Exhibit 10.3
[EXECUTION COPY]
U.S. $190,000,000
CREDIT AGREEMENT,
dated as of September 29, 1999
among
XXXXXXX RIVER LABORATORIES, INC.,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
UNION BANK OF CALIFORNIA, N.A.,
as the Administrative Agent
for the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent
for the Lenders,
and
NATIONAL CITY BANK,
as the Documentation Agent
for the Lenders.
LEAD ARRANGER:
DLJ CAPITAL FUNDING, INC.
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.........................................................4
1.2. Use of Defined Terms.................................................37
1.3. Cross-References.....................................................37
1.4. Accounting and Financial Determinations..............................37
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
2.1. Commitments..........................................................38
2.1.1. Term Loan Commitments................................................38
2.1.2. Revolving Loan Commitment and Swing Line Loan Commitment.............39
2.1.3. Letter of Credit Commitment..........................................40
2.1.4. Lenders Not Permitted or Required to Make the Loans..................40
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit..........41
2.2. Reduction of Revolving Loan Commitment Amount........................41
2.3. Borrowing Procedures and Funding Maintenance.........................41
2.3.1. Term Loans and Revolving Loans.......................................41
2.3.2. Swing Line Loans.....................................................42
2.4. Continuation and Conversion Elections................................43
2.5. Funding..............................................................43
2.6. Issuance Procedures..................................................44
2.6.1. Other Lenders' Participation.........................................45
2.6.2. Disbursements; Conversion to Revolving Loans.........................45
2.6.3. Reimbursement........................................................46
2.6.4. Deemed Disbursements.................................................46
2.6.5. Nature of Reimbursement Obligations..................................47
2.7. Register; Notes......................................................48
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application..............................49
3.1.1. Repayments and Prepayments...........................................49
3.1.2. Application..........................................................54
3.2. Interest Provisions..................................................54
3.2.1. Rates................................................................54
3.2.2. Post-Maturity Rates..................................................55
3.2.3. Payment Dates........................................................55
3.3. Fees.................................................................55
3.3.1. Commitment Fee.......................................................56
3.3.2. Administrative Agent Fee.............................................56
3.3.3. Letter of Credit Fee.................................................56
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful...........................................56
4.2. Deposits Unavailable.................................................57
4.3. Increased LIBO Rate Loan Costs, etc..................................57
4.4. Funding Losses.......................................................57
4.5. Increased Capital Costs..............................................58
4.6. Taxes................................................................58
4.7. Payments, Computations, etc..........................................61
4.8. Sharing of Payments..................................................61
4.9. Setoff...............................................................62
4.10. Mitigation...........................................................62
4.11. Replacement of Lenders...............................................63
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension.............................................63
5.1.1. Resolutions, etc.....................................................63
5.1.2. Transaction Documents................................................64
5.1.3. Consummation of Recapitalization and Merger..........................64
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5.1.4. Closing Date Certificate.............................................64
5.1.5. Delivery of Notes....................................................64
5.1.6. Subsidiary Guaranty..................................................64
5.1.7. Pledge and Security Agreements, etc..................................64
5.1.8. UCC Filing Service...................................................66
5.1.9. Financial Information, etc...........................................66
5.1.10. Solvency, etc........................................................67
5.1.11. Equity Contributions, Subordinated Debt Issuance, Discount
Debentures Issuance, Seller Note Issuance and Subco Dividend.....67
5.1.12. Ownership of Holdco..................................................67
5.1.13. Litigation...........................................................67
5.1.14. Material Adverse Effect..............................................67
5.1.15. Reliance Letters.....................................................67
5.1.16. Opinions of Counsel..................................................68
5.1.17. Insurance............................................................68
5.1.18. Closing Fees, Expenses, etc..........................................68
5.1.19. Satisfactory Legal Form..............................................68
5.2. All Credit Extensions................................................68
5.2.1. Compliance with Warranties, No Default, etc..........................68
5.2.2. Credit Extension Request.............................................69
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc....................................................69
6.2. Due Authorization, NonContravention, etc.............................70
6.3. Government Approval, Regulation, etc.................................70
6.4. Validity, etc........................................................70
6.5. Financial Information................................................71
6.6. No Material Adverse Change...........................................71
6.7. Litigation, etc......................................................71
6.8. Subsidiaries.........................................................71
6.9. Ownership of Properties..............................................71
6.10. Taxes................................................................71
6.11. Pension and Welfare Plans............................................72
6.12. Environmental Matters................................................72
6.13. Regulations U and X..................................................73
6.14. Accuracy of Information..............................................73
6.15. Solvency.............................................................74
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6.16. Year 2000 Compliance..................................................74
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants................................................74
7.1.1. Financial Information, Reports, Notices, etc.........................74
7.1.2. Compliance with Laws, etc............................................76
7.1.3. Maintenance of Properties............................................76
7.1.4. Insurance............................................................77
7.1.5. Books and Records....................................................77
7.1.6. Environmental Covenant...............................................77
7.1.7. Future Subsidiaries..................................................78
7.1.8. Future Leased Property and Future Acquisitions of Real Property;
Future Acquisition of Other Property...............................79E
7.1.9. Use of Proceeds, etc.................................................80
7.1.10. Hedging Obligations..................................................80
7.1.11. Undertaking..........................................................81
7.1.12. Mortgages............................................................81
7.1.13. Year 2000 Compliance.................................................82
7.2. Negative Covenants...................................................82
7.2.1. Business Activities..................................................82
7.2.2. Indebtedness.........................................................82
7.2.3. Liens................................................................84
7.2.4. Financial Covenants..................................................86
7.2.5. Investments..........................................................87
7.2.6. Restricted Payments, etc.............................................90
7.2.7. Capital Expenditures, etc............................................92
7.2.8. Consolidation, Merger, etc...........................................93
7.2.9. Asset Dispositions, etc..............................................94
7.2.10. Modification of Certain Agreements...................................95
7.2.11. Transactions with Affiliates.........................................95
7.2.12. Negative Pledges, Restrictive Agreements, etc........................96
7.2.13. Securities of Subsidiaries...........................................96
7.2.14. Sale and Leaseback...................................................96
7.2.15. Designation of Senior Indebtedness...................................97
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ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default..........................................97
8.1.1. Non-Payment of Obligations............................................97
8.1.2. Breach of Warranty....................................................97
8.1.3. Non-Performance of Certain Covenants and Obligations..................97
8.1.4. Non-Performance of Other Covenants and Obligations....................97
8.1.5. Default on Other Indebtedness.........................................97
8.1.6. Judgments.............................................................98
8.1.7. Pension Plans.........................................................98
8.1.8. Change in Control.....................................................98
8.1.9. Bankruptcy, Insolvency, etc...........................................98
8.1.10. Impairment of Security, etc...........................................99
8.1.11. Subordinated Notes....................................................99
8.2. Action if Bankruptcy, etc............................................100
8.3. Action if Other Event of Default.....................................100
ARTICLE IX
THE AGENTS
9.1. Actions..............................................................100
9.2. Funding Reliance, etc................................................101
9.3. Exculpation; Notice of Default.......................................102
9.4. Successor............................................................102
9.5. Credit Extensions by each Agent......................................103
9.6. Credit Decisions.....................................................103
9.7. Copies, etc..........................................................103
9.8. The Syndication Agent and the Administrative Agent...................103
9.9. Documentation Agent..................................................104
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc.............................................104
10.2. Notices..............................................................106
10.3. Payment of Costs and Expenses........................................106
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10.4. Indemnification.....................................................107
10.5. Survival............................................................108
10.6. Severability........................................................109
10.7. Headings............................................................109
10.8. Execution in Counterparts, Effectiveness, etc.......................109
10.9. Governing Law; Entire Agreement.....................................109
10.10. Successors and Assigns..............................................109
10.11. Sale and Transfer of Loans and Notes; Participation in Loans and
Notes...........................................................109
10.11.1. Assignments.........................................................110
10.11.2. Participations......................................................112
10.12. Other Transactions..................................................113
10.13. Forum Selection and Consent to Jurisdiction.........................113
10.14. Waiver of Jury Trial................................................114
10.15. Confidentiality.....................................................114
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term-A Note
EXHIBIT A-3 - Form of Term-B Note
EXHIBIT A-4 - Form of Swing Line Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Closing Date Certificate
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Restricted Payments Compliance Certificate
EXHIBIT G-1 - Form of Holdco Guaranty and Pledge Agreement
EXHIBIT G-2 - Form of Borrower Pledge and Security Agreement
EXHIBIT G-3 - Form of Subsidiary Pledge and Security Agreement
EXHIBIT H - Form of Subsidiary Guaranty
EXHIBIT I - Form of Lender Assignment Agreement
EXHIBIT J-1 - Form of New York Counsel Opinion
EXHIBIT J-2 - Form of New York Counsel Opinion
EXHIBIT J-3 - Form of General Counsel Opinion
EXHIBIT J-4 - Form of Nevada Counsel Opinion
EXHIBIT J-5 - Form of California Counsel Opinion
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 29, 1999, is among Xxxxxxx
River Laboratories, Inc., a Delaware corporation (the "Borrower"), the various
financial institutions as are or may become parties hereto (collectively, the
"Lenders") and DLJ Capital Funding, Inc. ("DLJ"), as lead arranger, as sole
book runner and as syndication agent for the Lenders (as syndication agent, the
"Syndication Agent" and collectively, the "Lead Arranger"), Union Bank of
California, N.A. ("UBOC"), as administrative agent (the "Administrative Agent")
for the Lenders (the Syndication Agent and the Administrative Agent are
sometimes referred to herein as the "Agents" and each as an "Agent"), and
National City Bank, as documentation agent (in such capacity, the
"Documentation Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, DLJ Merchant Banking Partners II, L.P. and certain affiliated
entities (collectively, "DLJMBP") intend to acquire certain businesses and
operations of the Borrower, B&L CRL, Inc., formerly known as Xxxxxxx River
Laboratories, Inc., a Delaware corporation ("CRL"), and certain other
Subsidiaries or Affiliates of Bausch & Lomb Inc., a Delaware corporation
("B&L"), which is the current 100% indirect owner of CRL, through a leveraged
recapitalization (the "Recapitalization"). The Recapitalization will be
consummated pursuant to the Recapitalization Agreement as amended (the
"Recapitalization Agreement"), dated as of July 25, 1999 entered into with B&L
and certain of its Subsidiaries and Affiliates (including CRL and the Borrower)
and DLJMBP;
WHEREAS, the Recapitalization will be accomplished through (i) the
contribution to the Borrower of (a) substantially all of CRL's assets and (b)
certain related assets by certain other Subsidiaries and Affiliates of B&L (the
"Other Asset Contributors"), (ii) the formation of a holding company to be
named Xxxxxxx River Laboratories Holdings, Inc., a Delaware corporation
("Holdco") that will hold directly all of the Capital Stock of the Borrower,
(iii) the formation by DLJMBP of (a) CRL Acquisition LLC ("Acquisition LLC"), a
Delaware limited liability company and a Subsidiary of DLJMBP, and (b) Xxxxxxx
River Acquisition Corp. ("Acquisition Subco"), a Delaware corporation and a
Subsidiary of Acquisition LLC, (iv) the making of an equity contribution (the
"Member Contribution") by the members of Acquisition LLC (including DLJMBP and
certain members of management of the Borrower and its Affiliates) in an amount
equal to at least $90,000,000 to Acquisition LLC, (v) the making of an equity
contribution (the "Acquisition LLC Contribution" and together with the Member
Contribution, the "Equity Contributions") by Acquisition LLC of the Member
Contribution to Acquisition Subco, (vi) the issuance by Holdco of the Senior
Discount Debentures (such term and all other capitalized terms used in the
preamble and recitals hereto not otherwise defined therein shall have the
meanings
assigned to such terms in Article I), (vii) the issuance by the Borrower of the
Senior Subordinated Notes and Warrants, (viii) the borrowing by the Borrower of
Loans to be made on the Closing Date, (ix) the payment of a dividend by the
Borrower to Holdco (the "Subco Dividend") in an aggregate principal amount
equal to the sum of the aggregate principal amounts of the debt incurred by the
Borrower under the preceding clauses (vii) and (viii) (less the amount of the
proceeds of such debt so incurred used to pay (A) the consideration for the
Sierra Acquisition in an amount not to exceed $24,000,000 plus reasonable fees
and expenses as described in clause (B) and (B) all reasonable and customary
fees and expenses paid by the Borrower in connection with the Transaction in an
amount not to exceed $20,000,000), (x) the redemption of all shares of all
Capital Stock of Holdco held by the Other Asset Contributors and all Capital
Stock of Holdco held by CRL except for the Rollover Equity and (xi) the merger
(the "Merger") of Acquisition Subco with and into Holdco, with Holdco to be the
surviving corporation of such merger (such Recapitalization and all
transactions related thereto, including those described in all of the recitals
hereto, being herein referred to as the "Transaction");
WHEREAS, in connection with the Transaction, (i) the Other Asset
Contributors will receive cash in consideration for the redemption of their
shares by Holdco, (ii) the shares of Acquisition Subco held by Acquisition LLC
will be converted into approximately 87.5% of the outstanding common stock of
Holdco (after giving effect to the Merger), (iii) the shares of Holdco held by
CRL (other than the Rollover Equity) will be converted into (A) the right to
receive cash and (B) the Seller Subordinated Discount Note and (iv) CRL will
retain the Rollover Equity;
WHEREAS, in connection with the Transaction, and pursuant to the
Transaction Documents, the Borrower will purchase all of the outstanding shares
of common stock of SBI in consideration for approximately $24,000,000 (the
"Sierra Acquisition") pursuant to an Amended and Restated Stock Purchase
Agreement, dated as of September 4, 1999 (the "Sierra Acquisition Agreement"),
among SBI Holdings, Inc., a Nevada corporation ("SBI"), and certain
shareholders of SBI;
WHEREAS, in connection with the Transaction, and pursuant to the
Transaction Documents, the following capital-raising transactions will occur
prior to or contemporaneously with the consummation of the Transaction and the
making of the initial Credit Extensions hereunder:
(a) the Borrower will issue not more than $150,000,000 in aggregate
principal amount of its Senior Subordinated Notes (the "Senior
Subordinated Notes") pursuant to the Senior Subordinated Note Indenture
and Warrants (the "Warrants") to purchase 591,366 shares of common stock
of Holdco pursuant to the Warrant Agreement, dated as of September 29,
1999 (the "Warrant Agreement"), between Holdco and State Street
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Bank and Trust Company, as warrant agent (the issuance thereof being
herein referred to as the "Subordinated Debt Issuance");
(b) Holdco will issue not more than $40,000,000 in aggregate initial
principal amount of its Senior Discount Debentures (the issuance thereof
being herein referred to as the "Discount Debentures Issuance");
(c) DLJMBP and the other members of Acquisition LLC will make the
DLJMBP Contribution and Acquisition LLC will subsequently make the
Acquisition LLC Contribution in each case, in cash in an amount of equal
to at least $90,000,000;
(d) Holdco will issue its Seller Subordinated Discount Note (the
issuance thereof being herein referred to as the "Seller Note Issuance")
in an initial principal amount of $43,000,000 to CRL; and
(e) CRL will retain the Rollover Equity;
WHEREAS, in connection with the Transaction and the ongoing working
capital and general corporate needs of the Borrower and its Subsidiaries, the
Borrower desires to obtain the following financing facilities from the Lenders:
(a) a Term-A Loan Commitment and a Term-B Loan Commitment pursuant to
which Borrowings of Term Loans will be made to the Borrower on the Closing
Date in a maximum, original principal amount of $40,000,000 (in the case
of Term-A Loans) and $120,000,000 (in the case of Term-B Loans);
(b) a Revolving Loan Commitment (to include availability for
Revolving Loans, Swing Line Loans and Letters of Credit) pursuant to which
Borrowings of Revolving Loans, in a maximum aggregate principal amount
(together with all Swing Line Loans and Letters of Credit Outstanding) not
to exceed $30,000,000 (subject to a $25,000,000 increase under clause (c)
of Section 2.1.2) will be made to the Borrower from time to time on and
subsequent to the Closing Date but prior to the Revolving Loan Commitment
Termination Date;
(c) a Letter of Credit Commitment pursuant to which the Issuer will
issue Letters of Credit for the account of the Borrower and its Restricted
Subsidiaries from time to time on and subsequent to the Closing Date but
prior to the Revolving Loan Commitment Termination Date in a maximum
aggregate Stated Amount at any one time outstanding not to exceed
$15,000,000 (provided, that the aggregate outstanding principal amount of
Revolving Loans, Swing Line Loans and Letter of Credit Outstandings at any
time shall not exceed the then existing Revolving Loan Commitment Amount);
and
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(d) a Swing Line Loan Commitment pursuant to which Borrowings of
Swing Line Loans in an aggregate outstanding principal amount not to
exceed $5,000,000 will be made on and subsequent to the Closing Date but
prior to the Revolving Loan Commitment Termination Date (provided, that
the aggregate outstanding principal amount of such Swing Line Loans,
together with Revolving Loans and Letter of Credit Outstandings, at any
time shall not exceed the then existing Revolving Loan Commitment Amount);
and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend the
Commitments and make the Loans described herein to the Borrower and issue (or
participate in) Letters of Credit for the account of the Borrower and its
Restricted Subsidiaries;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquired Controlled Person" means any Person (i) in which the Borrower or
any of its Restricted Subsidiaries has made an Investment permitted under
clause (l)(i)(y) of Section 7.2.5 and (ii) as to which the Borrower or such
Restricted Subsidiary exercises control. For purposes hereof, "control" means
the power to appoint a majority of the board of directors (or other equivalent
governing body) of such Person or to otherwise direct or cause the direction of
the management or policies of such Person, whether by contractual arrangement
or otherwise.
"Acquisition LLC" is defined in the second recital.
"Acquisition Subco" is defined in the second recital.
"Administrative Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
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"Administrative Agent Fee Letter" means the confidential fee letter, dated
September 29, 1999, between the Borrower and the Administrative Agent.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (i)
to vote 10% or more of the securities (on a fully diluted basis) having
ordinary voting power for the election of directors or managing general
partners, or (ii) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent and the Syndication
Agent.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Closing Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, for any day and with respect to all Base Rate
Loans, the higher of: (a) 0.50% per annum above the latest Federal Funds Rate;
and (b) the reference rate of interest in effect for such day as most recently
publicly announced or established by the Administrative Agent in Los Angeles.
Any change in the reference rate established or announced by the Administrative
Agent shall take effect at the opening of business on the day of such
establishment or announcement. As used herein, the reference rate shall mean an
index rate determined by the Administrative Agent from time to time as a means
of pricing certain extensions of credit and is neither directly tied to any
external rate of interest or index nor necessarily the lowest rate of interest
charged by the Administrative Agent at any given time.
"Annualized" means (i) with respect to the end of the first Fiscal Quarter
of the Borrower ending after the Closing Date, the applicable amount for such
Fiscal Quarter multiplied by four, (ii) with respect to the second Fiscal
Quarter of the Borrower ending after the Closing Date, the applicable amount
for such Fiscal Quarter and the immediately preceding Fiscal Quarter multiplied
by two, and (iii) with respect to the third Fiscal Quarter of the Borrower
ending after the Closing Date, the applicable amount for such Fiscal Quarter
and the immediately preceding two Fiscal Quarters multiplied by one and
one-third.
"Applicable Commitment Fee" means, (i) for each day from the Closing Date
through (but excluding) the date upon which the Compliance Certificate for the
second full Fiscal Quarter ending after the Closing Date is delivered or
required to be delivered by the Borrower to the Administrative Agent pursuant
to clause (c) of Section 7.1.1, a fee which shall accrue at a rate of 1/2 of 1%
per annum, and (ii) for each day thereafter, a fee which shall accrue at the
applicable
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rate per annum set forth below under the column entitled "Applicable Commitment
Fee", determined by reference to the applicable Leverage Ratio referred to
below:
Applicable
Leverage Ratio Commitment Fee
-------------- --------------
greater than or
equal to 4.0:1.0 0.500%
less than 4.0:1.0 0.375%
The Leverage Ratio used to compute the Applicable Commitment Fee for any
day referred to in clause (ii) above shall be the Leverage Ratio set forth in
the Compliance Certificate most recently delivered by the Borrower to the
Administrative Agent on or prior to such day pursuant to clause (c) of Section
7.1.1. Changes in the Applicable Commitment Fee resulting from a change in the
Leverage Ratio shall become effective on the first day following delivery by
the Borrower to the Administrative Agent of a new Compliance Certificate
pursuant to clause (c) of Section 7.1.1. If the Borrower shall fail to deliver
a Compliance Certificate within the number of days after the end of any Fiscal
Quarter as required pursuant to clause (c) of Section 7.1.1 (without giving
effect to any grace period), the Applicable Commitment Fee from and including
the first day after the date on which such Compliance Certificate was required
to be delivered to and including the date the Borrower delivers to the
Administrative Agent the next Compliance Certificate shall conclusively equal
the highest Applicable Commitment Fee set forth above. Notwithstanding the
foregoing, the Borrower may, in its sole discretion, within ten Business Days
following the end of any Fiscal Quarter, deliver to the Administrative Agent a
written estimate (the "Leverage Ratio Estimate") setting forth the Borrower's
good faith estimate of the Leverage Ratio (based on calculations contained in
an estimated Compliance Certificate) that will be set forth in the next
Compliance Certificate required to be delivered by the Borrower to the
Administrative Agent pursuant to clause (c) of Section 7.1.1. In the event that
the Leverage Ratio Estimate indicates that there would be a change in the
Applicable Commitment Fee resulting from a change in the Leverage Ratio, such
change will become effective on the first day following delivery of the
Leverage Ratio Estimate. In the event that, once the next Compliance
Certificate is delivered, the Leverage Ratio as set forth in such Compliance
Certificate differs from that calculated in the Leverage Ratio Estimate
delivered for the Fiscal Quarter with respect to which such Compliance
Certificate has been delivered, and such difference results in an Applicable
Commitment Fee which is greater than the Applicable Commitment Fee theretofore
in effect, then (A) such greater Applicable Commitment Fee shall be deemed to
be in effect for all purposes of this Agreement from the first day following
the delivery of the Leverage Ratio Estimate and (B) if the Borrower shall have
theretofore made any payment of commitment fees in respect of the period from
the first day following the delivery of the Leverage Ratio Estimate to the
actual date of delivery of such Compliance Certificate, then, on the next
Quarterly
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Payment Date, the Borrower shall pay as a supplemental payment of commitment
fees, an amount which equals the difference between the amount of commitment
fees that would otherwise have been paid based on such new Leverage Ratio and
the amount of such commitment fees actually so paid.
