of any LIBOR Rate Loan. Each such notice shall specify (i)
the principal amount of the Revolving Credit Loan requested, (ii) the
proposed Drawdown Date of such Revolving Credit Loan, (iii) the Interest
Period for such Revolving Credit Loan and (iv) the Type of such Revolving
Credit Loan. Promptly upon receipt of any such notice, the Administrative
Agent shall notify each of the Lenders thereof. Each Loan Request shall be
irrevocable and binding on the Borrowers and shall obligate the Borrowers
to accept the Revolving Credit Loan requested from the Lenders on the
proposed Drawdown Date. Each Loan Request shall be in a minimum aggregate
amount of $100,000 or an integral multiple thereof.
2.6.2. SWING LINE. Notwithstanding the notice and minimum amount
requirements set forth in Section 2.6.1 but otherwise in accordance with
the terms and conditions of this Credit Agreement, the Administrative
Agent may, in its sole discretion and without conferring with the Lenders,
make Revolving Credit Loans to the Borrowers (a) by entry of credits to
the Borrowers' operating account (the "Operating Account") with the
Administrative Agent to cover checks or other charges which the Borrowers
have drawn or made against such account or (b) in an amount as otherwise
requested by a Borrower, in each case up to an aggregate amount
outstanding (after giving effect to all amounts requested) at any one time
not to exceed the Swing Line Sublimit. The Borrowers hereby request and
authorize the Administrative Agent to make from time to time such
Revolving Credit Loans by means of appropriate entries of such credits
sufficient to cover checks and other charges then presented for payment
from the Operating Account or as otherwise so requested. The Borrowers
acknowledge and agree that the making of such Revolving Credit Loans
shall, in each case, be subject in all respects to the provisions of this
Credit Agreement as if they were Revolving Credit Loans covered by a Loan
Request including, without limitation, the limitations set forth in
Section 2.1 and the requirements that the applicable provisions of Section
13 (in the case of Revolving Credit Loans made on the Closing Date) and
Section 14 be satisfied. All actions taken by the Administrative Agent
pursuant to the provisions of this Section 2.6.2 shall be conclusive and
binding on the Borrowers and the Lenders absent the Administrative
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Agent's gross negligence or willful misconduct. Revolving Credit Loans
made pursuant to this Section 2.6.2 shall be Base Rate Loans until
converted in accordance with the provisions of the Credit Agreement and,
prior to a Settlement, such interest shall be for the account of the
Administrative Agent. Each Revolving Credit Loan made by the
Administrative Agent to the Borrowers under this Section 2.6 shall be in a
minimum aggregate amount of $100,000. Each Lender severally agrees that it
shall be absolutely liable, without regard to the occurrence of any
Default or Event of Default or any other condition precedent whatsoever,
to the extent of such Lender's Commitment Percentage of any Revolving
Credit Loan made by the Administrative Agent under this Section 2.6.2.
2.7. CONVERSION OPTIONS.
2.7.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN. The
Borrowers may elect from time to time to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, provided that (a)
with respect to any such conversion of a LIBOR Rate Loan to a Base Rate
Loan, the Borrowers shall give the Administrative Agent at least three (3)
Business Days prior written notice of such election; (b) with respect to
any such conversion of a Base Rate Loan to a LIBOR Rate Loan, the
Borrowers shall give the Administrative Agent at least three (3) LIBOR
Business Days prior written notice of such election; (c) with respect to
any such conversion of a LIBOR Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period with
respect thereto and (d) no Revolving Credit Loan may be converted into a
LIBOR Rate Loan when any Default or Event of Default has occurred and is
continuing. On the date on which such conversion is being made each Lender
shall take such action as is necessary to transfer its Commitment
Percentage of such Revolving Credit Loans to its Domestic Lending Office
or its LIBOR Lending Office, as the case may be. All or any part of
outstanding Revolving Credit Loans of any Type may be converted into a
Revolving Credit Loan of another Type as provided herein, provided that
any partial conversion shall be in an aggregate principal amount of
$250,000 or a whole multiple thereof. Each Conversion Request relating to
the conversion of a Revolving Credit Loan to a LIBOR Rate Loan shall be
irrevocable by the Borrowers.
2.7.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any Revolving
Credit Loan of any Type may be continued as a Revolving Credit Loan of the
same Type upon the expiration of an Interest Period with respect thereto
by compliance by the Borrowers with the notice provisions contained in
Section 2.7.1; provided that no LIBOR Rate Loan may be continued as such
when any Default or Event of Default has occurred and is continuing, but
shall be automatically converted to a Base Rate Loan on the last day of
the first Interest Period relating thereto ending during the continuance
of any Default or Event of Default of which officers of the Administrative
Agent active upon the Borrowers' account have actual knowledge. In the
event that the Borrowers fail to provide any such notice with respect to
the continuation of any LIBOR Rate Loan as such, then such LIBOR Rate Loan
shall be automatically converted to a Base Rate Loan on the last day of
the first Interest Period relating thereto. The Administrative Agent shall
notify the Lenders promptly (and in any event prior to taking effect) when
any such conversion or continuation contemplated by this Section 2.7 is
scheduled to occur.
2.7.3. LIBOR RATE LOANS. Any conversion to or from LIBOR Rate Loans
shall be in such amounts and be made pursuant to such elections so that,
after giving
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effect thereto, the aggregate principal amount of all LIBOR Rate Loans
having the same Interest Period shall not be less than $250,000 or a whole
multiple of $100,000 in excess thereof. No more than four (4) LIBOR Rate
Loans (including Acquisition Loans and any portion of the Term Loan, in
addition to Revolving Credit Loans for the purposes of this section)
having different Interest Periods may be outstanding at any time.
2.8. FUNDS FOR REVOLVING CREDIT LOANS.
2.8.1. FUNDING PROCEDURES. Not later than the later of (a) 11:00
a.m. (Hartford time) on the proposed Drawdown Date of any Revolving Credit
Loans or (b) one hour after receipt by the Lenders of the required
notification from the Administrative Agent, each of the Lenders will make
available to the Administrative Agent, at the Administrative Agent's
Office, in immediately available funds, the amount of such Lender's
Commitment Percentage of the amount of the requested Revolving Credit
Loans. Upon receipt from each Lender of such amount, and upon receipt of
the documents required by Sections 13 and 14 and the satisfaction
of the other conditions set forth therein, to the extent applicable, the
Administrative Agent will make available to the Borrowers the aggregate
amount of such Revolving Credit Loans made available to the Administrative
Agent by the Lenders. The failure or refusal of any Lender to make
available to the Administrative Agent at the aforesaid time and place on
any Drawdown Date the amount of its Commitment Percentage of the requested
Revolving Credit Loans shall not relieve any other Lender from its several
obligation hereunder to make available to the Administrative Agent the
amount of such other Lender's Commitment Percentage of any requested
Revolving Credit Loans.
2.8.2. ADVANCES OF REVOLVING CREDIT LOANS BY ADMINISTRATIVE AGENT.
The Administrative Agent may, unless notified to the contrary by any
Lender prior to a Drawdown Date, assume that such Lender has made
available to the Administrative Agent on such Drawdown Date the amount of
such Lender's Commitment Percentage of the Revolving Credit Loans to be
made on such Drawdown Date, and the Administrative Agent may (but it shall
not be required to), in reliance upon such assumption, make available to
the Borrowers a corresponding amount. If any Lender makes available to the
Administrative Agent such amount on a date after such Drawdown Date and
the Administrative Agent shall have made such amount available to
Borrowers, such Lender shall pay to the Administrative Agent on demand an
amount equal to the product of (a) the average computed for the period
referred to in clause (c) below, of the weighted average interest rate
paid by the Administrative Agent for federal funds acquired by the
Administrative Agent during each day included in such period, times (b)
the amount of such Lender's Commitment Percentage of such Revolving Credit
Loans, times (c) a fraction, the numerator of which is the number of days
that elapse from and including such Drawdown Date or such later date that
the Administrative Agent shall have made such amount available to
Borrowers to the date on which the amount of such Lender's Commitment
Percentage of such Revolving Credit Loans shall become immediately
available to the Administrative Agent, and the denominator of which is
360. A statement of the Administrative Agent submitted to such Lender with
respect to any amounts owing under this paragraph shall be prima facie
evidence of the amount due and owing to the Administrative Agent by such
Lender. If the amount of such Lender's Commitment Percentage of such
Revolving Credit Loans is not made available to the Administrative Agent
by such Lender within three (3) Business Days following such Drawdown
Date, the Administrative Agent shall be entitled to recover such amount
from the Borrowers on
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demand, with interest thereon at the rate per annum applicable to the
Revolving Credit Loans made on such Drawdown Date.
2.9. SETTLEMENTS.
2.9.1. GENERAL. On each Settlement Date, the Administrative Agent
shall, not later than 11:00 a.m. (Hartford time), give telephonic or
facsimile notice (a) to the Lenders and the Borrowers of the respective
outstanding amount of Revolving Credit Loans made by the Administrative
Agent on behalf of the Lenders from the immediately preceding Settlement
Date through the close of business on the prior day and the amount of any
LIBOR Rate Loans to be made (following the giving of notice pursuant to
Section 2.6.1(b)) on such date pursuant to a Loan Request and (b) to the
Lenders of the amount (a "Settlement Amount") that each Lender (a
"Settling Lender") shall pay to effect a Settlement of any Revolving
Credit Loan. A statement of the Administrative Agent submitted to the
Lenders and the Borrowers or to the Lenders with respect to any amounts
owing under this Section 2.9 shall be prima facie evidence of the amount
due and owing. Each Settling Lender shall, not later than 3:00 p.m.
(Hartford time) on such Settlement Date, effect a wire transfer of
immediately available funds to the Administrative Agent in the amount of
the Settlement Amount for such Settling Lender. The Administrative Agent
shall, not later than 3:00 p.m. (Hartford time) on such Settlement Date,
effect a wire transfer of immediately available funds to each Lender in
the amount due to such Lender on such Settlement Date. All funds advanced
by any Lender as a Settling Lender pursuant to this Section 2.9 shall for
all purposes be treated as a Revolving Credit Loan made by such Settling
Lender to the Borrowers and all funds received by any Lender pursuant to
this Section 2.9 shall for all purposes be treated as repayment of amounts
owed with respect to Revolving Credit Loans made by such Lender. In the
event that any bankruptcy, reorganization, liquidation, receivership or
similar cases or proceedings in which either Borrower is a debtor prevent
a Settling Lender from making any Revolving Credit Loan to effect a
Settlement as contemplated hereby, such Settling Lender will make such
dispositions and arrangements with the other Lenders with respect to such
Revolving Credit Loans, either by way of purchase of participations,
distribution, pro tanto assignment of claims, subrogation or otherwise as
shall result in each Lender's share of the outstanding Revolving Credit
Loans being equal, as nearly as may be, to such Lender's Commitment
Percentage of the outstanding amount of the Revolving Credit Loans.
2.9.2. FAILURE TO MAKE FUNDS AVAILABLE. The Administrative Agent
may, unless notified to the contrary by any Settling Lender prior to a
Settlement Date, assume that such Settling Lender has made or will make
available to the Administrative Agent on such Settlement Date the amount
of such Settling Lender's Settlement Amount, and the Administrative Agent
may (but it shall not be required to), in reliance upon such assumption,
make available to the Borrowers a corresponding amount. If any Settling
Lender makes available to the Administrative Agent such amount on a date
after such Settlement Date, such Settling Lender shall pay to the
Administrative Agent on demand an amount equal to the product of (a) the
average computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Administrative Agent for
federal funds acquired by the Administrative Agent during each day
included in such period, times (b) the amount of such Settlement Amount,
times (c) a fraction, the numerator of which is the number of days that
elapse from and including such Settlement Date to the date on which the
amount of such Settlement Amount shall become
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immediately available to the Administrative Agent, and the denominator of
which is 360. A statement of the Administrative Agent submitted to such
Settling Lender with respect to any amounts owing under this Section 2.9.2
shall be prima facie evidence of the amount due and owing to the
Administrative Agent by such Settling Lender. If such Settling Lender's
Settlement Amount is not made available to the Administrative Agent by
such Settling Lender within three (3) Business Days following such
Settlement Date, the Administrative Agent shall be entitled to recover
such amount from the Borrowers on demand, with interest thereon at the
rate per annum applicable to the Revolving Credit Loans as of such
Settlement Date.
2.9.3. NO EFFECT ON OTHER LENDERS. The failure or refusal of any
Settling Lender to make available to the Administrative Agent at the
aforesaid time and place on any Settlement Date the amount of such
Settling Lender's Settlement Amount shall not (a) relieve any other
Settling Lender from its several obligations hereunder to make available
to the Administrative Agent the amount of such other Settling Lender's
Settlement Amount or (b) impose upon any Lender, other than the Settling
Lender so failing or refusing, any liability with respect to such failure
or refusal or otherwise increase the Commitment of such other Lender.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. MATURITY. The Borrowers promise to pay on the Revolving Credit Loan
Maturity Date, and there shall become absolutely due and payable on the
Revolving Credit Loan Maturity Date, all of the Revolving Credit Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon.
3.2. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS. If at any time the
sum of the outstanding amount of the Revolving Credit Loans, the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations exceeds the Total Revolving
Credit Commitment at such time, then the Borrowers shall immediately pay the
amount of such excess to the Administrative Agent for the respective accounts of
the Lenders for application: first, to any Unpaid Reimbursement Obligations;
second, to the Revolving Credit Loans made pursuant to Section 2.6.2; third, to
the other Revolving Credit Loans; and fourth, to provide to the Administrative
Agent cash collateral for Reimbursement Obligations pursuant to Section 6.2(b)
and (c). Each payment of any Unpaid Reimbursement Obligations or prepayment of
Revolving Credit Loans shall be allocated among the Lenders, in proportion, as
nearly as practicable, to each Unpaid Reimbursement Obligation or (as the case
may be) the respective unpaid principal amount of each Lender's Revolving Credit
Note, with adjustments to the extent practicable to equalize any prior payments
or repayments not exactly in proportion. In addition, the Borrowers shall repay
the Revolving Credit Loans in accordance with Section 5.3.4.
3.3. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS. The Borrowers shall
have the right, at their election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
of any LIBOR Rate Loans pursuant to this Section 3.3 may be made only on the
last day of the Interest Period relating thereto. The Borrowers shall give the
Administrative Agent, (a) no later than 11:00 a.m., Hartford time, on the date
of any proposed prepayment of Base Rate Loans pursuant to this Section 3.3 and
(b) not less than three (3) LIBOR Business Days prior to any proposed prepayment
of any LIBOR Rate Loans pursuant to this Section 3.3, prior written notice of
such proposed prepayment, in each case specifying the proposed date of
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prepayment of Revolving Credit Loans and the principal amount to be prepaid.
Each such partial prepayment of the Revolving Credit Loans shall be in an
integral multiple of $100,000, shall be accompanied by the payment of accrued
interest on the principal prepaid to the date of prepayment and shall be
applied, in the absence of instruction by the Borrowers, first to the principal
of Base Rate Loans and then to the principal of LIBOR Rate Loans. Each partial
prepayment shall be allocated among the Lenders, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each Lender's
Revolving Credit Note, with adjustments to the extent practicable to equalize
any prior repayments not exactly in proportion.
4. THE ACQUISITION LOAN FACILITY.
4.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Lenders severally agrees to make the
Acquisition Loans to the Borrowers in Acquisition Advances during the
Disbursement Period as set forth in Section 4.6 below at any one time equal to
such Lender's Commitment in respect of Acquisition Loans; provided that the sum
of the outstanding amount (after giving effect to all amounts requested) of the
Acquisition Loans shall not at any time exceed the Total Acquisition Loan
Commitment. The Acquisition Loans shall be made pro rata in accordance with each
Lender's Commitment Percentage. Each request for an Acquisition Loan hereunder
shall constitute a representation and warranty by the Borrowers that the
conditions set forth in Section 13 and Section 14, in the case of the initial
Acquisition Loans to be made on the Closing Date, and Section 14, in the case of
all other Acquisition Loans, have been satisfied on the date of such request.
4.2. ACQUISITION LOAN COMMITMENT FEE. The Borrowers agree to pay to the
Administrative Agent for the accounts of the Lenders in accordance with their
respective Commitment Percentages a commitment fee (the "Acquisition Loan
Commitment Fee") calculated at the rate of one-quarter of one percent (0.25%)
per annum on the average daily amount during each calendar quarter or portion
thereof from the date hereof to the Acquisition Loan Termination Date by which
the Total Acquisition Loan Commitment exceeds the outstanding amount of
Acquisition Loans during such calendar quarter. The Acquisition Loan Commitment
Fee shall be payable quarterly in arrears on the first day of each calendar
quarter for the immediately preceding calendar quarter commencing on the first
such date following the date hereof, with a final payment on the Acquisition
Loan Termination Date or any earlier date on which the Commitments in respect of
Acquisition Loans shall terminate.
4.3. REDUCTION OF TOTAL ACQUISITION LOAN COMMITMENT. The Borrowers shall
have the right at any time and from time to time upon five (5) Business Days
prior written notice to the Administrative Agent to reduce by $250,000 or an
integral multiple thereof or to terminate entirely the Total Acquisition Loan
Commitment, whereupon the Commitments of the Lenders in respect of Acquisition
Loans shall be reduced pro rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case may be,
terminated. Promptly after receiving any notice of the Borrowers delivered
pursuant to this Section 4.3, the Administrative Agent will notify the Lenders
of the substance thereof. Upon the effective date of any such reduction or
termination, the Borrowers shall pay to the Administrative Agent for the
respective accounts of the Lenders the full amount of any Acquisition Loan
Commitment Fee then accrued on the amount of the reduction. No reduction or
termination of the Commitments in respect of Acquisition Loans may be
reinstated. In addition, the Total Acquisition Loan Commitment shall be reduced
in accordance with Section 5.3.4.
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4.4. THE ACQUISITION LOAN NOTES. The Acquisition Loans shall be evidenced
by separate promissory notes of the Borrowers in substantially the form of
Exhibit C hereto (each an "Acquisition Loan Note"), dated as of the Closing Date
(or such other date on which a Lender may become a party hereto in accordance
with Section 17 hereof) and completed with appropriate insertions. One
Acquisition Note shall be payable to the order of each Lender in a principal
amount equal to such Lender's Commitment in respect of Acquisition Loans or, if
less, the outstanding amount of all Acquisition Loans made by such Lender, plus
interest accrued thereon, as set forth below. The Borrowers irrevocably
authorize each Lender to make or cause to be made, at or about the time of the
Drawdown Date of any Acquisition Loan or at the time of receipt of any payment
of principal on such Lender's Acquisition Loan Note, an appropriate notation on
such Lender's Acquisition Note Record reflecting the making of such Acquisition
Loan or (as the case may be) the receipt of such payment. The outstanding amount
of the Acquisition Loans set forth on such Lender's Acquisition Note Record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to such Lender, but the failure to record, or any error in so recording, any
such amount on such Lender's Acquisition Note Record shall not limit or
otherwise affect the joint and several obligations of the Borrowers hereunder or
under any Acquisition Loan Note to make payments of principal of or interest on
any Acquisition Loan Note when due.
4.5. INTEREST ON ACQUISITION LOANS. Except as otherwise provided in
Section 7.11:
(a) Each Acquisition Loan which is a Base Rate Loan shall bear
interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at the
rate per annum equal to the Base Rate plus the Applicable Margin with
respect to Base Rate Loans as in effect from time to time.
(b) Each Acquisition Loan which is a LIBOR Rate Loan shall bear
interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at the
rate per annum equal to the LIBOR Rate determined for such Interest Period
plus the Applicable Margin with respect to LIBOR Rate Loans as in effect
from time to time.
The Borrowers promise to pay interest on each Acquisition Loan in arrears
on each Interest Payment Date with respect thereto.
4.6. REQUESTS FOR ACQUISITION LOANS. Acquisition Advances of principal of
Acquisition Loans may be requested by the Borrowers during the period from the
Closing Date through and including the Acquisition Loan Termination Date (the
"Disbursement Period") on the following terms and conditions (each portion of
the Acquisition Loan so advanced being an "Acquisition Advance"). The Borrowers
shall give to the Administrative Agent and each Lender written notice in the
form of a Loan Request (or telephonic notice confirmed in a written Loan
Request) no less than (a) two (2) Business Days prior to the proposed Drawdown
Date of any Base Rate Loan and (b) three (3) LIBOR Business Days prior to the
proposed Drawdown Date of any LIBOR Rate Loan. Each such notice shall specify
(i) the principal amount of the Acquisition Advance requested, (ii) the proposed
Drawdown Date of such Acquisition Advance, (iii) the Interest Period for such
Acquisition Advance, (iv) the Type of such Acquisition Advance and (v)
information sufficient for the Administrative Agent to determine whether the
acquisition to be funded by the Acquisition Advance is a Permitted Acquisition.