"Applicable Margin" means at all times during the applicable periods set
forth below,
(a) with respect to the unpaid principal amount of each Term-B Loan
maintained as a (i) Base Rate Loan, 2.50% per annum and (ii) LIBO Rate
Loan, 3.75% per annum;
(b) from the Closing Date through (but excluding) the date upon which
the Compliance Certificate for the second full Fiscal Quarter ending after
the Closing Date is delivered by the Borrower to the Administrative Agent
pursuant to clause (c) of Section 7.1.1, with respect to the unpaid
principal amount of each (i) Swing Line Loan (which shall be borrowed and
maintained only as a Base Rate Loan) and each Revolving Loan and Term-A
Loan maintained as a Base Rate Loan, 1.75% per annum, and (ii) Revolving
Loan and Term-A Loan maintained as a LIBO Rate Loan, 3.00% per annum; and
(c) at all times after the date of delivery of the Compliance
Certificate described in clause (b) above, with respect to the unpaid
principal amount of each Swing Line Loan (which shall be borrowed and
maintained only as a Base Rate Loan) and each Revolving Loan and Term-A
Loan, the rate determined by reference to the applicable Leverage Ratio
and at the applicable percentage per annum set forth below under the
column entitled "Applicable Margin for Base Rate Loans", in the case of
Base Rate Loans, or by reference to the applicable Leverage Ratio and at
the applicable percentage per annum set forth below under the column
entitled "Applicable Margin for LIBO Rate Loans" in the case of LIBO Rate
Loans:
Applicable Margin For Revolving Loans, Swing Line Loans and Term-A Loans
------------------------------------------------------------------------
Applicable Applicable
Margin For Base Margin For LIBO
Leverage Ratio Rate Loans Rate Loans
-------------- ---------- ----------
greater than or equal to 5.0:1.0 1.75% 3.00%
greater than or equal to 4.0:1.0 and
less than 5.0:1.0 1.25% 2.50%
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Applicable Applicable
Margin For Base Margin For LIBO
Leverage Ratio Rate Loans Rate Loans
-------------- ---------- ----------
greater than or equal to 3.0:1.0 and
less than 4.0:1.0 0.75% 2.00%
less than 3.0:1.0 0.25% 1.50%
The Leverage Ratio used to compute the Applicable Margin for Swing Line
Loans, Revolving Loans and Term-A Loans for any day referred to in clause (c)
above shall be the Leverage Ratio set forth in the Compliance Certificate most
recently delivered by the Borrower to the Administrative Agent on or prior to
such day pursuant to clause (c) of Section 7.1.1. Changes in the Applicable
Margin for Swing Line Loans, Revolving Loans and Term-A Loans resulting from a
change in the Leverage Ratio shall become effective on the first day following
delivery by the Borrower to the Administrative Agent of a new Compliance
Certificate pursuant to clause (c) of Section 7.1.1. If the Borrower shall fail
to deliver a Compliance Certificate within the number of days after the end of
any Fiscal Quarter as required pursuant to clause (c) of Section 7.1.1 (without
giving effect to any grace period), the Applicable Margin for Swing Line Loans,
Revolving Loans and Term-A Loans from and including the first day after the
date on which such Compliance Certificate was required to be delivered to the
date the Borrower delivers to the Administrative Agent the next Compliance
Certificate shall conclusively equal the highest Applicable Margin for Swing
Line Loans, Revolving Loans and Term-A Loans set forth above. Notwithstanding
the foregoing, the Borrower may, in its sole discretion, within ten Business
Days following the end of any Fiscal Quarter, deliver to the Administrative
Agent a Leverage Ratio Estimate setting forth the Borrower's good faith
estimate of the Leverage Ratio (based on calculations set forth in an estimated
Compliance Certificate) that will be set forth in the next Compliance
Certificate required to be delivered by the Borrower to the Administrative
Agent pursuant to clause (c) of Section 7.1.1. In the event that the Leverage
Ratio Estimate indicates that there would be a change in the Applicable Margin
resulting from a change in the Leverage Ratio, such change will become
effective on the first day following delivery of the Leverage Ratio Estimate.
In the event that, once the next Compliance Certificate is delivered, the
Leverage Ratio as set forth in such Compliance Certificate differs from that
calculated in the Leverage Ratio Estimate delivered for the Fiscal Quarter with
respect to which such Compliance Certificate has been delivered, and such
difference results in an Applicable Margin which is greater than the Applicable
Margin theretofore in effect, then (A) such greater Applicable Margin shall be
deemed to be in effect for all purposes of this Agreement from the first day
following the delivery of the Leverage Ratio Estimate and (B) if the Borrower
shall have theretofore made any payment of interest in respect of Swing Line
Loans, Revolving Loans or Term-A Loans, or of letter of credit fees pursuant to
the first sentence of Section 3.3.3, in any such case in respect of the period
from the first day following the delivery of the Leverage Ratio Estimate to the
actual
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date of delivery of such Compliance Certificate, then, on the next Quarterly
Payment Date, the Borrower shall pay as a supplemental payment of interest
and/or letter of credit fees, an amount which equals the difference between the
amount of interest and letter of credit fees that would otherwise have been
paid based on such new Leverage Ratio and the amount of such interest and
letter of credit fees actually so paid.
"Assignee Lender" is defined in Section 10.11.1.
"Assignor Lender" is defined in Section 10.11.1.
"Assumed Indebtedness" means Indebtedness of a Person which is (i) in
existence at the time such Person becomes a Restricted Subsidiary of the
Borrower or (ii) is assumed in connection with an Investment in or acquisition
of such Person, and has not been incurred or created by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Borrower.
"Authorized Officer" means, relative to any Obligor, those of its officers
whose signatures and incumbency shall have been certified to the Administrative
Agent and the Lenders pursuant to Section 5.1.1.
"Base Financial Statements" is defined in clause (a) of Section 5.1.9.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"B&L" is defined in the first recital.
"Borrower" is defined in the preamble.
"Borrower Pledge and Security Agreement" means the Pledge and Security
Agreement executed and delivered by an Authorized Officer of the Borrower
pursuant to clause (b) of Section 5.1.7, substantially in the form of Exhibit
G-2 hereto, together with any supplemental Foreign Pledge Agreements delivered
pursuant to the terms of this Agreement, in each case as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Borrowing" means Loans of the same type and, in the case of LIBO Rate
Loans, having the same Interest Period made by the relevant Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a loan request and certificate duly executed by
an Authorized Officer of the Borrower, substantially in the form of Exhibit B-1
hereto.
-9-
"Business Day" means any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in Los
Angeles and, with respect to Borrowings of, Interest Periods with respect to,
payments of principal and interest in respect of, and conversions of Base Rate
Loans into, LIBO Rate Loans, on which dealings in Dollars are carried on in the
London interbank market.
"Capital Expenditures" means for any period, the sum, without duplication,
of (i) the aggregate amount of all expenditures of the Borrower and its
Restricted Subsidiaries for fixed or capital assets made during such period
which, in accordance with GAAP, would be classified as capital expenditures,
and (ii) the aggregate amount of the principal component of all Capitalized
Lease Liabilities incurred during such period by the Borrower and its
Restricted Subsidiaries; provided that Capital Expenditures shall not include
(i) any such expenditures or any such principal component funded with (x) any
Casualty Proceeds, as permitted under clause (e) of Section 3.1.1, or (y) any
Net Disposition Proceeds of any asset sale permitted under clause (c) of
Section 7.2.9 or any asset sale of obsolete or worn out equipment permitted
under subclause (a)(i) of Section 7.2.9 or (ii) any Investment made under
Section 7.2.5 (other than pursuant to clause (d) thereof).
"Capital Stock" means, (i) in the case of a corporation, any and all
capital or corporate stock, including shares of preferred or preference stock
of such corporation, (ii) in the case of an association or business entity, any
and all shares, interests, participations, rights or other equivalents (however
designated) in respect of corporate or capital stock, (iii) in the case of a
partnership or limited liability company, any and all partnership or membership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Capitalized Lease Liabilities" means, without duplication, all monetary
obligations of the Borrower or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, would be classified as
capitalized leases, and, for purposes of this Agreement and each other Loan
Document, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP, and the stated maturity thereof
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated by
the lessee without payment of a penalty.
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"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one year
after such time, issued directly by the United States of America or any
agency thereof or guaranteed by the United States of America or any agency
thereof;
(b) commercial paper, maturing not more than nine months from the
date of issue, which is (i) rated at least A-l by S&P or P-l by Xxxxx'x
and not issued by an Affiliate of any Obligor, or (ii) issued by any
Lender (or its holding company);
(c) any time deposit, certificate of deposit or bankers acceptance,
maturing not more than one year after such time, maintained with or issued
by either (i) a commercial banking institution (including U.S. branches of
foreign banking institutions) that is a member of the Federal Reserve
System and has a combined capital and surplus and undivided profits of not
less than $500,000,000, or (ii) any Lender;
(d) short-term tax-exempt securities rated not lower than MIG-1/1+ by
either Xxxxx'x or S&P with provisions for liquidity or maturity
accommodations of 183 days or less;
(e) repurchase agreements which (i) are entered into with any entity
referred to in clause (b) or (c) above or any other financial institution
whose unsecured long-term debt (or the unsecured long-term debt of whose
holding company) is rated at least A- or better by S&P or Baa1 or better
by Xxxxx'x and maturing not more than one year after such time, (ii) are
secured by a fully perfected security interest in securities of the type
referred to in clause (a) above and (iii) have a market value at the time
of such repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such counterparty entity with whom such
repurchase agreement has been entered into;
(f) any money market or similar fund not less than 95% of the assets
of which are comprised of any of the items specified in clauses (a)
through (e) above and as to which withdrawals are permitted at least every
90 days; or
(g) in the case of any Restricted Subsidiary of the Borrower
organized or having its principal place of business outside the United
States, investments denominated in the currency of the jurisdiction in
which such Subsidiary is organized or has its principal place of business
which are similar to the items specified in clauses (a) through (f) above.
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of any property of the Borrower or any of its Restricted
Subsidiaries.
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"Casualty Proceeds" means, with respect to any Casualty Event, the amount
of any insurance proceeds or condemnation awards received by the Borrower or
any of its Restricted Subsidiaries in connection therewith, but excluding any
proceeds or awards required to be paid to a creditor (other than the Lenders)
which holds a Lien on the property which is the subject of such Casualty Event
which Lien (x) is permitted by Section 7.2.3 and (y) has priority over the
Liens securing the Obligations.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means (i) the failure of Holdco at any time to own,
free and clear of all Liens and encumbrances (other than Liens of the types
permitted to exist under clauses (b), (d) and (g) of Section 7.2.3), all right,
title and interest in 100% of the Capital Stock of the Borrower; (ii) the
failure of the DLJMBP at any time to own, free and clear of all Liens and
encumbrances (other than Liens (x) arising under the Investors' Agreement and
(y) of the types permitted to exist under clause (d) or (g) of Section 7.2.3)
all right, title and interest in at least 51% (on a fully diluted basis) of the
economic and voting interest in the Voting Stock of Holdco; or (iii) the
failure of DLJMBP and its Affiliates at any time to have the right to designate
or cause to be elected a majority of the Board of Directors of Holdco.
"Xxxxxxx River China" means SPAFAS Jinan Poultry Company, Ltd., a Chinese
corporation and Zhanjiang A&C Biological Ltd., a Chinese corporation.
"Xxxxxxx River Mexico" means Avers Libers de Patogenos Especificos, S.A.
de C.V., a Mexican corporation.
"Xxxxxxx River Japan" means Xxxxxxx River Japan, Inc., a Japanese
corporation.
"Charter Document" means, relative to any Obligor, its certificate of
incorporation, its by-laws or other constituent documents and all shareholder
agreements, voting trusts and similar arrangements to which such Obligor is a
party applicable to any of its authorized shares of Capital Stock.
"Closing Date" means the date of the initial Credit Extension, not to be
later than September 29, 1999.
"Closing Date Certificate" means a certificate of an Authorized Officer of
the Borrower substantially in the form of Exhibit D hereto, delivered pursuant
to Section 5.1.4.
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"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, (i) a Lender's Term-A Loan
Commitment, and Term-B Loan Commitment, Revolving Loan Commitment or Letter of
Credit Commitment or (ii) the Swing Line Lender's Swing Line Loan Commitment.
"Commitment Amount" means, as the context may require, the Term-A Loan
Commitment Amount, the Term-B Loan Commitment Amount, the Revolving Loan
Commitment Amount, the Letter of Credit Commitment Amount or the Swing Line
Loan Commitment Amount.
"Commitment Letter" means the commitment letter, dated July 23, 1999,
between DLJ Merchant Banking II, Inc. and DLJ, including all annexes and
exhibits thereto.
"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date or any Term Loan Commitment
Termination Date.
"Commitment Termination Event" means (i) the occurrence of any Event of
Default described in clauses (b) through (d) of Section 8.1.9 with respect to
any Obligor (other than Subsidiaries that are not Material Subsidiaries), or
(ii) the occurrence and continuance of any other Event of Default and either
(x) the declaration of the Loans to be due and payable pursuant to Section 8.3,
or (y) in the absence of such declaration, the giving of notice to the Borrower
by the Administrative Agent, acting at the direction of the Required Lenders,
that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and executed
by an Authorized Officer that is the president, the chief executive officer or
the chief financial or accounting officer of the Borrower, substantially in the
form of Exhibit E hereto.
"Contingent Liability" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Person. The amount of any Person's obligation under any Contingent Liability
shall (subject to any limitation set forth therein) be deemed to be the
outstanding principal amount of the debt, obligation or other liability
guaranteed thereby.
-13-
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA, or for purposes of Section 412 of the Code, Section
414(m) or Section 414(o) of the Code.
"Credit Extension" means, as the context may require, (i) the making of a
Loan by a Lender, or (ii) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any previously issued Letter of Credit,
by any Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"CRL" is defined in the first recital.
"Current Assets" means, on any date, without duplication, all assets
which, in accordance with GAAP, would be included as current assets on a
consolidated balance sheet of the Borrower and its Restricted Subsidiaries at
such date as current assets (excluding, however, amounts due and to become due
from Affiliates of the Borrower which have arisen from transactions which are
other than arm's-length and in the ordinary course of its business).
"Current Liabilities" means, on any date, without duplication, all amounts
which, in accordance with GAAP, would be included as current liabilities on a
consolidated balance sheet of the Borrower and its Restricted Subsidiaries at
such date, excluding current maturities of Indebtedness.
"Debt" means, without duplication, the outstanding principal amount of all
Indebtedness of the Borrower and its Restricted Subsidiaries that (i) is of the
type referred to in clause (a), (b) (other than undrawn commercial letters of
credit and undrawn letters of credit in respect of workers' compensation,
insurance, performance and surety bonds and similar obligations, in each case
incurred in the ordinary course of business) or (c) of the definition of
"Indebtedness" and (ii) any Contingent Liability in respect of any of the
foregoing types of Indebtedness.
"Default" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would, unless cured or waived,
constitute an Event of Default.
"Disbursement" is defined in Section 2.6.2.
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"Disbursement Date" is defined in Section 2.6.2.
"Disbursement Due Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Required Lenders.
"Discount Debentures Issuance" is defined in clause (b) of the fifth
recital.
"DLJ" is defined in the preamble.
"DLJMBP" is defined in the first recital.
"DLJMBP Contribution" is defined in the second recital.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Earn-outs" means any obligations by the Borrower or any of its Restricted
Subsidiaries to pay any amounts constituting the payment of deferred purchase
price with respect to any acquisition of a business (whether through the
purchase of assets or shares of Capital Stock), the amount of which payments is
calculated on the basis of, or by reference to, the bona fide financial or
other operating performance of such business or specified portion thereof or
any other similar arrangement.
"EBITDA" means, for any applicable period, subject to clause (b) of
Section 1.4, the sum (without duplication) for the Borrower and its Restricted
Subsidiaries on a consolidated basis of
(a) Net Income,
plus
(b) the amount deducted in determining Net Income representing
non-cash charges or expenses, including depreciation and amortization
(excluding any non-cash charges representing an accrual of or reserve for
cash charges to be paid within the next twelve months),
plus
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(c) the amount deducted in determining Net Income representing income
taxes (whether paid or deferred),
plus
(d) the amount deducted in determining Net Income representing
Interest Expense and Transaction Payments,
minus
(e) Restricted Payments of the type referred to in clause (c)(i) of
Section 7.2.6 made during such period.
"Eligible Institution" means a financial institution that has combined
capital and surplus of not less than $500,000,000 or its equivalent in foreign
currency, whose the long-term certificate of deposit rating or long-term senior
unsecured debt rating is rated "BBB" or higher by S&P and "Baa2" or higher by
Xxxxx'x or an equivalent or higher rating by a nationally recognized rating
agency if both of the two named rating agencies cease publishing ratings of
investments.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to the protection of the
environment or the effect of the environment on human health and safety.
"Equity Contributions" is defined in the second recital.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any applicable period, the excess (if any),
of
(a) EBITDA for such applicable period;
over
(b) the sum, without duplication (for such applicable period) of
(i) the cash portion of Interest Expense (net of interest
income) for such applicable period;
-16-
plus
(ii) scheduled payments, to the extent actually made, of the
principal amount of the Term Loans and scheduled payments and
optional and mandatory prepayments of the principal of any other
funded Debt (including Capitalized Lease Liabilities) and mandatory
prepayments of the principal amount of Revolving Loans pursuant to
clause (f) of Section 3.1.1 in connection with a permanent reduction
of any Revolving Loan Commitment Amount, in each case to the extent
actually made and for such applicable period;
plus
(iii) all federal, state and foreign income taxes actually paid
in cash by the Borrower and its Restricted Subsidiaries for such
applicable period;
plus
(iv) Capital Expenditures actually made during such applicable
period pursuant to clause (a) of Section 7.2.7 (excluding Capital
Expenditures constituting Capitalized Lease Liabilities and by way of
the incurrence of Indebtedness permitted pursuant to clause (c) of
Section 7.2.2 to a vendor of any assets permitted to be acquired
pursuant to Section 7.2.7 to finance the acquisition of such assets);
plus
(v) the amount of the net increase (if any) of Current Assets,
other than cash and Cash Equivalent Investments, over Current
Liabilities of the Borrower and its Restricted Subsidiaries for such
applicable period;
plus
(vi) Investments permitted and actually made, in cash, pursuant
to clause (d), (h), (l) or (p) of Section 7.2.5 during such
applicable period (excluding Investments financed with the proceeds
of any issuance of Capital Stock or Indebtedness other than Revolving
Loans);
plus
(vii) Restricted Payments of the type described in clauses
(c)(ii) and (c)(iii) of Section 7.2.6 made during such applicable
period.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Equity Proceeds" means any proceeds received by Holdco, the
Borrower or any of their respective Subsidiaries from the sale or issuance by
such Person of its Capital Stock or any warrants or options in respect of any
such Capital Stock or the exercise of any such warrants or options, in each
case pursuant to any such sale, issuance or exercise constituting or resulting
from (i) capital contributions to, or Capital Stock issuances by, Holdco, the
Borrower or any of their respective Subsidiaries (exclusive of any such
contribution or issuance resulting from a Public Offering or a widely
distributed private offering exempted from the registration requirements of
Section 5 of the Securities Act of 1933, as amended), (ii) any subscription
agreement, option plan, incentive plan or similar arrangement with any officer,
employee or director of such Person or any of its Subsidiaries, (iii) any loan
made by Holdco, the Borrower or any of their respective Subsidiaries pursuant
to clause (g) of Section 7.2.5, (iv) the sale of any Capital Stock of Holdco to
any officer, director or employee described in clause (ii) above; provided such
proceeds do not exceed $15,000,000 in the aggregate, (v) the exercise of any
options or warrants issued to any officer, employee or director pursuant to any
agreement, plan or arrangement described in clause (ii) above or (vi) the
exercise of any Warrants.
"Existing Business" means the businesses of the commercial production and
supply of animal research models and related biomedical products and services
of CRL and the Other Asset Contributors contributed to the Borrower as such
businesses were in existence and carried on immediately prior to the Closing
Date.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to (i) the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or (ii) if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated as of July 23, 1999,
among DLJ Merchant Banking Funding II, Inc. and DLJ.
"Filing Agent" is defined in Section 5.1.8.
"Filing Statement" means any UCC financing statement (Form UCC-1) or other
similar statement or UCC termination statement (Form UCC-3) required pursuant
to the Loan Documents.
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"Fiscal Quarter" means any fiscal quarter of a Fiscal Year.
"Fiscal Year" means any twelve-month period ending on December 31 of any
calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter,
subject to clause (b) of Section 1.4, the ratio computed for the period
consisting of such Fiscal Quarter and each of the three immediately prior
Fiscal Quarters of
(a) (i) EBITDA for all such Fiscal Quarters; minus
(ii) Capital Expenditures actually made during all such Fiscal
Quarters pursuant to clause (a) of Section 7.2.7 (excluding Capital
Expenditures constituting Capitalized Lease Liabilities and by way of the
incurrence of Indebtedness permitted pursuant to Section 7.2.2(c) to a
vendor of any assets permitted to be acquired pursuant to Section 7.2.7 to
finance the acquisition of such assets).
over
(b) the sum (without duplication) of
(i) the cash portion of Interest Expense (net of interest
income) for all such Fiscal Quarters, provided that for the first
full three Fiscal Quarters ending after the Closing Date, Interest
Expense shall be determined on an Annualized basis;
plus
(ii) all scheduled payments of principal of the Term Loans and
other funded Debt (including the principal portion of any Capitalized
Lease Liabilities) during all such Fiscal Quarters, provided that for
the first full three Fiscal Quarters ending after the Closing Date,
such payments shall be determined on an Annualized basis;
plus
(iii) Restricted Payments made or permitted to be made pursuant
to clauses (c)(ii) and (c)(iii)(y) of Section 7.2.6 during all such
Fiscal Quarters;
plus
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(iv) all federal, state and foreign income taxes actually paid
or payable in cash by the Borrower and its Restricted Subsidiaries
for all such Fiscal Quarters.
"Foreign Pledge Agreement" means any supplemental pledge agreement
governed by the laws of a jurisdiction other than the United States or a State
thereof executed and delivered by the Borrower or any of its Restricted
Subsidiaries pursuant to the terms of this Agreement, in form and substance
satisfactory to the Administrative Agent, as may be necessary or desirable
under the laws of organization or incorporation of a Subsidiary to further
protect or perfect the Lien on and security interest in any Collateral (as
defined in a Pledge Agreement).
"Foreign Subsidiary" means any Subsidiary that is not a U.S. Subsidiary.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"Future Pledged Foreign Subsidiary" is a Restricted Subsidiary and a
Foreign Subsidiary having, at any time of determination, total assets with a
value of at least $5,000,000.
"GAAP" is defined in Section 1.4.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other applicable
Environmental Law.
"Hedging Obligations" means, with respect to any Person, all liabilities
of such Person under interest rate or currency swap agreements, interest or
exchange rate cap agreements and interest or exchange rate collar agreements,
and all other agreements or arrangements designed to protect such Person
against fluctuations in interest rates, currency exchange rates or commodity
prices.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case
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may be, as a whole and not to any particular Section, paragraph or provision of
this Agreement or such other Loan Document.
"Holdco" is defined in the second recital.
"Holdco Guaranty and Pledge Agreement" means the Guaranty and Pledge
Agreement executed and delivered by an Authorized Officer of Holdco pursuant to
clause (a) of Section 5.1.7, substantially in the form of Exhibit G-1 hereto,
as amended, supplemented, amended and restated or otherwise modified from time
to time.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of any Obligor, any qualification or exception to such opinion or
certification (i) which is of a "going concern" or similar nature, (ii) which
relates to the limited scope of examination of matters relevant to such
financial statement (except, in the case of matters relating to any acquired
business or assets, in respect of the period prior to the acquisition by such
Obligor of such business or assets), or (iii) which relates to the treatment or
classification of any item in such financial statement and which, as a
condition to its removal, would require an adjustment to such item the effect
of which would be to cause the Borrower to be in default of any of its
obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or for the
deferred purchase price of property or services (exclusive of (i) deferred
purchase price arrangements in the nature of open or other accounts
payable owed to suppliers on normal terms in connection with the purchase
of goods and services in the ordinary course of business and (ii)
Earn-outs (until such time as the obligation associated with the Earn-out
is recorded as a liability on the balance sheet of the Borrower in
accordance with GAAP)) and all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
-21-
(c) all Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging Obligations;
(e) whether or not so included as liabilities in accordance with
GAAP, all Indebtedness of the types referred to in clauses (a) through (d)
above (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including Indebtedness arising
under conditional sales or other title retention agreements), whether or
not such Indebtedness shall have been assumed by such Person or is limited
in recourse; provided, however, that, to the extent such Indebtedness is
limited in recourse to the assets securing such Indebtedness, the amount
of such Indebtedness shall be limited to the fair market value of such
assets; and
(f) all Contingent Liabilities of such Person in respect of any of
the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer (to the extent such Person is
liable for such Indebtedness).
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Initial Public Offering" means for any Person, any sale of the Capital
Stock of such Person to the public pursuant to an initial primary offering
registered under the Securities Act of 1933.
"Interest Coverage Ratio" means, at the end of any Fiscal Quarter, subject
to clause (b) of Section 1.4, the ratio computed for the period consisting of
such Fiscal Quarter and each of the three immediately prior Fiscal Quarters of:
(a) EBITDA (for all such Fiscal Quarters)
to
(b) the cash portion of Interest Expense (net of interest income)
(for all such Fiscal Quarters; provided that for the first full three
Fiscal Quarters ending after the Closing Date, Interest Expense shall be
determined on an Annualized basis).
"Interest Expense" means, for any applicable period, the aggregate
consolidated interest expense of the Borrower and its Restricted Subsidiaries
for such applicable period, as determined
-22-
in accordance with GAAP, including the portion of any payments made in respect
of Capitalized Lease Liabilities allocable to interest expense, but excluding
(to the extent included in interest expense) up-front fees and expenses and the
amortization of all deferred financing costs.
"Interest Period" means, as to any LIBO Rate Loan, the period commencing
on the Borrowing date of such Loan or on the date on which the Loan is
converted into or continued as a LIBO Rate Loan, and ending on the date one,
two, three, six or, if consented to by each applicable Lender, nine or twelve
months thereafter as selected by the Borrower in its Borrowing Request or its
Conversion/Continuation Notice; provided however that:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, that Interest Period shall be extended to the following
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 preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period;
(iii) no Interest Period for any Loan shall extend beyond the Stated
Maturity Date for such Loan;
(iv) no Interest Period applicable to a Term Loan or portion thereof
shall extend beyond any date upon which is due any scheduled principal
payment in respect of the Term Loans unless the aggregate principal amount
of Term Loans represented by Base Rate Loans, or by LIBO Rate Loans having
Interest Periods that will expire on or before such date, equals or
exceeds the amount of such principal payment; and
(v) there shall be no more than ten Interest Periods in effect at any
one time;
provided that with respect to each Borrowing of Term Loans consisting of LIBO
Rate Loans made on the Closing Date, Interest Period means the period
commencing on (and including) the Business Day on which such Borrowing is made
and ending on (and including) the last Business Day of the calendar month
following the month in which such Borrowing is made.
"Investors' Agreement" means the Investors' Agreement dated as of
September 29, 1999 among Holdco, DLJMBP, Acquisition LLC and certain other
holders of the Capital Stock of Holdco from time to time party thereto.
-23-
"Investment" means, relative to any Person, (i) any loan or advance made
by such Person to any other Person (excluding commission, travel, relocation
and similar advances to officers, directors and employees (or individuals
acting in similar capacities) made in the ordinary course of business), and
(ii) any ownership or similar interest (in the nature of Capital Stock) held by
such Person in any other Person. The amount of any Investment shall be the
original principal or capital amount thereof less all returns of principal or
equity thereon (and without adjustment by reason of the financial condition of
such other Person) and shall, if made by the transfer or exchange of property
other than cash, be deemed to have been made in an original principal or
capital amount equal to the fair market value of such property at the time of
such transfer or exchange.
"Issuance Request" means a Letter of Credit request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit B-3 hereto.
"Issuer" means the Administrative Agent in its capacity as issuer of
Letters of Credit and any Lender as may be designated by the Borrower (and
consented to by the Agents and such Lender, such consent by the Agents not to
be unreasonably withheld) in its capacity as issuer of Letters of Credit.
"Lead Arranger" means DLJ.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit I hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 2.1.3.
"Letter of Credit Commitment" means, with respect to any Issuer, such
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.3 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligation of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum amount
of $15,000,000, as such amount may be reduced from time to time pursuant to
Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to the
sum of
(a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit,
-24-
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
"Leverage Ratio" means, at the end of any Fiscal Quarter, subject to
clause (b) of Section 1.4, the ratio of
(a) total Debt less cash and Cash Equivalent Investments of the
Borrower and its Restricted Subsidiaries on a consolidated basis
outstanding at such time;
to
(b) EBITDA for the period of four consecutive Fiscal Quarters ended
on such date.
"Leverage Ratio Estimate" is defined in the definition of Applicable
Commitment Fee.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the applicable London interbank offered rate for deposits in U.S. dollars
appearing on Dow Xxxxx Markets (Telerate Page 3750) as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period; provided that, if Dow Xxxxx
Markets (Telerate Page 3750) is not available for any reason, the applicable
Eurodollar Base Rate for the relevant Interest Period shall instead be the
applicable London interbank offered rate for deposits in U.S. Dollars appearing
on Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, and having a maturity equal to such
Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, the rate of interest per annum (rounded upwards to the next
1/100th of 1%) determined by the Administrative Agent as follows:
LIBO Rate = LIBO Rate
-------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
-25-
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding
as of the effective date of any change in the LIBOR Reserve Percentage.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such on Schedule II hereto or in the Lender Assignment Agreement
pursuant to which such Lender became a Lender hereunder or such other office of
a Lender as shall be so designated from time to time by notice from such Lender
to the Borrower and the Administrative Agent, which shall be making or
maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBO
Rate Loans, the percentage (expressed as a decimal, rounded upward to the next
1/100th of 1%) in effect on such day (whether or not applicable to any Lender)
under regulations issued from time to time by the F.R.S. Board for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the F.R.S. Board).
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or any other priority or preferential treatment
of any kind or nature whatsoever that has the practical effect of creating a
security interest in property.
"Loan" means, as the context may require, a Revolving Loan, a Term-A Loan,
a Term-B Loan or a Swing Line Loan, of any type.
"Loan Document" means this Agreement, the Notes, the Letters of Credit,
each Rate Protection Agreement under which the counterparty to such agreement
is (or at the time such Rate Protection Agreement was entered into, was) a
Lender or an Affiliate of a Lender relating to Hedging Obligations of the
Borrower or any of its Subsidiaries, each Borrowing Request, each Issuance
Request, the Fee Letter, the Administrative Agent Fee Letter, each Pledge
Agreement, the Subsidiary Guaranty, each Mortgage (upon execution and delivery
thereof), and each other agreement, document or instrument delivered in
connection with this Agreement or any other Loan Document, whether or not
specifically mentioned herein or therein.
"Material Adverse Effect" means (a) a material adverse effect on the
financial condition, operations, assets, business, properties or prospects of
the Borrower and its Restricted Subsidiaries, taken as a whole, (b) a material
impairment of the ability of the Borrower or any other Obligor to perform its
respective material obligations under the Loan Documents to which it is or will
be a party, or (c) an impairment of the validity or enforceability of, or a
material
-26-
impairment of the rights, remedies or benefits available to each Issuer, the
Agents, the Lead Arranger or the Lenders under, this Agreement or any other
Loan Document.
"Material Documents" means the Recapitalization Agreement, the Sierra
Acquisition Agreement, the Charter Documents of each of the Borrower and
Holdco, the Investors' Agreement, Seller Subordinated Discount Note, Senior
Discount Debentures, the Warrants, the Warrant Agreement and the Senior
Subordinated Debt Documents, each as amended, supplemented, amended and
restated or otherwise modified from time to time as permitted in accordance
with the terms hereof or of any other Loan Document.
"Material Subsidiary" means (i) any direct or indirect Restricted
Subsidiary of the Borrower which holds, owns or contributes, as the case may
be, 3% or more of the gross revenues, assets or EBITDA of the Borrower and its
Restricted Subsidiaries, on a consolidated basis, and (ii) any Restricted
Subsidiary of the Borrower designated by the Borrower as a Material Subsidiary.
The Borrower shall designate one or more Restricted Subsidiaries of the
Borrower as Material Subsidiaries if, in the absence of such designation, the
aggregate gross revenues, assets or EBITDA of all Restricted Subsidiaries of
the Borrower that are not Material Subsidiaries would exceed 5% of the gross
revenues, assets or EBITDA of the Borrower and its Restricted Subsidiaries, on
a consolidated basis.
"Merger" is defined in the second recital.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means, collectively, each Mortgage or Deed of Trust executed
and delivered pursuant to the terms of this Agreement, including Section
7.1.8(b) or 7.1.12, in form and substance reasonably satisfactory to the
Agents.
"Net Debt Proceeds" means with respect to the incurrence, sale or issuance
by Holdco, the Borrower or any Restricted Subsidiary of the Borrower of any
Debt (other than Debt incurred as part of the Transaction and other Debt
permitted by Section 7.2.2 and clause (b)(i) of Section 5.9 of the Holdco
Guaranty and Pledge Agreement) the excess of:
(a) the gross cash proceeds received by Holdco, the Borrower or any
such Restricted Subsidiary from such incurrence, sale, or issuance,
over
(b) the sum (without duplication) of (i) all reasonable and customary
underwriting commissions and legal, investment banking, brokerage and
accounting and other professional fees, sales commissions and
disbursements and all other reasonable
-27-
fees, expenses and charges, in each case actually incurred in connection
with such incurrence, sale or issuance and (ii) in the case of any Debt
incurred, sold or issued by any Foreign Subsidiary, any taxes or other
costs or expenses resulting from repatriating any such proceeds to the
United States.
"Net Disposition Proceeds" means, with respect to any sale, transfer or
other disposition of any assets of the Borrower or any of its Restricted
Subsidiaries (other than transfers made as part of the Transaction and other
sales permitted pursuant to clause (a), (b), (d) (to the extent the proceeds of
the transfer permitted thereunder constitute Net Casualty Proceeds) or (e) of
Section 7.2.9, but including any sale or issuance of Capital Stock of any such
Subsidiary to any Person other than the Borrower or any of its Restricted
Subsidiaries), the excess of
(a) the sum of the gross cash proceeds received, directly or
indirectly, by the Borrower or any of its Restricted Subsidiaries from any
such sale, transfer or other disposition and any cash payments received in
respect of promissory notes or other non-cash consideration delivered to
the Borrower or such Restricted Subsidiary in respect thereof,
less
(b) the sum (without duplication) of (i) all reasonable and customary
fees and expenses with respect to legal, investment banking, brokerage,
accounting and other professional fees, sales commissions and
disbursements and all other reasonable fees, expenses and charges, in each
case actually incurred in connection with such sale, transfer or other
disposition, (ii) all taxes and other governmental costs and expenses
actually paid or estimated by the Borrower (in good faith) to be payable
in cash in connection with such sale, transfer or other disposition
(including, in the event of a transfer, sale or other disposition of
non-U.S. assets, any such taxes or other costs or expenses resulting from
repatriating any such proceeds to the United States), (iii) payments made
by the Borrower or any of its Restricted Subsidiaries to retire
Indebtedness (other than the Loans) of the Borrower or any of its
Restricted Subsidiaries where payment of such Indebtedness is required in
connection with such sale, transfer or other disposition and (iv) reserves
for purchase price adjustments and retained fixed liabilities reasonably
expected to be payable by the Borrower and its Restricted Subsidiaries in
cash in connection therewith;
provided, however, that if, after the payment of all taxes, purchase price
adjustments and retained fixed liabilities with respect to such sale, transfer
or other disposition, the amount of estimated taxes, purchase price adjustments
or retained fixed liabilities, if any, pursuant to clause (b)(ii) or (b)(iv)
above exceeded the tax, purchase price adjustment or retained fixed liabilities
amount actually paid in cash in respect of such sale, transfer or other
disposition, the aggregate amount of such excess shall, at such time,
constitute Net Disposition Proceeds.
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"Net Equity Proceeds" means with respect to any sale or issuance by Holdco
or the Borrower to any Person of any Capital Stock of Holdco or the Borrower,
as the case may be, or any warrants or options with respect to any such Capital
Stock or the exercise of any such warrants or options after the Closing Date
(exclusive of any such proceeds constituting Excluded Equity Proceeds) the
excess of:
(a) the gross cash proceeds received by Holdco or the Borrower from
such sale, exercise or issuance,
over
(b) the sum, without duplication, of all reasonable and customary
underwriting commissions and legal, investment banking, brokerage,
accounting and other professional fees, sales commissions and
disbursements and all other reasonable fees, expenses and charges, in each
case actually incurred in connection with such sale or issuance.
"Net Income" means, for any period, the net income of the Borrower and its
Subsidiaries for such period on a consolidated basis, excluding (a) net losses
or gains realized in connection with any sale, lease, conveyance or other
disposition of any asset (other than in the ordinary course of business) and
(b) extraordinary or non-recurring losses or gains; provided, however, that the
Net Income or loss of any Person that is not a Restricted Subsidiary or that is
accounted for by the equity method of accounting shall be included only to the
extent of the amount of dividends or distributions paid to the Borrower or a
Restricted Subsidiary in cash.
"Non-Consenting Lender" means any Lender that, in response to any request
by the Borrower or any Agent to a departure from, waiver of or amendment to any
provision of any Loan Document that requires the agreement of all Lenders or
all Lenders with respect to a particular Tranche, which departure, waiver or
amendment receives the consent of the Required Lenders or the holders of a
majority of the Commitments or (if the applicable Commitments in respect of
such Tranche shall have expired or been terminated) outstanding Credit
Extensions in respect of such Tranche, as the case may be, shall not have given
its consent to such departure, waiver or amendment.
"Non-Funding Lender" means a Lender that shall have failed to fund any
Loan hereunder that it was required to have funded in accordance with the terms
hereof, which Loan was included in any Borrowing in respect of which a majority
of the aggregate principal amount of all Loans included in such Borrowing were
funded by the Lenders party thereto.
"Non-Recourse Debt" means Indebtedness (i) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other
-29-
Indebtedness of the Borrower or any of its Restricted Subsidiaries to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity, and (ii) as to which the
lenders have been notified in writing that they will not have any recourse to
the Capital Stock or assets of the Borrower or any of its Restricted
Subsidiaries (other than Capital Stock of Unrestricted Subsidiaries pledged by
the Borrower or a Restricted Subsidiary to secure Debt of such Unrestricted
Subsidiary); provided, however, that in no event shall Indebtedness of any
Unrestricted Subsidiary fail to be Non-Recourse Debt solely as a result of any
default provisions contained in a guarantee thereof by the Borrower or any of
its Restricted Subsidiaries if the Borrower or such Restricted Subsidiary was
otherwise permitted to incur such guarantee under this Agreement.
"Non-U.S. Lender" means any Lender (including each Assignee Lender) that
is not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, or (iii) an estate or trust that is subject
to U.S. Federal income taxation regardless of the source of its income.
"Note" means, as the context may require, a Revolving Note, a Term-A Note,
a Term-B Note or a Swing Line Note.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower and each other Obligor arising under or in connection with this
Agreement and each other Loan Document.
"Obligor" means the Borrower or any other Person (other than any Agent,
the Lead Arranger, any Issuer, the Swing Line Lender or any Lender) obligated
under any Loan Document.
"Other Asset Contributors" is defined in the second recital.
"Participant" is defined in Section 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
entity.
"Pension Plan" means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the
Borrower, a member of a Controlled Group, has or within the prior six years has
had any liability, including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.
-30-
"Percentage" means, relative to any Lender, the applicable percentage
relating to Term-A Loans, Term-B Loans or Revolving Loans, as the case may be,
as set forth opposite its name in Schedule II hereto or in a Lender Assignment
Agreement(s) under the applicable column heading, as such percentage may be
adjusted from time to time pursuant to Lender Assignment Agreement(s) executed
by such Lender and its Assignee Lender(s) and delivered pursuant to Section
10.11 or, in the case of a Lender's Percentage relating to Revolving Loans,
pursuant to clause (c) of Section 2.1.2. A Lender shall not have any Commitment
to make Revolving Loans, Term-A Loans or Term-B Loans (as the case may be) if
its percentage under the respective column heading is zero.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreement" means, as the context may require, the Borrower Pledge
and Security Agreement, the Holdco Guaranty and Pledge Agreement or the
Subsidiary Pledge and Security Agreement.
"Pledge and Security Agreement" means, as the context may require, the
Borrower Pledge and Security Agreement or the Subsidiary Pledge and Security
Agreement.
"Pro Forma Financial Statements" is defined in clause (b) of Section
5.1.9.
"Public Offering" means, for any Person, any sale after the Closing Date
of the Capital Stock of such Person to the public pursuant to a primary
offering registered under the Securities Act of 1933, as amended.
"Quarterly Payment Date" means the last day of each of March, June,
September and December, or, if any such day is not a Business Day, the next
succeeding Business Day, commencing with December 31, 1999.
"Rate Protection Agreement" means any interest rate swap, cap, collar or
similar agreement entered into by the Borrower pursuant to the terms of this
Agreement under which the counterparty to such agreement is (or at the time
such Rate Protection Agreement was entered into, was) a Lender or an Affiliate
of a Lender.
"Recapitalization Agreement" is defined in the first recital.
"Refunded Swing Line Loans" is defined in clause (b) of Section 2.3.2.
-31-
"Register" is defined in clause (b) of Section 2.7.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Reinstatement Date" is defined in Section 4.1.
"Related Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans
and is managed or advised by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in Section 4.11.
"Replacement Notice" is defined in Section 4.11.
"Required Lenders" means, at any time, (i) prior to the date of the making
of the initial Credit Extension hereunder, Lenders having at least 51% of the
sum of the Revolving Loan Commitments, Term-A Loan Commitments and Term-B Loan
Commitments, and (ii) on and after the date of the initial Credit Extension,
Lenders holding at least 51% of the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect from time to
time.
"Restricted Payments" is defined in Section 7.2.6.
"Restricted Payments Compliance Certificate" means a certificate duly
completed and executed by an Authorized Officer that is the president, the
chief executive officer or the chief financial or accounting officer of the
Borrower, substantially in the form of Exhibit F hereto.
"Restricted Subsidiary" means any Subsidiary of the Borrower that is not
an Unrestricted Subsidiary.
"Revolving Loans" is defined in Section 2.1.2.
"Revolving Loan Commitment" is defined in Section 2.1.2.
"Revolving Loan Commitment Amount" means, on any date, $30,000,000, as
such amount may be increased from time to time pursuant to clause (c) of
Section 2.1.2 or reduced from time to time pursuant to Section 2.2.
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"Revolving Loan Commitment Termination Date" means the earliest of (i)
September 29, 1999 if the Term Loans have not been made on or prior to such
date, (ii) the sixth anniversary of the Closing Date, (iii) the date on which
the Revolving Loan Commitment Amount is terminated in full or reduced to zero
pursuant to Section 2.2, and (iv) the date on which any Commitment Termination
Event occurs.
"Revolving Note" means a promissory note of the Borrower payable to any
Lender, substantially in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to such Lender resulting
from outstanding Revolving Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Rollover Equity" means the shares equal to approximately 12.5% of Holdco
outstanding after the Merger which will either be retained by CRL or exchanged
by CRL for such percentage of a new class of shares of common stock of Holdco.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc.
"SBI" is defined in the fourth recital.
"Secured Parties" means, collectively, the Lenders, the Issuers, the
Agents and each counterparty to a Rate Protection Agreement that is (or at the
time such Rate Protection Agreement was entered into, was) a Lender or an
Affiliate of a Lender.
"Seller Note Issuance" is defined in clause (d) of the fifth recital.
"Seller Subordinated Discount Note" means the Subordinated Discount Note
in an initial principal amount of $43,000,000 issued by Holdco to CRL on the
Closing Date.