Promptly upon receipt of any such notice, the Administrative Agent shall notify
each of the Lenders thereof. Each Loan Request shall be irrevocable and binding
on the Borrowers and shall obligate the Borrowers to
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accept the Acquisition Advance requested from the Lenders on the proposed
Drawdown Date. Each Loan Request shall be in a minimum aggregate amount of
$100,000 or an integral multiple thereof.
4.7. FUNDS FOR ACQUISITION LOANS.
4.7.1. FUNDING PROCEDURES. Not later than 11:00 a.m. (Hartford time)
on the proposed Drawdown Date of any Acquisition Loans, each of the
Lenders will make available to the Administrative Agent, at the
Administrative Agent's Office, in immediately available funds, the amount
of such Lender's Commitment Percentage of the amount of the requested
Acquisition Loans. Upon receipt from each Lender of such amount, and upon
receipt of the documents required by Sections 13 and 14 and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Administrative Agent will make available to the Borrowers
the aggregate amount of such Acquisition Loans made available to the
Administrative Agent by the Lenders. The failure or refusal of any Lender
to make available to the Administrative Agent at the aforesaid time and
place on any Drawdown Date the amount of its Commitment Percentage of the
requested Acquisition Loans shall not (a) relieve any other Lender from
its several obligation hereunder to make available to the Administrative
Agent the amount of such other Lender's Commitment Percentage of any
requested Acquisition Loans or (b) impose upon any Lender, other than the
Lender so failing or refusing, any liability with respect to such failure
or refusal or otherwise increase the Commitment of such other Lender.
4.7.2. ACQUISITION ADVANCES BY ADMINISTRATIVE AGENT. The
Administrative Agent may, unless notified to the contrary by any Lender
prior to a Drawdown Date, assume that such Lender has made available to
the Administrative Agent on such Drawdown Date the amount of such Lender's
Commitment Percentage of the Acquisition Loans to be made on such Drawdown
Date, and the Administrative Agent may (but it shall not be required to),
in reliance upon such assumption, make available to the Borrowers a
corresponding amount. If any Lender makes available to the Administrative
Agent such amount on a date after such Drawdown Date and the
Administrative Agent shall have made such amount available to Borrowers,
such Lender shall pay to the Administrative Agent on demand an amount
equal to the product of (a) the average computed for the period referred
to in clause (c) below, of the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the Administrative
Agent during each day included in such period, times (b) the amount of
such Lender's Commitment Percentage of such Acquisition Loans, times (c) a
fraction, the numerator of which is the number of days that elapse from
and including such Drawdown Date or such later date that the
Administrative Agent shall have made such amount available to Borrowers to
the date on which the amount of such Lender's Commitment Percentage of
such Acquisition Loans shall become immediately available to the
Administrative Agent, and the denominator of which is 360. A statement of
the Administrative Agent submitted to such Lender with respect to any
amounts owing under this paragraph shall be prima facie evidence of the
amount due and owing to the Administrative Agent by such Lender. If the
amount of such Lender's Commitment Percentage of such Acquisition Loans is
not made available to the Administrative Agent by such Lender within three
(3) Business Days following such Drawdown Date, the Administrative Agent
shall be entitled to recover such amount from the Borrowers on demand,
with interest thereon at the rate per annum applicable to the Acquisition
Loans made on such Drawdown Date. The failure or refusal of any Lender to
make available to the Administrative Agent at the aforesaid
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time and place on any Drawdown Date the amount of such Lender's
Acquisition Loan shall not (a) relieve any other Lender from its several
obligations hereunder to make available to the Administrative Agent the
amount of such other Lender's Acquisition Loan or (b) impose upon any
Lender, other than the Lender so failing or refusing, any liability with
respect to such failure or refusal or otherwise increase the Commitment of
such other Lender.
4.7.3. NOTIFICATION BY BORROWERS. The Borrowers shall notify the
Administrative Agent, such notice to be irrevocable, at least three (3)
LIBOR Business Days prior to the Drawdown Date of any Acquisition Loan if
all or any portion of such Acquisition Loan is to bear interest with
reference to the LIBOR Rate. After any Acquisition Loan has been made, the
provisions of Section 2.7 shall apply mutatis mutandis with respect to all
or any portion of the Acquisition Loan so that the Borrowers may have the
same interest rate options with respect to all or any portion of the
Acquisition Loan as it would be entitled to with respect to the Revolving
Credit Loans.
4.8. REPAYMENTS AND PREPAYMENTS OF ACQUISITION LOANS.
4.8.1. REPAYMENT. On each Tranche Ending Date and on each earlier
date on which the aggregate amount of Acquisition Advances outstanding is
$2,000,000 or more and the Borrowers have provided to the Administrative
Agent (no later than ten (10) Business Days prior to the first payment
date) notice stating that the Borrowers elect to pay all Acquisition
Advances made to the Borrowers between the Closing Date (or, if there was
a previous Tranche Ending Date as to which a Payment Schedule Election
Notice was given, from such prior Tranche Ending Date) and the date of
such notice in installments (any such notice being a "Payment Schedule
Election Notice"), then the amount of Acquisition Advances outstanding
which have not previously become Section 4.8.1 Acquisition Loans pursuant
to this Section 4.8.1 shall become loans (each a "Section 4.8.1
Acquisition Loan"), the principal of which is payable by the Borrowers in
sixty (60) consecutive equal monthly installments which shall be payable
on the first Business Day of each calendar month, commencing on the first
Business Day of the first month that begins after such Tranche Ending
Date, with a final payment of the full amount of the remaining balance of
the Section 4.8.1 Acquisition Loans on the date that the sixtieth (60th)
installment is payable under this Section 4.8.1. Any Payment Schedule
Election Notice that is given under this Section 4.8.1 shall be
irrevocable. As used herein, a "Tranche Ending Date" means any of the
following dates: April 5, 2006, April 5, 2007 and April 5, 2008 and any
other date designated by the Borrowers in a Payment Schedule Election
Notice; provided that if on April 5, 2006 or April 5, 2007, the amount of
Acquisition Advances outstanding is less than $2,000,000, then such
Tranche Ending Date shall be extended to the earlier of (x) the first date
thereafter that the aggregate amount of Acquisition Advances outstanding
is at least $2,000,000 and (y) April 5, 2008. The amount of Acquisition
Advances which are converted into Section 4.8.1 Acquisition Loans may not
be reborrowed.
4.8.2. PREPAYMENT. Regardless of whether any Payment Schedule
Election Notice is given by the Borrowers, the Borrowers shall have the
right, at their election, to prepay the outstanding amount of the
Acquisition Loans, as a whole or in part, at any time without penalty or
premium, provided that (a) all prepayments of LIBOR Rate Loans prior to
the end of the Interest Period relating thereto shall obligate the
Borrowers to pay the amounts required by Section 7.10 hereof with respect
to such LIBOR Rate Loans, and
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(b) each prepayment that is made after any Acquisition Advances have been
converted to term loans in accordance with Section 4.8.1 shall be applied
in inverse order of maturity to the last installments that are payable
hereunder. If more than one installment is due on a due date with respect
to which a prepayment is being applied hereunder, then the prepayment will
be applied ratably to each such installment that is payable on that date.
The Borrowers shall give the Administrative Agent, no later than 12:00
Noon, Hartford, Connecticut time, at least one (1) Business Day prior
written notice of any proposed prepayment pursuant to this Section 4.8.2
of Base Rate Loans, and at least three (3) LIBOR Business Days prior
written notice of any proposed prepayment pursuant to this Section 4.8.2
of LIBOR Rate Loans, in each case specifying the proposed date of
prepayment and the principal amount to be prepaid. Each such partial
prepayment of the Acquisition Loans consisting of (i) Base Rate Loans
shall be in an integral multiple of $100,000 and (ii) LIBOR Rate Loans
shall be in an integral multiple of $100,000. Subject to the foregoing,
each prepayment of Acquisition Loans shall be accompanied by the payment
of accrued interest on the principal prepaid to the date of prepayment and
shall be applied, in the absence of instruction by the Borrowers, first to
the principal of Base Rate Loans and then to the principal of LIBOR Rate
Loans. Each partial prepayment shall be allocated among the Lenders in
proportion, as nearly as practicable, to the respective unpaid principal
amount of each Lender's Acquisition Loans, with adjustments to the extent
practicable to equalize any prior repayments not exactly in proportion. No
amount of any Acquisition Loan which is prepaid may be reborrowed.
5. THE TERM LOAN.
5.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth in
this Credit Agreement, each Lender agrees to lend to the Borrowers on the
Closing Date the amount of its Commitment Percentage of the principal amount of
$28,000,000.
5.2. THE TERM NOTES. The Term Loan shall be evidenced by separate
promissory notes of the Borrowers in substantially the form of Exhibit D hereto
(each a "Term Note"), dated the Closing Date (or such other date on which a
Lender may become a party hereto in accordance with Section 17 hereof) and
completed with appropriate insertions. One Term Note shall be payable to the
order of each Lender in a principal amount equal to such Lender's Commitment
Percentage of the Term Loan and representing the joint and several obligations
of the Borrowers to pay to such Lender such principal amount or, if less, the
then outstanding amount of such Lender's Commitment Percentage of the Term Loan,
plus interest accrued thereon, as set forth below. The Borrowers irrevocably
authorize each Lender to make or cause to be made a notation on such Lender's
Term Note Record reflecting the original principal amount of such Lender's
Commitment Percentage of the Term Loan and, at or about the time of such
Lender's receipt of any principal payment on such Lender's Term Note, an
appropriate notation on such Lender's Term Note Record reflecting such payment.
The aggregate unpaid amount set forth on such Lender's Term Note Record shall be
prima facie evidence of the principal amount thereof owing and unpaid to such
Lender, but the failure to record, or any error in so recording, any such amount
on such Lender's Term Note Record shall not affect the obligations of the
Borrowers hereunder or under any Term Note to make payments of principal of and
interest on any Term Note when due.
5.3. MANDATORY PREPAYMENT OF TERM LOANS.
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5.3.1. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF TERM LOAN.
The Borrowers jointly and severally promise to pay to the Administrative
Agent for the account of the Lenders the
principal amount of the Term Loan
in eighty-four (84) consecutive monthly payments in an amount equal to the
amount set forth in the table below opposite the period containing the
date of such payment, such payments to be due and payable on the fifth day
of each month ending within any period set forth below in the table in the
amount set forth opposite such period in the table below, commencing on
May 5, 2005, with a final payment on the Term Loan Maturity Date in an
amount equal to the unpaid balance of the Term Loan.
PERIOD AMOUNT OF PAYMENT
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May 5, 2005 through and including May $250,000.00
4, 2006
May 5, 2006 through and including May $270,833.33
4, 2007
May 5, 2007 through and including May $312,500.00
4, 2008
May 5, 2008 through and including May $333,333.33
4, 2009
May 5, 2009 through and including May $375,000.00
4, 2010
May 5, 2010 through and including May $395,833.33
4, 2011
May 5, 2011 through and including May $395,833.33
4, 2012
5.3.2. EXCESS CASH FLOW RECAPTURE. For each fiscal year of the
Borrower ending on or after October 31, 2005, the Borrowers shall make a
prepayment of the Loans in an amount equal to fifty percent (50%) of
Consolidated Excess Cash Flow for such fiscal year, such mandatory
prepayment to be due and payable on the date one hundred (100) days after
the end of each such fiscal year and to be applied in the manner set forth
in Section 5.3.4.
5.3.3. PROCEEDS OF CERTAIN EVENTS. Concurrently with the receipt by
either Borrower or any Subsidiary of:
(a) Net Cash Sale Proceeds from Asset Sales;
(b) Net Cash Equity Issuance Proceeds with respect to any Equity
Issuance by either Borrower or any of its Subsidiaries;
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(c) Net Cash Indebtedness Issuance Proceeds (other than Excluded
Indebtedness) with respect to any Indebtedness Issuance by either Borrower
or any of its Subsidiaries; or
(d) proceeds in excess of $250,000 in the aggregate received from
Casualty Events by either Borrower or any of its Subsidiaries which have
not been committed (as evidenced by a binding written contract) by such
Borrower or such Subsidiary within ninety (90) days of receipt of such
proceeds to the repair or replacement of the property so damaged,
destroyed or taken, or, if so committed, such repair or replacement of the
property so damaged, destroyed or taken shall have not commenced within
ninety (90) days of receipt of such proceeds pursuant to such binding
written contract (provided, however, if a Default or Event of Default has
occurred and is continuing, such proceeds shall be immediately paid to the
Administrative Agent); the Borrowers shall pay to the Administrative Agent
for the respective accounts of the Lenders an amount equal to one hundred
percent (100%) of such proceeds, to be applied in the manner set forth in
Section 5.3.4.
5.3.4. APPLICATION OF PAYMENTS. All payments made pursuant to
Section 5.3.2 or Section 5.3.3 shall be applied first against the
remaining scheduled installments of principal on the Term Loan in the
inverse order of maturity, second against the remaining scheduled
installments of principal on the Acquisition Loan in the inverse order of
maturity, third, if there are no scheduled installments of principal
outstanding on the Acquisition Loan, then to reduce the outstanding amount
of the Acquisition Loans and to permanently reduce the Total Acquisition
Loan Commitment by such amount, and, if there are no outstanding amounts
owed on the Acquisition Loans, then first to reduce the outstanding amount
of the Revolving Credit Loans made pursuant to Section 2.6.2 and second to
reduce the outstanding amount of all other Revolving Credit Loans both of
which shall permanently reduce the Total Revolving Credit Commitment by
such amount. Such mandatory prepayments shall be allocated among the
Lenders in proportion, as nearly as practicable, to the respective
outstanding amounts of each Lender's Notes, with adjustments to the extent
practicable to equalize any prior prepayments not exactly in proportion.
No amounts repaid pursuant to this Section 5.3 may be reborrowed.
5.4. OPTIONAL PREPAYMENT OF TERM LOAN. The Borrowers shall have the right
at any time to prepay the Term Notes on or before the Term Loan Maturity Date,
as a whole, or in part, upon not less than three (3) Business Days prior written
notice to the Administrative Agent, without premium or penalty, provided that
(a) each partial prepayment shall be in the principal amount of $250,000 or an
integral multiple thereof, (b) no portion of the Term Loan bearing interest with
reference to the LIBOR Rate may be prepaid pursuant to this Section 5.4 except
on the last day of the Interest Period relating thereto, and (c) each partial
prepayment shall be allocated among the Lenders, in proportion, as nearly as
practicable, to the respective outstanding amount of each Lender's Term Note,
with adjustments to the extent practicable to equalize any prior prepayments not
exactly in proportion. Any prepayment of principal of the Term Loan shall
include all interest accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the Term Loan in the
inverse order of maturity. No amount repaid with respect to the Term Loan may be
reborrowed.
5.5. INTEREST ON TERM LOAN.
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5.5.1. INTEREST RATES. Except as otherwise provided in Section 7.11,
the Term Loan shall bear interest during each Interest Period relating to
all or any portion of the Term Loan at the following rates:
(a) To the extent that all or any portion of the Term Loan bears
interest during such Interest Period at the Base Rate, the Term Loan or
such portion shall bear interest during such Interest Period at the rate
per annum equal to the Base Rate plus the Applicable Margin with respect
to Base Rate Loans as in effect from time to time.
(b) To the extent that all or any portion of the Term Loan bears
interest during such Interest Period with reference to the LIBOR Rate, the
Term Loan or such portion shall bear interest during such Interest Period
at the rate per annum equal to the LIBOR Rate determined for such Interest
Period plus the Applicable Margin with respect to LIBOR Rate Loans as in
effect from time to time.
The Borrowers promise to pay interest on the Term Loan or any portion
thereof outstanding during each Interest Period in arrears on each
Interest Payment Date applicable to such Interest Period.
5.5.2. NOTIFICATION BY BORROWERS. The Borrowers shall notify the
Administrative Agent, such notice to be irrevocable, at least four (4)
LIBOR Business Days prior to the Drawdown Date of the Term Loan if all or
any portion of the Term Loan in excess of the Minimum One Month LIBOR
Amount is to bear interest with reference to the LIBOR Rate. After the
Term Loan has been made, the provisions of Section 2.7 shall apply mutatis
mutandis with respect to all or any portion of the Term Loan so that the
Borrowers may have the same interest rate options with respect to all or
any portion of the Term Loan as it would be entitled to with respect to
the Revolving Credit Loans; provided, that an amount equal to the Minimum
One Month LIBOR Amount shall at all times be LIBOR Rate Loans with
Interest Periods of one month, except to the extent that this Credit
Agreement provides (other than by request of the Borrowers) for such Loans
to become Base Rate Loans, and the Borrowers shall not have the right to
request Interest Periods other than one month with respect to the Minimum
One Month LIBOR Amount.
5.5.3. AMOUNTS, ETC. Any portion of the Term Loan bearing interest
with reference to the LIBOR Rate relating to any Interest Period shall be
in the amount of $250,000 or an integral multiple thereof. No Interest
Period relating to the Term Loan or any portion thereof bearing interest
with reference to the LIBOR Rate shall extend beyond the date on which a
regularly scheduled installment payment of the principal of the Term Loan
is to be made unless a portion of the Term Loan at least equal to such
installment payment has an Interest Period ending on such date or is then
bearing interest at the Base Rate.
6. LETTERS OF CREDIT.
6.1. LETTER OF CREDIT COMMITMENTS.
6.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the terms
and conditions hereof and the execution and delivery by a Borrower of a
letter of credit application on the Administrative Agent's customary form
(a "Letter of Credit Application"), the Administrative Agent on behalf of
the Lenders and in reliance upon
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the agreement of the Lenders set forth in Section 6.1.4 and upon the
representations and warranties of the Borrowers contained herein, agrees,
in its individual capacity, to issue, extend and renew for the account of
the Borrowers one or more standby letters of credit (individually, a
"Letter of Credit"), in such form as may be requested from time to time by
either Borrower and agreed to by the Administrative Agent; provided,
however, that, after giving effect to such request, (a) the sum of the
aggregate Maximum Drawing Amount and all Unpaid Reimbursement Obligations
shall not exceed the Total Revolving Credit Commitment at any one time and
(b) the sum of (i) the Maximum Drawing Amount on all Letters of Credit,
(ii) all Unpaid Reimbursement Obligations, and (iii) the amount of all
Revolving Credit Loans outstanding shall not exceed the Total Revolving
Credit Commitment at such time. The parties hereto hereby acknowledge and
agree that the letters of credit issued by Xxxxxxx Bank, National
Association and identified on Schedule 6.1.1 hereto with a maximum
aggregate drawing amount of $1,202,144.00 (collectively, the "Existing
Letters of Credit") shall, on the Closing Date, become Letters of Credit
hereunder and shall be subject to the conditions hereunder and any
reference in this Article 6 to the Administrative Agent in its capacity as
an issuer of Letters of Credit shall automatically include Xxxxxxx Bank,
National Association with respect to the Existing Letters of Credit, as
applicable, provided that the parties hereto hereby agree that such
Existing Letters of Credit shall not be amended, or renewed or continued
by Xxxxxxx Bank, National Association on the expiration date thereof,
without the prior written consent of the Borrowers and the Administrative
Agent.
6.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the Administrative
Agent. In the event that any provision of any Letter of Credit Application
shall be inconsistent with any provision of this Credit Agreement, then
the provisions of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
6.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (a) provide for
the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein, and (b) have an expiry date no later than the date
which is fourteen (14) days (or, if the Letter of Credit is confirmed by a
confirmer or otherwise provides for one or more nominated persons,
forty-five (45) days) prior to the Revolving Credit Loan Maturity Date.
Each Letter of Credit so issued, extended or renewed shall be subject to
the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 or any successor
version thereto adopted by the Administrative Agent in the ordinary course
of its business as a letter of credit issuer and in effect at the time of
issuance of such Letter of Credit (the "Uniform Customs") or, in the case
of a standby Letter of Credit, either the Uniform Customs or the
International Standby Practices (ISP98), International Chamber of Commerce
Publication No. 590, or any successor code of standby letter of credit
practices among banks adopted by the Administrative Agent in the ordinary
course of its business as a standby letter of credit issuer and in effect
at the time of issuance of such Letter of Credit.