"Senior Discount Debentures" the Senior Discount Debentures in an initial
principal amount of $40,000,000 issued by Holdco on the Closing Date.
"Senior Subordinated Debt" means the Senior Subordinated Notes.
"Senior Subordinated Debt Documents" means the Senior Subordinated Notes
and all other instruments, agreements or other documents evidencing or
governing any Senior Subordinated Debt or pursuant to which any Senior
Subordinated Debt has been issued.
"Senior Subordinated Notes" is defined in clause (a) of the fifth recital.
"Sierra Acquisition" is defined in the fourth recital.
-33-
"Sierra Acquisition Agreement" is defined in the fourth recital.
"Solvent" means, with respect to any Person on a particular date, that on
such date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature, and
(d) such Person is not engaged in business or a transaction, and such Person is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at such time, can reasonably
be expected to become an actual or matured liability.
"Stated Amount" of each Letter of Credit means the total amount available
to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means (i) in the case of any Revolving Loan, the
sixth anniversary of the Closing Date, (ii) in the case of any Term-A Loan, the
sixth anniversary of the Closing Date, (iii) in the case of any Term-B Loan,
the eighth anniversary of the Closing Date or, in the case of any such day that
is not a Business Day, the first Business Day following such day.
"Subject Lender" is defined in Section 4.11.
"Subco Dividend" is defined in the second recital.
"Subordinated Debt Issuance" is defined in clause (a) of the fifth
recital.
"Subordination Provisions" is defined in Section 8.1.11.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Stock (or other ownership interests) of any other class or classes of such
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person. For purposes of this Agreement
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and the other Loan Documents, any Acquired Controlled Person shall be deemed to
be a "Subsidiary" of the Borrower for purposes of Sections 6.1, 6.7, 6.9, 6.10,
6.11, 6.12, 7.1.2, 7.1.3, 7.1.4, 7.1.5, 7.1.6, 7.1.7(a)(ii), 7.2.1, 7.2.2,
7.2.3, 7.2.5, 7.2.6, 7.2.9, 7.2.11, 7.2.12 and 7.2.14 and, to the extent (and
only to the extent) that it relates to any of the foregoing Sections, Article
VIII.
"Subsidiary Guarantor" means each U.S. Subsidiary of the Borrower that has
executed and delivered a Subsidiary Guaranty (or a supplement thereto).
"Subsidiary Guaranty" means the Guaranty, if any, executed and delivered
by an Authorized Officer of a Subsidiary Guarantor pursuant to Section 5.1.6 or
Section 7.1.7, substantially in the form of Exhibit H hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Subsidiary Pledge and Security Agreement" means the Pledge and Security
Agreement executed and delivered by an Authorized Officer of each Subsidiary
Guarantor pursuant to the terms of this Agreement, substantially in the form of
Exhibit G-3 hereto, together with any supplemental Foreign Pledge Agreements
delivered pursuant to the terms of this Agreement, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Swing Line Lender" means the Administrative Agent in its capacity as
Swing Line Lender hereunder.
"Swing Line Loan" is defined in clause (b) of Section 2.1.2.
"Swing Line Loan Commitment" is defined in clause (b) of Section 2.1.2.
"Swing Line Loan Commitment Amount" means, on any date, $5,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Swing Line Note" means a promissory note of the Borrower payable to the
Swing Line Lender, in the form of Exhibit A-4 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to the Swing Line Lender resulting
from outstanding Swing Line Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"Syndication Agent" is defined in the preamble.
"Taxes" is defined in Section 4.6.
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"Term-A Loans" is defined in clause (a) of Section 2.1.1.
"Term-A Loan Commitment" is defined in clause (a) of Section 2.1.1.
"Term-A Loan Commitment Amount" means $40,000,000.
"Term-A Loan Commitment Termination Date" means the earliest of (i)
September 29, 1999, if the Term-A Loans have not been made on or prior to such
date, (ii) the Closing Date (immediately after the making of the Term-A Loans
on such date), and (iii) the date on which any Commitment Termination Event
occurs.
"Term-A Note" means a promissory note of the Borrower payable to the order
of any Lender, in the form of Exhibit A-2 hereto (as such promissory note may
be amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term-A Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Term-B Loans" is defined in clause (b) of Section 2.1.1.
"Term-B Loan Commitment" is defined in clause (b) of Section 2.1.1.
"Term-B Loan Commitment Amount" means $120,000,000.
"Term-B Loan Commitment Termination Date" means the earliest of (i)
September 29, 1999, if the Term-B Loans have not been made on or prior to such
date, (ii) the Closing Date (immediately after the making of the Term-B Loans
on such date), and (iii) the date on which any Commitment Termination Event
occurs.
"Term-B Note" means a promissory note of the Borrower payable to the order
of any Lender, in the form of Exhibit A-3 hereto (as such promissory note may
be amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term-B Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Term Loan Commitment Termination Date" means, as the context may require,
the Term-A Loan Commitment Termination Date or the Term-B Loan Commitment
Termination Date.
"Term Loans" means collectively, the Term-A Loans or the Term-B Loans.
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"Termination Date" means the date on which all Obligations have been paid
in full in cash, all Letters of Credit have been terminated, expired or Cash
Collateralized, all Rate Protection Agreements have been terminated and all
Commitments shall have terminated.
"Total Exposure Amount" means, on any date of determination, (a) with
respect to any provision of this Agreement other than the declaration of the
acceleration of the maturity of all or any portion of the outstanding principal
amount of the Loans and other Obligations to be due and payable pursuant to
Section 8.3, the sum of (i) the aggregate principal amount of all Term Loans
outstanding at such time and (ii) (x) the then effective Revolving Loan
Commitment Amount, if there are any Revolving Loan Commitments then
outstanding, or (y) if all Revolving Loan Commitments shall have expired or
been terminated, the sum of (1) the aggregate principal amount of all Revolving
Loans and Swing Line Loans outstanding at such time and (2) the Letter of
Credit Outstandings at such time; and (b) with respect to the declaration of
the acceleration of the maturity of all or any portion of the outstanding
principal amount of the Loans and other Obligations to be due and payable
pursuant to Section 8.3, the sum of (i) the aggregate principal amount of all
Loans outstanding at such time and (ii) the Letter of Credit Outstandings at
such time.
"Tranche" means, as the context may require, the Loans constituting Term-A
Loans, Term-B Loans, Revolving Loans or Swing Line Loans.
"Transaction" is defined in the second recital.
"Transaction Documents" means each of the Material Documents and all other
agreements, documents, instruments, certificates, filings, consents, approvals,
board of directors resolutions and opinions furnished pursuant to or in
connection with the Recapitalization, Merger, Equity Contributions, Subco
Dividend, Subordinated Debt Issuance, Discount Debentures Issuance, the Seller
Note Issuance and the Sierra Acquisition and the transactions contemplated
hereby or thereby, each as amended, supplemented, amended and restated or
otherwise modified from time to time as permitted in accordance with the terms
hereof or of any other Loan Document.
"Transaction Payments" means the retention bonus payments, performance
bonus payments, Earn-outs and any fees, expenses and financing and other
transaction costs to be paid by the Borrower under any present or future
acquisition agreement.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UBOC" is defined in the preamble.
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"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York; provided, that if, with respect to any Filing Statement
or by reason of any mandatory provisions of law, the perfection or the effect
of perfection or non-perfection of the security interests granted to the
Administrative Agent pursuant to the applicable Loan Document is governed by
the Uniform Commercial Code as in effect in a jurisdiction of the United States
other than New York, UCC means the Uniform Commercial Code as in effect from
time to time in such other jurisdiction for purposes of the provisions of this
Agreement, each Loan Document and any Filing Statement relating to such
perfection or effect of perfection or non-perfection.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"U.S. Subsidiary" means any Subsidiary of the Borrower that is
incorporated or organized in or under the laws of the United States, any state
thereof or the District of Columbia.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower that is
designated by a resolution of the Board of Directors of the Borrower as an
Unrestricted Subsidiary, but only to the extent that such Subsidiary: (i) has
no Indebtedness other than Non-Recourse Debt; (ii) is not party to any
agreement, contract, arrangement or understanding with the Borrower or any
Restricted Subsidiary of the Borrower unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Borrower or
such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Borrower; (iii) is a Person with respect
to which neither the Borrower nor any of its Restricted Subsidiaries has any
direct or indirect obligation (a) to subscribe for additional Capital Stock or
warrants, options or other rights to acquire Capital Stock or (b) to maintain
or preserve such Person's financial condition or to cause such Person to
achieve any specified levels of operating results; and (iv) has not guaranteed
or otherwise directly or indirectly provided credit support for any
Indebtedness of the Borrower or any of its Restricted Subsidiaries. If, at any
time, any Unrestricted Subsidiary would fail to meet the foregoing requirements
as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes hereof. The Board of Directors of the Borrower may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Borrower of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if no Default or Event of Default would be in existence following
such designation.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees (or Persons performing similar functions) of any Person
(irrespective of whether or not, at the time, Capital Stock of any other class
or classes shall have, or might have, voting power by reason of the happening
of any contingency).
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"Waiver" means an agreement in favor of the Agents for the benefit of the
Lenders in form and substance reasonably satisfactory to the Agents.
"Warrants" is defined in clause (a) of the fifth recital.
"Warrant Agreement" is defined in clause (a) of the fifth recital.
"Welfare Plan" means a "welfare plan", as such term is defined in Section
3(1) of ERISA, and to which the Borrower has any liability.
"wholly-owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (and all rights and options
to purchase such Capital Stock) of which, other than directors' qualifying
shares, are owned, beneficially and of record, by such Person and/or one or
more wholly-owned Subsidiaries of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the Disclosure Schedule and in each other
Loan Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in
any Article, Section or definition to any clause are references to such clause
of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations.
(a) Unless otherwise specified and subject to Section 1.4(b) below,
all accounting terms used herein or in any other Loan Document shall be
interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, and all
financial statements required to be delivered hereunder or thereunder
shall be prepared in accordance with, those generally accepted accounting
principles ("GAAP"), as in effect on December 31, 1998 and, unless
otherwise expressly provided herein, shall be computed or determined on a
consolidated basis and without duplication.
(b) For purposes of computing the Fixed Charge Coverage Ratio,
Interest Coverage Ratio and Leverage Ratio (and any financial calculations
required to be made or included within such ratios) as of the end of any
Fiscal Quarter, all components of such ratios, including Capital
Expenditures, in the case of any disposition, but excluding
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Xxxxxxx Xxxxxxxxxxxx, in the case of any acquisition, for the period of
four Fiscal Quarters ending at the end of such Fiscal Quarter shall
include or exclude, as the case may be, without duplication, such
components of such ratios attributable to any business or assets that have
been acquired or disposed of by the Borrower or any of its Subsidiaries
(including through mergers or consolidations) after the first day of such
period of four Fiscal Quarters and prior to the end of such period, as
determined in good faith by the Borrower on a pro forma basis for such
period of four Fiscal Quarters as if such acquisition or disposition had
occurred on such first day of such period (including cost savings that
would have been realized had such acquisition occurred on such day and
which inclusion when not otherwise permitted under GAAP has been approved
by a majority of the board of directors of Holdco).
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Sections 2.1.4, 2.1.5 and Article V),
(a) each Lender severally agrees to make Loans (other than Swing Line
Loans) pursuant to each of its Commitments and the Swing Line Lender
agrees to make Swing Line Loans pursuant to the Swing Line Loan
Commitment, in each case as described in this Section 2.1; and
(b) each Issuer severally agrees that it will issue Letters of Credit
pursuant to Section 2.1.3, and each other Lender that has a Revolving Loan
Commitment severally agrees that it will purchase participation interests
in such Letters of Credit pursuant to Section 2.6.1.
SECTION 2.1.2. Term Loan Commitments. Subject to compliance by the
Borrower with the terms of Sections 2.1.4, 5.1 and 5.2, on (but solely on) the
Closing Date (which shall be a Business Day), each Lender that has a Percentage
in excess of zero of the Term-A Loan Commitment or the Term-B Loan Commitment,
as applicable,
(a) will make a loan (relative to such Lender, its "Term-A Loans") to
the Borrower equal to such Lender's Percentage of the aggregate amount of
the Borrowing or Borrowings of Term-A Loans requested by the Borrower to
be made on the Closing Date (with the commitment of each such Lender
described in this clause (a) herein referred to as its "Term-A Loan
Commitment") and
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(b) will make a loan (relative to such Lender, its "Term-B Loans") to
the Borrower equal to such Lender's Percentage of the aggregate amount of
the Borrowing or Borrowings of Term-B Loans requested by the Borrower to
be made on the Closing Date (with the commitment of each such Lender
described in this clause (b) herein referred to as its "Term-B Loan
Commitment").
No amounts paid or prepaid with respect to Term-A Loans or Term-B Loans may be
reborrowed.
SECTION 2.1.3. Revolving Loan Commitment and Swing Line Loan Commitment.
Subject to compliance by the Borrower with the terms of Section 2.1.4, Section
5.1 and Section 5.2, from time to time on any Business Day occurring
concurrently with (or after) the making of the Term Loans but prior to the
Revolving Loan Commitment Termination Date,
(a) each Lender that has a Percentage of the Revolving Loan
Commitment in excess of zero will make loans (relative to such Lender, its
"Revolving Loans") to the Borrower equal to such Lender's Percentage of
the aggregate amount of the Borrowing or Borrowings of Revolving Loans
requested by the Borrower to be made on such day. The Commitment of each
Lender described in this Section 2.1.2 is herein referred to as its
"Revolving Loan Commitment". On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow, prepay and reborrow
Revolving Loans.
(b) the Swing Line Lender will make a loan (a "Swing Line Loan") to
the Borrower equal to the principal amount of the Swing Line Loan
requested by the Borrower to be made on such day. The Commitment of the
Swing Line Lender described in this clause (b) is herein referred to as
its "Swing Line Loan Commitment". On the terms and subject to the
conditions hereof, the Borrower may from time to time borrow, prepay and
reborrow Swing Line Loans.
(c) At any time that no Default has occurred and is continuing, and
prior to the Revolving Loan Commitment Termination Date, the Borrower may
notify the Agents that the Borrower is requesting that, on the terms and
subject to the conditions contained in this Agreement, the Lenders and/or
other lenders not then a party to this Agreement provide up to an
aggregate amount of $25,000,000 in additional Revolving Loan Commitments.
Upon receipt of such notice, the Syndication Agent shall use commercially
reasonable efforts to arrange for the Lenders or other Eligible
Institutions to provide such additional Revolving Loan Commitments;
provided that the Syndication Agent will first offer each of the Lenders
that then has a Percentage of the Revolving Loan Commitment a pro rata
portion of any such additional Revolving Loan Commitment. Alternatively,
DLJ may commit to provide the full amount of the requested additional
Revolving Loan Commitment and then offer portions of such additional
Revolving Loan Commitment to the Lenders or other Eligible Institutions,
subject to the proviso to the immediately preceding sentence. Nothing
contained in this
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clause (c) or otherwise in this Agreement is intended to commit any Lender
or any Agent to provide any portion of any such additional Revolving Loan
Commitments. If and to the extent that any Lenders and/or other lenders
agree, in their sole discretion, to provide any such additional Revolving
Loan Commitments, (i) the Revolving Loan Commitment Amount shall be
increased by the amount of the additional Revolving Loan Commitments
agreed to be so provided, (ii) the Percentages of the respective Lenders
in respect of the Revolving Loan Commitment shall be proportionally
adjusted (provided that the Percentage of each Lender shall not be
increased without the consent of such Lender), (iii) at such time and in
such manner as the Borrower and the Syndication Agent shall agree (it
being understood that the Borrower and the Agents will use commercially
reasonable efforts to avoid the prepayment or assignment of any LIBO Rate
Loan on a day other than the last day of the Interest Period applicable
thereto), the Lenders shall assign and assume outstanding Revolving Loans
and participations in outstanding Letters of Credit so as to cause the
amounts of such Revolving Loans and participations in Letters of Credit
held by each Lender to conform to the respective Percentages of the
Revolving Loan Commitment of the Lenders and (iv) the Borrower shall
execute and deliver any additional Notes or other amendments or
modifications to this Agreement or any other Loan Document as the Agents
may reasonably request.
SECTION 2.1.4. Letter of Credit Commitment. Subject to compliance by the
Borrower with the terms of Section 2.1.5, 5.1 and 5.2, from time to time on any
Business Day occurring concurrently with (or after) the Closing Date but prior
to the Revolving Loan Commitment Termination Date, the applicable Issuer will
(i) issue one or more standby or commercial letters of credit (each referred to
as a "Letter of Credit") for the account of the Borrower or any of its
Restricted Subsidiaries in the Stated Amount requested by the Borrower on such
day, or (ii) extend the Stated Expiry Date of an existing standby or commercial
Letter of Credit previously issued hereunder to a date not later than the
earlier of (x) the sixth anniversary of the Closing Date and (y) one year from
the date of such extension (subject to automatic renewal provisions); provided
that, notwithstanding the terms of this clause (y), a Letter of Credit may, if
required by the beneficiary thereof, contain automatic renewal provisions
pursuant to which the Stated Expiry Date shall be automatically extended (to a
date not beyond the date specified in clause (x) above), unless notice to the
contrary shall have been given to the beneficiary prior to the then existing
Stated Expiry Date in accordance with the terms specified in such Letter of
Credit by the applicable Issuer or the account party of such Letter of Credit
(which notice by the account party shall also have been provided to the
applicable Issuer in writing).
SECTION 2.1.5. Lenders Not Permitted or Required to Make the Loans. No
Lender shall be permitted or required to, and the Borrower shall not request
any Lender to, make
(a) any Term-A Loan or Term-B Loan (as the case may be) if, after
giving effect thereto, the aggregate original principal amount of all the
Term-A Loans or Term-B Loans (as the case may be) of such Lender would
exceed such Lender's Percentage of the
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Term-A Loan Commitment Amount (in the case of Term-A Loans) or the Term-B
Loan Commitment Amount (in the case of Term-B Loans);
(b) any Revolving Loan if, after giving effect thereto, the aggregate
outstanding principal amount of all the Revolving Loans (i) of all the
Lenders with Revolving Loan Commitments, together with the Letter of
Credit Outstandings and the aggregate outstanding principal amount of all
Swing Line Loans, would exceed the then existing Revolving Loan Commitment
Amount, or (ii) of such Lender, together with such Lender's Percentage of
the aggregate amount of all Letter of Credit Outstandings, and such
Lender's Percentage of the outstanding principal amount of all Swing Line
Loans, would exceed such Lender's Percentage of the then existing
Revolving Loan Commitment Amount.
(c) any Swing Line Loan if, after giving effect thereto (i) the
aggregate outstanding principal amount of all Swing Line Loans would
exceed the Swing Line Loan Commitment Amount or (ii) the sum of the
aggregate amount of all Letter of Credit Outstandings plus the aggregate
principal amount of all Revolving Loans and Swing Line Loans then
outstanding would exceed the then existing Revolving Loan Commitment
Amount.
SECTION 2.1.6. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount or (b)
the sum of the aggregate amount of all Letter of Credit Outstandings plus the
aggregate principal amount of all Revolving Loans and Swing Line Loans then
outstanding would exceed the then existing Revolving Loan Commitment Amount.
SECTION 2.2. Reduction of Revolving Loan Commitment Amount. The Borrower
may, from time to time on any Business Day occurring after the time of the
initial Credit Extension hereunder, voluntarily reduce the Revolving Loan
Commitment Amount; provided, however, that all such reductions shall require at
least three Business Days' prior notice to the Administrative Agent and be
permanent, and any partial reduction of any Commitment Amount shall be in an
aggregate amount of $500,000 or any larger integral multiple of $100,000. Any
such reduction of the Revolving Loan Commitment Amount which reduces the
Revolving Loan Commitment Amount below the Letter of Credit Commitment Amount
or the Swing Line Loan Commitment Amount shall result in an automatic and
corresponding reduction of the Letter of Credit Commitment Amount or the Swing
Line Loan Commitment Amount, as the case may be, to an aggregate amount not in
excess of the Revolving Loan Commitment Amount, as so reduced, without any
further action on the part of the applicable Issuer or the Swing Line Lender.
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SECTION 2.3. Borrowing Procedures and Funding Maintenance. Loans (other
than Swing Line Loans) shall be made by the Lenders in accordance with Section
2.3.1, and Swing Line Loans shall be made by the Swing Line Lender in
accordance with Section 2.3.2.
SECTION 2.3.1. Term Loans and Revolving Loans. By delivering a Borrowing
Request to the Administrative Agent on or before 12:00 p.m. (noon), Los Angeles
time, on a Business Day, the Borrower may from time to time irrevocably
request, on not less than one Business Day's notice (in the case of Base Rate
Loans) or three Business Days' notice (in the case of LIBO Rate Loans) nor more
than five Business Days' notice (in the case of any Loans), that a Borrowing be
made in an aggregate amount of $500,000 or any larger integral multiple of
$100,000, or in the unused amount of the applicable Commitment. No Borrowing
Request shall be required, and the minimum aggregate amounts specified under
this Section 2.3.1 shall not apply, in the case of Revolving Loans made under
clause (b) of Section 2.3.2 to refund Refunded Swing Line Loans or Revolving
Loans deemed made under Section 2.6.2 in respect of unreimbursed Disbursements.
On the terms and subject to the conditions of this Agreement, each Borrowing
shall be comprised of the type of Loans, and shall be made on the Business Day,
specified in such Borrowing Request. On or before 1:00 p.m., Los Angeles time,
on such Business Day each Lender shall deposit with the Administrative Agent
same day funds in an amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the Administrative
Agent shall specify from time to time by notice to the Lenders. To the extent
funds are received from the Lenders, the Administrative Agent shall make such
funds available to the Borrower by wire transfer to the accounts the Borrower
shall have specified in its Borrowing Request. No Lender's obligation to make
any Loan shall be affected by any other Lender's failure to make any Loan.
SECTION 2.3.2. Swing Line Loans. (a) By telephonic notice, promptly
followed (within one Business Day) by the delivery of a confirming Borrowing
Request, to the Swing Line Lender and the Administrative Agent on or before
10:00 a.m., Los Angeles time, on the Business Day the proposed Swing Line Loan
is to be made, the Borrower may from time to time irrevocably request that a
Swing Line Loan be made by the Swing Line Lender in a minimum principal amount
of $500,000 or any larger integral multiple of $100,000. All Swing Line Loans
shall be made as Base Rate Loans and shall not be entitled to be converted into
LIBO Rate Loans. The proceeds of each Swing Line Loan shall be made available
by the Swing Line Lender, by 3:00 p.m., Los Angeles time, on the Business Day
telephonic notice is received by it as provided in this clause (a), to the
Borrower by wire transfer to the account the Borrower shall have specified in
its notice therefor.