6.1.4. REIMBURSEMENT OBLIGATIONS OF LENDERS. Each Lender severally
agrees that it shall be absolutely liable, without regard to the
occurrence of any Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Lender's Commitment
Percentage, to reimburse the Administrative Agent on demand for the
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amount of each draft paid by the Administrative Agent under each Letter of
Credit to the extent that such amount is not reimbursed by the Borrowers
pursuant to Section 6.2 (such agreement for a Lender being called herein
the "Letter of Credit Participation" of such Lender).
6.1.5. PARTICIPATIONS OF LENDERS. Each such payment made by a Lender
shall be treated as the purchase by such Lender of a participating
interest in the Borrowers' Reimbursement Obligation under Section 6.2 in
an amount equal to such payment. Each Lender shall share in accordance
with its participating interest in any interest which accrues pursuant to
Section 6.2.
6.2. REIMBURSEMENT OBLIGATIONS OF THE BORROWERS. In order to induce the
Administrative Agent to issue, extend and renew each Letter of Credit and the
Lenders to participate therein, the Borrowers hereby jointly and severally agree
to reimburse or pay to the Administrative Agent, for the account of the
Administrative Agent or (as the case may be) the Lenders, with respect to each
Letter of Credit issued, extended or renewed by the Administrative Agent
hereunder,
(a) except as otherwise expressly provided in Section 6.2(b) and
(c), on each date that any draft presented under such Letter of Credit is
honored by the Administrative Agent, or the Administrative Agent otherwise
makes a payment with respect thereto, (i) the amount paid by the
Administrative Agent under or with respect to such Letter of Credit, and
(ii) the amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by the Administrative Agent or any Lender in
connection with any payment made by the Administrative Agent or any Lender
under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total Revolving
Credit Commitment to an amount less than the Maximum Drawing Amount, an
amount equal to such difference, which amount shall be held by the
Administrative Agent for the benefit of the Lenders and the Administrative
Agent as cash collateral for all Reimbursement Obligations, and
(c) upon the termination of the Total Revolving Credit Commitment,
or the acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with Section 15, an amount equal to the
then Maximum Drawing Amount on all Letters of Credit, which amount shall
be held by the Administrative Agent for the benefit of the Lenders and the
Administrative Agent as cash collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Office in immediately available funds. Interest on any
and all amounts remaining unpaid by the Borrowers under this Section 6.2 at any
time from the date such amounts become due and payable (whether as stated in
this Section 6.2, by acceleration or otherwise) until payment in full (whether
before or after judgment) shall be payable to the Administrative Agent on demand
at the rate specified in Section 7.11 for overdue principal on the Revolving
Credit Loans.
6.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Administrative
Agent shall notify the Borrowers of the date and amount of the draft presented
or demand for payment and of the date
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and time when it expects to pay such draft or honor such demand for payment. If
the Borrowers fail to reimburse the Administrative Agent as provided in Section
6.2 on or before the date that such draft is paid or other payment is made by
the Administrative Agent, the Administrative Agent may at any time thereafter
notify the Lenders of the amount of any such Unpaid Reimbursement Obligation. No
later than 3:00 p.m. (Hartford time) on the Business Day next following the
receipt of such notice, each Lender shall make available to the Administrative
Agent, at the Administrative Agent's Office, in immediately available funds,
such Lender's Commitment Percentage of such Unpaid Reimbursement Obligation,
together with an amount equal to the product of (a) the average, computed for
the period referred to in clause (c) below, of the weighted average interest
rate paid by the Administrative Agent for federal funds acquired by the
Administrative Agent during each day included in such period, times (b) the
amount equal to such Lender's Commitment Percentage of such Unpaid Reimbursement
Obligation, times (c) a fraction, the numerator of which is the number of days
that elapse from and including the date the Administrative Agent paid the draft
presented for honor or otherwise made payment to the date on which such Lender's
Commitment Percentage of such Unpaid Reimbursement Obligation shall become
immediately available to the Administrative Agent, and the denominator of which
is 360. The responsibility of the Administrative Agent to the Borrowers and the
Lenders shall be only to determine that the documents (including each draft)
delivered under each Letter of Credit in connection with such presentment shall
be in conformity in all material respects with such Letter of Credit.
6.4. OBLIGATIONS ABSOLUTE. The Borrowers' joint and several obligations
under this Section 6 shall be absolute and unconditional under any and all
circumstances and irrespective of the occurrence of any Default or Event of
Default or any condition precedent whatsoever or any setoff, counterclaim or
defense to payment which the Borrowers may have or have had against the
Administrative Agent, any Lender or any beneficiary of a Letter of Credit. The
Borrowers further agree with the Administrative Agent and the Lenders that the
Administrative Agent and the Lenders shall not be responsible for, and the
Borrowers' Reimbursement Obligations under Section 6.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrowers, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrowers against the beneficiary of
any Letter of Credit or any such transferee. The Administrative Agent and the
Lenders shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. The Borrowers agree that
any action taken or omitted by the Administrative Agent or any Lender under or
in connection with each Letter of Credit and the related drafts and documents,
if done in good faith, shall be binding upon the Borrowers and shall not result
in any liability on the part of the Administrative Agent or any Lender to the
Borrowers. However, the foregoing shall not excuse the Administrative Agent from
liability to Borrowers to the extent of any damages suffered by Borrowers that
are caused by Administrative Agent's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of such Letter of Credit.
6.5. RELIANCE BY ISSUER. To the extent not inconsistent with Section 6.4,
the Administrative Agent shall be entitled to rely, and shall be fully protected
in relying upon, any Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and
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upon advice and statements of legal counsel, independent accountants and other
experts selected by the Administrative Agent. To the extent not inconsistent
with this Credit Agreement, the Administrative Agent shall be fully justified in
failing or refusing to take any action under this Credit Agreement with respect
to any Letter of Credit unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Administrative Agent shall in
all cases be fully protected in so acting, or in refraining from so acting,
under this Credit Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Lenders and all future holders of the
Revolving Credit Notes or of a Letter of Credit Participation.
6.6. LETTER OF CREDIT FEE. The Borrowers shall pay a fee (a "Letter of
Credit Fee") to the Administrative Agent, for the accounts of the Lenders in
accordance with their respective Commitment Percentages, in respect of each
Letter of Credit (other than the Existing Letters of Credit), for the period
from and including the date of issuance of such Letter of Credit to and
including the date of termination or expiration of such Letter of Credit,
computed at a rate per annum in an amount equal to the Applicable Margin for
Letter of Credit Fees per annum with respect to Letter of Credit Fees of the
available amount of such Letter of Credit. Accrued Letter of Credit Fees shall
be due and payable quarterly in arrears on the first Business Day of each
calendar quarter and on the first Business Day on or after the termination of
the Total Revolving Credit Commitment upon which no Letters of Credit remain
outstanding. In respect of each Letter of Credit, the Borrowers shall also pay
to the Administrative Agent for the Administrative Agent's own account, at such
other time or times as such charges are customarily made by the Administrative
Agent, the Administrative Agent's customary issuance, amendment, negotiation or
document examination and other administrative fees as in effect from time to
time.
7. CERTAIN GENERAL PROVISIONS.
7.1. CLOSING FEES. The Borrowers agree to pay to the Administrative Agent
on the Closing Date the balance of the unpaid closing fee (the "Closing Fee") as
set forth in the Fee Letter.
7.2. ADMINISTRATIVE AGENT'S FEE. The Borrowers shall pay to the
Administrative Agent an Administrative Agent's fee (the "Administrative Agent's
Fee") as set forth in the Fee Letter.
7.3. FUNDS FOR PAYMENTS.
7.3.1. PAYMENTS TO ADMINISTRATIVE AGENT. All payments of principal,
interest, Reimbursement Obligations, Fees and any other amounts due
hereunder or under any of the other Loan Documents shall be made on the
due date thereof to the Administrative Agent in Dollars, for the
respective accounts of the Lenders and the Administrative Agent, at the
Administrative Agent's Office or at such other place that the
Administrative Agent may from time to time designate, in each case at or
about 11:00 a.m. (Hartford, Connecticut, time or other local time at the
place of payment) and in immediately available funds.
7.3.2. NO OFFSET, ETC. All payments by the Borrowers hereunder and
under any of the other Loan Documents shall be made without recoupment,
setoff or counterclaim
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and free and clear of and without deduction for any taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, compulsory
loans, restrictions or conditions of any nature now or hereafter imposed
or levied by any jurisdiction or any political subdivision thereof or
taxing or other authority therein unless the Borrowers are compelled by
law to make such deduction or withholding. If any such obligation is
imposed upon the Borrowers with respect to any amount payable by it
hereunder or under any of the other Loan Documents, the Borrowers will pay
to the Administrative Agent, for the account of the Lenders or (as the
case may be) the Administrative Agent, on the date on which such amount is
due and payable hereunder or under such other Loan Document, such
additional amount in Dollars as shall be necessary to enable the Lenders
or the Administrative Agent to receive the same net amount which the
Lenders or the Administrative Agent would have received on such due date
had no such obligation been imposed upon the Borrowers. The Borrowers will
deliver promptly to the Administrative Agent certificates or other valid
vouchers for all taxes or other charges deducted from or paid with respect
to payments made by the Borrowers hereunder or under such other Loan
Document.
7.4. COMPUTATIONS. All computations of interest for Base Rate Loans shall
be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of interest on the Loans and of Fees
shall be based on a 360-day year and paid for the actual number of days elapsed.
Except as otherwise provided in the definition of the term "Interest Period"
with respect to LIBOR Rate Loans, whenever a payment hereunder or under any of
the other Loan Documents becomes due on a day that is not a Business Day, the
due date for such payment shall be extended to the next succeeding Business Day,
and interest shall accrue during such extension. The outstanding amount of the
Loans as reflected on the Revolving Credit Note Records, Acquisition Note
Records and the Term Note Records from time to time shall be considered correct
and binding on the Borrowers, absent manifest error.
7.5. INABILITY TO DETERMINE LIBOR RATE. In the event, prior to the
commencement of any Interest Period relating to any LIBOR Rate Loan, the
Administrative Agent shall determine that (a) adequate and reasonable methods do
not exist for ascertaining the LIBOR Rate that would otherwise determine the
rate of interest to be applicable to any LIBOR Rate Loan during any Interest
Period or (b) the LIBOR Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to the Lenders of making
or maintaining their LIBOR Rate Loans during such period, the Administrative
Agent shall forthwith give notice of such determination (which shall be
conclusive and binding on the Borrowers and the Lenders) to the Borrowers and
the Lenders. In such event (i) any Loan Request or Conversion Request with
respect to LIBOR Rate Loans shall be automatically withdrawn and shall be deemed
a request for Base Rate Loans, (ii) each LIBOR Rate Loan will automatically, on
the last day of the then current Interest Period relating thereto, become a Base
Rate Loan, and (iii) the obligations of the Lenders to make LIBOR Rate Loans
shall be suspended until the Administrative Agent determines that the
circumstances giving rise to such suspension no longer exist, whereupon the
Administrative Agent shall so notify the Borrowers and the Lenders.
7.6. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
LIBOR Rate Loans, such Lender shall forthwith give notice of such circumstances
to the Borrowers and the other Lenders and thereupon (a) the commitment of such
Lender to make LIBOR Rate Loans or convert Base Rate Loans to LIBOR Rate Loans
shall forthwith be suspended and (b) such Lender's Revolving Credit Loans then
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outstanding as LIBOR Rate Loans, if any, shall be converted automatically to
Base Rate Loans on the last day of each Interest Period applicable to such LIBOR
Rate Loans or within such earlier period as may be required by law. The
Borrowers hereby agree promptly to pay the Administrative Agent for the account
of such Lender, upon demand by such Lender, any additional amounts necessary to
compensate such Lender for any costs incurred by such Lender in making any
conversion in accordance with this Section 7.6, including any interest or fees
payable by such Lender to lenders of funds obtained by it in order to make or
maintain its LIBOR Rate Loans hereunder.
7.7. ADDITIONAL COSTS, ETC. If any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and applicable interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Lender or the Administrative Agent by any central bank
or other fiscal, monetary or other authority (whether or not having the force of
law), shall:
(a) subject any Lender or the Administrative Agent to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature with
respect to this Credit Agreement, the other Loan Documents, any Letters of
Credit, such Lender's Commitment or the Loans (other than taxes based upon
or measured by the income or profits of such Lender or the Administrative
Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Lender of the principal of
or the interest on any Loans or any other amounts payable to any Lender or
the Administrative Agent under this Credit Agreement or any of the other
Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any
special deposit, reserve, assessment, liquidity, capital adequacy or other
similar requirements (whether or not having the force of law) against
assets held by, or deposits in or for the account of, or loans by, or
letters of credit issued by, or commitments of an office of any Lender, or
(d) impose on any Lender or the Administrative Agent any other
conditions or requirements with respect to this Credit Agreement, the
other Loan Documents, any Letters of Credit, the Loans, such Lender's
Commitment, or any class of loans, letters of credit or commitments of
which any of the Loans or such Lender's Commitment forms a part, and the
result of any of the foregoing is
(i) to increase the cost to any Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Lender's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Lender or
the Administrative Agent hereunder on account of such Lender's
Commitment, any Letter of Credit or any of the Loans, or
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(iii) to require such Lender or the Administrative Agent to
make any payment or to forego any interest or Reimbursement
Obligation or other sum payable hereunder, the amount of which
payment or foregone interest or Reimbursement Obligation or other
sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Lender or the Administrative
Agent from the Borrowers hereunder,
then, and in each such case, the Borrowers will, upon demand made by such Lender
or (as the case may be) the Administrative Agent at any time and from time to
time and as often as the occasion therefor may arise, pay to such Lender or the
Administrative Agent such additional amounts as will be sufficient to compensate
such Lender or the Administrative Agent for such additional cost, reduction,
payment or foregone interest or Reimbursement Obligation or other sum.
7.8. CAPITAL ADEQUACY. If after the date hereof any Lender or the
Administrative Agent determines that (a) the adoption of or change in any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements for banks or bank
holding companies or any change in the interpretation or application thereof by
a Governmental Authority with appropriate jurisdiction, or (b) compliance by
such Lender or the Administrative Agent or any corporation controlling such
Lender or the Administrative Agent with any law, governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law) of any
such entity regarding capital adequacy, has the effect of reducing the return on
such Lender's or the Administrative Agent's commitment with respect to any Loans
to a level below that which such Lender or the Administrative Agent could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or the Administrative Agent's then existing policies with respect
to capital adequacy and assuming full utilization of such entity's capital) by
any amount deemed by such Lender or (as the case may be) the Administrative
Agent to be material, then such Lender or the Administrative Agent may notify
the Borrowers of such fact. To the extent that the amount of such reduction in
the return on capital is not reflected in the Base Rate, the Borrowers and such
Lender shall thereafter attempt to negotiate in good faith, within thirty (30)
days of the day on which the Borrowers receive such notice, an adjustment
payable hereunder that will adequately compensate such Lender in light of these
circumstances. If the Borrowers and such Lender are unable to agree to such
adjustment within thirty (30) days of the date on which the Borrowers receive
such notice, then commencing on the date of such notice (but not earlier than
the effective date of any such increased capital requirement), the fees payable
hereunder shall increase by an amount that will, in such Lender's reasonable
determination, provide adequate compensation. Each Lender shall allocate such
cost increases among its customers in good faith and on an equitable basis.
7.9. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to Sections 7.7 or 7.8 and a brief explanation of such amounts
which are due, submitted by any Lender or the Administrative Agent to the
Borrowers, shall be conclusive, absent manifest error, that such amounts are
due and owing.
7.10. INDEMNITY. Each of the Borrowers agree to jointly and severally
indemnify each Lender and to hold each Lender harmless from and against any
loss, cost or expense (including loss of anticipated profits) that such Lender
may sustain or incur as a consequence of (a) default by the Borrowers in payment
of the principal amount of or any interest on any LIBOR Rate Loans as and when
due and payable, including any such loss or expense arising from interest or
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fees payable by such Lender to lenders of funds obtained by it in order to
maintain its LIBOR Rate Loans, (b) default by the Borrowers in making a
borrowing or conversion into a LIBOR Rate Loan after a Borrower has given (or is
deemed to have given) a Loan Request, notice (in the case of all or any portion
of the Term Loan pursuant to Section 5.5.2) or a Conversion Request relating
thereto in accordance with Section 2.6, Section 2.7, Section 4.6, Section 4.7.3,
or Section 5.5 or (c) the making of any payment of a LIBOR Rate Loan or the
making of any conversion of any such Loan to a Base Rate Loan on a day that is
not the last day of the applicable Interest Period with respect thereto,
including interest or fees payable by such Lender to lenders of funds obtained
by it in order to maintain any such Loans.
7.11. INTEREST AFTER DEFAULT.
7.11.1. OVERDUE AMOUNTS. Overdue principal and (to the extent
permitted by applicable law) overdue interest on the Loans and all other
overdue amounts payable hereunder or under any of the other Loan Documents
shall bear interest compounded monthly and payable on demand at a rate per
annum equal to two percent (2.0%) above the rate of interest then
applicable thereto (or, if no rate of interest is then applicable thereto,
the Base Rate) until such amount shall be paid in full (after as well as
before judgment).
7.11.2. AMOUNTS NOT OVERDUE. During the continuance of a Default or
an Event of Default the principal of the Loans not overdue shall, until
such Default or Event of Default has been cured or remedied or such
Default or Event of Default has been waived by the Required Lenders
pursuant to Section 18.12, bear interest at a rate per annum equal to the
greater of (a) two percent (2.0%) above the rate of interest otherwise
applicable to such Loans and (b) the rate of interest applicable to
overdue principal pursuant to Section 7.11.1.
7.12. CONCERNING JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
(a) Each of the Borrowers is accepting joint and several liability
hereunder with respect to the Loans, the Letters of Credit and the other
Obligations in consideration of the financial accommodations to be
provided by the Administrative Agent and Lenders under this Credit
Agreement, for the mutual benefit, directly and indirectly, of each of the
Borrowers and in consideration of the undertakings of each of the
Borrowers to accept joint and several liability for the obligations of
each of them in respect of such Obligations.
(b) Each of the Borrowers, jointly and severally, hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a
co-debtor, joint and several liability with each other Borrower, with
respect to the payment and performance of all of the Obligations, it being
the intention of the parties hereto that all of the Obligations shall be
the joint and several obligations of the Borrowers without preferences or
distinction among them, whether such Loans were made or Letters of Credit
issued before, on or after the Closing Date.
(c) If and to the extent that either of the Borrowers shall fail to
make any payment with respect to any of the Obligations as and when due or
shall fail to perform any of such Obligations in accordance with the terms
thereof, then in each such event
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each other Borrower will make such payment with respect to, or perform,
such Obligation.
(d) The obligations of each Borrower under the provisions of this
Section 7.12 constitute the absolute and unconditional obligations of such
Borrower enforceable against it to the full extent permitted under the
terms hereof, irrespective of the validity, regularity or enforceability
of this Credit Agreement or any of the other Loan Documents or any other
circumstance whatsoever
(e) Each Borrower hereby waives notice of acceptance of its joint
and several liability, notice of the Loans made under this Credit
Agreement, notice of the issuance of any Letter of Credit, notice of the
occurrence of any Default or Event of Default (except as otherwise
expressly provided for herein), or of any demand for any payment under
this Credit Agreement or any of the other Loan Documents, notice of any
action (except as otherwise provided for herein) at any time taken or
omitted by the Administrative Agent or any Lender under or in respect of
any of the Obligations, any requirement of diligence or to mitigate
damages and, generally, all demands, notices and other formalities of
every kind (except as otherwise provided for herein) in connection with
this Credit Agreement or any of the other Loan Documents. Each Borrower
hereby assents to, and waives notice of, any extension or postponement of
the time for the payment of any of the Obligations, the acceptance of any
partial payment thereon, any waiver, consent or other action or
acquiescence by the Administrative Agent or any Lender at any time or
times in respect of any default by either Borrower in the performance or
satisfaction of any term, covenant, condition or provision of this Credit
Agreement or any of the other Loan Documents, any and all other
indulgences whatsoever by the Administrative Agent or any Lender in
respect of any of the obligations hereunder or under the other Loan
Documents, and the taking, addition, substitution or release, in whole or
in part, at any time or times, of any security for any of such obligations
or the addition, substitution or release, in whole or in part, of either
Borrower. Without limiting the generality of the foregoing, each Borrower
assents to the extent permitted by applicable law to any other action or
delay in acting or failure to act on the part of the Administrative Agent
or any Lender including, without limitation, any failure strictly or
diligently to assert any right or to pursue any remedy or to comply fully
with applicable laws or regulations thereunder, which might, but for the
provisions of this Section 7.12, afford grounds for terminating,
discharging or relieving such Borrower, in whole or in part, from any of
its Obligations hereunder, it being the intention of each Borrower that,
so long as any of the Obligations remain unsatisfied, the Obligations of
such Borrower hereunder shall not be discharged except by performance and
then only to the extent of such performance. The joint and several
liability of the Borrowers hereunder shall continue in full force and
effect notwithstanding any absorption, merger, amalgamation or any other
change whatsoever in the name, membership, constitution or place of
formation of either Borrower, the Administrative Agent or any Lender. If
at any time, any payment, or any part thereof, made in respect of any of
the Obligations, is rescinded or must otherwise be restored or returned by
the Administrative Agent or any Lender upon the insolvency, bankruptcy or
reorganization of either of the Borrowers, or otherwise, the provisions of
this Section 7.12 will forthwith be reinstated in effect, as though such
payment had not been made.
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8. COLLATERAL SECURITY.
8.1. SECURITY OF BORROWERS. The Obligations shall be secured by a
perfected first priority security interest (subject only to Permitted Liens
entitled to priority under applicable law) in all of the assets of the Borrowers
(other than those assets excluded under Section 2.3 of the Security Agreement),
whether now owned or hereafter acquired, pursuant to the terms of the Security
Documents to which the Borrowers are a party.
9. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers represents and warrants to the Lenders and the
Administrative Agent as follows:
9.1. CORPORATE AUTHORITY.
9.1.1. INCORPORATION; ORGANIZATION; GOOD STANDING. Each of the
Borrowers and their Subsidiaries (a) is a corporation (or similar business
entity) duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or formation, (b) has all
requisite corporate (or the equivalent company) power to own its property
and conduct its business as now conducted and as presently contemplated,
and (c) is in good standing as a foreign corporation (or similar business
entity) and is duly authorized to do business in each jurisdiction where
such qualification is necessary except where a failure to be so qualified
would not have a Material Adverse Effect.
9.1.2. AUTHORIZATION. The execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which either
Borrower or any of its Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby (a) are within the corporate
(or the equivalent company) authority of such Person, (b) have been duly
authorized by all necessary corporate (or the equivalent company)
proceedings, (c) do not and will not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation to
which either Borrower or any of its Subsidiaries is subject or any
judgment, order, writ, injunction, license or permit applicable to the
Borrowers or any of their Subsidiaries and (d) do not conflict with any
provision of the Governing Documents of, or any agreement or other
instrument binding upon, either Borrower or any of its Subsidiaries.
9.1.3. ENFORCEABILITY. The execution and delivery of this Credit
Agreement and the other Loan Documents to which either Borrower or any of
its Subsidiaries is or is to become a party will result in valid and
legally binding obligations of such Person enforceable against it in
accordance with the respective terms and provisions hereof and thereof,
except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent
that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
9.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Borrowers and any of their Subsidiaries of this Credit Agreement and the
other Loan Documents to which either Borrower or any of its Subsidiaries is or
is to become a party and the transactions
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contemplated hereby and thereby do not require the approval or consent of, or
filing with, any governmental agency or authority other than those already
obtained.
9.3. TITLE TO PROPERTIES; LEASES. Except as indicated on Schedule 9.3
hereto, the Borrowers and their Subsidiaries own (or with respect to property
leased under a Capitalized Lease, have a leasehold interest in) all of the
assets reflected in the consolidated balance sheet of Holdings and its
Subsidiaries as at the Balance Sheet Date or acquired since that date (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date), subject to no Liens or other rights of others, except
Permitted Liens.
9.4. FINANCIAL STATEMENTS AND PROJECTIONS.
9.4.1. FISCAL YEAR. Holdings and each of its Subsidiaries has a
fiscal year which is the twelve months ending on October 31 of each
calendar year.
9.4.2. FINANCIAL STATEMENTS. There has been furnished to each of the
Lenders a consolidated balance sheet of Holdings and its Subsidiaries as
at the Balance Sheet Date, and a consolidated statement of income of
Holdings and its Subsidiaries for the fiscal year then ended, certified by
Deloitte & Touche LLP. Such balance sheet and statement of income have
been prepared in accordance with GAAP and fairly present in all material
respects the financial condition of Holdings and its Subsidiaries as at
the close of business on the date thereof and the results of operations
for the fiscal year then ended. There are no contingent liabilities of
Holdings or any of its Subsidiaries as of such date involving material
amounts which are required by GAAP to be disclosed, any of which were not
disclosed in such balance sheet and the notes related thereto.
9.4.3. PROJECTIONS. The projections of the annual operating budgets
of Holdings and its Subsidiaries on a consolidated basis, balance sheets
and cash flow statements for the 2005 to 2007 fiscal years, copies of
which have been delivered to each Lender prior to the date hereof are
based upon reasonable estimates and assumptions, have been prepared on the
basis of the assumptions stated therein and reflect the reasonable
estimates of the Borrowers and their Subsidiaries of the results of
operations and other information projected therein. To the knowledge of
the Borrowers as of Closing Date no facts exist that (individually or in
the aggregate) would result in any material adverse change in any of such
projections. It is understood that nothing contained in this section shall
constitute a representation or warranty that such future financial
performance or results of operations will be achieved.
9.5. NO MATERIAL ADVERSE CHANGES, ETC. Since the Balance Sheet Date there
has been no event or occurrence which has had or could reasonably be expected to
have a Material Adverse Effect. Since the Balance Sheet Date, neither Borrower
has made any Restricted Payment except for the payment by Holdings to the Seller
Subordinated Debt Holders on the Closing Date in an aggregate amount equal to
$3,600,000.
9.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrowers and each of their
Subsidiaries possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, necessary
for the conduct of its business substantially as now conducted without known
conflict with any rights of others.
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9.7. LITIGATION. Except as set forth in Schedule 9.7 hereto, there are no
actions, suits, proceedings or investigations of any kind pending or, to the
knowledge of Borrowers, threatened against either Borrower or any of its
Subsidiaries before any Governmental Authority, that, (a) if adversely
determined, might, either in any case or in the aggregate, (i) have a Material
Adverse Effect or (ii) materially impair the right of the Borrowers and their
Subsidiaries, considered as a whole, to carry on business substantially as now
conducted by them, or result in any substantial liability not adequately covered
by insurance, or for which adequate reserves are not maintained on the
consolidated balance sheet of Holdings and its Subsidiaries, or (b) which
question the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto.
9.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither Borrower nor any of
their Subsidiaries is subject to any Governing Document or other legal
restriction, or any judgment, decree, order, law, statute, rule or regulation
that has or is reasonably expected in the future to have a Material Adverse
Effect. Neither Borrower nor any of their Subsidiaries is a party to any
contract or agreement that has had or could reasonably be expected to have any
Material Adverse Effect.
9.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither of the
Borrowers nor any of their Subsidiaries is in violation of any provision of its
Governing Documents, or any agreement or instrument to which it may be subject
or by which it or any of its properties may be bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the foregoing cases in
a manner that could result in the imposition of substantial penalties or have a
Material Adverse Effect.
9.10. TAX STATUS. The Borrowers and their Subsidiaries (a) have made or
filed all federal, state and foreign income and all other tax returns, reports
and declarations required by any jurisdiction to which any of them is subject,
(b) have paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings and (c) have set
aside on their books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the Borrowers do not
know of any basis for any such claim.
9.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred and
is continuing.
9.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither Borrower nor
any of their Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
9.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future Lien on any assets or property
of the Borrowers or any of their Subsidiaries or any rights relating thereto,
except with
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respect to those Liens securing the obligations of the Borrowers to Xxxxxxx
Bank, National Association and the other lenders party to the Amended and
Restated Loan Agreement among the Borrowers, Xxxxxxx Bank, National Association
and the other lenders party thereto (the "Xxxxxxx Loan") to be paid off from the
proceeds of the Loans and which Liens are to be released on or about the Closing
Date.
9.14. PERFECTION OF SECURITY INTEREST. All filings, assignments, pledges
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary, under applicable law, to establish and
perfect the Administrative Agent's security interest in the Collateral. The
Collateral and the Administrative Agent's rights with respect to the Collateral
are not subject to any setoff, claims, withholdings or other defenses. The
Borrowers are the owners of the Collateral free from any Lien, except for
Permitted Liens.
9.15. CERTAIN TRANSACTIONS. Except as set forth on Schedule 9.15 attached
hereto, none of the officers, directors, or employees of either Borrower or any
of its Subsidiaries or any of the Bakers or any entity which is an Affiliate of
any of the Bakers is presently a party to any transaction with either Borrower
or any of its Subsidiaries (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrowers, any
corporation, limited liability company, partnership, trust or other entity in
which any officer, member, manager, director, or any such employee has a
substantial interest or is an officer, member, manager, director, trustee or
partner.
9.16. EMPLOYEE BENEFIT PLANS.
9.16.1. IN GENERAL. Each Employee Benefit Plan and each Guaranteed
Pension Plan has been maintained and operated in compliance in all
material respects with the provisions of ERISA and, to the extent
applicable, the Code, including but not limited to the provisions
thereunder respecting prohibited transactions and the bonding of
fiduciaries and other persons handling plan funds as required by Section
412 of ERISA. The Borrowers have heretofore delivered to the
Administrative Agent the most recently completed annual report, Form 5500,
with all required attachments, and actuarial statement required to be
submitted under Section 103(d) of ERISA, with respect to each Guaranteed
Pension Plan.
9.16.2. TERMINABILITY OF WELFARE PLANS. No Employee Benefit Plan,
which is an employee welfare benefit plan within the meaning of Section
3(1) or Section 3(2)(B) of ERISA, provides benefit coverage subsequent to
termination of employment, except as required by Title I, Part 6 of ERISA
or the applicable state insurance laws. The Borrowers may terminate each
such Plan at any time (or at any time subsequent to the expiration of any
applicable bargaining agreement) in the discretion of the Borrowers
without liability to any Person other than for claims arising prior to
termination.
9.16.3. GUARANTEED PENSION PLANS. Each contribution required to be
made to a Guaranteed Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency, the notice or lien
provisions of Section 302(f) of ERISA, or otherwise, has been timely made.
No waiver of an accumulated funding deficiency or extension of
amortization periods has been received with respect to any Guaranteed
Pension Plan, and neither Borrower nor any ERISA Affiliate is obligated to
or has posted
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security in connection with an amendment to a Guaranteed Pension Plan
pursuant to Section 307 of ERISA or Section 401(a)(29) of the Code. No
liability to the PBGC (other than required insurance premiums, all of
which have been paid) has been incurred by the Borrowers or any ERISA
Affiliate with respect to any Guaranteed Pension Plan and there has not
been any ERISA Reportable Event (other than an ERISA Reportable Event as
to which the requirement of 30 days notice has been waived), or any other
event or condition which presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC. Based on the latest valuation of each
Guaranteed Pension Plan (which in each case occurred within twelve months
of the date of this representation), and on the actuarial methods and
assumptions employed for that valuation, the aggregate benefit liabilities
of all such Guaranteed Pension Plans within the meaning of Section 4001 of
ERISA did not exceed the aggregate value of the assets of all such
Guaranteed Pension Plans, disregarding for this purpose the benefit
liabilities and assets of any Guaranteed Pension Plan with assets in
excess of benefit liabilities.
9.16.4. MULTIEMPLOYER PLANS. Neither Borrower nor any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under Section 4201 of ERISA or as
a result of a sale of assets described in Section 4204 of ERISA. Neither
Borrower nor any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the meaning of
Section 4241 or Section 4245 of ERISA or is at risk of entering
reorganization or becoming insolvent, or that any Multiemployer Plan
intends to terminate or has been terminated under Section 4041A of ERISA.
9.17. USE OF PROCEEDS.
9.17.1. GENERAL. The proceeds of the Revolving Credit Loans and the
Term Loan shall be used (a) to refinance all of the Borrowers' outstanding
Indebtedness owing under the Xxxxxxx Loan (b) to repay a portion of the
Seller Subordinated Debt on the Closing Date in the aggregate amount of
$3,600,000 and (c) for working capital and general corporate purposes. The
proceeds of the Acquisition Loans shall be used solely to finance
Permitted Acquisitions and no proceeds of the Term Loan shall be used to
finance any Permitted Acquisition. The Borrowers will obtain Letters of
Credit solely for general corporate purposes.
9.17.2. REGULATIONS U AND X. No portion of any Loan is to be used,
and no portion of any Letter of Credit is to be obtained, for the purpose
of purchasing or carrying any "margin security" or "margin stock" as such
terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
9.17.3. INELIGIBLE SECURITIES. No portion of the proceeds of any
Loans is to be used, and no portion of any Letter of Credit is to be
obtained, for the purpose of knowingly purchasing, or providing credit
support for the purchase of, during the underwriting or placement period
or within thirty (30) days thereafter, any Ineligible Securities
underwritten or privately placed by a Financial Affiliate.
9.18. ENVIRONMENTAL COMPLIANCE. The Borrowers have determined that:
(a) neither Borrower, nor any of their Subsidiaries nor any of their
operations on the Real Estate is in violation, or, to the knowledge of
Borrowers, alleged
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violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery Act
("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state,
local or foreign law, statute, regulation, ordinance, order or decree
relating to health, safety or the environment (hereinafter "Environmental
Laws"), which violation could reasonably be expected to have a material
adverse effect on the environment or a Material Adverse Effect;
(b) neither Borrower nor any of their Subsidiaries has received
notice from any third party including, without limitation, any
Governmental Authority, (i) that any one of them has been identified by
the United States Environmental Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site listed on the
National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X; (ii) that any
hazardous waste, as defined by 42 U.S.C. Section 6903(5), any hazardous
substances as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which any one
of them has generated, transported or disposed of has been found at any
site at which a Governmental Authority has conducted or has ordered that
either Borrower or any of its Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative
proceeding (in each case, contingent or otherwise) arising out of any
third party's incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Substances;
(c) except as set forth on Schedule 9.18 attached hereto: (i) no
portion of the Real Estate has been used by Borrowers for the handling,
processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws; and no underground tank or
other underground storage receptacle for Hazardous Substances is located
on any portion of the Real Estate; (ii) in the course of any activities
conducted by the Borrowers or their Subsidiaries, no Hazardous Substances
have been generated or are being used on the Real Estate except in
accordance with applicable Environmental Laws; (iii) while the Borrowers
have been leasing the Real Estate there have been no releases (i.e. any
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping) or threatened
releases of Hazardous Substances on, upon, into or from the Real Estate of
either Borrower or its Subsidiaries in violation of applicable
Environmental Law, which releases could reasonably be expected to have a
material adverse effect on the value of any of the Real Estate or adjacent
properties or the environment; (iv) to the Borrowers' knowledge, there
have been no releases in violation of applicable Environmental Law on,
upon, from or into any real property in the vicinity of any of the Real
Estate which, through soil or groundwater contamination, may have come to
be located on, and which could reasonably be expected to have a material
adverse effect on the value of, the Real Estate; and (v) in addition, any
Hazardous Substances that have been generated on any of the Real Estate
while the Borrowers have been leasing the Real Estate have been
transported offsite only by carriers having an identification number
issued by the EPA (or the equivalent thereof in any foreign jurisdiction),
treated or disposed of only by treatment or
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disposal facilities maintaining valid permits as required under applicable
Environmental Laws, which transporters and facilities have been and are,
to the best of the Borrowers' knowledge, operating in compliance with such
permits and applicable Environmental Laws; and
(d) neither Borrower, nor any of their Subsidiaries nor any of the
Real Estate is subject to any applicable Environmental Law requiring the
performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the giving of notice to any
Governmental Authority or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby, or as a condition
to the recording of any mortgage or to the effectiveness of any other
transactions contemplated hereby.
9.19. SUBSIDIARIES, ETC. Crystal Rock is the only Subsidiary of Holdings
and Crystal Rock has no Subsidiaries. Except as set forth on Schedule 9.19
hereto, neither Borrower nor any Subsidiary of either Borrower is engaged in any
joint venture or partnership with any other Person. The jurisdiction of
incorporation/formation and principal place of business of each Subsidiary of
the Borrowers is listed on Schedule 9.19 hereto.
9.20. BANK ACCOUNTS. Schedule 9.20 sets forth the account numbers and
location of all bank accounts of the Borrowers and their Subsidiaries.
9.21. DISCLOSURE. Neither this Credit Agreement nor any of the other Loan
Documents contains any untrue statement of a material fact or omits to state a
material fact (known to the Borrowers or any of their Subsidiaries in the case
of any document or information not furnished by them or any of their
Subsidiaries) necessary in order to make the statements herein or therein not
misleading in light of the circumstances under which they were made. There is no
fact known to the Borrowers or any of their Subsidiaries that has not been
disclosed in writing to Administrative Agent which has had or could reasonably
be expected to have a Material Adverse Effect, or which could reasonably be
expected to have in the future a Material Adverse Effect, exclusive of effects
resulting from changes in general economic conditions, legal standards or
regulatory conditions.
9.22. FOREIGN ASSETS CONTROL REGULATIONS, ETC. None of the requesting or
borrowing of the Loans, the requesting or issuance, extension or renewal of any
Letters of Credit or the use of the proceeds of any thereof will violate the
Trading With the Enemy Act (50 U.S.C. Section 1 et seq., as amended) (the
"Trading With the Enemy Act") or any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) (the "Foreign Assets Control Regulations") or any enabling legislation
or executive order relating thereto (which for the avoidance of doubt shall
include, but shall not be limited to (a) Executive Order 13224 of September 21,
2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the
"Executive Order") and (b) the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(Public Law 107-56)). Furthermore, neither Borrower nor any of their
Subsidiaries or other Affiliates (a) is or will become a "blocked person" as
described in the Executive Order, the Trading With the Enemy Act or the Foreign
Assets Control Regulations or (b) engages or will engage in any dealings or
transactions, or be otherwise associated, with any such "blocked person".
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9.23. EMPLOYMENT CONTRACTS. Neither Borrower nor any of their Subsidiaries
is a party to any employment agreement or other compensation agreement with any
member of Senior Management other than the Senior Management Employment
Agreements.
10. AFFIRMATIVE COVENANTS.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit:
10.1. PUNCTUAL PAYMENT. The Borrowers will duly and punctually pay or
cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the commitment fees, the Administrative
Agent's fee and all other amounts provided for in this Credit Agreement and the
other Loan Documents to which either Borrower or any of its Subsidiaries is a
party, all in accordance with the terms of this Credit Agreement and such other
Loan Documents.
10.2. MAINTENANCE OF OFFICE. Each of the Borrowers will maintain its chief
executive office in 00 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx, or at such other place
in the United States of America as such Borrower shall designate upon written
notice to the Administrative Agent, where notices, presentations and demands to
or upon such Borrower in respect of the Loan Documents to which such Borrower is
a party may be given or made.
10.3. RECORDS AND ACCOUNTS. Each of the Borrowers will (a) keep, and cause
each of its Subsidiaries to keep, true and accurate records and books of account
in which full, true and correct entries will be made in accordance with GAAP,
(b) maintain adequate accounts and reserves for all taxes (including income
taxes), depreciation, depletion, obsolescence and amortization of its properties
and the properties of its Subsidiaries, contingencies, and other reserves, and
(c) at all times engage Deloitte & Touche, LLP or other independent certified
public accountants reasonably satisfactory to the Administrative Agent as the
independent certified public accountants of the Borrowers and their Subsidiaries
and will not permit more than thirty (30) days to elapse between the cessation
of such firm's (or any successor firm's) engagement as the independent certified
public accountants of the Borrowers and their Subsidiaries and the appointment
in such capacity of a successor firm as shall be satisfactory to the
Administrative Agent.