(b) If (i) any Swing Line Loan shall be outstanding for more than four
Business Days or (ii) any Default shall occur and be continuing, each Lender
with a Revolving Loan Commitment (other than the Swing Line Lender) irrevocably
agrees that it will, at the request of the Swing Line Lender and upon notice
from the Administrative Agent, unless such Swing Line Loan shall have been
earlier repaid in full, make a Revolving Loan (which shall initially be funded
as a Base
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Rate Loan) in an amount equal to such Lender's Percentage in respect of the
Revolving Loan Commitments of the aggregate principal amount of all such Swing
Line Loans then outstanding (such outstanding Swing Line Loans hereinafter
referred to as the "Refunded Swing Line Loans"); provided, that the Swing Line
Lender shall not request, and no Lender with a Revolving Loan Commitment shall
make, any Refunded Swing Line Loan if, after giving effect to the making of
such Refunded Swing Line Loan, the sum of all Swing Line Loans and Revolving
Loans made by such Lender, plus such Lender's Percentage in respect of the
Revolving Loan Commitments of the aggregate amount of all Letter of Credit
Outstandings, would exceed such Lender's Percentage of the then existing
Revolving Loan Commitment Amount. On or before 12:00 p.m., Los Angeles time, on
the first Business Day following receipt by each Lender of a request to make
Revolving Loans as provided in the preceding sentence, each such Lender with a
Revolving Loan Commitment shall deposit in an account specified by the Swing
Line Lender the amount so requested in same day funds and such funds shall be
applied by the Swing Line Lender to repay the Refunded Swing Line Loans. At the
time the aforementioned Lenders make the above referenced Revolving Loans, the
Swing Line Lender shall be deemed to have made, in consideration of the making
of the Refunded Swing Line Loans, a Revolving Loan in an amount equal to the
Swing Line Lender's Percentage in respect of the Revolving Loan Commitments of
the aggregate principal amount of the Refunded Swing Line Loans. Upon the
making (or deemed making, in the case of the Swing Line Lender) of any
Revolving Loans pursuant to this clause (b), the amount so funded shall become
outstanding as a Revolving Loan of such Lender and to the extent to made (or
deemed made, in the case of the Swing Line Lender) shall no longer constitute a
portion of the applicable Swing Line Loan. All interest payable with respect to
any Revolving Loans made (or deemed made, in the case of the Swing Line Lender)
pursuant to this clause (b) shall be appropriately adjusted to reflect the
period of time during which the Swing Line Lender had outstanding Swing Line
Loans in respect of which such Revolving Loans were made. Each Lender's
obligation (in the case of Lenders with a Revolving Loan Commitment) to make
the Revolving Loans referred to in this clause (b) shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of any Default; (iii) any
adverse change in the condition (financial or otherwise) of the Borrower or any
other Obligor; (iv) the acceleration or maturity of any Loans or the
termination of any Commitment after the making of any Swing Line Loan; (v) any
breach of this Agreement or any other Loan Document by the Borrower or any
Lender; or (vi) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
p.m. (noon), Los Angeles time, on a Business Day, the Borrower may from time to
time irrevocably elect, on not less than one Business Day's notice (in the case
of a conversion of LIBO Rate Loans to Base Rate Loans) or three Business Days'
notice (in the case of a continuation of LIBO Rate Loans or a conversion of
Base Rate Loans into LIBO Rate Loans) nor more than five Business Days'
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notice (in the case of any Loans) that all, or any portion in a minimum amount
of $500,000 or any larger integral multiple of $100,000, be, in the case of
Base Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate
Loans, converted into Base Rate Loans or continued as LIBO Rate Loans (in the
absence of delivery of a Continuation/Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan shall, on
such last day, automatically convert to a Base Rate Loan); provided, however,
that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of the relevant Lenders, and (y) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, LIBO Rate Loans when any Default has occurred and is continuing.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan, so long as
such action does not result in increased costs to the Borrower; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility; and provided,
further, however, that, except for purposes of determining whether any such
increased costs are payable by the Borrower, such Lender shall cause such
foreign branch, Affiliate or international banking facility to comply with the
applicable provisions of clause (b) of Section 4.6 with respect to such LIBO
Rate Loan. In addition, the Borrower hereby consents and agrees that, for
purposes of any determination to be made for purposes of Section 4.1, 4.2, 4.3
or 4.4, it shall be conclusively assumed that each Lender elected to fund all
LIBO Rate Loans by purchasing Dollar deposits in its LIBOR Office's interbank
Eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the applicable Issuer
and the Administrative Agent an Issuance Request on or before 12:00 p.m.
(noon), Los Angeles time, on a Business Day, the Borrower may, from time to
time irrevocably request, on not less than five Business Days' notice (or such
shorter or longer notice as may be acceptable to the applicable Issuer), in the
case of an initial issuance of a Letter of Credit, and not less than five nor
more than ten Business Days' notice (unless a shorter or longer notice period
is acceptable to the applicable Issuer) prior to the then existing Stated
Expiry Date of a Letter of Credit, in the case of a request for the extension
of the Stated Expiry Date of a Letter of Credit, that such Issuer issue, or
extend the Stated Expiry Date of, as the case may be, an irrevocable Letter of
Credit on behalf of the Borrower (whether issued for the account of or on
behalf of the Borrower or any of its Restricted Subsidiaries) in such form as
may be requested by the Borrower and approved by such Issuer, for the purposes
described in Section 7.1.9. Notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse the
applicable Issuer upon each Disbursement paid under a Letter of Credit, and it
shall be deemed to be the obligor for purposes of each such
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Letter of Credit issued hereunder (whether the account party on such Letter of
Credit is the Borrower or a Subsidiary of the Borrower). Upon receipt of an
Issuance Request, the Administrative Agent shall promptly notify the applicable
Issuer and each Lender that has a Revolving Loan Commitment thereof. Each
Letter of Credit shall by its terms be stated to expire on a date (its "Stated
Expiry Date") no later than the earlier to occur of (i) the sixth anniversary
of the Closing Date or (ii) one year from the date of its issuance (subject to
automatic renewal provisions); provided that, notwithstanding the terms of this
clause (ii), a Letter of Credit may, if required by the beneficiary thereof,
contain automatic renewal provisions pursuant to which the Stated Expiry Date
shall be automatically extended (to a date not beyond the date specified in
clause (i) above), unless notice to the contrary shall have been given to the
beneficiary prior to the then existing Stated Expiry Date in accordance with
the terms specified in such Letter of Credit by the applicable Issuer or the
account party of such Letter of Credit (which notice by the account party shall
also have been provided to the applicable Issuer in writing). The applicable
Issuer will make available to the beneficiary thereof the original of each
Letter of Credit which it issues hereunder. In the event that the Issuer is
other than the Administrative Agent, such Issuer will send by facsimile
transmission to the Administrative Agent, promptly on the first Business Day of
each week, its daily maximum amount available to be drawn under the Letters of
Credit issued by such Issuer for the previous week. The Administrative Agent
shall deliver to each Lender upon each calendar month end, and upon each
payment of the letter of credit fees payable pursuant to Section 3.3.3, a
report setting forth the daily maximum amount available to be drawn for all
Issuers during such period. Notwithstanding anything to the contrary herein,
any Issuance Request delivered to the applicable Issuer or Administrative Agent
by the Borrower by telecopier shall be confirmed promptly in an original
writing delivered to such Issuer or Administrative Agent, as the case may be.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by an Issuer pursuant hereto, and without further
action, each Lender (other than such Issuer) that has a Revolving Loan
Commitment shall be deemed to have irrevocably purchased from such Issuer, to
the extent of its Percentage in respect of the Revolving Loan Commitments, and
such Issuer shall be deemed to have irrevocably granted and sold to such Lender
a participation interest in such Letter of Credit (including the Contingent
Liability and any Reimbursement Obligation and all rights with respect
thereto), and such Lender shall, to the extent of its Percentage in respect of
the Revolving Loan Commitments, be responsible for reimbursing promptly (and in
any event within one Business Day) the applicable Issuer for Reimbursement
Obligations which have not been reimbursed by the Borrower in accordance with
Section 2.6.3. In addition, such Lender shall, to the extent of its Percentage
in respect of the Revolving Loan Commitments, be entitled to receive a ratable
portion of the letter of credit fees payable pursuant to Section 3.3.3 with
respect to each Letter of Credit and of interest payable pursuant to Section
3.2 with respect to any Reimbursement Obligation. To the extent that any Lender
has reimbursed the applicable Issuer for a Disbursement as required by this
Section, such Lender shall be entitled to receive its ratable portion of any
amounts subsequently received (from the Borrower or otherwise) in respect of
such Disbursement.
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SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The
applicable Issuer will notify the Borrower and the Administrative Agent
promptly of the presentment for payment of any drawing under any Letter of
Credit issued by such Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be made (each such payment, a
"Disbursement"). Subject to the terms and provisions of such Letter of Credit
and this Agreement, such Issuer shall make such payment to the beneficiary (or
its designee) of such Letter of Credit. Prior to 12:30 p.m., Los Angeles time,
on the first Business Day following the Disbursement Date (the "Disbursement
Due Date"), the Borrower will reimburse the Administrative Agent, for the
account of such Issuer, for all amounts which such Issuer has disbursed under
such Letter of Credit, together with interest thereon at the rate per annum
otherwise applicable to Revolving Loans (made as Base Rate Loans) from and
including the Disbursement Date to but excluding the Disbursement Due Date and,
thereafter (unless such Disbursement is converted into a Base Rate Loan on the
Disbursement Due Date), at a rate per annum equal to the rate per annum then in
effect with respect to overdue Revolving Loans (made as Base Rate Loans)
pursuant to Section 3.2.2 for the period from the Disbursement Due Date through
the date of such reimbursement; provided, however, that, if no Default shall
have then occurred and be continuing, unless the Borrower has notified the
Administrative Agent no later than one Business Day prior to the Disbursement
Due Date that it will reimburse such Issuer for the applicable Disbursement,
then the amount of the Disbursement shall be deemed to be a Borrowing of
Revolving Loans constituting Base Rate Loans and following the giving of notice
thereof by the Administrative Agent to the Lenders, each Lender with a
Revolving Loan Commitment (other than such Issuer) will deliver to such Issuer
on the Disbursement Due Date immediately available funds in an amount equal to
such Lender's Percentage of such Borrowing. Each conversion of Disbursement
amounts into Revolving Loans shall constitute a representation and warranty by
the Borrower that on the date of the making of such Revolving Loans all of the
statements set forth in Section 5.2.1 are true and correct.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse the applicable
Issuer with respect to each Disbursement (including interest thereon) not
converted into a Base Rate Loan pursuant to Section 2.6.2, and, upon the
Borrower failing or electing not to reimburse such Issuer and the giving of
notice thereof by the Administrative Agent to the Lenders, each Lender's (to
the extent it has a Revolving Loan Commitment) obligation under Section 2.6.1
to reimburse such Issuer or fund its Percentage of any Disbursement converted
into a Base Rate Loan, shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower or such Lender, as the case may be, may have or have
had against such Issuer or any such Lender, including any defense based upon
the failure of any Disbursement to conform to the terms of the applicable
Letter of Credit (if, in such Issuer's good faith opinion, such Disbursement is
determined to be appropriate) or any non-application or misapplication by the
beneficiary of the proceeds of such Letter of Credit; provided, however, that
after paying in full its Reimbursement Obligation hereunder, nothing herein
shall adversely affect the right of the Borrower or such Lender, as the case
may be, to commence any proceeding
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against such Issuer for any wrongful Disbursement made by such Issuer under a
Letter of Credit as a result of acts or omissions constituting gross negligence
or willful misconduct on the part of such Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default of the type described in clauses (b)
through (d) of Section 8.1.9 with respect to any Obligor (other than
Subsidiaries that are not Material Subsidiaries) or, with notice from the
Administrative Agent acting at the direction of the Required Lenders, upon the
occurrence and during the continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding shall,
without demand upon or notice to the Borrower or any other Person, be
deemed to have been paid or disbursed by the applicable Issuer under such
Letters of Credit (notwithstanding that such amount may not in fact have
been so paid or disbursed); and
(b) upon notification by the Administrative Agent to the Borrower of
its obligations under this Section, the Borrower shall be immediately
obligated to reimburse the applicable Issuer for the amount deemed to have
been so paid or disbursed by such Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
applicable Issuer. At such time as the Events of Default giving rise to the
deemed disbursements hereunder shall have been cured or waived, the
Administrative Agent shall return to the Borrower all amounts then on deposit
with the Administrative Agent pursuant to this Section, together with accrued
interest at the Federal Funds Rate, which have not been applied to the
satisfaction of such Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower and, to
the extent set forth in Section 2.6.1, each Lender with a Revolving Loan
Commitment, shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. No Issuer (except to the extent of
its own gross negligence or willful misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged;
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(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder
or the proceeds thereof in whole or in part, which may prove to be invalid
or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise;
or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a Letter
of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to any Issuer or any Lender with a Revolving Loan
Commitment hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken by
the applicable Issuer in good faith (and not constituting gross negligence or
willful misconduct) shall be binding upon the Borrower, each Obligor and each
such Lender, and shall not put such Issuer under any resulting liability to the
Borrower, any Obligor or any such Lender, as the case may be.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to
time hereunder. In the case of a Lender that does not request, pursuant to
clause (b)(ii) below, execution and delivery of a Note evidencing the
Loans made by such Lender to the Borrower, such account or accounts shall,
to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on the
Borrower absent manifest error; provided, however, that the failure of any
Lender to maintain such account or accounts shall not limit or otherwise
affect any Obligations of the Borrower or any other Obligor.
(b)(i) The Borrower hereby designates the Administrative Agent to
serve as the Borrower's agent, solely for the purpose of this clause (b),
to maintain a register (the "Register") on which the Administrative Agent
will record each Lender's Commitments, the Loans made by each Lender and
each repayment in respect of the principal amount of the Loans of each
Lender and annexed to which the Administrative Agent shall retain a copy
of each Lender Assignment Agreement delivered to the Administrative Agent
pursuant to Section 10.11.1. Failure to make any recordation, or any error
in such
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recordation, shall not affect the Borrower's obligation in respect of such
Loans. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and the Lenders
shall treat each Person in whose name a Loan (and as provided in clause
(ii) the Note evidencing such Loan, if any) is registered as the owner
thereof for all purposes of this Agreement, notwithstanding notice or any
provision herein to the contrary. A Lender's Commitment and the Loans made
pursuant thereto may be assigned or otherwise transferred in whole or in
part only by registration of such assignment or transfer in the Register.
Any assignment or transfer of a Lender's Commitment or the Loans made
pursuant thereto shall be registered in the Register only upon delivery to
the Administrative Agent of a Lender Assignment Agreement duly executed by
the assignor thereof. No assignment or transfer of a Lender's Commitment
or the Loans made pursuant thereto shall be effective unless such
assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section.
(ii) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender,
as applicable, a Revolving Note, a Term-A Note, a Term-B Note and a Swing
Line Note evidencing the Loans made by such Lender. The Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender's Notes (or on
any continuation of such grid), which notations, if made, shall evidence,
inter alia, the date of, the outstanding principal amount of, and the
interest rate and Interest Period applicable to the Loans evidenced
thereby. Such notations shall, to the extent not inconsistent with the
notations made by the Administrative Agent in the Register, be conclusive
and binding on the Borrower absent manifest error; provided, however, that
the failure of any Lender to make any such notations or any error in any
such notations shall not limit or otherwise affect any Obligations of the
Borrower or any other Obligor. The Loans evidenced by any such Note and
interest thereon shall at all times (including after assignment pursuant
to Section 10.11.1) be represented by one or more Notes payable to the
order of the payee named therein and its registered assigns. A Note and
the obligation evidenced thereby may be assigned or otherwise transferred
in whole or in part only by registration of such assignment or transfer of
such Note and the obligation evidenced thereby in the Register (and each
Note shall expressly so provide). Any assignment or transfer of all or
part of an obligation evidenced by a Note shall be registered in the
Register only upon surrender for registration of assignment or transfer of
the Note evidencing such obligation, accompanied by a Lender Assignment
Agreement duly executed by the assignor thereof, and thereupon, if
requested by the assignee, one or more new Notes shall be issued to the
designated assignee and the old Note shall be returned by the
Administrative Agent to the Borrower marked "exchanged". No assignment of
a Note and the obligation evidenced thereby shall be effective unless it
shall have been recorded in the Register by the Administrative Agent as
provided in this Section.
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, payments and repayments of Loans shall or may be made
as set forth below.
(a) From time to time on any Business Day, the Borrower may make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any
(i) Loans (other than Swing Line Loans); provided, however, that
(A) any such prepayment of the Term-A Loans or Term-B Loans
shall be made pro rata among Term-A Loans and Term-B Loans, as
applicable, of the same type and, if applicable, having the same
Interest Period of all Lenders that have made such Term-A Loans
or Term-B Loans, and any such prepayment of Revolving Loans
shall be made pro rata among the Revolving Loans of the same
type and, if applicable, having the same Interest Period of all
Lenders that have made such Revolving Loans;
(B) the Borrower shall comply with Section 4.4 in the event
that any LIBO Rate Loan is prepaid on any day other than the
last day of the Interest Period for such Loan;
(C) all such voluntary prepayments shall require at least
one Business Day's notice in the case of Base Rate Loans, three
Business Days' notice in the case of LIBO Rate Loans, but no
more than five Business Days' notice in the case of any Loans,
in each case in writing to the Administrative Agent; and
(D) all such voluntary partial prepayments shall be in an
aggregate amount of $500,000 or any larger integral multiple of
$100,000 or in the aggregate principal amount of all Loans of
the applicable Tranche and type then outstanding; or
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(ii) Swing Line Loans, provided that
(A) all such voluntary prepayments shall require prior
telephonic notice to the Swing Line Lender on or before 11:00
a.m., Los Angeles time, on the day of such prepayment (such
notice to be confirmed in writing by the Borrower within 24
hours thereafter); and
(B) all such voluntary partial prepayments shall be in an
aggregate amount of $500,000 and an integral multiple of
$100,000 or in the aggregate principal amount of all Swing Line
Loans then outstanding.
(b) No later than five Business Days following the delivery by the
Borrower of its annual audited financial reports required pursuant to
clause (b) of Section 7.1.1 (beginning with the financial reports
delivered in respect of the 2000 Fiscal Year), the Borrower shall deliver
to the Administrative Agent a calculation of the Excess Cash Flow for the
Fiscal Year last ended and, no later than five Business Days following the
delivery of such calculation, make or cause to be made a mandatory
prepayment of the Term Loans in an amount equal to 50% of the Excess Cash
Flow (if any) for such Fiscal Year less (ii) the aggregate amount of all
voluntary prepayments of the principal of the Term Loans actually made in
such Fiscal Year pursuant to clause (a) of Section 3.1.1, to be applied as
set forth in Section 3.1.2; provided, however, that such prepayment shall
only be required to be made to the extent that the amount of Debt, as
reduced by giving effect to such prepayment, would result in a Leverage
Ratio of greater than 3.50:1 on a pro forma basis as of the date of such
prepayment.
(c) No later than one Business Day (in the case of Net Debt Proceeds)
or 30 calendar days (in the case of Net Disposition Proceeds) following
the receipt of any Net Disposition Proceeds or Net Debt Proceeds by (x) in
the case of Net Debt Proceeds, Holdco, the Borrower or any Restricted
Subsidiary of the Borrower and (y) in the case of Net Disposition
Proceeds, the Borrower or any Restricted Subsidiary of the Borrower, the
Borrower shall deliver to the Administrative Agent a calculation of the
amount of such Net Disposition Proceeds or Net Debt Proceeds, as the case
may be, and, to the extent the amount of such Net Disposition Proceeds or
Net Debt Proceeds, as the case may be, with respect to any single
transaction or series of related transactions, exceeds $2,000,000, make a
mandatory prepayment of the Term Loans in an amount equal to 100% of such
Net Disposition Proceeds or Net Debt Proceeds, as the case may be, to be
applied as set forth in Section 3.1.2; provided, that no mandatory
prepayment on account of such Net Disposition Proceeds shall be required
under this clause if the Borrower informs the Agents no later than 30 days
following the receipt of any Net Disposition Proceeds of its or its
Restricted Subsidiary's good faith intention to apply such Net Disposition
Proceeds to the acquisition of other assets or property consistent with
the business permitted to be conducted pursuant to Section 7.2.1
(including by way of merger or Investment) within
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365 days following the receipt of such Net Disposition Proceeds, with the
amount of such Net Disposition Proceeds unused after such 365 day period
being applied to the Loans pursuant to Section 3.1.2.
(d) The Borrower shall, concurrently with the receipt of any Net
Equity Proceeds by Holdco, the Borrower or any Restricted Subsidiary of
the Borrower, deliver to the Administrative Agent a calculation of the
amount of such Net Equity Proceeds, and no later than five Business Days
following the delivery of such calculation, and, to the extent that the
amount of such Net Equity Proceeds with respect to any single transaction
or series of related transactions exceeds $2,000,000, and subject to the
proviso below, make or cause to be made a mandatory prepayment of the Term
Loans in an amount equal to 50% of such Net Equity Proceeds to be applied
as set forth in Section 3.1.2; provided, however, that such prepayment
shall only be required to be made to the extent that the amount of Debt,
as reduced by giving effect to such prepayment would result in a Leverage
Ratio of greater than 3.50:1 on a pro forma basis as of the date of such
prepayment;
(e) The Borrower shall, no later than the 60th calendar day following
the receipt by the Borrower or any of its Restricted Subsidiaries of any
Casualty Proceeds in excess of $2,000,000 (individually or in the
aggregate in any Fiscal Year), make or cause to be made a mandatory
prepayment of the Term Loans in an amount equal to 100% of such Casualty
Proceeds, to be applied as set forth in Section 3.1.2; provided, that no
mandatory prepayment on account of Casualty Proceeds shall be required
under this clause if the Borrower informs the Agents no later than 60 days
following the occurrence of the Casualty Event resulting in such Casualty
Proceeds of its or its Restricted Subsidiary's good faith intention to
apply such Casualty Proceeds to the rebuilding or replacement of the
damaged, destroyed or condemned assets or property subject to such
Casualty Event or the acquisition of other assets or property consistent
with the business permitted to be conducted pursuant to Section 7.2.1
(including by way of merger or Investment) and in fact uses such Casualty
Proceeds to rebuild or replace the damaged, destroyed or condemned assets
or property subject to such Casualty Event or to acquire such other
property or assets within 365 days following the receipt of such Casualty
Proceeds, with the amount of such Casualty Proceeds unused after such 365
day period being applied to the Loans pursuant to Section 3.1.2; provided
further, however, that at any time when any Event of Default shall have
occurred and be continuing or Casualty Proceeds not applied as provided
above shall exceed $2,000,000, such Casualty Proceeds will be deposited in
an account maintained with the Administrative Agent for disbursement at
the request of the Borrower to pay for such rebuilding, replacement or
acquisition.