10.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrowers
will deliver to each of the Lenders:
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of the Borrowers, the
consolidated balance sheet of Holdings and its Subsidiaries and the
consolidating balance sheet of Holdings and its Subsidiaries, each as at
the end of such year, and the related consolidated statement of income or
operations and consolidated statement of cash flows and consolidating
statement of income or operations and consolidating statement of cash
flows for such year, each setting forth in comparative form the figures
for the previous fiscal year and all such consolidated and consolidating
statements to be in reasonable detail, prepared in accordance with GAAP,
and certified, without qualification and without an expression of
uncertainty as to the ability of the Borrowers or any of their
Subsidiaries to continue as
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going concerns, by Deloitte & Touche, LLP or by other independent
certified public accountants satisfactory to the Administrative Agent,
together with (i) a written statement from such accountants to the effect
that they have read a copy of this Credit Agreement, and that, in making
the examination necessary to said certification, they have obtained no
knowledge of any Default or Event of Default, or, if such accountants
shall have obtained knowledge of any then existing Default or Event of
Default they shall disclose in such statement any such Default or Event of
Default; provided that such accountants shall not be liable to the Lenders
for failure to obtain knowledge of any Default or Event of Default; and
(ii) a copy of their accountants' management letter for such fiscal year;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the first three fiscal
quarters of the Borrowers, copies of the unaudited consolidated balance
sheet of Holdings and its Subsidiaries and the unaudited consolidating
balance sheet of Holdings and its Subsidiaries, each as at the end of such
quarter, and the related consolidated statement of income or operations
and consolidated statement of cash flows and consolidating statement of
income or operations and consolidating statement of cash flows for the
portion of Holdings's fiscal year then elapsed, all in reasonable detail
and prepared in accordance with GAAP, together with a certification by the
principal financial or accounting officers of the Borrowers that the
information contained in such financial statements fairly presents in all
material respects the financial position of the Borrowers and their
Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by the
principal financial or accounting officers of the Borrowers in
substantially the form of Exhibit E hereto (a "Compliance Certificate")
and setting forth in reasonable detail computations evidencing compliance
with the covenants contained in Section 12 and (if applicable)
reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed with the Securities and Exchange
Commission or sent to the stockholders of the Borrowers;
(e) as soon as available and in no event later than December 15th of
each fiscal year of Holdings, financial projections of Holdings and its
Subsidiaries for the then current fiscal year (on a quarter-by-quarter
basis), including (i) statements of forecasted consolidated income or
operations and cash flows for Holdings and its Subsidiaries for each
fiscal quarter in the next fiscal year and a forecasted consolidated
balance sheet of Holdings and its Subsidiaries as of the last day of each
fiscal quarter in such next fiscal year, and (ii) statements of forecasted
consolidated income or operations and cash flows for Holdings and its
Subsidiaries for the following fiscal year and a forecasted consolidated
balance sheet of Holdings and its Subsidiaries as of the last day of the
following fiscal year, together (in the case of clauses (i) and (ii)) with
supporting assumptions which were reasonable when made, all prepared in
good faith in reasonable detail and consistent with Holdings's past
practices in preparing projections and otherwise reasonably satisfactory
in scope to the Administrative Agent; and
(f) from time to time such other financial data and information as
the Administrative Agent or any Lender may reasonably request.
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10.5. NOTICES.
10.5.1. DEFAULTS. Each of the Borrowers will promptly notify the
Administrative Agent and each of the Lenders in writing of the occurrence
of any Default or Event of Default, together with a reasonably detailed
description thereof, and the actions the Borrowers propose to take with
respect thereto. If any Person shall give any written notice or take any
other action in respect of a claimed default (whether or not constituting
an Event of Default) under this Credit Agreement or any other note,
evidence of indebtedness, indenture or other obligation to which or with
respect to which either Borrower or any of its Subsidiaries is a party or
obligor, whether as principal, guarantor, surety or otherwise, the
Borrowers shall forthwith give written notice thereof to the
Administrative Agent and each of the Lenders, describing the notice or
action and the nature of the claimed default.
10.5.2. ENVIRONMENTAL EVENTS. Each of the Borrowers will promptly
give notice to the Administrative Agent and each of the Lenders (a) of any
violation of any Environmental Law that either Borrower or any of its
Subsidiaries reports in writing or is reportable by such Person in writing
(or for which any written report supplemental to any oral report is made)
to any Governmental Authority that could reasonably be expected to have a
Material Adverse Effect and (b) upon becoming aware thereof, of any
inquiry, proceeding, investigation, or other action, including a notice
from any agency of potential environmental liability, of any Governmental
Authority that could reasonably be expected to have a Material Adverse
Effect.
10.5.3. NOTIFICATION OF CLAIM AGAINST COLLATERAL. Each of the
Borrowers will, immediately upon becoming aware thereof, notify the
Administrative Agent and each of the Lenders in writing of any setoff,
claims (including, with respect to the Real Estate, environmental claims),
withholdings or other defenses to which any of the Collateral, or the
Administrative Agent's rights with respect to the Collateral, are subject.
10.5.4. NOTICE OF LITIGATION AND JUDGMENTS. Each of the Borrowers
will, and will cause each of its Subsidiaries to, give notice to the
Administrative Agent and each of the Lenders in writing within fifteen
(15) days of becoming aware of any litigation or proceedings threatened in
writing or any pending litigation and proceedings affecting either
Borrower or any of its Subsidiaries or to which either Borrower or any of
its Subsidiaries is or becomes a party involving an uninsured claim
against either Borrower or any of its Subsidiaries that could, if
adversely determined, reasonably be expected to have a Material Adverse
Effect and stating the nature and status of such litigation or
proceedings. Each of the Borrowers will, and will cause each of its
Subsidiaries to, give notice to the Administrative Agent and each of the
Lenders, in writing, in form and detail satisfactory to the Administrative
Agent, within ten (10) days of any judgment not covered by insurance,
final or otherwise, against either Borrower or any of its Subsidiaries in
an amount in excess of $175,000.
10.5.5. MATERIAL AGREEMENTS. Each of the Borrowers will, immediately
upon becoming aware thereof, notify the Administrative Agent and each of
the Lenders in writing of any event which constitutes a material default
by any Person or any of its Subsidiaries under any Material Agreement and
will immediately forward to the Administrative Agent and each of the
Lenders copies of any communication received by such Person from any party
thereto claiming any such default under any Material
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Agreement. In addition, if either Borrower or any of their Subsidiaries
enters into any amendment of any Material Agreement in any material
respect, the Borrowers shall immediately provide the Administrative Agent
with copies of such amendment.
10.6. EXISTENCE; MAINTENANCE OF PROPERTIES. Each of the Borrowers will do
or cause to be done all things necessary to preserve and keep in full force and
effect its legal existence, rights and franchises and those of its Subsidiaries.
Each of the Borrowers (a) will cause all of its properties and those of its
Subsidiaries used or useful in the conduct of its business or the business of
its Subsidiaries to be maintained and kept in good condition, repair and working
order (reasonable wear and tear and obsolescence excepted) and supplied with all
necessary equipment, (b) will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Borrowers may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, and (c)
will, and will cause each of its Subsidiaries to, continue to engage primarily
in the businesses now conducted by them and in related businesses; provided that
nothing in this Section 10.6 shall prevent either Borrower from discontinuing
the operation and maintenance of any of its properties or any of those of its
Subsidiaries if such discontinuance is, in the judgment of such Borrower,
desirable in the conduct of its or their business and that do not in the
aggregate have a Material Adverse Effect.
10.7. INSURANCE. Each of the Borrowers will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such casualties
and contingencies as shall be in accordance with the general practices of
businesses engaged in similar activities in similar geographic areas and in
amounts, containing such terms, in such forms and for such periods as may be
reasonable and prudent and in accordance with the terms of the Security
Agreement.
10.8. TAXES. Each of the Borrowers will, and will cause each of its
Subsidiaries to, duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other
governmental charges imposed upon it and its Real Estate, sales and activities,
or any part thereof, or upon the income or profits therefrom, as well as all
claims for labor, materials, or supplies that if unpaid might by law become a
Lien or charge upon any of its property; provided that any such tax, assessment,
charge, levy or claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if either
Borrower or such Subsidiary shall have set aside on its books adequate reserves
with respect thereto; and provided further that each Borrower and each
Subsidiary of the Borrowers will pay all such taxes, assessments, charges,
levies or claims forthwith upon the commencement of proceedings to foreclose any
Lien that may have attached as security therefor.
10.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
10.9.1. GENERAL. Each of the Borrowers shall permit the Lenders,
through the Administrative Agent or any of the Lenders' other designated
representatives, to visit and inspect during normal business hours any of
the properties of the Borrowers or any of their Subsidiaries, to examine
the books of account of the Borrowers and their Subsidiaries (and to make
copies thereof and extracts therefrom), and to discuss the affairs,
finances and accounts of the Borrowers and their Subsidiaries with, and to
be advised as to the same by, their officers, all at such reasonable times
and intervals as the Administrative Agent or any Lender may reasonably
request and at the expense of the Borrowers.
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10.9.2. COMMUNICATIONS WITH ACCOUNTANTS. Each of the Borrowers
authorizes the Administrative Agent and the Lenders to communicate
directly with the Borrowers' independent certified public accountants and
authorizes such accountants to disclose to the Administrative Agent and
the Lenders any and all financial statements and other supporting
financial documents and schedules including copies of any management
letter with respect to the business, financial condition and other affairs
of the Borrowers or any of their Subsidiaries. At the request of the
Administrative Agent, the Borrowers shall deliver a letter addressed to
such accountants instructing them to comply with the provisions of this
Section 10.9.2.
10.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. Each of the
Borrowers will, and will cause each of its Subsidiaries to, comply with (a) the
applicable laws and regulations wherever its business is conducted, including
all Environmental Laws, (b) the provisions of its Governing Documents, (c) all
agreements and instruments by which it or any of its properties may be bound and
(d) all applicable decrees, orders, and judgments, except in each case where the
failure to do so would not have a Material Adverse Effect. If any authorization,
consent, approval, permit or license from any officer, agency or instrumentality
of any government shall become necessary or required in order that the Borrowers
or any of their Subsidiaries may fulfill any of their obligations hereunder or
any of the other Loan Documents to which either Borrower or such Subsidiary is a
party, each of the Borrowers will, or (as the case may be) will cause such
Subsidiary to, immediately take or cause to be taken all reasonable steps within
the power of the Borrowers or such Subsidiary to obtain such authorization,
consent, approval, permit or license and furnish the Administrative Agent and
the Lenders with evidence thereof.
10.11. EMPLOYEE BENEFIT PLANS. Each of the Borrowers will (a) promptly
upon filing the same with the Department of Labor or Internal Revenue Service
upon request of the Administrative Agent, furnish to the Administrative Agent a
copy of the most recent actuarial statement required to be submitted under
Section 103(d) of ERISA and Annual Report, Form 5500, with all required
attachments, in respect of each Guaranteed Pension Plan and (b) promptly upon
receipt or dispatch, furnish to the Administrative Agent any notice, report or
demand sent or received in respect of a Guaranteed Pension Plan under Sections
302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a
Multiemployer Plan, under Sections 4041A, 4202, 4219, 4242, or 4245 of ERISA.
10.12. USE OF PROCEEDS. The Borrowers will use the proceeds of the Loans
and obtain Letters of Credit solely for the purposes set forth in Section
9.17.1.
10.13. MORTGAGED PROPERTY. If, after the Closing Date, either Borrower or
any of its Subsidiaries acquires Real Estate used as a manufacturing or
warehouse facility, the Borrowers shall, or shall cause such Subsidiary to,
forthwith deliver to the Administrative Agent a fully executed mortgage or deed
of trust over such Real Estate, in form and substance satisfactory to the
Administrative Agent, together with title insurance policies, surveys, evidences
of insurance with the Administrative Agent named as loss payee and additional
insured, legal opinions and other documents and certificates with respect to
such Real Estate as is reasonably requested by the Administrative Agent. Each of
the Borrowers further agrees that, following the taking of such actions with
respect to such Real Estate, the Administrative Agent shall have for the benefit
of the Lenders and the Administrative Agent a valid and enforceable first
priority mortgage or deed of trust over such Real Estate, free and clear of all
Liens except for Permitted Liens.
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10.14. BANK ACCOUNTS. Each of the Borrowers will, and will cause each of
its Subsidiaries to, maintain all of their primary depository accounts with the
Administrative Agent within sixty (60) days of the Closing Date, and each of the
Borrowers will, and will cause each of its Subsidiaries to, together with the
employees, agents and other Persons acting on behalf of the Borrowers or such
Subsidiary who receive such payments, receive and hold in trust for the
Administrative Agent and the Lenders all payments constituting proceeds of
Accounts Receivable or other Collateral which come into their possession or
under their control and, immediately upon receipt thereof, deposit such payments
in the form received, with any appropriate endorsements, in one of the accounts
designated as a central depository account on Schedule 9.20.
10.15. INTEREST RATE PROTECTION. The Borrowers will, not later than thirty
(30) days after the Closing Date, purchase an interest cap or swap or effect
other interest rate protection arrangements in a minimum aggregate amount of not
less than seventy-five percent (75%) of the outstanding principal amount of the
Term Loan for a period of not less than seven (7) years and on other terms and
conditions satisfactory to the Administrative Agent.
10.16. WATER CONTRACTS AND LICENSES. Each of the Borrowers will, and will
cause each of its Subsidiaries to, at least ten (10) days prior to entering into
any material contract or license agreement by either Borrower or any of its
Subsidiaries relating to the supply of water to either Borrower or any of its
Subsidiaries, deliver to Administrative Agent notice of such intended action and
a complete copy of such contract or license agreement. All such contracts and
license agreements shall specifically state that they are assignable to the
Administrative Agent as security for the Obligations and the Borrowers shall
take all steps necessary to complete such assignment to Administrative Agent,
including, without limitation, the execution and delivery to Administrative
Agent of an assignment of such contract or license agreement in form and content
satisfactory to Administrative Agent.
10.17. CLEAN DOWN. The Borrowers will cause the outstanding amount of the
Revolving Credit Loans (after giving effect to all amounts requested but
exclusive of any Letters of Credit outstanding) to be equal to or less than the
Clean Down Amount for a period of at least thirty (30) consecutive days during
the consecutive twelve (12) month periods ending on each day while the Total
Revolving Credit Commitment is in effect, commencing with the twelve (12) month
period ending on the first anniversary of the Closing Date.
10.18. ADDITIONAL SUBSIDIARIES. The Borrowers shall not create any
Subsidiary (other than Subsidiaries existing on the Closing Date and disclosed
in Section 9.19 hereto) unless (a) one hundred percent (100%) of the Capital
Stock of such Subsidiary is owned by the Borrowers, (b) prior to the formation
of such Subsidiary, the Borrowers shall notify the Administrative Agent and the
Lenders thereof, and (c) contemporaneously with the formation of such
Subsidiary, the Borrowers shall (i) cause such Subsidiary to guaranty all of the
Obligations hereunder pursuant to a guaranty in form and substance satisfactory
to the Administrative Agent, which such guaranty shall be a Security Document
hereunder, (ii) cause such Subsidiary to take all steps as may be necessary or
advisable in the opinion of the Administrative Agent to grant to the
Administrative Agent, for the benefit of the Lenders and the Administrative
Agent, a first priority (subject only to Permitted Liens), perfected security
interest in its assets which would be deemed Collateral pursuant to the Security
Documents as collateral security for such guaranty, pursuant to security
documents, mortgages, pledges and other documents in form and substance
satisfactory to the Administrative Agent, each of which documents shall be
Security Documents hereunder, (iii) deliver to the Administrative Agent and the
Lenders appropriate corporate (or other applicable entity) backup documentation
and one or more legal opinions, in each case, in form and substance
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satisfactory to the Administrative Agent, as to each such guaranty and grant of
security interest, where applicable, and (iv) provide the Administrative Agent
with an updated Schedule 9. 19 hereto.
10.19. FURTHER ASSURANCES. Each of the Borrowers will, and will cause each
of its Subsidiaries to, cooperate with the Lenders and the Administrative Agent
and execute such further instruments and documents as the Lenders or the
Administrative Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Credit Agreement and the other Loan
Documents.
11. CERTAIN NEGATIVE COVENANTS.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Administrative Agent has any
obligations to issue, extend or renew any Letters of Credit:
11.1. RESTRICTIONS ON INDEBTEDNESS. Neither Borrower will, nor will it
permit any of its Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Lenders and the Administrative Agent arising
under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;
(c) Subordinated Debt;
(d) Indebtedness incurred in connection with the acquisition after
the date hereof of any real or personal property by either Borrower or
such Subsidiary or under any Capitalized Lease, provided that the
aggregate principal amount of such Indebtedness of the Borrowers and their
Subsidiaries shall not exceed the aggregate amount of $1,000,000 at any
one time;
(e) Indebtedness in respect of Hedging Agreements;
(f) Indebtedness existing on the date hereof and listed and
described on Schedule 11.1 hereto; and.
(g) Indebtedness owing by Subsidiaries of the Borrowers to a
Borrower, or by one Borrower to the other Borrower, so long as the
Investment corresponding to such Indebtedness is permitted pursuant to
Section 11.3(h).
11.2. RESTRICTIONS ON LIENS.
11.2.1. PERMITTED LIENS. Neither Borrower will, nor will it permit
any of its Subsidiaries to, (a) create or incur or suffer to be created or
incurred or to exist any Lien upon any of its property or assets of any
character whether now owned or hereafter acquired, or upon the income or
profits therefrom; (b) transfer any of such property or assets or the
income or profits therefrom for the purpose of subjecting the same to the
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payment of Indebtedness or performance of any other obligation in priority
to payment of its general creditors; (c) acquire, or agree or have an
option to acquire, any property or assets upon conditional sale or other
title retention or purchase money security agreement, device or
arrangement; (d) suffer to exist for a period of more than thirty (30)
days after the same shall have been incurred any Indebtedness or claim or
demand against it that if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its
general creditors; or (e) sell, assign, pledge or otherwise transfer any
"receivables" as defined in clause (g) of the definition of the term
"Indebtedness," with or without recourse; provided that either Borrower or
any of its Subsidiaries may create or incur or suffer to be created or
incurred or to exist:
(i) Liens in favor of the Borrowers on all or part of the
assets of Subsidiaries of the Borrowers securing Indebtedness owing
by Subsidiaries of the Borrowers to the Borrowers;
(ii) Liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or Liens on properties
to secure claims for labor, material or supplies in respect of
obligations not overdue or which are being contested in good faith
by appropriate proceedings diligently conducted and as to which
adequate reserves with respect thereto are maintained in accordance
with GAAP;
(iii) deposits or pledges made in connection with, or to
secure payment of, workmen's compensation, unemployment insurance,
old age pensions or other social security obligations or to secure
the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred,
in each case, in the ordinary course of business;
(iv) Liens on properties in respect of judgments or awards
that have been in force for less than the applicable period for
taking an appeal so long as execution is not levied thereunder or in
respect of which either Borrower or such Subsidiary shall at the
time in good faith be prosecuting an appeal or proceedings for
review and in respect of which a stay of execution shall have been
obtained pending such appeal or review;
(v) Liens of carriers, warehousemen, mechanics and
materialmen, and other like Liens on properties, in existence less
than 120 days from the date of creation thereof in respect of
obligations not overdue;
(vi) encumbrances on Real Estate consisting of easements,
rights of way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's liens and other minor Liens, provided that
none of such Liens (A) interferes materially with the use of the
property affected in the ordinary conduct of the business of the
Borrowers and their Subsidiaries, and (B) individually or in the
aggregate have a Material Adverse Effect;
(vii) Liens existing on the date hereof and listed on Schedule
11.2 hereto;
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(viii) purchase money security interests in or purchase money
mortgages on real or personal property acquired after the date
hereof to secure purchase money Indebtedness of the type and amount
permitted by Section 11.1(d), incurred in connection with the
acquisition of such property, which security interests or mortgages
cover only the real or personal property so acquired; and
(ix) Liens in favor of the Administrative Agent for the
benefit of the Lenders and the Administrative Agent under the Loan
Documents and any Hedging Agreements.
11.2.2. RESTRICTIONS ON UPSTREAM LIMITATIONS. Neither Borrower will,
nor will it permit any of its Subsidiaries to enter into any agreement,
contract or arrangement (excluding the Credit Agreement and the other Loan
Documents) restricting the ability of any Subsidiary of the Borrowers to
pay or make dividends or distributions in cash or kind to the Borrowers,
to make loans, advances or other payments of whatsoever nature to the
Borrowers, or to make transfers or distributions of all or any part of its
assets to the Borrowers.
11.3. RESTRICTIONS ON INVESTMENTS. Neither Borrower will, nor will it
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase by
the Borrowers;
(b) demand deposits, certificates of deposit, bankers acceptances
and time deposits of United States banks having total assets in excess of
$1,000,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated
and the ratings for which are not less than "P 1" if rated by Xxxxx'x, and
not less than "A 1" if rated by S & P;
(d) Investments existing on the date hereof and listed on Schedule
11.3 hereto;
(e) Investments by Holdings in Crystal Rock;
(f) Investments consisting of promissory notes received as proceeds
of asset dispositions permitted by Section 11.5.2;
(g) Investments consisting of Permitted Acquisitions;
(h) (i) Investments by the Borrowers in Subsidiaries that have
guarantied the Obligations and otherwise complied with the provisions of
Section 10.18 and (ii) Investments by one Borrower in another Borrower;
and
(i) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business not to exceed $100,000 in the aggregate at any time
outstanding;
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provided, however, that, with the exception of (x) demand deposits referred to
in Section 11.3(b), (y) loans and advances referred to in Section 11.3(i) and
(z) other Investments having a fair market value of less than $50,000
individually and $150,000 in the aggregate for all of such other Investments in
the aggregate, such Investments will be considered Investments permitted by this
Section 11.3 only if all actions have been taken to the satisfaction of the
Administrative Agent to provide to the Administrative Agent, for the benefit of
the Lenders and the Administrative Agent, a first priority perfected security
interest in all of such Investments free of all Liens other than Permitted
Liens.