(f) On each date when any reduction in the Revolving Loan Commitment
Amount shall become effective, the Borrower shall make a mandatory
prepayment of
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Revolving Loans and (if necessary) Swing Line Loans and (if necessary)
deposit with the Administrative Agent cash collateral for Letter of Credit
Outstandings in an aggregate amount equal to the excess, if any, of the
sum of (i) the aggregate outstanding principal amount of all Revolving
Loans and Swing Line Loans and (ii) the aggregate amount of all Letter of
Credit Outstandings over the Revolving Loan Commitment Amount as so
reduced;
(g) The Borrower shall, on the Stated Maturity Date and on each
Quarterly Payment Date occurring during any period set forth below, make a
scheduled repayment of the outstanding principal amount, if any, of Term-A
Loans in an aggregate amount equal to the amount set forth below opposite
such Stated Maturity Date or period, as applicable (as such amounts may
have otherwise been reduced pursuant to this Agreement):
Scheduled
Principal
Period Repayment
------------------------------- ---------
10/15/00 to 10/14/01 $ 500,000
10/15/01 to 10/14/02 $1,000,000
10/15/02 to 10/14/03 $2,000,000
10/15/03 to 10/14/04 $2,500,000
10/15/04 to the Sixth $4,000,000
Anniversary of the Closing
Date
(h) The Borrower shall, on the Stated Maturity Date and on each
Quarterly Payment Date occurring during any period set forth below, make a
scheduled repayment of the outstanding principal amount, if any, of Term-B
Loans in an aggregate amount equal to the amount set forth below opposite
such Stated Maturity Date or period, as applicable (as such amounts may
have otherwise been reduced pursuant to this Agreement):
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Scheduled
Principal
Period Repayment
-------------------------- ---------
10/15/99 to 10/14/06 $300,000
10/15/06 to the Eighth $27,900,000
Anniversary of the
Closing Date
(i) Following the prepayment in full of the Term Loans, on the date
the Term Loans would otherwise have been required to be prepaid on account
of any Net Disposition Proceeds, Net Debt Proceeds, Excess Cash Flow, Net
Equity Proceeds or Casualty Proceeds, the Borrower shall first, prepay
Revolving Loans and Swing Line Loans, and, second, deposit with the
Administrative Agent cash collateral for Letter of Credit Outstandings, in
an aggregate amount equal to the amount by which the Term Loans would
otherwise have been required to be prepaid if Term Loans had been
outstanding.
(j) The Borrower shall, immediately upon any acceleration of the
Stated Maturity Date of any Loans or Obligations pursuant to Section 8.2
or Section 8.3, repay all outstanding Loans and other Obligations, unless,
pursuant to Section 8.3, only a portion of all Loans and other Obligations
are so accelerated (in which case the portion so accelerated shall be so
prepaid).
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by Section 4.4. No
prepayment of principal of any Revolving Loans or Swing Line Loans pursuant to
clause (a) or (i) of this Section 3.1.1 shall cause a reduction in the
Revolving Loan Commitment Amount or the Swing Line Loan Commitment Amount, as
the case may be.
SECTION 3.1.2. Application. (a) Subject to clause (b) below, each
prepayment or repayment of principal of the Loans of any Tranche shall be
applied, to the extent of such prepayment or repayment, first, to the principal
amount thereof being maintained as Base Rate Loans, and second, to the
principal amount thereof being maintained as LIBO Rate Loans.
(b) Each prepayment of Term Loans made pursuant to clauses (a), (b), (c),
(d) and (e) of Section 3.1.1 shall be applied, (i) on a pro rata basis, to the
outstanding principal amount of all remaining Term-A Loans and Term-B Loans and
(ii) in respect of each Tranche of Term Loans, in direct order of maturity of
the remaining scheduled quarterly amortization payments in respect thereof,
until all such Term-A Loans and Term-B Loans have been paid in full (provided,
however, that if the Borrower at any time elects in writing, in its sole
discretion, to permit any
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Lender that has Term-B Loans to decline to have such Loans prepaid, then any
Lender having Term-B Loans outstanding may, by delivering a notice to the
Agents at least one Business Day prior to the date that such prepayment is to
be made, decline to have such Loans prepaid with the amounts set forth above,
in which case 50% of the amounts that would have been applied to a prepayment
of such Lender's Term-B Loans, as the case may be, shall instead be applied to
a prepayment of the Term-A Loans (until paid in full), with the balance being
retained by the Borrower).
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of the Loans shall accrue and be payable in accordance with this Section
3.2.
SECTION 3.2.1. Rates. (a) Each Base Rate Loan shall accrue interest on the
unpaid principal amount thereof for each day from and including the day upon
which such Loan was made or converted to a Base Rate Loan to but excluding the
date such Loan is repaid or converted to a LIBO Rate Loan at a rate per annum
equal to the sum of the Alternate Base Rate for such day plus the Applicable
Margin for such Loan on such day.
(b) Each LIBO Rate Loan shall accrue interest on the unpaid principal
amount thereof for each day during each Interest Period applicable thereto at a
rate per annum equal to the sum of the LIBO Rate (Reserve Adjusted) for such
Interest Period plus the Applicable Margin for such Loan on such day.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount of
any Loan shall have become due and payable (whether on the applicable Stated
Maturity Date, upon acceleration or otherwise), or any other monetary
Obligation (other than overdue Reimbursement Obligations which shall bear
interest as provided in Section 2.6.2) of the Borrower shall have become due
and payable, the Borrower shall pay, but only to the extent permitted by law,
interest (after as well as before judgment) on such amounts at a rate per annum
equal to (a) in the case of any overdue principal of Loans, overdue interest
thereon, overdue commitment fees or other overdue amounts in respect of Loans
or other obligations (or the related Commitments) under a particular Tranche,
the rate that would otherwise be applicable to Base Rate Loans under such
Tranche pursuant to Section 3.2.1 plus 2% and (b) in the case of other overdue
monetary Obligations, the rate that would otherwise be applicable to Revolving
Loans that were Base Rate Loans plus 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
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(a) on the Stated Maturity Date therefor;
(b) in the case of a LIBO Rate Loan, on the date of any payment or
prepayment, in whole or in part, of principal outstanding on such Loan, to
the extent of the unpaid interest accrued through such date on the
principal so paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, at intervals of three months after the first day of such
Interest Period); and
(e) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such
acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in this
Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment, for each day during the period (including any portion thereof when
any of the Lenders' Revolving Loan Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Closing Date and continuing to but excluding the Revolving Loan Commitment
Termination Date, a commitment fee on such Lender's Percentage of the unused
portion, whether or not then available, of the Revolving Loan Commitment Amount
(net of Letter of Credit Outstandings) for such day at a rate per annum equal
to the Applicable Commitment Fee for such day. Such commitment fee shall be
payable by the Borrower in arrears on each Quarterly Payment Date, commencing
with the first such day following the Closing Date, and on the Revolving Loan
Commitment Termination Date. The making of Swing Line Loans shall not
constitute usage of the Revolving Loan Commitment with respect to the
calculation of commitment fees to be paid by the Borrower to the Lenders. Any
term or provision hereof to the contrary notwithstanding, commitment fees
payable for any period prior to the Closing Date shall be payable in accordance
with the Fee Letter. Payments by the Borrower to the Swing Line Lender in
respect of accrued interest on Swing Line Loans shall be net of the commitment
fee payable in respect of the Swing Line Lender's Revolving Loan Commitment.
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SECTION 3.3.2. Administrative Agent Fee. The Borrower agrees to pay an
annual administration fee to the Administrative Agent, for its own account, in
the amount set forth in the Administrative Agent Fee Letter, payable in advance
on the Closing Date and quarterly thereafter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the applicable Issuer and
each other Lender that has a Revolving Loan Commitment, a letter of credit fee
for each day on which there shall be any Letters of Credit outstanding in an
amount equal to (i) with respect to each standby Letter of Credit, a rate per
annum equal to the then Applicable Margin for Revolving Loans maintained as
LIBO Rate Loans, multiplied by the Stated Amount of each such Letter of Credit;
and (ii) with respect to each documentary Letter of Credit, 1.25% per annum
multiplied by the Stated Amount of each such Letter of Credit, such fees being
payable quarterly in arrears on each Quarterly Payment Date. The Borrower
further agrees to pay to the applicable Issuer an issuance fee at the rates and
on such dates agreed to between the Borrower and such Issuer.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, in the absence of manifest error, upon notice
thereof to the Borrower and the Lenders, be conclusive and binding on the
Borrower) that the introduction of or any change in or in the interpretation of
any law, in each case after the date upon which such Lender shall have become a
Lender hereunder, makes it unlawful, or any central bank or other governmental
authority asserts, after such date, that it is unlawful, for such Lender to
make, continue or maintain any Loan as, or to convert any Loan into, a LIBO
Rate Loan, the obligations of such Lender to make, continue, maintain or
convert any Loans as or to LIBO Rate Loans shall, upon such determination,
forthwith be suspended until such Lender shall notify the Administrative Agent
that the circumstances causing such suspension no longer exist (with the date
of such notice being the "Reinstatement Date"), and (i) all LIBO Rate Loans
previously made by such Lender shall automatically convert into Base Rate Loans
at the end of the then current Interest Periods with respect thereto or sooner,
if required by such law or assertion and (ii) all Loans thereafter made by such
Lender and outstanding prior to the Reinstatement Date shall be made as Base
Rate Loans, with interest thereon being payable on the same date that interest
is payable with respect to the corresponding Borrowing of LIBO Rate Loans made
by Lenders not so affected.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall have
determined that (i) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to the Administrative Agent in its relevant
market, or (ii) by reason of circumstances
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affecting the Administrative Agent's relevant market, adequate means do not
exist for ascertaining the interest rate applicable hereunder to LIBO Rate
Loans, then, upon notice from the Administrative Agent to the Borrower and the
Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to
make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans
shall forthwith be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees to
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans (excluding any amounts, whether or not constituting
Taxes, referred to in Section 4.6) arising as a result of any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority that occurs after the date upon which such
Lender became a Lender hereunder. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the
Borrower directly to such Lender within five days of its receipt of such
notice, and such notice shall, in the absence of manifest error, be conclusive
and binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan,
but excluding any loss of margin after the date of any such conversion,
repayment, prepayment or failure to borrow, continue or convert) as a result of
(i) any conversion or repayment or prepayment of the principal amount of any
LIBO Rate Loans on a date other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to Section 3.1 or otherwise, (ii)
any Loans not being borrowed as LIBO Rate Loans in accordance with the
Borrowing Request therefor, or (iii) any Loans not being continued as, or
converted into, LIBO Rate Loans in accordance with the Continuation/ Conversion
Notice therefor, then, upon the written notice of such Lender to the Borrower
(with a copy to the Administrative Agent), the Borrower shall, within five days
of its receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower.
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SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority, in each case occurring after the applicable
Lender becomes a Lender hereunder, affects or would affect the amount of
capital required or expected to be maintained by any Lender or any Person
controlling such Lender, and such Lender determines (in its sole and absolute
discretion) that the rate of return on its or such controlling Person's capital
as a consequence of its Commitments, participation in Letters of Credit or the
Loans made by such Lender is reduced to a level below that which such Lender or
such controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to the Borrower, the Borrower shall immediately pay directly to such
Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return. A statement of such
Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such amount, such Lender
may use any method of averaging and attribution that it (in its sole and
absolute discretion) shall deem applicable; provided, that such Lender may not
impose materially greater costs on the Borrower than on other similarly
situated borrowers by virtue of any such averaging or attribution method.
SECTION 4.6. Taxes. (a) All payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder or under any
other Loan Document (including Reimbursement Obligations, fees and expenses)
shall be made free and clear of and without deduction for any present or future
income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority from or through which payments originate or are made or deemed made
by or to the Borrower, but excluding (i) any income, excise, stamp or franchise
taxes and other similar taxes, fees, duties, withholdings or other charges
imposed on any Lender or either of the Agents by a jurisdiction under the laws
of which such Lender or Agent is organized or in which its principal executive
office is located, or otherwise as a result of a present or former connection
between the applicable lending office (or office through which it performs any
of its actions as Lender or Agent) of such Lender or Agent and the jurisdiction
of the governmental authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from such Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or taken any action to enforce,
this Agreement and any Note) or (ii) any income, excise, stamp or franchise
taxes and other similar taxes, fees, duties, withholdings or other charges to
the extent that they are in effect and would apply as of the date any Person
becomes a Lender or Assignee Lender, or as of the date that any Lender changes
its applicable lending office, to the extent such taxes become applicable as a
result of such change (other than a change in an applicable lending office made
pursuant to Section 4.10 below) (such non-excluded items being called "Taxes").
In the event that any withholding or deduction from any payment to be made by
the Borrower hereunder is required in
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respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower will (i) pay directly to the relevant taxing authority the full
amount required to be so withheld or deducted, (ii) promptly forward to the
Administrative Agent an official receipt or other documentation available to
the Borrower reasonably satisfactory to the Administrative Agent evidencing
such payment to such authority, and (iii) pay to the Administrative Agent for
the account of the Lenders such additional amount or amounts as is necessary to
ensure that the net amount actually received by each Lender will equal the full
amount such Lender would have received had no such withholding or deduction
been required, provided, however, that the Borrower shall not be required to
pay any such additional amounts in respect of amounts payable to any Lender
that is not organized under the laws of the United States or a state thereof to
the extent that the related tax is imposed (or an exemption therefrom is not
available) as a result of such Lender or Agent failing to comply with the
requirements of clause (b) of Section 4.6.
Moreover, if any Taxes are directly asserted against either of the Agents
or any Lender with respect to any payment received by such Agents or such
Lender hereunder, such Agents or such Lender may pay such Taxes and the
Borrower will promptly pay to such Person such additional amount (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such Person (including any Taxes on such additional amount) shall
equal the amount of such Taxes paid by such Person; provided, however, that the
Borrower shall not be obligated to make payment to the Lenders or the Agents
(as the case may be) pursuant to this sentence in respect of penalties or
interest attributable to any Taxes, if written demand therefor has not been
made by such Lenders or the Agents within 60 days from the date on which such
Lenders or the Agents knew of the imposition of Taxes by the relevant taxing
authority or for any additional imposition which may arise from the failure of
the Lenders or the Agents to apply payments in accordance with the tax law
after the Borrower has made the payments required hereunder; provided, further,
that the Borrower shall not be required to pay any such additional amounts in
respect of any amounts payable to any Lender or any Agent (as the case may be)
that is not organized under the laws of the United States or a state thereof to
the extent the related Tax is imposed as a result of such Lender failing to
comply with the requirements of clause (b) of Section 4.6. After the Lenders or
the Agents (as the case may be) learn of the imposition of Taxes, such Lenders
and the Agents will act in good faith to notify the Borrower of its obligations
hereunder as soon as reasonably possible.
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure.
(b) Each Non-U.S. Lender shall, (i) on or prior to the date of the
execution and delivery of this Agreement, in the case of each Lender listed on
the signature pages hereof, or, in the case of an Assignee Lender, on or prior
to the date it becomes a Lender, execute and deliver to the
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Borrower and the Administrative Agent, two or more (as the Borrower or the
Agents may reasonably request) United States Internal Revenue Service Forms
W-8ECI or Forms W-8BEN (or successor forms) establishing the Lender's exemption
from United States federal withholding tax, or, solely if such Lender is
claiming exemption from United States withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest", United
States Internal Revenue Service Forms W-8BEN and a certificate signed by a duly
authorized officer of such Lender representing that such Lender is not a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, or such other forms or
documents (or successor forms or documents), appropriately completed,
establishing that payments to such Lender are exempt from withholding or
deduction of United States federal withholding taxes; and (ii) deliver to the
Borrower and the Administrative Agent two further copies of any such form or
documents on or before the date that any such form or document expires or
becomes obsolete and after the occurrence of any event requiring a change in
the most recent such form or document previously delivered by it to the
Borrower. Each Lender and each Agent agrees, to the extent reasonable and
without material cost to it, to provide to the Borrower and the Administrative
Agent such other applicable forms or certificates as would reduce or eliminate
any Tax otherwise applicable.
(c) If the Borrower determines in good faith that a reasonable basis
exists for contesting the imposition of a Tax with respect to a Lender or
either of the Agents, the relevant Lender or Agent, as the case may be, shall
cooperate with the Borrower in challenging such Tax at the Borrower's expense
if requested by the Borrower; provided, however, that nothing in this Section
4.6 shall require any Lender or Agent to submit to the Borrower or any Person
any tax returns or any part thereof, or to prepare or file any tax returns
other than as such Lender or Agent in its sole discretion shall determine.
(d) If a Lender or an Agent shall receive a refund (including any offset
or credits from a taxing authority (as a result of any error in the imposition
of Taxes by such taxing authority) of any Taxes paid by the Borrower pursuant
to subsection 4.6(a) above, such Lender or such Agent (as the case may be)
shall promptly pay the Borrower the amount so received, with interest from the
taxing authority with respect to such refund, net of any tax liability incurred
by such Lender or Agent that is attributable to the receipt of such refund and
such interest.
(e) Each Lender and each Agent agrees, to the extent reasonable and
without material cost to it, to cooperate with the Borrower to minimize any
amounts payable by the Borrower under this Section 4.6; provided, however, that
nothing in this Section 4.6 shall require any Lender or Agent to take any
action which, in the sole discretion of such Lender or Agent, is inconsistent
with its internal policy and legal and regulatory restrictions.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender or Agent pursuant to clause (a) of this Section 4.6 as a
result of a change of law occurring after the date hereof, then such Lender or
Agent, at the request of the Borrower, will change the jurisdiction of its
applicable lending office (or office through which it performs any of its
actions
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as Agent) if such change (i) would eliminate or reduce any such additional
payment which may thereafter accrue and (ii) is not, in the good faith
determination of such Lender or Agent, otherwise disadvantageous to such Lender
or Agent.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement or any other Loan Document shall be made by the Borrower to the
Administrative Agent for the pro rata account of the Lenders, Agents or Lead
Arranger, as applicable, entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 11:00 a.m., Los Angeles time, on the
date due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the Borrower.
Funds received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day. The Administrative
Agent shall promptly remit in same day funds to each Lender, Agent or Lead
Arranger, as the case may be, its share, if any, of such payments received by
the Administrative Agent for the account of such Lender, Agent or Lead
Arranger, as the case may be. All interest and fees shall be computed on the
basis of the actual number of days (including the first day but excluding the
last day) occurring during the period for which such interest or fee is payable
over a year comprised of 360 days (or, in the case of interest on a Base Rate
Loan, 365 days or, if appropriate, 366 days). Whenever any payment to be made
shall otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (i) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan or Reimbursement Obligation (other than
pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro rata
share of payments then or therewith obtained by all Lenders entitled thereto,
such Lender shall purchase from the other Lenders such participation in the
Credit Extensions made by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase
shall be rescinded and each Lender which has sold a participation to the
purchasing Lender shall repay to the purchasing Lender the purchase price to
the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of (i) the amount
of such selling Lender's required repayment to the purchasing Lender in respect
of such recovery, to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower agrees that
any Lender so purchasing a participation from another Lender pursuant to this
Section may, to the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 4.9) with respect to such
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participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this Section applies, such Lender shall, to
the extent practicable, exercise its rights in respect of such secured claim in
a manner consistent with the rights of the Lenders entitled under this Section
to share in the benefits of any recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any Event
of Default described in clauses (b) through (d) of Section 8.1.9 with respect
to any Obligor (other than a Subsidiary that is not a Material Subsidiary) or,
with the consent of the Required Lenders, upon the occurrence of any other
Event of Default, to the fullest extent permitted by law, have the right to
appropriate and apply to the payment of the Obligations then due to it, and (as
security for such Obligations) the Borrower hereby grants to each Lender a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of the Borrower then or thereafter maintained with or
otherwise held by such Lender; provided, however, that any such appropriation
and application shall be subject to the provisions of Section 4.8. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable
law or otherwise) which such Lender may have.
SECTION 4.10. Mitigation. Each Lender agrees that if it makes any demand
for payment under Sections 4.3, 4.4, 4.5, or 4.6, or if any adoption or change
of the type described in Section 4.1 shall occur with respect to it, it will
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
obviate the need for the Borrower to make payments under Section 4.3, 4.4, 4.5,
or 4.6, or would eliminate or reduce the effect of any adoption or change
described in Section 4.1.