11.4. RESTRICTED PAYMENTS. Neither Borrower will make any Restricted
Payments.
11.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
11.5.1. MERGERS AND ACQUISITIONS. Neither Borrower will, nor will it
permit any of its Subsidiaries to, become a party to any merger,
amalgamation or consolidation, or agree to or effect any asset acquisition
or stock acquisition (other than the acquisition of assets in the ordinary
course of business consistent with past practices) except (a) the merger
or consolidation of one or more of the Subsidiaries of the Borrowers
(other than Crystal Rock) with and into a Borrower, (b) the merger or
consolidation of two or more Subsidiaries of the Borrowers (other than a
merger involving Crystal Rock where Crystal Rock is not the surviving
entity) or (c) Permitted Acquisitions.
11.5.2. DISPOSITION OF ASSETS. Neither Borrower will, nor will it
permit any of its Subsidiaries to, become a party to or agree to or effect
any disposition of assets, other than the sale of Excluded Assets.
11.6. SALE AND LEASEBACK. Neither Borrower will, nor will it permit any of
its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby
either Borrower or any Subsidiary of either Borrower shall sell or transfer any
property owned by it in order then or thereafter to lease such property or lease
other property that either Borrower or any Subsidiary of either Borrower intends
to use for substantially the same purpose as the property being sold or
transferred.
11.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. Neither Borrower will, nor will
it permit any of its Subsidiaries to, (a) use any of the Real Estate or any
portion thereof for the handling, processing, storage or disposal of Hazardous
Substances in violation of applicable Environmental Laws, (b) cause or permit to
be located on any of the Real Estate any underground tank or other underground
storage receptacle for Hazardous Substances in violation of applicable
Environmental Laws, (c) generate any Hazardous Substances on any of the Real
Estate in violation of applicable Environmental Laws, (d) conduct any activity
at any Real Estate or use any Real Estate in any manner so as to cause a release
(i.e. releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping) or threatened
release of Hazardous Substances on, upon or into the Real Estate in violation of
applicable Environmental Laws or (e) otherwise conduct any activity at any Real
Estate or use any Real Estate in any manner that would violate any Environmental
Law or bring such Real Estate in violation of any Environmental Law.
11.8. SUBORDINATED DEBT. Neither Borrower will, nor will it permit any of
its Subsidiaries to, amend, supplement or otherwise modify the terms of any of
the Subordinated Debt or prepay, redeem or repurchase any of the Subordinated
Debt; provided that at any time or times after 18 months after the Closing Date
the Borrowers shall be permitted to pay principal on
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Seller Subordinated Debt in an amount for all such payments in the aggregate not
to exceed $3,000,000 so long as (a) at the time of any such prepayment no
Default or Event of Default is continuing or would result therefrom, (b) the
Senior Leverage Ratio as of the end of the fiscal quarter of the Borrowers ended
immediately preceding such prepayment is less than 2.00 to 1.0 (and the Lenders
shall have received the financial statements for such fiscal quarter evidencing
same) and (c) after giving effect to such payment the Senior Leverage Ratio is
less than 2.25 to 1.0 calculated, as of the end of the immediately preceding
fiscal quarter, on a pro forma basis as if such prepayment had been made on the
last day of the immediately preceding fiscal quarter (and the Lenders shall have
received the financial statements for such fiscal quarter evidencing same); and
further provided that for purposes of determining compliance with Section 12.2
hereof any prepayment of Seller Subordinated Debt after the date hereof shall be
deemed to be Consolidated Total Debt Service and shall be deemed to have been
made on the last day of the fiscal quarter most recently ended prior to the date
of such prepayment.
11.9. EMPLOYEE BENEFIT PLANS. Neither Borrower nor any ERISA Affiliate
will:
(a) engage in any "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Code which could result in a
material liability for either Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in Section 302 of ERISA,
whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of either
Borrower or any of its Subsidiaries pursuant to Section 302(f) or Section
4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the
posting of security pursuant to Section 307 of ERISA or Section 401(a)(29)
of the Code; or
(e) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of Section 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities.
11.10. BUSINESS ACTIVITIES. Neither Borrower will, nor will it permit any
of its Subsidiaries to, engage directly or indirectly (whether through
Subsidiaries or otherwise) in any type of business other than the businesses
conducted by them on the Closing Date and in substantially related businesses.
11.11. FISCAL YEAR. Neither Borrower will, nor will it permit any of it
Subsidiaries to, change the date of the end of its fiscal year from that set
forth in Section 9.4.1.
11.12. TRANSACTIONS WITH AFFILIATES. Neither Borrower will, nor will it
permit any of its Subsidiaries to, engage in any transaction with any Affiliate
(other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of
services to or by, providing for rental of real or personal property
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to or from, or otherwise requiring payments to or from any such Affiliate or, to
the knowledge of the Borrowers, any corporation, limited liability company,
partnership, trust or other entity in which any such Affiliate has a substantial
interest or is an officer, member, manager, director, trustee or partner, on
terms more favorable to such Person than would have been obtainable on an
arm's-length basis in the ordinary course of business.
11.13. BANK ACCOUNTS. Neither Borrower will, nor will it permit any of its
Subsidiaries to, (a) violate directly or indirectly any agency account agreement
or other bank agency or lock box agreement in favor of the Administrative Agent
for the benefit of the Lenders and the Administrative Agent with respect to such
account, or (b) deposit into any of the payroll accounts listed on Schedule 9.20
any amounts in excess of amounts necessary to pay current payroll obligations
from such accounts.
11.14. EMPLOYMENT CONTRACT AMENDMENTS. Neither Borrower will, nor will it
permit any of its Subsidiaries to, (a) amend, supplement or otherwise modify in
any material respect any of the terms, conditions or provisions of any of the
Senior Management Employment Agreements without the prior written consent of the
Required Lenders or (b) enter into any employment or other form of compensation
agreement or arrangement with any member of Senior Management without the prior
written consent of the Required Lenders.
12. FINANCIAL COVENANTS.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit:
12.1. CONSOLIDATED ADJUSTED OPERATING CASH FLOW TO SENIOR DEBT SERVICE.
The Borrowers will not permit the ratio of Consolidated Adjusted Operating Cash
Flow (determined on a Pro Forma Basis, if applicable) for any Reference Period
of the Borrowers ending on or after the Closing Date, to Consolidated Senior
Debt Service (as determined on a Pro Forma Basis, if applicable) for such
Reference Period, to be less than 1.25 to 1.0, determined as of the end of any
fiscal quarter.
12.2. CONSOLIDATED ADJUSTED OPERATING CASH FLOW TO TOTAL DEBT SERVICE. The
Borrowers will not permit the ratio of Consolidated Adjusted Operating Cash Flow
(determined on a Pro Forma Basis, if applicable) for any Reference Period of the
Borrowers ending on or after the Closing Date, to Consolidated Total Debt
Service (determined on a Pro Forma Basis, if applicable) for such Reference
Period, to be less than 1.00 to 1.0, determined as of the end of any fiscal
quarter.
12.3. SENIOR FUNDED DEBT TO EBITDA. The Borrowers will not permit as of
the end of any fiscal quarter the ratio of Senior Funded Debt outstanding as of
such date to Consolidated Adjusted EBITDA (determined on a Pro Forma Basis, if
applicable) for the most recently ended Reference Period as of such date
(including, without limitation, a Reference Period ending on such date) to
exceed the ratio in the table set forth below opposite the period in which such
date falls:
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PERIOD RATIO
---------------------------- ---------
Closing Date through and 3.25:1.00
including October 30, 2005
October 31, 2005 through and 3.00:1.00
including January 30, 2006
January 31, 2006 through and 2.75:1.00
including July 30, 2006
July 31, 2006 and thereafter 2.50:1.00
13. CLOSING CONDITIONS.
The obligations of the Lenders to make the initial Revolving Credit Loans,
the initial Acquisition Loans and the Term Loan and of the Administrative Agent
to issue any initial Letters of Credit shall be subject to the satisfaction of
the following conditions precedent on or prior to April 8, 2005:
13.1. LOAN DOCUMENTS ETC..
13.1.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in
full force and effect and shall be in form and substance satisfactory to
each of the Lenders. Each Lender shall have received a fully executed copy
of each such document.
13.1.2. SUBORDINATION DOCUMENTS. Each of the Subordination Documents
shall have been duly executed and delivered by the respective parties
thereto, shall be in full force and effect and shall be in form and
substance satisfactory to each of the Lenders. Each Lender shall have
received a fully executed copy of each such document.
13.2. CERTIFIED COPIES OF GOVERNING DOCUMENTS. Each of the Lenders shall
have received from each Borrower a copy, certified by a duly authorized officer
of such Person to be true and complete on the Closing Date, of each of its
Governing Documents as in effect on such date of certification.
13.3. CORPORATE OR OTHER ACTION. All corporate (or other) action necessary
for the valid execution, delivery and performance by each Borrower of this
Credit Agreement and the other Loan Documents to which it is or is to become a
party shall have been duly and effectively taken, and evidence thereof
satisfactory to the Lenders shall have been provided to each of the Lenders.
13.4. INCUMBENCY CERTIFICATE. Each of the Lenders shall have received from
each Borrower an incumbency certificate, dated as of the Closing Date, signed by
a duly authorized officer of such Borrower, and giving the name and bearing a
specimen signature of each individual who shall be authorized to sign, in the
name and on behalf of each Borrower, each of the Loan Documents and
Subordination Documents to which such Person is or is to become a party.
13.5. VALIDITY OF LIENS. The Security Documents shall be effective to
create in favor of the Administrative Agent a legal, valid and enforceable first
(except for Permitted Liens entitled to priority under applicable law) security
interest in and Lien upon the Collateral and the Subordination Documents. All
filings, recordings, deliveries of instruments and other actions necessary or
desirable in the opinion of the Administrative Agent to protect and preserve
such
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security interests shall have been duly effected. The Administrative Agent shall
have received evidence thereof in form and substance satisfactory to the
Administrative Agent.
13.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The Administrative
Agent shall have received from each of the Borrowers and each of their
Subsidiaries a completed and fully executed Perfection Certificate and the
results of UCC searches (and the equivalent thereof in all applicable foreign
jurisdictions) with respect to the Collateral, indicating no Liens other than
Permitted Liens and the Liens in connection with the Xxxxxxx Loan (which are to
be discharged on or about the Closing Date with the proceeds of the Loans) and
otherwise in form and substance satisfactory to the Administrative Agent.
13.7. LANDLORD CONSENTS. The Borrowers shall have delivered to the
Administrative Agent all consents required for the Administrative Agent to
receive, as part of the Security Documents.
13.8. CERTIFICATES OF INSURANCE. The Administrative Agent shall have
received (a) a certificate of insurance from an independent insurance broker
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Security Agreement and (b)
certified copies of all policies evidencing such insurance (or certificates
therefore signed by the insurer or an agent authorized to bind the insurer).
13.9. OPINIONS OF COUNSEL. Each of the Lenders and the Administrative
Agent shall have received a favorable legal opinion addressed to the Lenders and
the Administrative Agent, dated as of the Closing Date, in form and substance
satisfactory to the Lenders and the Administrative Agent, from Cozen X'Xxxxxx,
counsel to the Borrowers.
13.10. PAYMENT OF FEES. The Borrowers shall have paid to the Lenders or
the Administrative Agent, as appropriate, the Fees pursuant to Sections 6.6, 7.1
and 7.2.
13.11. CAPITAL STRUCTURE. The Lenders shall be satisfied in all respects
with the financial condition and capital structure of the Borrowers and their
Subsidiaries and the Borrowers shall have $14,000,000 of Subordinated Debt
outstanding.
13.12. PAYOFF LETTER. The Administrative Agent shall have received a
payoff letter from Xxxxxxx Bank, National Bank, indicating the amount of the
loan obligations of the Borrowers under the Xxxxxxx Loan to be discharged on the
Closing Date and an acknowledgment by Xxxxxxx Bank, National Association, that
upon receipt of such funds it will forthwith execute and deliver to the
Administrative Agent for filing and authorize the Administrative Agent to file
all termination statements and take such other actions as may be necessary to
discharge all mortgages, deeds of trust and security interests granted by the
Borrowers or any of their Subsidiaries in favor of Xxxxxxx Bank, National
Association.
13.13. DISBURSEMENT INSTRUCTIONS. The Administrative Agent shall have
received disbursement instructions from the Borrowers with respect to the
proceeds of the Loans.
14. CONDITIONS TO ALL BORROWINGS.
The obligations of the Lenders to make any Loan, including the Revolving
Credit Loan, the Acquisition Loan and the Term Loan, and of the Administrative
Agent to issue, extend or
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renew any Letter of Credit, in each case whether on or after the Closing Date,
shall also be subject to the satisfaction of the following conditions precedent:
14.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of any of the Borrowers and their Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of such Loan or the issuance, extension or
renewal of such Letter of Credit, with the same effect as if made at and as of
that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents,
and to the extent that such representations and warranties relate expressly to
an earlier date) and no Default or Event of Default shall have occurred and be
continuing.
14.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Administrative Agent would make it illegal for the
Administrative Agent to issue, extend or renew such Letter of Credit.
14.3. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Lenders and to the Administrative Agent and the Lenders and the
Administrative Agent shall have received all information and such counterpart
originals or certified or other copies of such documents as the Administrative
Agent may reasonably request.
15. EVENTS OF DEFAULT; ACCELERATION; ETC.
15.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) either Borrower shall fail to pay any principal of the Loans or
any Reimbursement Obligation when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity
or at any other date fixed for payment;
(b) either Borrower or any of its Subsidiaries shall fail to pay any
interest on the Loans, any Fees, or other sums due hereunder or under any
of the other Loan Documents or under any other document between any Lender
and either Borrower or any of its Subsidiaries, when the same shall become
due and payable, whether at the stated date of maturity or any accelerated
date of maturity or at any other date fixed for payment;
(c) either Borrower shall fail to comply with any of its covenants
contained in Sections 10, 11 or 12;
(d) either Borrower or any of its Subsidiaries shall fail to perform
any term, covenant or agreement contained herein or in any of the other
Loan Documents (other
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than those specified elsewhere in this Section 15.1) for thirty (30) days
after the earlier of (i) written notice of such failure has been given to
the Borrowers by the Administrative Agent and (ii) any officer of either
Borrower becoming aware of such failure;
(e) any representation or warranty of either Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents
or in any other document or instrument delivered pursuant to or in
connection with this Credit Agreement shall prove to have been false in
any material respect upon the date when made or deemed to have been made
or repeated;
(f) either Borrower or any of its Subsidiaries shall fail to pay at
maturity, or within any applicable period of grace, any obligations for
borrowed money or credit received or in respect of any Capitalized Leases
in each case, having an outstanding principal balance in excess of
$175,000 in the aggregate, or fail to observe or perform any material
term, covenant or agreement contained in any agreement by which it is
bound, evidencing or securing borrowed money or credit received or in
respect of any Capitalized Leases in each case, having an outstanding
principal balance in excess of $175,000 in the aggregate, for such period
of time as would permit (assuming the giving of appropriate notice if
required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof, or any such holder or
holders shall rescind or shall have a right to rescind the purchase of any
such obligations;
(g) either Borrower or any of its Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its inability
to pay or generally fail to pay its debts as they mature or become due, or
shall petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver of either Borrower or any of its
Subsidiaries or of any substantial part of the assets of either Borrower
or any of its Subsidiaries or shall commence any case or other proceeding
relating to either Borrower or any of its Subsidiaries under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be
commenced against either Borrower or any of its Subsidiaries and such
Borrower or any of its Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein or such petition or application
shall not have been dismissed within forty-five (45) days following the
filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating either Borrower or any
of its Subsidiaries bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for relief is entered
in respect of either Borrower or any Subsidiary of either Borrower in an
involuntary case under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, or upon
which an execution shall be made, any final judgment against either
Borrower or any of its Subsidiaries that, with other outstanding final
judgments, undischarged, against the Borrowers or any of their
Subsidiaries exceeds in the aggregate $175,000;
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(j) the holders of all or any part of the Subordinated Debt shall
accelerate the maturity of all or any part of the Subordinated Debt, the
Subordinated Debt shall be paid, prepaid, redeemed or repurchased in whole
or in part or an offer to pay, prepay, redeem or repurchase the
Subordinated Debt in whole or in part shall have been made other than as
permitted by Section 11.8 hereof;
(k) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded or the Administrative Agent's security interests,
mortgages or liens in any of the Collateral shall cease to be perfected,
or shall cease to have the priority contemplated by the Security
Documents, in each case otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval
of the Lenders, or any action at law, suit or in equity or other legal
proceeding to cancel, revoke or rescind any of the Loan Documents shall be
commenced by or on behalf of either Borrower or any of its Subsidiaries
party thereto or any of their respective stockholders, or any court or any
other governmental or regulatory authority or agency of competent
jurisdiction shall make a determination that, or issue a judgment, order,
decree or ruling to the effect that, any one or more of the Loan Documents
is illegal, invalid or unenforceable in accordance with the terms thereof;
(l) either Borrower or any ERISA Affiliate incurs any liability to
the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount exceeding $175,000, or either Borrower or any ERISA
Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA
by a Multiemployer Plan requiring aggregate annual payments exceeding
$50,000, or any of the following occurs with respect to a Guaranteed
Pension Plan: (i) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of Section
302(f)(1) of ERISA), provided that the Administrative Agent determines in
its reasonable discretion that such event (A) could reasonably be expected
to result in liability of the Borrowers or any of their Subsidiaries to
the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding
$100,000 and (B) could reasonably be expected to constitute grounds for
the termination of such Guaranteed Pension Plan by the PBGC, for the
appointment by the appropriate United States District Court of a trustee
to administer such Guaranteed Pension Plan or for the imposition of a lien
in favor of such Guaranteed Pension Plan; or (ii) the appointment by a
United States District Court of a trustee to administer such Guaranteed
Pension Plan; or (iii) the institution by the PBGC of proceedings to
terminate such Guaranteed Pension Plan;
(m) either Borrower or any of its Subsidiaries shall be enjoined,
restrained or in any way prevented by the order of any Governmental
Authority from conducting any material part of its business that has or
could reasonably be expected to have a Material Adverse Effect and such
order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy,
or other casualty, which in any such case causes, for more than fifteen
(15) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of either Borrower or any of its
Subsidiaries if such event or circumstance is not covered by business
interruption insurance and could reasonably be expected to have a Material
Adverse Effect;
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(o) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
either Borrower or any of its Subsidiaries if such loss, suspension,
revocation or failure to renew could reasonably be expected to have a
Material Adverse Effect;
(p) either Borrower or any of its Subsidiaries shall be indicted for
a state or federal crime, or any civil or criminal action shall otherwise
have been brought against either Borrower or any of its Subsidiaries, a
punishment for which in any such case could reasonably be expected to have
a Material Adverse Effect;
(q) if either Borrower or any of their Subsidiaries shall be in
default under any Material Agreement, or any of such Material Agreements
shall have been terminated or not renewed;
(r) if any of the Senior Management shall cease to be employed by,
or otherwise fail to render services (as presently performed), for the
Borrowers, and such individual shall not have been replaced by an
individual or individuals, having appropriate experience and expertise (as
reasonably determined by the Administrative Agent) within ninety (90) days
of such member of Senior Management ceasing to perform such duties; or
(s) a Change of Control shall occur;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrowers declare all amounts owing with respect to
this Credit Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Borrowers; provided
that in the event of any Event of Default specified in Sections 15.1(g),
15.1(h), 15.1(j) or 15.1(k), all such amounts shall become immediately due and
payable automatically and without any requirement of notice from the
Administrative Agent or any Lender.