SECTION 4.11. Replacement of Lenders. Each Lender hereby severally agrees
as set forth in this Section. If any Lender (a "Subject Lender") (i) makes
demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to Section 4.3, 4.5 or 4.6, (ii) gives notice pursuant to
Section 4.1 requiring a conversion of such Subject Lender's LIBO Rate Loans to
Base Rate Loans or any change in the basis upon which interest is to accrue in
respect of such Subject Lender's LIBO Rate Loans or suspending such Lender's
obligation to make Loans as, or to convert Loans into, LIBO Rate Loans, (iii)
becomes a Non-Consenting Lender or (iv) becomes a Non-Funding Lender, the
Borrower may, within 180 days of receipt by the Borrower of such demand or
notice (or the occurrence of such other event causing the Borrower to be
required to pay such compensation) or within 180 days of such Lender becoming a
Non-Consenting Lender or a Non-Funding Lender, as the case may be, give notice
(a
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"Replacement Notice") in writing to the Agents and such Subject Lender of its
intention to replace such Subject Lender with a financial institution (a
"Replacement Lender") designated in such Replacement Notice. If the Agents
shall, in the exercise of their reasonable discretion and within 30 days of
their receipt of such Replacement Notice, notify the Borrower and such Subject
Lender in writing that the designated financial institution is satisfactory to
the Agents (such consent not being required where the Replacement Lender is
already a Lender), then such Subject Lender shall, subject to the payment of
any amounts due pursuant to Section 4.4, assign, in accordance with Section
10.11.1, all of its Commitments, Loans and other rights and obligations under
this Agreement and all other Loan Documents (including Reimbursement
Obligations) to such designated financial institution; provided, however, that
(i) such assignment shall be without recourse, representation or warranty and
shall be on terms and conditions reasonably satisfactory to such Subject Lender
and such designated financial institution and (ii) the purchase price paid by
such designated financial institution shall be in the amount of such Subject
Lender's Loans and its Percentage in respect of any Revolving Loan Commitment
under which there are outstanding Reimbursement Obligations of such
Reimbursement Obligation, together with all accrued and unpaid interest and
fees in respect thereof, plus all other amounts (including the amounts demanded
and unreimbursed under Sections 4.3, 4.5 and 4.6), owing to such Subject Lender
hereunder. Upon the effective date of an assignment described above, the
designated financial institution or Replacement Lender shall become a "Lender"
for all purposes under this Agreement and the other Loan Documents.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders and,
if applicable, the Issuer to fund the initial Credit Extension shall be subject
to the prior or concurrent satisfaction of each of the conditions precedent set
forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Agents shall have received from each
Obligor a certificate, dated the date of the initial Credit Extension, of its
Secretary or Assistant Secretary as to (i) resolutions of its Board of
Directors then in full force and effect authorizing the execution, delivery and
performance of each Loan Document to be executed by it, and (ii) the incumbency
and signatures of those of its officers authorized to act with respect to each
Loan Document executed by it, upon which certificate each Agent and each Lender
may conclusively rely until it shall have received a further certificate of the
Secretary or Assistant Secretary of such Obligor canceling or amending such
prior certificate.
SECTION 5.1.2. Transaction Documents. The Agents shall have received (with
copies for each Lender that shall have expressly requested copies thereof)
copies of fully executed versions of the Transaction Documents, certified to be
true and complete copies thereof by an
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Authorized Officer of the Borrower. The Recapitalization Agreement shall be in
full force and effect and shall not have been modified or waived in any
material respect, nor shall there have been any forbearance to exercise any
material rights with respect to any of the terms or provisions relating to the
conditions to the consummation of the Recapitalization and the Merger as set
forth in the Recapitalization Agreement unless otherwise agreed to by the
Required Lenders.
SECTION 5.1.3. Consummation of Recapitalization and Merger. The Agents
shall have received evidence satisfactory to each of them that all actions
necessary to consummate the Recapitalization and the Merger shall have been
taken.
SECTION 5.1.4. Closing Date Certificate. Each of the Agents shall have
received, with counterparts for each Lender, the Closing Date Certificate,
substantially in the form of Exhibit D hereto, dated the date of the initial
Credit Extension and duly executed and delivered by an Authorized Officer that
is the president, the chief executive officer or the chief financial or
accounting officer of the Borrower, in which certificate the Borrower shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct representations and warranties of the Borrower made as of such
date under this Agreement, and, at the time such certificate is delivered, such
statements shall in fact be true and correct.
SECTION 5.1.5. Delivery of Notes. The Agents shall have received, for the
account of each Lender that has submitted, at least two Business Days prior to
the Closing Date, a written request pursuant to Section 2.7(b)(ii), a Note of
the applicable Tranche duly executed and delivered by the Borrower.
SECTION 5.1.6. Subsidiary Guaranty. The Agents shall have received a
Subsidiary Guaranty, dated the date hereof, duly executed and delivered by an
Authorized Officer of each U.S. Subsidiary of the Borrower that is a Restricted
Subsidiary and that is in existence on the date of the initial Credit Extension
(after giving effect to the Transaction).
SECTION 5.1.7. Pledge and Security Agreements, etc. The Agents shall have
received executed counterparts of
(a) the Holdco Guaranty and Pledge Agreement, dated as of the Closing
Date, duly executed by an Authorized Officer of Holdco, together with the
certificates evidencing all of the issued and outstanding shares of
Capital Stock of the Borrower pledged pursuant to the Holdco Guaranty and
Pledge Agreement, which certificates shall in each case be accompanied by
undated powers of transfer duly executed in blank; and
(b) each Pledge and Security Agreement, dated as of the Closing Date,
duly executed and delivered by an Authorized Officer of the Borrower and
each Restricted Subsidiary that is a U.S. Subsidiary, as applicable,
together with
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(i) the certificates evidencing all of the issued and
outstanding shares of Capital Stock pledged pursuant to the
applicable Pledge and Security Agreement, which certificates shall in
each case be accompanied by undated powers of transfer duly executed
in blank, or, if any such shares of Capital Stock of each U.S.
Subsidiary of such Obligor pledged pursuant to such Pledge and
Security Agreement are uncertificated securities or are held through
a securities intermediary, the Administrative Agent shall have
obtained "control" (as defined in the UCC) over such shares of
Capital Stock and such other instruments and documents as the
Administrative Agent shall deem necessary or in the reasonable
opinion of the Administrative Agent desirable under applicable law to
perfect the security interest of the Administrative Agent in such
shares of Capital Stock;
(ii) all promissory notes evidencing intercompany Indebtedness
payable to the Borrower or any Subsidiary Guarantor duly endorsed to
the order of the Administrative Agent;
(iii) executed UCC financing statements (Form UCC-1) naming such
Obligor as the debtor and the Administrative Agent as the secured
party, or other similar instruments or documents, suitable for filing
under the UCC of all jurisdictions as may be necessary or, in the
opinion of the Agents, desirable to perfect the security interest of
the Administrative Agent in the interests of such Obligor in the
collateral pledged pursuant to the applicable Pledge and Security
Agreement (provided that perfection of security interests in (i)
motor vehicles shall not be required and (ii) certain intellectual
property owned as of the Closing Date by the Borrower or its U.S.
Subsidiaries shall be completed in accordance with Section 7.1.11);
(iv) executed copies of proper UCC termination statements (Form
UCC-3), if any, necessary to release all Liens and other rights of
any Person (other than Liens permitted under Section 7.2.3)
(A) in any collateral described in the applicable Pledge
and Security Agreement previously granted by any Person, and
(B) securing any of the Indebtedness to be repaid in
connection with the Transaction on or prior to the Closing Date,
together with such other UCC termination statements (Form UCC-3) as
the Agents may reasonably request from such Obligor; and
(v) certified copies of UCC Requests for Information or Copies
(Form UCC-11), or a similar search report certified by a party
acceptable to the Agents,
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dated a date reasonably near to the Closing Date, listing all
effective financing statements which name such Obligor (under its
present names and any previous names) as the debtor and which are
filed in the jurisdictions in which filings are to be made pursuant
to clause (iii) above, together with copies of such financing
statements.
SECTION 5.1.8. UCC Filing Service. All UCC financing statements (Form
UCC-1), termination statements (Form UCC-3) or other similar financing
statements required pursuant to the Loan Documents (collectively, the "Filing
Statements") shall have been made available on the Closing Date to CT
Corporation System or another similar filing service company reasonably
acceptable to the Agents (the "Filing Agent"). The Filing Agent shall have
acknowledged in writing reasonably satisfactory to the Agents and their counsel
(i) the Filing Agent's receipt of all such Filing Statements, (ii) that such
Filing Statements have either been submitted for filing in the appropriate
filing offices therefor or will be submitted for filing in such appropriate
offices within ten days of the Closing Date and (iii) that the Filing Agent
will notify the Agents and their counsel of the result of such submissions
within 30 days of the Closing Date.
SECTION 5.1.9. Financial Information, etc. The Agents shall have received,
with copies for each Lender,
(a) the (i) audited consolidated balance sheets of the Borrower and
its Subsidiaries as at December 28, 1996, December 27, 1997 and December
26, 1998 and the audited consolidated statements of income, cash flows and
equity interests for the fiscal years ended December 28, 1996, December
27, 1997 and December 26, 1998 and (ii) unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as at June 26, 1999 and
unaudited consolidated statements of income, cash flows and equity
interests as at June 26, 1999 (collectively, the "Base Financial
Statements") ; and
(b) a pro forma consolidated balance sheet and consolidated
statements of income, cash flows and equity interests of the Borrower and
its Subsidiaries, as of December 26, 1998 (the "Pro Forma Financial
Statements"), certified by the chief financial or accounting Authorized
Officer of the Borrower, giving effect to the consummation of the
Transaction and reflecting the proposed legal and capital structure of the
Borrower, which legal and capital structure shall be satisfactory in all
respects to the Lead Arranger and the Syndication Agent.
SECTION 5.1.10. Solvency, etc. The Agents shall have received a solvency
certificate from an Authorized Officer that is the chief financial or
accounting officer of the Borrower, dated the date of the initial Borrowing, in
form and substance satisfactory to the Agents.
SECTION 5.1.11. Equity Contributions, Subordinated Debt Issuance, Discount
Debentures Issuance, Seller Note Issuance and Subco Dividend. The Agents shall
have received
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evidence satisfactory to each of them that (i) the members of Acquisition LLC
(including DLJMBP and certain members of management of the Borrower and its
Affiliates) shall have made a cash equity contribution in an amount equal to at
least $90,000,000 to Acquisition LLC and Acquisition LLC shall have made a cash
equity contribution in an amount equal to such amount that was received by it
from its members to Acquisition Subco, (ii) the Borrower shall have received
not less than $150,000,000 in gross cash proceeds from the issuance of its
Senior Subordinated Notes and Warrants, (iii) Holdco shall have received not
less than $40,000,000 in gross cash proceeds from the issuance of its Senior
Discount Debentures, (iv) Holdco shall have issued its Seller Subordinated
Discount Note having an initial principal amount equal to $43,000,000 to CRL
and (v) the Borrower shall have paid the Subco Dividend to Holdco in an
aggregate principal amount equal to the sum of (x) the aggregate amount of
Borrowings hereunder on the Closing Date and (y) an amount equal to the
proceeds received by it from the issuance of the Senior Subordinated Notes and
Warrants (less the amount of the proceeds of such debt used to pay (A) the
consideration for the Sierra Acquisition in an amount not to exceed $24,000,000
(plus reasonable and fees and expenses described in clause (B) and (B) all
reasonable and customary fees paid by the Borrower in connection with the
Transaction in an amount not to exceed $20,000,000.
SECTION 5.1.12. Ownership of Holdco. Following the Recapitalization and
the Merger, Acquisition LLC shall own not less than 87.5% of Holdco's issued
and outstanding common equity and CRL shall own the Rollover Equity
representing no more than 12.5% of Holdco's issued and outstanding common
equity.
SECTION 5.1.13. Litigation. There shall exist no pending or threatened
material litigation, proceedings or investigations which (x) could reasonably
be expected to materially, adversely affect the consummation of the Transaction
or (y) could reasonably be expected to have a Material Adverse Effect.
SECTION 5.1.14. Material Adverse Effect. Since December 26, 1998, there
shall not have occurred any event, circumstance or condition constituting or
having a Material Adverse Effect.
SECTION 5.1.15. Reliance Letters. The Agents shall, unless otherwise
agreed, have received reliance letters, dated the date of the making of the
initial Credit Extension and addressed to each Lender and each Agent, in
respect of each of the legal opinions (other than "disclosure" and other
similar opinions) delivered in connection with the Transaction.
SECTION 5.1.16. Opinions of Counsel. The Agents shall have received
opinions, dated the date of the initial Credit Extension and addressed to the
Agents and all Lenders from
(a) Xxxxx Xxxx & Xxxxxxxx, special New York counsel to each of the
Obligors, in substantially the form of Exhibit J-1 hereto; and
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(b) Xxxxxx & Xxxxxx, special local counsel to the Obligors, in
substantially the form of Exhibit J-2 hereto.
(c) Xx. Xxxxxx Xxxxxxxxxxx, Esq., General Counsel to the Obligors, in
substantially the form of Exhibit J-3 hereto.
(d) Xxxxx Xxxxxxxxx, special Nevada Counsel to the Sierra Companies,
in substantially the form of Exhibit J-4 hereto.
(e) Hyller & Xxxxx, special California Counsel to the Sierra
Companies, in substantially the form of Exhibit J-5 hereto.
SECTION 5.1.17. Insurance. The Agents shall have received satisfactory
evidence of the existence of insurance in compliance with Section 7.1.4
(including all endorsements included therein), and the Administrative Agent
shall be named additional insured or loss payee, on behalf of the Lenders,
pursuant to documentation reasonably satisfactory to the Agents and the
Borrower.
SECTION 5.1.18. Closing Fees, Expenses, etc. The Agents and the Lead
Arranger shall have received, each for its own respective account, or, in the
case of the Administrative Agent, for the account of each Lender, as the case
may be, all fees, costs and expenses due and payable pursuant to Sections 3.3
and 10.3, if then invoiced.
SECTION 5.1.19. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors, shall be reasonably satisfactory in form
and substance to the Agents and their counsel; the Agents and their counsel
shall have received all information, approvals, opinions, documents or
instruments that the Agents or their counsel shall have reasonably requested.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and, if
applicable, the Issuer, to make any Credit Extension (including its initial
Credit Extension) shall be subject to the satisfaction of each of the
conditions precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) the representations and warranties set forth in Article VI and in
each other Loan Document shall, in each case, be true and correct in all
material respects with the same effect as if then made (unless stated to
relate solely to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date);
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(b) the sum of (i) the aggregate outstanding principal amount of all
Revolving Loans and Swing Line Loans, plus (ii) the aggregate amount of
all Letter of Credit Outstandings, does not exceed the then existing
Revolving Loan Commitment Amount; and
(c) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request. The Agents shall have received a
Borrowing Request if Loans are being requested, or an Issuance Request if a
Letter of Credit is being requested or extended. Each of the delivery of a
Borrowing Request or Issuance Request and the acceptance by the Borrower of
proceeds of any Credit Extension shall constitute a representation and warranty
by the Borrower that on the date of such Credit Extension (both immediately
before and after giving effect thereto and the application of the proceeds
thereof) the statements made in Section 5.2.1 are true and correct.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuers and the Agents to enter into
this Agreement and to make Credit Extensions hereunder, the Borrower represents
and warrants unto the Agents, the Issuers and each Lender as set forth in this
Article VI.
SECTION 6.1. Organization, etc. The Borrower and each of its Restricted
Subsidiaries (a) is validly organized and existing and in good standing to the
extent required under the laws of the jurisdiction of its incorporation, except
to the extent that the failure to be in good standing would not reasonably be
expected to have a Material Adverse Effect, (b) is duly qualified to do
business and is in good standing to the extent required under the laws of each
jurisdiction where the nature of its business requires such qualification,
except to the extent that the failure to qualify would not reasonably be
expected to result in a Material Adverse Effect, and (c) has full power and
authority and holds all requisite governmental licenses, permits and other
approvals to (i) enter into and perform its obligations in connection with the
Transaction and its Obligations under this Agreement and each other Loan
Document to which it is a party and (ii) own and hold under lease its property
and to conduct its business substantially as currently conducted by it except,
in the case of this clause (c)(ii), where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement and each other Loan
Document executed or to be executed by it, and the execution, delivery and
performance by each other Obligor of each Loan Document executed or to be
executed by it and the Borrower's and, where applicable, each
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such other Obligor's participation in the consummation of the Transaction, are
within the Borrower's and each such Obligor's company powers, have been duly
authorized by all necessary company action, and do not (i) contravene the
Borrower's or any such Obligor's Charter Documents, (ii) contravene any
contractual restriction (other than any such contractual restriction that shall
have been waived on or prior to the Closing Date), law or governmental
regulation or court decree or order binding on or affecting the Borrower or any
such Obligor, where such contravention, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, or (iii) result in,
or require the creation or imposition of, any Lien on any of the Borrower's or
any other Obligor's properties, except pursuant to the terms of a Loan
Document.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person, is required for the due
execution, delivery or performance by the Borrower or any other Obligor of this
Agreement or any other Loan Document to which it is a party, except as have
been duly obtained or made and are in full force and effect or those which the
failure to obtain or make could not reasonably be expected to have a Material
Adverse Effect. All authorizations, approvals and other actions by, and all
notices to and filings with, any governmental authority or regulatory body that
are required pursuant to the Recapitalization Agreement in connection with the
Transaction have been duly obtained or made and are in full force and effect,
except those which the failure to obtain or make could not reasonably be
expected to have a Material Adverse Effect. None of the Borrower or any other
Obligor is an "investment company" within the meaning of the Investment Company
Act of 1940, as amended, or a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and each other
Loan Document executed by the Borrower will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of the Borrower
enforceable in accordance with their respective terms; and each Loan Document
executed pursuant hereto by each other Obligor will, on the due execution and
delivery thereof by such Obligor, be the legal, valid and binding obligation of
such Obligor enforceable in accordance with its terms, in each case with
respect to this Section 6.4 subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
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SECTION 6.5. Financial Information. The Borrower has delivered to the
Agents and each Lender copies of each of (i) the Base Financial Statements, and
(ii) Pro Forma Financial Statements. Each of the financial statements described
above (A) has been prepared (1) in the case of clause (i), in accordance with
GAAP consistently applied, (2) in the case of clause (ii), on a basis
substantially consistent with the basis used to prepare the financial
statements referred to in clause (i), and (B) (1) in the case of clause (i),
present fairly the consolidated financial condition of the corporations covered
thereby as at the date thereof and the results of their operations for the
periods then ended, and (2) in the case of clause (ii), include appropriate pro
forma adjustments to give pro forma effect to the Transaction.
SECTION 6.6. No Material Adverse Change. Since December 26, 1998, there
has occurred no event, circumstance or condition that constitutes a Material
Adverse Effect.
SECTION 6.7. Litigation, etc. There is no pending or, to the knowledge of
the Borrower, threatened litigation, action, proceeding, arbitration or
governmental investigation affecting any Obligor, or any of their respective
properties, businesses, assets or revenues, which could reasonably be expected
to result in a Material Adverse Effect except as disclosed in Item 6.7
("Litigation") of the Disclosure Schedule. No development has occurred in any
litigation, action or governmental investigation or other proceeding disclosed
in Item 6.7 ("Litigation") of the Disclosure Schedule which could reasonably be
expected to have a Material Adverse Effect.
SECTION 6.8. Subsidiaries. After giving effect to the consummation of the
Transaction, the Borrower has only those Subsidiaries (i) which are identified
in Item 6.8 ("Existing Subsidiaries") of the Disclosure Schedule, or (ii) which
are permitted to have been acquired in accordance with Section 7.2.5 or 7.2.8.
SECTION 6.9. Ownership of Properties. Except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect, the Borrower and each of its Restricted Subsidiaries owns good title
to, or leasehold interests in, all of its properties and assets (other than
insignificant properties and assets), real and personal, tangible and
intangible, of any nature whatsoever (including patents, trademarks, trade
names, service marks and copyrights), free and clear of all Liens or material
claims (including material infringement claims with respect to patents,
trademarks, copyrights and the like), except as permitted pursuant to Section
7.2.3.
SECTION 6.10. Taxes. Each of Holdco, the Borrower and each of their
respective Subsidiaries has filed all Federal, State and other material tax
returns required by law to have been filed by it and has paid all material
taxes and governmental charges thereby shown to be owing, except any such taxes
or charges which are being contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on its books.
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SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement, no steps have been taken to terminate any Pension Plan, and
no contribution failure has occurred with respect to any Pension Plan
sufficient to give rise to a Lien under section 302(f) of ERISA, which, in
either case, is reasonably expected to lead to a liability to such Pension Plan
in excess of $5,000,000. No condition exists or event or transaction has
occurred with respect to any Pension Plan which could reasonably be expected to
result in the incurrence by the Borrower or any member of the Controlled Group
of any material liability, fine or penalty other than such condition, event or
transaction which would not reasonably be expected to have a Material Adverse
Effect. Except as disclosed in Item 6.11 ("Employee Benefit Plans") of the
Disclosure Schedule or otherwise approved by the Agents (such approval not to
be unreasonably withheld or delayed), since the date of the last financial
statement the Borrower has not increased any contingent liability with respect
to any post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Subtitle B of Title I of ERISA,
except as would not have a Material Adverse Effect.
SECTION 6.12. Environmental Matters. Except as set forth in Item 6.12
("Environmental Matters") of the Disclosure Schedule or as, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) all facilities and property owned or leased by the Borrower or
any of its Subsidiaries are, and continue to be, owned or leased by the
Borrower and its Subsidiaries in compliance with all Environmental Laws;
(b) there are no pending or threatened (i) written claims,
complaints, notices or requests for information received by the Borrower
or any of its Subsidiaries with respect to any alleged violation of any
Environmental Law, or (ii) written complaints, notices or inquiries to the
Borrower or any of its Subsidiaries regarding potential liability under
any Environmental Law;
(c) the Borrower and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary or
desirable for their businesses;
(d) no property now or, to the best knowledge of the Borrower,
previously owned or leased by the Borrower or any of its Subsidiaries is
listed or, to the knowledge of the Borrower, proposed for listing (with
respect to owned property only) on the National Priorities List pursuant
to CERCLA, on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up;
(e) to the knowledge of the Borrower, the Borrower and its
Subsidiaries have not directly transported or directly arranged for the
transportation of any Hazardous Material
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to any location (i) which is listed or, to the knowledge of the Borrower,
proposed for listing on the National Priorities List pursuant to CERCLA,
on the CERCLIS or on any similar state list, or (ii) which is the subject
of federal, state or local enforcement actions or other investigations in
respect of any Environmental Law;
(f) to the knowledge of the Borrower, there are no underground
storage tanks, active or abandoned, including petroleum storage tanks, on
or under any property now or previously owned or leased by the Borrower or
any of its Subsidiaries;
(g) to the knowledge of the Borrower, there are no polychlorinated
biphenyls or friable asbestos present in a manner or condition requiring
remedial action to comply with any Environmental Law; and
(h) to the best knowledge of the Borrower, no conditions exist at, on
or under any property now or previously owned or leased by the Borrower or
any of its Subsidiaries which, with the passage of time, or the giving of
notice or both, would give rise to liability to the Borrower or any of its
Subsidiaries under any Environmental Law.
SECTION 6.13. Regulations U and X. Neither the Borrower nor Holdco is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock, and no proceeds of any Credit Extension will be used in
violation of F.R.S. Board Regulation U or X. Terms for which meanings are
provided in F.R.S. Board Regulation U or X or any regulations substituted
therefor, as from time to time in effect, are used in this Section with such
meanings.
SECTION 6.14. Accuracy of Information. All material factual information
concerning the financial condition, operations or prospects of the Borrower,
Holdco and their respective Subsidiaries heretofore or contemporaneously
furnished by or on behalf of the Borrower in writing to the Agents, the Lead
Arranger, the Issuers or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby or with respect to the
Transaction is, and all other such factual information hereafter furnished by
or on behalf of the Borrower, Holdco or any of their respective Subsidiaries to
the Agents, the Lead Arranger, the Issuers or any Lender will be, taken as a
whole, true and accurate in every material respect on the date as of which such
information is dated or certified and such information is not, or shall not be,
taken as a whole, as the case may be, incomplete by omitting to state any fact
necessary to make such information not materially misleading.
Any term or provision of this Section to the contrary notwithstanding,
insofar as any of the factual information described above includes assumptions,
estimates, projections or opinions, no representation or warranty is made
herein with respect thereto; provided, however, that to the extent any such
assumptions, estimates, projections or opinions are based on factual matters,
the Borrower has reviewed such factual matters and nothing has come to its
attention in the context of such review which would lead it to believe that
such factual matters were not or are not true
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and correct in all material respects or that such factual matters omit to state
any material fact necessary to make such assumptions, estimates, projections or
opinions not misleading in any material respect.
SECTION 6.15. Solvency. The Transaction (including, among other things,
the incurrence of the initial Credit Extension hereunder, the incurrence by the
Borrower of the Indebtedness represented by the Notes and the Senior
Subordinated Notes, the execution and delivery by the Subsidiary Guarantor, if
any, of a Subsidiary Guaranty, and the application of the proceeds of the
Credit Extensions), will not involve or result in any fraudulent transfer or
fraudulent conveyance under the provisions of Section 548 of the Bankruptcy
Code (11 U.S.C. ss.101 et seq., as from time to time hereafter amended, and any
successor or similar statute) or any applicable state law respecting fraudulent
transfers or fraudulent conveyances. On the Closing Date, after giving effect
to the Transaction, the Borrower is Solvent.
SECTION 6.16. Year 2000 Compliance. The Borrower believes that its and its
Restricted Subsidiaries' computer applications that are material to its or its
Restricted Subsidiaries' businesses and operations will on a timely basis be
able to perform properly date- sensitive functions for all dates before, on and
after January 1, 2000 (that is, be "Year 2000 compliant") except to the extent
that a failure to do so could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the Agents,
the Issuers and each Lender that, until the Termination Date has occurred, the
Borrower will perform the obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The Borrower
will furnish, or will cause to be furnished, to each Lender and each Agent
copies of the following financial statements, reports, notices and information:
(a) as soon as available and in any event within 60 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of the
Borrower (or, if the Borrower is required to file such information on a
Form 10-Q with the Securities and Exchange Commission, promptly following
such filing), a consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter, together with the
related consolidated statements of operations and cash flows for such
Fiscal Quarter and for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Fiscal Quarter (it being
understood that the foregoing requirement may be
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satisfied by delivery of the Borrower's report to the Securities and
Exchange Commission on Form 10-Q, if any), certified by an Authorized
Officer that is the president, chief executive officer, treasurer,
assistant treasurer, controller or chief financial or accounting officer
of the Borrower;
(b) as soon as available and in any event within 105 days after the
end of each Fiscal Year of the Borrower (or, if the Borrower is required
to file such information on a Form 10-K with the Securities and Exchange
Commission, promptly following such filing), a copy of the annual audit
report for such Fiscal Year for the Borrower and its Subsidiaries,
including therein a consolidated balance sheet for the Borrower and its
Subsidiaries as of the end of such Fiscal Year, together with the related
consolidated statements of operations and cash flows for such Fiscal Year
(it being understood that the foregoing requirement may be satisfied by
delivery of the Borrower's report to the Securities and Exchange
Commission on Form 10-K, if any), in each case certified (without any
Impermissible Qualification) by PricewaterhouseCoopers or another "Big
Five" firm of independent public accountants, together with a certificate
from such accountants as to whether, in making the examination necessary
for the signing of their report on such annual report by such accountants,
they have become aware of any Default in respect of any term, covenant,
condition or other provision of this Agreement (including any Default in
respect of any of the financial covenants contained in Section 7.2.4) that
relates to accounting matters that has occurred and is continuing or, if
in the opinion of such accounting firm such a Default has occurred and is
continuing, a statement as to the nature thereof;
(c) together with the delivery of the financial information required
pursuant to clauses (a) and (b), a Compliance Certificate, in
substantially the form of Exhibit E-1, executed by an Authorized Officer
that is the president, the chief executive officer or the chief financial
or accounting officer of the Borrower, showing (in reasonable detail and
with appropriate calculations and computations in all respects
satisfactory to the Agents) compliance with the financial covenants set
forth in Section 7.2.4;
(d) as soon as possible and in any event within five Business Days
after obtaining knowledge of the occurrence of any Default, if such
Default is then continuing, a statement of an Authorized Officer that is
the president, chief executive officer, treasurer, assistant treasurer,
controller or chief financial or accounting officer of the Borrower
setting forth details of such Default and the action which the Borrower
has taken or proposes to take with respect thereto;
(e) promptly and in any event within five Business Days after (x) the
occurrence of any development with respect to any litigation, action,
proceeding or labor controversy described in Section 6.7 which could
reasonably be expected to have a Material Adverse Effect or (y) the
commencement of any labor controversy, litigation, action or proceeding
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of the type described in Section 6.7, notice thereof and of the action
which the Borrower has taken or proposes to take with respect thereto;
(f) promptly after the sending or filing thereof, copies of all
reports and registration statements (other than exhibits thereto and any
registration statement on Form S-8 or its equivalent) which the Borrower
or any of its Subsidiaries files with the Securities and Exchange
Commission or any national securities exchange;
(g) as soon as practicable after the controller, chief financial or
accounting officer or the chief executive officer of the Borrower or a
member of the Borrower's Controlled Group becomes aware of (i) formal
steps in writing to terminate any Pension Plan or (ii) the occurrence of
any event with respect to a Pension Plan which, in the case of clause (i)
or (ii), could reasonably be expected to result in a contribution to such
Pension Plan by (or a liability to) the Borrower or a member of the
Borrower's Controlled Group in excess of $5,000,000, (iii) the failure to
make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under section 302(f) of ERISA in an
amount in excess of $5,000,000, (iv) the taking of any action with respect
to a Pension Plan which could reasonably be expected to result in the
requirement that the Borrower furnish a bond to the PBGC or such Pension
Plan in an amount in excess of $5,000,000 or (v) any material increase in
the contingent liability of the Borrower with respect to any
post-retirement Welfare Plan benefit as a result of a change in the level
or scope of benefits thereunder, notice thereof and copies of all
documentation relating thereto; and
(h) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
SECTION 7.1.2. Compliance with Laws, etc. The Borrower will, and will
cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include (i)
except as permitted under Section 7.2.8, the maintenance and preservation of
its existence and qualification as a foreign business entity, except where the
failure to so qualify could not reasonably be expected to have a Material
Adverse Effect, and (ii) the payment, before the same become delinquent, of all
material taxes, assessments and governmental charges imposed upon it or upon
its property except to the extent being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
SECTION 7.1.3. Maintenance of Properties. Except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect, the Borrower will, and will cause each of its Restricted Subsidiaries
to, maintain, preserve, protect and keep its properties (other than
insignificant properties) in good repair, working order and condition (ordinary
wear and tear excepted), and make necessary and proper repairs, renewals and
replacements so that its
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business carried on in connection therewith may be properly conducted at all
times, unless the Borrower determines in good faith that the continued
maintenance of any of its properties is no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower will, and will cause each of its
Restricted Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses and with such provisions and
endorsements as the Agents may reasonably request and will, upon request of the
Agents, furnish to the Agents and each Lender a certificate of an Authorized
Officer of the Borrower setting forth the nature and extent of all insurance
maintained by the Borrower and its Restricted Subsidiaries in accordance with
this Section.
SECTION 7.1.5. Books and Records. The Borrower will, and will cause each
of its Restricted Subsidiaries to, keep books and records which accurately
reflect in all material respects all of its business affairs and transactions
and permit the Agents, the Issuers and each Lender or any of their respective
representatives, at reasonable times and intervals, and upon reasonable notice,
but, unless an Event of Default shall have occurred and be continuing, not more
frequently than once in each Fiscal Year, to visit its business offices, to
discuss its financial matters with its officers and, after notice to the
Borrower and provision of an opportunity for the Borrower to participate in
such discussion, its independent public accountants (and the Borrower hereby
authorizes such independent public accountants to discuss the Borrower's
financial matters with each Issuer and each Lender or its representatives,
whether or not any representative of the Borrower is present so long as the
Borrower has been afforded a reasonable opportunity to be present) and to
examine, and to photocopy extracts from, any of its books or other financial
records. The cost and expense of each such visit shall be borne by the
applicable Agent or Lender, except that the Administrative Agent may make one
such visit each Fiscal Year and the cost and expense thereof shall be borne by
the Borrower.
SECTION 7.1.6. Environmental Covenant. The Borrower will and will cause
each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, in each case except where the failure to comply with
the terms of this clause could not reasonably be expected to have a
Material Adverse Effect;
(b) promptly notify the Agents and provide copies of all written
claims, complaints, notices or inquiries relating to the condition of its
facilities and properties which relate to environmental matters or
compliance with Environmental Laws which
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would have, or would reasonably be expected to have, a Material Adverse
Effect, and promptly cure and have dismissed with prejudice any material
actions and proceedings relating to compliance with Environmental Laws,
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP have been set aside on its books; and
(c) provide such information and certifications which the Agents may
reasonably request from time to time to evidence compliance with this
Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. (a) Upon any Person becoming, after
the Closing Date, a Future Pledged Foreign Subsidiary or U.S. Subsidiary of the
Borrower that is a Restricted Subsidiary, or (in the case of clause (b) below
only) upon the Borrower or any such Subsidiary acquiring additional Capital
Stock of any existing Subsidiary that is a Restricted Subsidiary and a U.S.
Subsidiary or a Future Pledged Foreign Subsidiary, the Borrower shall notify
the Agents of such acquisition, and
(i) the Borrower shall promptly cause such U.S. Subsidiary to execute
and deliver to the Administrative Agent, with counterparts for each
Lender, a supplement to the Subsidiary Pledge and Security Agreement (and,
if such U.S. Subsidiary owns any real property, to the extent required by
clause (b) of Section 7.1.8, a Mortgage), together with UCC financing
statements (form UCC-1) executed and delivered by such U.S. Subsidiary
naming such U.S. Subsidiary as the debtor and the Administrative Agent as
the secured party, or other similar instruments or documents, in
appropriate form for filing under the UCC and any other applicable
recording statutes, in the case of real property, of all jurisdictions as
may be necessary or, in the reasonable opinion of the Administrative
Agent, desirable to perfect the security interest of the Administrative
Agent pursuant to the Subsidiary Pledge and Security Agreement or a
Mortgage, as the case may be (other than the perfection of security
interests in motor vehicles); and
(ii) the Borrower shall promptly deliver, or cause to be delivered,
to the Administrative Agent under a Pledge Agreement (as supplemented, if
necessary, by a Foreign Pledge Agreement or other supplement thereto)
certificates (if any) representing all of the issued and outstanding
shares of Capital Stock of such Subsidiary owned by the Borrower or any
Restricted Subsidiary of the Borrower that is a U.S. Subsidiary, as the
case may be, along with undated powers of transfer for such certificates,
executed in blank, or, if any securities subject thereto are
uncertificated securities or are held through a securities intermediary,
the Administrative Agent shall have obtained "control" (as defined in the
UCC applicable to the perfection of such securities) over such securities,
or other appropriate steps shall have been taken under applicable law
resulting in the perfection and "control" (as defined in the UCC) of the
security interest granted in favor of the Administrative Agent pursuant to
the terms of a Pledge Agreement,
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together, in each case, with such opinions, in form and substance and from
counsel satisfactory to the Agents, as the Agents may reasonably require;
provided, however, that notwithstanding the foregoing, no Foreign Subsidiary
shall be required to execute and deliver a Mortgage or a supplement to the
Subsidiary Pledge and Security Agreement, nor will the Borrower or any U.S.
Subsidiary of the Borrower be required to deliver in pledge pursuant to a
Pledge Agreement in excess of 65% of the Voting Stock of a Foreign Subsidiary.
(b) (i) The Borrower shall, within 10 days of the Closing Date, (A)
deliver to the Administrative Agent (to the extent such shares are
certificated) 65% of all of the Voting Stock of each of the Foreign
Subsidiaries identified on Item 7.1.7(b) ("Existing Foreign Subsidiaries") of
the Disclosure Schedule, which certificates shall in each case be accompanied
by undated powers of transfer duly executed in blank, or, (B) ensure that (to
the extent any such shares are uncertificated securities or are held through a
securities intermediary) the Administrative Agent shall have obtained "control"
(as defined in the UCC) over 65% of all of the shares of such Voting Stock and
deliver such other instruments and documents as the Administrative Agent shall
deem necessary or in the reasonable opinion of the Administrative Agent
desirable under applicable law to perfect the security interest of the
Administrative Agent in such shares of Voting Stock.
(ii) In connection with the pledge of 65% of the Voting Stock of each
of the Foreign Subsidiaries identified on Item 7.1.7(b) ("Existing Foreign
Subsidiaries") of the Disclosure Schedule, the Agents shall have received from
counsel satisfactory to the Agents, no later than the date set forth opposite
each such Foreign Subsidiary in such Item, an opinion addressed to the Agents
and the Lenders in form and substance satisfactory to the Agents.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property.
(a) Prior to entering into any new lease of real property or renewing
any existing lease of real property following the Closing Date, the
Borrower shall, and shall cause each of its U.S. Subsidiaries that are
Restricted Subsidiaries to, use its (and their) best efforts (which shall
not require the expenditure of cash or the making of any material
concessions under the relevant lease) to deliver to the Administrative
Agent a Waiver executed by the lessor of any real property that is to be
leased by the Borrower or such U.S. Subsidiary for a term in excess of one
year in any state which by statute grants such lessor a "landlord's" (or
similar) Lien which is superior to the Administrative Agent's, to the
extent the value of any personal property of the Borrower or its U.S.
Subsidiaries that are Restricted Subsidiaries to be held at such leased
property exceeds (or it is anticipated that the value of such personal
property will, at any point in time during the term of such leasehold
term, exceed) $3,000,000.
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(b) In the event that the Borrower or any of its U.S. Subsidiaries
that are Restricted Subsidiaries shall acquire any real property having a
value as determined in good faith by the Administrative Agent in excess of
$2,000,000 in the aggregate, the Borrower or the applicable U.S.
Subsidiary shall, promptly after such acquisition, execute a Mortgage in
favor of the Administrative Agent, as mortgagee for the ratable benefit of
the Lenders, and provide the Administrative Agent with (i) evidence of the
completion (or satisfactory arrangements for the completion) of all
recordings and filings of such Mortgage as may be necessary or, in the
reasonable opinion of the Administrative Agent, desirable effectively to
create a valid, perfected, first priority Lien, subject to Liens permitted
by Section 7.2.3, against the properties purported to be covered thereby,
(ii) mortgagee's title insurance policies in favor of the Administrative
Agent, as mortgagee for the ratable benefit of the Lenders, in amounts and
in form and substance and issued by insurers, in each case reasonably
satisfactory to the Agents, with respect to the property purported to be
covered by such Mortgage, insuring that title to such property is
indefeasible and that the interests created by the Mortgage constitute
valid first Liens thereon free and clear of all defects and encumbrances
other than as permitted by Section 7.2.3 or as approved by the Agents, and
such policies shall also include, to the extent available, a revolving
credit endorsement and such other endorsements as the Agents shall
reasonably request and shall be accompanied by evidence of the payment in
full of all premiums thereon, and (iii) such other approvals, opinions, or
documents as the Agents may reasonably request.
(c) In accordance with the terms and provisions of the Pledge
Agreements, the Borrower and each U.S. Subsidiary that is a Restricted
Subsidiary shall provide the Agents with evidence of all recordings and
filings as may be necessary or, in the reasonable opinion of the
Administrative Agent, desirable to create a valid, perfected first
priority Lien, subject to the Liens permitted by Section 7.2.3, against
all property acquired after the Closing Date (excluding motor vehicles,
leases of real property and (except to the extent required under clause
(b) of this Section 7.1.8) fee interests in real property) and not
otherwise subject to Section 7.1.11 or 7.1.12.
SECTION 7.1.9. Use of Proceeds, etc. The Borrower shall
(a) apply the proceeds of the Loans
(i) in the case of the Term Loans and Revolving Loans in an
aggregate principal amount not in excess of $2,000,000 made on the
Closing Date, to pay, in part, the cash portion of the obligations of
Holdco in connection with the Transaction and to pay the transaction
fees and expenses associated with the Transaction (directly or by
paying the Subco Dividend); provided, that the aggregate amount of
such transaction fees and expenses shall not exceed $20,000,000; and
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(ii) in the case of Revolving Loans (other than Revolving Loans
described in clause (a)(i) above) and Swing Line Loans, for working
capital and general corporate purposes of the Borrower and its
Subsidiaries; and
(b) use Letters of Credit only for purposes of supporting working
capital and general corporate purposes of the Borrower and its Restricted
Subsidiaries.
SECTION 7.1.10. Hedging Obligations. Within six months following the
Closing Date, the Administrative Agent shall have received evidence
satisfactory to it that the Borrower has entered into interest rate swap, cap,
collar or similar arrangements (including such Indebtedness accruing interest
at a fixed rate by its terms) designed to protect the Borrower against
fluctuations in interest rates with respect to at least 50% of the aggregate
principal amount of the Term Loans and the Senior Subordinated Notes for a
period of at least three years from the Closing Date, with terms reasonably
satisfactory to the Borrower and the Agents.
SECTION 7.1.11. Undertaking. The Borrower will deliver to the Agents no
later than 60 days after the Closing Date instruments or documents, in
appropriate form for filing with the United States Patent and Trademark Office,
sufficient to create and perfect a security interest in all intellectual
property owned as of the Closing Date by the Borrower and the U.S. Subsidiaries
that are Restricted Subsidiaries as identified in Item 7.1.11 ("Intellectual
Property") of the Disclosure Schedule.
SECTION 7.1.12. Mortgages. Within 60 days after the Closing Date, the
Borrower shall deliver to the Administrative Agent, as mortgagee for the
ratable benefit of the Lenders, counterparts of each Mortgage relating to each
property listed on Item 7.1.12 ("Mortgaged Properties") of the Disclosure
Schedule, each dated as of the date of such delivery, duly executed by the
Borrower or the applicable U.S. Subsidiary that is a Restricted Subsidiary,
together with
(a) evidence of the completion (or satisfactory arrangements for the
completion) of all recordings and filings of such Mortgage as may be
necessary or, in the reasonable opinion of the Administrative Agent,
desirable effectively to create a valid, perfected first priority Lien,
subject to Liens permitted by Section 7.2.3, against the properties
purported to be covered thereby;
(b) mortgagee's title insurance policies in favor of the
Administrative Agent, as mortgagee for the ratable benefit of the Lenders,
in amounts and in form and substance and issued by insurers, in each case
reasonably satisfactory to the Agents, with respect to the property
purported to be covered by such Mortgage, insuring that title to such
property is marketable and that the interests created by the Mortgage
constitute valid first Liens thereon free and clear of all defects and
encumbrances other than as permitted by Section 7.2.3 or as approved by
the Agents, and such policies shall also include, to the extent available,
a revolving credit endorsement and such other endorsements as the
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Administrative Agent shall reasonably request (provided, however, that if
the Administrative Agent requests, any survey endorsement or coverage
other than with respect to the existing survey, if any, of the Mortgaged
Property that was previously delivered to the Borrower by B&L or CRL or
any of their respective Subsidiaries or in the possession of the Borrower
or any of its Subsidiaries on the Closing Date, then the 60-day period
referred to in the lead-in to this Section shall be extended by an
additional 30 days) and shall be accompanied by evidence of the payment in
full of all premiums thereon; and
(c) such other approvals, opinions or documents as the Agents may
reasonably request.
SECTION 7.1.13. Year 2000 Compliance. The Borrower will promptly notify
the Administrative Agent in the event the Borrower discovers or determines that
any computer application (including those of its suppliers and vendors) that is
material to its or any of its Restricted Subsidiaries' businesses and
operations will not be Year 2000 compliant as of January 1, 2000, except to the
extent that such failure could not reasonably be expected to have a Material
Adverse Effect.
SECTION 7.2. Negative Covenants. The Borrower agrees with the Agents and
each Lender that, until the Termination Date has occurred, the Borrower will
perform the obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, engage in any business activity,
except the business activities of the type in which the Borrower and its
Subsidiaries are engaged on the date hereof (after giving effect to the
Transaction) and any businesses reasonably ancillary, incidental or related
thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist
or otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness outstanding on the Closing Date and identified in
Item 7.2.2(a) ("Ongoing Indebtedness") of the Disclosure Schedule, and
refinancings and replacements thereof in a principal amount not exceeding
the principal amount of the Indebtedness so refinanced or replaced and
with an average life to maturity of not less than the then average life to
maturity of the Indebtedness so refinanced or replaced;
(b) Indebtedness in respect of the Credit Extensions and other
Obligations;
(c) Indebtedness incurred by the Borrower or any of its Restricted
Subsidiaries that is represented by Capitalized Lease Liabilities,
mortgage financings or purchase
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money obligations (but only to the extent otherwise permitted by Section
7.2.7); provided, that the maximum aggregate amount of all Indebtedness
permitted under this clause (c) shall not at any time exceed $10,000,000;
(d) intercompany Indebtedness of (i) (x) any U.S. Subsidiary that is
a Restricted Subsidiary of the Borrower owing to the Borrower or any of
its