15.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in Section 15.1(g), Section 15.1(h), 15.1(j) or Section
15.1(k) shall occur, any unused portion of the credit hereunder shall forthwith
terminate and each of the Lenders shall be relieved of all further obligations
to make Loans to the Borrowers and the Administrative Agent shall be relieved of
all further obligations to issue, extend or renew Letters of Credit. If any
other Event of Default shall have occurred and be continuing, or if on any
Drawdown Date or other date for issuing, extending or renewing any Letter of
Credit the conditions precedent to the making of the Loans to be made on such
Drawdown Date or (as the case may be) to issuing, extending or renewing such
Letter of Credit on such other date are not satisfied, the Administrative Agent
may and, upon the request of the Required Lenders, shall, by notice to the
Borrowers, terminate the unused portion of the credit hereunder, and upon such
notice being given such unused portion of the credit hereunder shall terminate
immediately and each of the Lenders shall be relieved of all further obligations
to make Loans and the Administrative Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. No termination of the
credit hereunder shall relieve the Borrowers or any of their Subsidiaries of any
of the Obligations.
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15.3. REMEDIES. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to Section 15.1, each Lender, if
owed any amount with respect to the Loans or the Reimbursement Obligations, may
proceed to protect and enforce its rights by suit in equity, action at law or
other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Credit Agreement and the other Loan
Documents or any instrument pursuant to which the Obligations to such Lender are
evidenced, including as permitted by applicable law the obtaining of the ex
parte appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Lender. No remedy herein conferred upon any
Lender or the Administrative Agent or the holder of any Note or purchaser of any
Letter of Credit Participation is intended to be exclusive of any other remedy
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or any other provision of law.
15.4. DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that, following
the occurrence and during the continuance of any Default or Event of Default,
the Administrative Agent or any Lender, as the case may be, receives any monies
in connection with the enforcement of any the Security Documents, or otherwise
with respect to the realization upon any of the Collateral, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Administrative Agent for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have been
incurred or sustained by the Administrative Agent in connection with the
collection of such monies by the Administrative Agent, for the exercise,
protection or enforcement by the Administrative Agent of all or any of the
rights, remedies, powers and privileges of the Administrative Agent under
this Credit Agreement or any of the other Loan Documents or in respect of
the Collateral or in support of any provision of adequate indemnity to the
Administrative Agent against any taxes or liens which by law shall have,
or may have, priority over the rights of the Administrative Agent to such
monies;
(b) Second, to all other Obligations in such order or preference as
the Required Lenders may determine; provided, however, that (i)
distributions shall be made (A) pari passu among Obligations with respect
to the Administrative Agent's Fee and all other Obligations and (B) with
respect to each type of Obligation owing to the Lenders, such as interest,
principal, fees and expenses, among the Lenders pro rata, and (ii) the
Administrative Agent may in its discretion make proper allowance to take
into account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other provisions
for payment in full satisfactory to the Lenders and the Administrative
Agent of all of the Obligations, to the payment of any obligations
required to be paid pursuant to Section 9-608(a)(1)(C) or 9-615(a)(3) of
the Uniform Commercial Code of the State of New York; and
(d) Fourth, the excess, if any, shall be returned to the Borrowers
or to such other Persons as are entitled thereto.
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16. THE ADMINISTRATIVE AGENT.
16.1. AUTHORIZATION.
(a) The Administrative Agent is authorized to take such action on
behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to the Administrative Agent, together with such powers
as are reasonably incident thereto, including the authority, without the
necessity of any notice to or further consent of the Lenders, from time to
time to take any action with respect to any Collateral or the Security
Documents which may be necessary to perfect, maintain perfected or insure
the priority of the security interest in and liens upon the Collateral
granted pursuant to the Security Documents, provided that no duties or
responsibilities not expressly assumed herein or therein shall be implied
to have been assumed by the Administrative Agent.
(b) The relationship between the Administrative Agent and each of
the Lenders is that of an independent contractor. The use of the term
"Administrative Agent" is for convenience only and is used to describe, as
a form of convention, the independent contractual relationship between the
Administrative Agent and each of the Lenders. Nothing contained in this
Credit Agreement nor the other Loan Documents shall be construed to create
an agency, trust or other fiduciary relationship between the
Administrative Agent and any of the Lenders.
(c) As an independent contractor empowered by the Lenders to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, the Administrative Agent is
nevertheless a "representative" of the Lenders, as that term is defined in
Article 1 of the Uniform Commercial Code, for purposes of actions for the
benefit of the Lenders and the Administrative Agent with respect to all
collateral security and guaranties contemplated by the Loan Documents.
Such actions include the designation of the Administrative Agent as
"secured party", "mortgagee" or the like on all financing statements and
other documents and instruments, whether recorded or otherwise, relating
to the attachment, perfection, priority or enforcement of any security
interests, mortgages or deeds of trust in collateral security intended to
secure the payment or performance of any of the Obligations, all for the
benefit of the Lenders and the Administrative Agent.
16.2. EMPLOYEES AND ADMINISTRATIVE AGENTS. The Administrative Agent may
exercise its powers and execute its duties by or through employees or agents and
shall be entitled to take, and to rely on, advice of counsel concerning all
matters pertaining to its rights and duties under this Credit Agreement and the
other Loan Documents. The Administrative Agent may utilize the services of such
Persons as the Administrative Agent in its sole discretion may reasonably
determine, and, subject to the provisions of Section 18.2, all reasonable fees
and expenses of any such Persons shall be paid by the Borrowers.
16.3. NO LIABILITY. Neither the Administrative Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Administrative
Agent or such other
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Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
16.4. NO REPRESENTATIONS.
16.4.1. GENERAL. The Administrative Agent shall not be responsible
for the execution or validity or enforceability of this Credit Agreement,
the Notes, the Letters of Credit, any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security
or for the validity, enforceability or collectability of any such amounts
owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan
Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of the Borrowers or any of their Subsidiaries, or be bound to
ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any instrument at
any time constituting, or intended to constitute, collateral security for
the Notes or to inspect any of the properties, books or records of the
Borrowers or any of their Subsidiaries. The Administrative Agent shall not
be bound to ascertain whether any notice, consent, waiver or request
delivered to it by the Borrowers or any holder of any of the Notes shall
have been duly authorized or is true, accurate and complete. The
Administrative Agent has not made nor does it now make any representations
or warranties, express or implied, nor does it assume any liability to the
Lenders, with respect to the credit worthiness or financial conditions of
the Borrowers or any of their Subsidiaries. Each Lender acknowledges that
it has, independently and without reliance upon the Administrative Agent
or any other Lender, and based upon such information and documents as it
has deemed appropriate, made its own credit analysis and decision to enter
into this Credit Agreement. The Administrative Agent agrees to provide the
Lenders with notice of (a) the acceleration of the Obligations and (b) the
commencement of the exercise of remedies under the Loan Documents.
16.4.2. CLOSING DOCUMENTATION, ETC. For purposes of determining
compliance with the conditions set forth in Section 13, each Lender that
has executed this Credit Agreement shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document and matter
either sent, or made available, by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to such
Lender, unless an officer of the Administrative Agent active upon the
Borrowers' account shall have received notice from such Lender not less
than three (3) Business Days prior to the Closing Date specifying such
Lender's objection thereto and such objection shall not have been
withdrawn by notice to the Administrative Agent to such effect on or prior
to the Closing Date.
16.5. PAYMENTS.
16.5.1. PAYMENTS TO ADMINISTRATIVE AGENT. A payment by the Borrowers
to the Administrative Agent hereunder or any of the other Loan Documents
for the account of any Lender shall constitute a payment to such Lender.
The Administrative Agent agrees promptly to distribute to each Lender such
Lender's pro rata share of payments received by the Administrative Agent
for the account of the Lenders except as otherwise expressly provided
herein or in any of the other Loan Documents.
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16.5.2. DISTRIBUTION BY ADMINISTRATIVE AGENT. If in the opinion of
the Administrative Agent the distribution of any amount received by it in
such capacity hereunder, under the Notes or under any of the other Loan
Documents might involve it in liability, it may refrain from making
distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the
Administrative Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Administrative
Agent its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be
determined by such court.
16.5.3. DELINQUENT LENDERS. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Lender that fails (a) to make available to the Administrative Agent its
pro rata share of any Loan or to purchase any Letter of Credit
Participation or (b) to comply with the provisions of Section 18.1 with
respect to making dispositions and arrangements with the other Lenders,
where such Lender's share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such payments due and
payable to all of the Lenders, in each case as, when and to the full
extent required by the provisions of this Credit Agreement, shall be
deemed delinquent (a "Delinquent Lender") and shall be deemed a Delinquent
Lender until such time as such delinquency is satisfied. A Delinquent
Lender shall be deemed to have assigned any and all payments due to it
from the Borrowers, whether on account of outstanding Loans, Unpaid
Reimbursement Obligations, interest, fees or otherwise, to the remaining
nondelinquent Lenders for application to, and reduction of, their
respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations. The Delinquent Lender hereby authorizes the
Administrative Agent to distribute such payments to the nondelinquent
Lenders in proportion to their respective pro rata shares of all
outstanding Loans and Unpaid Reimbursement Obligations. A Delinquent
Lender shall be deemed to have satisfied in full a delinquency when and
if, as a result of application of the assigned payments to all outstanding
Loans and Unpaid Reimbursement Obligations of the nondelinquent Lenders,
the Lenders' respective pro rata shares of all outstanding Loans and
Unpaid Reimbursement Obligations have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.
16.6. HOLDERS OF NOTES. The Administrative Agent may deem and treat the
payee of any Note or the purchaser of any Letter of Credit Participation as the
absolute owner or purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
16.7. INDEMNITY. The Lenders ratably agree hereby to indemnify and hold
harmless the Administrative Agent and its affiliates from and against any and
all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Administrative
Agent or such affiliate has not been reimbursed by the Borrowers as required by
Section 18.2), and liabilities of every nature and character arising out of or
related to this Credit Agreement, the Notes, or any of the other Loan Documents
or the transactions contemplated or evidenced hereby or thereby, or the
Administrative Agent's actions taken hereunder or thereunder, except to the
extent that any of the same shall be directly caused by the Administrative
Agent's willful misconduct or gross negligence.
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16.8. ADMINISTRATIVE AGENT AS LENDER. In its individual capacity, Bank of
America shall have the same obligations and the same rights, powers and
privileges in respect to its Commitment and the Loans made by it, and as the
holder of any of the Notes and as the purchaser of any Letter of Credit
Participations, as it would have were it not also the Administrative Agent.
16.9. RESIGNATION. The Administrative Agent may resign at any time by
giving sixty (60) days prior written notice thereof to the Lenders and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor Administrative Agent. Unless a Default or Event of
Default shall have occurred and be continuing, such successor Administrative
Agent shall be reasonably acceptable to the Borrowers. 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, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a financial institution having a rating of
not less than A or its equivalent by S&P. Upon the acceptance of any appointment
as Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After any retiring Administrative Agent's
resignation, the provisions of this Credit Agreement and the other Loan
Documents shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
16.10. ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial, administrative or like proceeding or any
assignment for the benefit of creditors relative to either Borrower or any
of its Subsidiaries, the Administrative Agent (irrespective of whether the
principal of any Loan, Reimbursement Obligation or Unpaid Reimbursement
Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrowers) shall be entitled and
empowered, by intervention in such proceeding, under any such assignment
or otherwise:
(i) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans,
Reimbursement Obligations or Unpaid Reimbursement Obligations and
all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have
the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 2.2, 4.2, 6.6, 7.1, 7.2
and 18.2) allowed in such proceeding or under any such assignment;
and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the
same;
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(b) Any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such proceeding or under any
such assignment is hereby authorized by each Lender to make such payments
to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the
Lenders, nevertheless to pay to the Administrative Agent any amount due
for the reasonable compensation, expenses, disbursements and advances of
the Administrative Agent and its agents and counsel, and any other amounts
due the Administrative Agent under Sections 2.2, 4.2, 6.6, 7.1, 7.2 and
18.2.
(c) Nothing contained herein shall authorize the Administrative
Agent to consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations owed to such Lender or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding or under any such assignment.
17. SUCCESSORS AND ASSIGNS.
17.1. GENERAL CONDITIONS. The provisions of this Credit Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that neither Borrower may assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (a) to an Eligible
Assignee in accordance with the provisions of Section 17.2, (b) by way of
participation in accordance with the provisions of Section 17.4 or (c) by way of
pledge or assignment of a security interest subject to the restrictions of
Section 17.6 (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Credit Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in Section 17.4 and, to the extent expressly provided hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Credit
Agreement or any of the other Loan Documents.
17.2. ASSIGNMENTS. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Credit Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); provided that:
(a) except in the cases of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time
owing to it or of an assignment to a Lender or a Lender Affiliate, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in
effect, the principal outstanding balance of the Loan of the assigning
Lender subject to each such assignment (determined as of the date on which
the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $1,000,000 unless each
of the Administrative Agent and, so long as no Default or Event of Default
has occurred and is continuing, the Borrowers otherwise consent (each such
consent not to be unreasonably withheld or delayed);
(b) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Credit
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Agreement with respect to all of the Loans or the Commitments owned by the
assignor, it being understood that non-pro rata assignments of or among
any of the Commitments, the Revolving Credit Loans, the Acquisition Loans,
the Reimbursement Obligations and the Term Loan are not permitted;
(c) any assignment of a Commitment must be approved by the
Administrative Agent (whether or not the proposed assignee is itself a
Lender with a commitment or would otherwise qualify as an Eligible
Assignee), which approval shall not be unreasonably withheld; and
(d) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and the Eligible Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to Section 17.3, from and after the effective date specified in each Assignment
and Acceptance, the Eligible Assignee thereunder shall be a party to this Credit
Agreement and, to the extent of the interest assigned by such Assignment and
Acceptance have the rights and obligations of a Lender under this Credit
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Credit Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Credit Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of (i) Sections 7.3.2, 7.7, 7.8, and
7.10 with respect to facts and circumstances occurring prior to the effective
date of such assignment and (ii) Section 18.3 notwithstanding such assignment.
Any assignment or transfer by a Lender of rights or obligations under this
Credit Agreement that does not comply with this paragraph shall be treated for
purposes of this Credit Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with Section 17.4.
17.3. REGISTER. The Administrative Agent, acting solely for this purpose
as an agent of the Borrowers, shall maintain at the Administrative Agent's
Office a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Credit Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
17.4. PARTICIPATIONS. Any Lender may at any time, without the consent of,
or notice to, the Borrowers or the Administrative Agent, sell participations to
any Person (other than a natural person) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this Credit Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (a) such Lender's obligations under this Credit Agreement shall
remain unchanged, (b) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (c) the Borrowers,
the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Credit Agreement. Any agreement or instrument
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pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Credit Agreement and to
approve any amendment, modification or waiver of any provision of this Credit
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver that would reduce the principal of or the interest rate
on any Loans, extend the term or increase the amount of the Commitment of such
Lender as it relates to such Participant, reduce the amount of any Commitment
Fee or Letter of Credit Fees to which such Participant is entitled or extend any
regularly scheduled payment date for principal or interest. Subject to Section
17.5, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 7.3.2, 7.7, 7.8 and 7.10 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 17.2. To
the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 17.1 as though it were a Lender, provided such Participant
agrees to be subject to Section 18.1 as though it were a Lender.
17.5. PAYMENTS TO PARTICIPANTS. A Participant shall not be entitled to
receive any greater payment under Sections 7.3.2, 7.7 and 7.8 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrowers' prior written consent.
17.6. MISCELLANEOUS ASSIGNMENT PROVISIONS. A Lender may at any time grant
a security interest in all or any portion of its rights under this Credit
Agreement to secure obligations of such Lender, including without limitation (a)
any pledge or assignment to secure obligations to any of the twelve Federal
Reserve Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C.
Section 341 and (b) with respect to any Lender that is a Fund, to any lender or
any trustee for, or any other representative of, holders of obligations owed or
securities issued by such Fund as security for such obligations or securities or
any institutional custodian for such Fund or for such lender; provided that no
such grant shall release such Lender from any of its obligations hereunder,
provide any voting rights hereunder to the secured party thereof, substitute any
such secured party for such Lender as a party hereto or affect any rights or
obligations of the Borrowers or Administrative Agent hereunder.
17.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWERS. If any
assignee Lender is an Affiliate of either Borrower, then any such assignee
Lender shall have no right to vote as a Lender hereunder or under any of the
other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to any of the Loan
Documents or for purposes of making requests to the Administrative Agent
pursuant to Section 15.1 or Section 15.2, and the determination of the Required
Lenders shall for all purposes of this Credit Agreement and the other Loan
Documents be made without regard to such assignee Lender's interest in any of
the Loans or Reimbursement Obligations. If any Lender sells a participating
interest in any of the Loans or Reimbursement Obligations to a Participant, and
such Participant is either Borrower or an Affiliate of either Borrower, then
such transferor Lender shall promptly notify the Administrative Agent of the
sale of such participation. A transferor Lender shall have no right to vote as a
Lender hereunder or under any of the other Loan Documents for purposes of
granting consents or waivers or for purposes of agreeing to amendments or
modifications to any of the Loan Documents or for purposes of making requests to
the Administrative Agent pursuant to Section 15.1 or Section 15.2 to the extent
that such participation is beneficially owned by either Borrower or any
Affiliate of either Borrower, and the determination of the Required Lenders
shall for all purposes of this Credit Agreement and the other Loan Documents be
made without regard to the interest of such transferor Lender in the Loans or
Reimbursement Obligations to the extent of such participation.
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18. PROVISIONS OF GENERAL APPLICATION.
18.1. SETOFF. Each of the Borrowers hereby grants to the Administrative
Agent and each of the Lenders a continuing lien, security interest and right of
setoff as security for all liabilities and obligations to the Administrative
Agent and each Lender, whether now existing or hereafter arising, upon and
against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of the Administrative Agent or such
Lender or any Lender Affiliate and their successors and assigns or in transit to
any of them. Regardless of the adequacy of any collateral, if any of the
Obligations are due and payable and have not been paid or any Event of Default
shall have occurred and be continuing, any deposits or other sums credited by or
due from any of the Lenders to the Borrowers and any securities or other
property of either Borrower in the possession of such Lender may be applied to
or set off by such Lender against the payment of Obligations and any and all
other liabilities, direct, or indirect, absolute or contingent then due or to
become due, now existing or hereafter arising, of either Borrower to such
Lender. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF EITHER BORROWER ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a)
if an amount to be set off is to be applied to Indebtedness of the Borrowers to
such Lender, other than Indebtedness evidenced by the Notes held by such Lender
or constituting Obligations under Hedging Agreements or Reimbursement
Obligations owed to such Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness evidenced by all such Notes held by
such Lender or constituting Obligations under Hedging Agreements or
Reimbursement Obligations owed to such Lender, and (b) if such Lender shall
receive from either Borrower, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of the claim evidenced
by the Notes held by, or constituting Obligations under Hedging Agreements or
Reimbursement Obligations owed to, such Lender by proceedings against either
Borrower at law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and shall retain
and apply to the payment of the Note or Notes held by, or Obligations under
Hedging Agreements or Reimbursement Obligations owed to, such Lender any amount
in excess of its ratable portion of the payments received by all of the Lenders
with respect to the Notes held by, and Reimbursement Obligations or Obligations
under Hedging Agreements owed to, all of the Lenders, such Lender will make such
disposition and arrangements with the other Lenders with respect to such excess,
either by way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Lender receiving in respect of the Notes held
by it or Obligations under Hedging Agreements or Reimbursement Obligations owed
it, its proportionate payment as contemplated by this Credit Agreement; provided
that if all or any part of such excess payment is thereafter recovered from such
Lender, such disposition and arrangements shall be rescinded and the amount
restored to the extent of such recovery, but without interest.
18.2. EXPENSES. Each of the Borrowers agrees to pay (a) the reasonable
costs of producing and reproducing this Credit Agreement, the other Loan
Documents and the other agreements and instruments mentioned herein, (b) any
taxes (including any interest and penalties in respect thereto) payable by the
Administrative Agent or any of the Lenders (other than taxes based upon the
Administrative Agent's or any Lender's net income or profits) on or with respect
to the transactions contemplated by this Credit Agreement (the Borrowers hereby
agreeing to jointly and severally indemnify the Administrative Agent and each
Lender with respect thereto),
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(c) the reasonable fees, expenses and disbursements of the Administrative
Agent's Special Counsel, any local counsel to the Administrative Agent and of
one counsel for the Lenders incurred in connection with the preparation,
syndication or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, any amendments, modifications,
approvals, consents or waivers hereto or hereunder, or the cancellation of any
Loan Document upon payment in full in cash of all of the Obligations or pursuant
to any terms of such Loan Document for providing for such cancellation; provided
that the fees, expenses and disbursements of the counsel for the Lenders shall
be paid for by the Borrowers solely in connection with the preparation of the
Loan Documents for the closing of the Loans on the Closing Date in an aggregate
amount not to exceed $12,000, (d) the fees, expenses and disbursements of the
Administrative Agent or any of its affiliates incurred by the Administrative
Agent or such affiliate in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and other instruments
mentioned herein (e) any fees, costs, expenses and bank charges, including bank
charges for returned checks, incurred by the Administrative Agent in
establishing, maintaining or handling agency accounts, lock box accounts and
other accounts for the collection of any of the Collateral, (f) all reasonable
out-of-pocket expenses (including without limitation reasonable attorneys' fees
and costs, and reasonable consulting, accounting, appraisal, investment banking
and similar professional fees and charges) incurred by any Lender or the
Administrative Agent in connection with (i) the enforcement of or preservation
of rights under any of the Loan Documents against either Borrower or any of its
Subsidiaries or the administration thereof after the occurrence and during the
continuance of a Default or Event of Default and (ii) any litigation, proceeding
or dispute whether arising hereunder or otherwise in connection with the
Obligations, in any way related to any Lender's or the Administrative Agent's
relationship with either Borrower or any of its Subsidiaries and (g) all
reasonable fees, expenses and disbursements of any Lender or the Administrative
Agent incurred in connection with UCC searches, UCC filings, intellectual
property searches and intellectual property filings. The covenants contained in
this Section 18.2 shall survive payment or satisfaction in full of all other
Obligations.
18.3. INDEMNIFICATION. Each of the Borrowers agrees to jointly and
severally indemnify and hold harmless the Administrative Agent, its affiliates,
the Lenders, their affiliates and each employee and /or agent (including
attorneys) of the Administrative Agent or any Lender from and against any and
all claims, actions and suits whether groundless or otherwise, and from and
against any and all liabilities, losses, damages and expenses of every nature
and character arising out of this Credit Agreement or any of the other Loan
Documents or the transactions contemplated hereby including, without limitation,
(a) any actual or proposed use by either Borrower or any of its Subsidiaries of
the proceeds of any of the Loans or Letters of Credit, (b) the reversal or
withdrawal of any provisional credits granted by the Administrative Agent upon
the transfer of funds from lock box, bank agency, concentration accounts or
otherwise under any cash management arrangements with either Borrower or any
Subsidiary or in connection with the provisional honoring of funds transfers,
checks or other items, (c) any actual or alleged infringement of any patent,
copyright, trademark, service xxxx or similar right of the Borrowers or any of
their Subsidiaries comprised in the Collateral, (d) either Borrower or any of
its Subsidiaries entering into or performing this Credit Agreement or any of the
other Loan Documents or (e) with respect to the Borrowers and their Subsidiaries
and their respective properties and assets, the violation of any Environmental
Law, the presence, disposal, escape, seepage, leakage, spillage, discharge,
emission, release or threatened release of any Hazardous Substances or any
action, suit, proceeding or investigation brought or threatened with respect to
any Hazardous Substances (including, but not limited to, claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable
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fees and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding. In litigation, or the preparation
therefor, the Lenders and the Administrative Agent and each of their affiliates
shall be entitled to select their own counsel and, in addition to the foregoing
indemnity, each of the Borrowers agrees to pay promptly the reasonable fees and
expenses of such counsel. If, and to the extent that the obligations of the
Borrowers under this Section 18.3 are unenforceable for any reason, the
Borrowers hereby agree to make the maximum contribution to the payment in
satisfaction of such obligations which is permissible under applicable law. The
covenants contained in this Section 18.3 shall survive payment or satisfaction
in full of all other Obligations.
18.4. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
18.4.1. CONFIDENTIALITY. Each of the Lenders and the Administrative
Agent agrees, on behalf of itself and each of its affiliates, directors,
officers, employees and representatives, to use reasonable precautions to
keep confidential, in accordance with their customary procedures for
handling confidential information of the same nature and in accordance
with safe and sound banking practices, any non-public information supplied
to it by (or on behalf of) the Borrowers or any of their Subsidiaries
pursuant to this Credit Agreement that is identified by such Person as
being confidential at the time the same is disclosed to the Lenders or the
Administrative Agent, provided that nothing herein shall limit the
disclosure of any such information (a) after such information shall have
become public other than through a violation of this Section 18.4, or
becomes available to any of the Lenders or the Administrative Agent on a
nonconfidential basis from a source other than either Borrower or another
Lender, (b) to the extent required by statute, rule, regulation or
judicial process, (c) to counsel for any of the Lenders or the
Administrative Agent, (d) to bank examiners or any other regulatory
authority having jurisdiction over any Lender or the Administrative Agent,
or to auditors or accountants, (e) to the Administrative Agent, any Lender
or any Financial Affiliate, (f) in connection with any litigation to which
any one or more of the Lenders, the Administrative Agent or any Financial
Affiliate is a party, or in connection with the enforcement of rights or
remedies hereunder or under any other Loan Document, (g) to a Lender
Affiliate or a Subsidiary or affiliate of the Administrative Agent, (h) to
any actual or prospective assignee or participant or any actual or
prospective counterparty (or its advisors) to any swap or derivative
transactions referenced to credit or other risks or events arising under
this Credit Agreement or any other Loan Document so long as such assignee,
participant or counterparty, as the case may be, agrees to be bound by the
provisions of Section 18.4 or (i) with the consent of the Borrowers.
Moreover, each of the Administrative Agent, the Lenders and any Financial
Affiliate is hereby expressly permitted by the Borrowers to refer to any
of the Borrowers and their Subsidiaries in connection with any
advertising, promotion or marketing undertaken by the Administrative
Agent, such Lender or such Financial Affiliate and, for such purpose, the
Administrative Agent, such Lender or such Financial Affiliate may utilize
any trade name, trademark, logo or other distinctive symbol associated
with the Borrowers or any of their Subsidiaries or any of their
businesses.
18.4.2. PRIOR NOTIFICATION. Unless specifically prohibited by
applicable law or court order, each of the Lenders and the Administrative
Agent shall, prior to disclosure thereof, notify the Borrowers of any
request for disclosure of any such non-public information by any
governmental agency or representative thereof (other than any such
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request in connection with an examination of the financial condition of
such Lender by such governmental agency) or pursuant to legal process.
18.4.3. OTHER. In no event shall any Lender or the Administrative
Agent be obligated or required to return any materials furnished to it or
any Financial Affiliate by the Borrowers or any of their Subsidiaries. The
obligations of each Lender under this Section 18.4 shall supersede and
replace the obligations of such Lender under any confidentiality letter in
respect of this financing signed and delivered by such Lender to the
Borrowers prior to the date hereof and shall be binding upon any assignee
of, or purchaser of any participation in, any interest in any of the Loans
or Reimbursement Obligations from any Lender.
18.5. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other certificates delivered by or on
behalf of the Borrowers or any of their Subsidiaries pursuant hereto (as may be
supplemented or amended) shall be deemed to have been relied upon by the Lenders
and the Administrative Agent, notwithstanding any investigation heretofore or
hereafter made by any of them, and shall survive the making by the Lenders of
any of the Loans and the issuance, extension or renewal of any Letters of
Credit, as herein contemplated, and shall continue in full force and effect so
long as any Letter of Credit or any amount due under this Credit Agreement or
the Notes or any of the other Loan Documents remains outstanding or any Lender
has any obligation to make any Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letter of Credit, and for such further
time as may be otherwise expressly specified in this Credit Agreement. All
statements contained in any certificate or other certificates delivered to any
Lender or the Administrative Agent at any time by or on behalf of the Borrowers
or any of their Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by the Borrowers or such Subsidiary hereunder.
18.6. NOTICES. Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or required to be given
pursuant to this Credit Agreement or the Notes or any Letter of Credit
Applications shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telecopy, facsimile or telex and confirmed by
delivery via courier or postal service, addressed as follows:
(a) if to the Borrowers, at (i) 00 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx
00000, Attention: Xxxxx XxxXxxxxx and (ii) 00 Xxxx Xxx Xxx Xxxx, Xxxxx
Xxxxxx, Xxx Xxxx, 00000, Attention: Xxxxxxx X. Xxxxxx, or at such other
address for notice as the Borrowers shall last have furnished in writing
to the Person giving the notice, with a copy to Cozen X'Xxxxxx, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxx;
(b) if to the Administrative Agent, at 000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, XXX, Attention: Xxxxxxx X. Xxxxxx, Senior Vice
President, or such other address for notice as the Administrative Agent
shall last have furnished in writing to the Person giving the notice; and
(c) if to any Lender, at such Lender's address set forth on Schedule
1 hereto, or such other address for notice as such Lender shall have last
furnished in writing to the Person giving the notice.
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Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof. Any notice or other
communication to be made hereunder or under the Notes or any Letter of Credit
Applications, even if otherwise required to be in writing under other provisions
of this Credit Agreement, the Notes or any Letter of Credit Applications, may
alternatively be made in an electronic record transmitted electronically under
such authentication and other procedures as the parties hereto may from time to
time agree in writing (but not an electronic record), and such electronic
transmission shall be effective at the time set forth in such procedures. Unless
otherwise expressly provided in such procedures, such an electronic record shall
be equivalent to a writing under the other provisions of this Credit Agreement,
the Notes or any Letter of Credit Applications, and such authentication, if made
in compliance with the procedures so agreed by the parties hereto in writing
(but not an electronic record), shall be equivalent to a signature under the
other provisions of this Credit Agreement, the Notes or any Letter of Credit
Applications.
18.7. GOVERNING LAW. THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK (EXCLUDING
THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF THE BORROWERS AND
LENDERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW OR
ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS BY MAIL AT THE ADDRESSES
SPECIFIED IN Section 18.6. EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
18.8. HEADINGS. The captions in this Credit Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
18.9. COUNTERPARTS. This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Credit Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought. Delivery by facsimile by
any of the parties hereto of an executed counterpart hereof or of any amendment
or waiver hereto shall be as effective as an original executed counterpart
hereof or of such amendment or waiver and shall be considered a representation
that an original executed counterpart hereof or such amendment or waiver, as the
case may be, will be delivered.
18.10. ENTIRE AGREEMENT, ETC. The Loan Documents and any other documents
executed in connection herewith or therewith express the entire understanding of
the parties with
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respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in Section 18.12.
18.11. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS HEREBY WAIVES ITS RIGHT
TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE
IN CONNECTION WITH THIS CREDIT AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION OF THE LOANS
OR ENFORCEMENT OF THE LOAN DOCUMENTS AND AGREES THAT IT WILL NOT SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. Except as prohibited by law, each of the Borrowers
hereby waives any right it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages. Each of the Borrowers (a) certifies that no representative, agent or
attorney of any Lender or the Administrative Agent has represented, expressly or
otherwise, that such Lender or the Administrative Agent would not, in the event
of litigation, seek to enforce the foregoing waivers and (b) acknowledges that
the Administrative Agent and the Lenders have been induced to enter into this
Credit Agreement, the other Loan Documents to which it is a party and the
Subordination Documents to which it is a party by, among other things, the
waivers and certifications contained herein.
18.12. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or approval
required or permitted by this Credit Agreement to be given by the Lenders may be
given, and any term of this Credit Agreement, the other Loan Documents or any
other instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrowers or any of their Subsidiaries of any
terms of this Credit Agreement, the other Loan Documents or such other
instrument or the continuance of any Default or Event of Default may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Borrowers and the
written consent of the Required Lenders. Notwithstanding the foregoing, no
amendment, modification or waiver shall:
(a) without the written consent of the Borrowers and each Lender
directly affected thereby:
(i) reduce or forgive the principal amount of any Loans or
Reimbursement Obligations, or reduce the rate of interest on the
Notes or the amount of any Commitment Fee or Letter of Credit Fees
(other than (A) interest accruing pursuant to Section 7.11.2
following the effective date of any waiver by the Required Lenders
of the Default or Event of Default relating thereto or (B) as a
result of a change in the definition of Senior Leverage Ratio or any
of the components thereof or the method of calculation thereto);
(ii) increase the amount of such Lender's Commitment or extend
the expiration date of such Lender's Commitment;
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(iii) postpone or extend the Revolving Credit Loan Maturity
Date, the Acquisition Loan Termination Date, the Acquisition Loan
Maturity Date or the Term Loan Maturity Date or any other regularly
scheduled dates for payments of principal of, or interest on, the
Loans or Reimbursement Obligations or any Fees or other amounts
payable to such Lender (it being understood that (A) a waiver of the
application of the default rate of interest pursuant to Section
7.11.2, and (B) any vote to rescind any acceleration made pursuant
to Section 15.1 of amounts owing with respect to the Loans and other
Obligations and (C) any modifications of the provisions relating to
amounts, timing or application of prepayments of Loans and other
Obligations, including under Sections 5.3.2 and 5.3.3 shall require
only the approval of the Required Lenders); and
(iv) other than pursuant to a transaction permitted by the
terms of this Credit Agreement, release either Borrower, release all
or substantially all of the Collateral or release all or
substantially all of the guarantors, if any, from their guaranty
obligations under their guaranties (excluding, if either Borrower or
any Subsidiary of a Borrower becomes a debtor under the federal
Bankruptcy Code, the release of "cash collateral", as defined in
Section 363(a) of the federal Bankruptcy Code pursuant to a cash
collateral stipulation with the debtor approved by the Required
Lenders);
(b) without the written consent of all of the Lenders, amend or
waive this Section 18.12 or the definition of Required Lenders (it being
understood that the addition of one or more additional credit facilities,
the allowance of the credit extensions, interest and fees thereunder to
share ratably or on a subordinated basis with the Loans, Letters of
Credit, interest and Fees in the benefits of the Loan Documents and the
inclusion of the holders of such facilities in the determination of
Required Lenders shall require only the approval of the Required Lenders);
(c) without the written consent of the Administrative Agent, amend
or waive Section 2.6.2, Section 16, the amount or time of payment of the
Administrative Agent's Fee or any Letter of Credit Fees payable for the
Administrative Agent's account or any other provision applicable to the
Administrative Agent.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Administrative Agent or any Lender in exercising any right
shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice
to or demand upon the Borrowers shall entitle the Borrowers to other or further
notice or demand in similar or other circumstances.
18.13. SEVERABILITY. The provisions of this Credit Agreement are severable
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Credit
Agreement in any jurisdiction.
18.14. USA PATRIOT ACT. Each Lender hereby notifies the Borrowers that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the
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Borrowers, which information includes the name and address of the Borrowers and
other information that will allow such Lender to identify the Borrowers in
accordance with the Act.
18.15. COMMERCIAL TRANSACTION; PREJUDGMENT REMEDY WAIVER. EACH OF THE
BORROWERS REPRESENTS, COVENANTS AND AGREES THAT THE TRANSACTIONS OF WHICH THIS
CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE A PART IS A "COMMERCIAL
TRANSACTION" AS DEFINED BY THE STATUTES OF THE STATE OF CONNECTICUT. EACH OF THE
BORROWERS HEREBY WAIVES ALL RIGHTS TO NOTICE AND PRIOR COURT HEARING OR COURT
ORDER UNDER CONNECTICUT GENERAL STATUTES SECTIONS 52-278a ET. SEQ. AS AMENDED OR
UNDER ANY OTHER STATE OR FEDERAL LAW WITH RESPECT TO ANY AND ALL PREJUDGMENT
REMEDIES THE ADMINISTRATIVE AGENT OR THE LENDERS MAY EMPLOY TO ENFORCE THEIR
RIGHTS AND REMEDIES HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS. MORE
SPECIFICALLY, EACH OF THE BORROWERS ACKNOWLEDGES THAT THE ADMINISTRATIVE AGENT'S
ATTORNEY AND/OR THE LENDERS' ATTORNEY MAY, PURSUANT TO CONNECTICUT GENERAL
STATUTES, Section 52-278f, ISSUE A WRIT FOR A PREJUDGMENT REMEDY WITHOUT
SECURING A COURT ORDER. EACH OF THE BORROWERS ACKNOWLEDGES AND RESERVES ITS
RIGHT TO NOTICE AND A HEARING SUBSEQUENT TO THE ISSUANCE OF A WRIT FOR
PREJUDGMENT REMEDY AS AFORESAID AND THE ADMINISTRATIVE AGENT AND THE LENDERS
ACKNOWLEDGE BORROWERS' RIGHT TO SAID HEARING SUBSEQUENT TO THE ISSUANCE OF SAID
WRIT. EACH OF THE BORROWERS FURTHER WAIVES ITS RIGHTS TO REQUEST THAT THE
ADMINISTRATIVE AGENT OR ANY LENDER POST A BOND, WITH OR WITHOUT SURETY, TO
PROTECT BORROWERS AGAINST DAMAGES THAT MAY BE CAUSED BY ANY PREJUDGMENT REMEDY
SOUGHT OR OBTAINED BY THE ADMINISTRATIVE AGENT OR ANY LENDER.
18.16. INTEREST RATE. All agreements between Borrowers, the Administrative
Agent and Lenders are hereby expressly limited so that in no contingency or
event whatsoever, whether by reason of acceleration of maturity of the
indebtedness evidenced hereby or otherwise, shall the amount paid or agreed to
be paid to Administrative Agent and Lenders for the use or the forbearance of
the indebtedness evidenced hereby exceed the maximum permissible under
applicable law. As used herein, the term "applicable law" shall mean the law in
effect as of the date hereof provided, however that in the event there is a
change in the law which results in a higher permissible rate of interest, then
this Credit Agreement shall be governed by such new law as of its effective
date. In this regard, it is expressly agreed that it is the intent of Borrowers,
the Administrative Agent and the Lenders in the execution, delivery and
acceptance of this Credit Agreement to contract in strict compliance with the
laws of the State of New York from time to time in effect. If, under or from any
circumstances whatsoever, fulfillment of any provision hereof or of any of the
Loan Documents or the Security Documents at the time of performance of such
provision shall be due, shall involve transcending the limit of such validity
prescribed by applicable law, then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or from
circumstances whatsoever Administrative Agent or any Lender should ever receive
as interest an amount which would exceed the highest lawful rate, such amount
which would be excessive interest shall be applied to the reduction of the
principal balance evidenced hereby and not to the payment of interest. This
provision shall control every other provision of all agreements among the
Borrowers, the Administrative Agent and the Lenders.
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18.17. LOSS OF NOTES. Upon receipt of an affidavit of an officer of any
Lender as to the loss, theft, destruction or mutilation of such Lender's Note or
Notes or any other security document which is not of public record, and in the
case of any such loss, theft, destruction or mutilation, upon surrender and
cancellation of such Note or other security document, Borrowers will issue, in
lieu thereof, a replacement Note or Notes or other security document in the same
principal amount thereof and otherwise of like tenor.
18.18. REPLACEMENT OF LENDERS. If the Borrowers and Lenders holding at
least a majority of the outstanding principal amount of the Notes (and if no
such principal is outstanding, the Lender or Lenders whose aggregate Commitments
constitute at least a majority of the Total Commitments) desire to increase the
aggregate amount of the Total Commitments and/or the Term Loans and any Lender
does not consent to such increase or increases, then (i) such Lender, at the
Borrowers' sole expense and effort, upon notice to the Borrowers and the
Administrative Agent given within six months after such Lender's failure to
consent, may require that the Borrowers find a replacement Lender that will, or
(ii) the Borrowers, at the Borrowers' sole expense and effort, upon notice to
such Lender and the Administrative Agent given within six months after such
Lender's failure to consent, may find a replacement Lender that will (and such
Lender agrees that such replacement Lender will), acquire and assume (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 17.2), all of such Lender's interests, rights and
obligations under this Credit Agreement and the related Loan Documents (which
assignee may be another Lender, if a Lender accepts such assignment) and no
increase in the Total Commitments and/or Term Loans shall be effective unless
and until such assignment has become effective, provided that such Lender shall
have received payment of an amount equal to the outstanding principal of its
Obligations, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder and under the other Loan Documents from the assignee.
[Remainder of Page Intentionally Left Blank;
Next Page is Signature Page]
IN WITNESS WHEREOF, the undersigned have duly executed this Credit Agreement as
of the date first set forth above.
VERMONT PURE HOLDINGS, LTD.
By: /s/ Xxxxxxx X.Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
CRYSTAL ROCK LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager
BANK OF AMERICA, N.A., as a Lender
By: Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A., as Administrative
Agent
By: Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
XXXXXXX BANK, NATIONAL ASSOCIATION
By: Xxxxxxx X. X'Xxxxx
------------------------------------
Name: Xxxxxxx X.X'Xxxxx
Title: Senior Vice President
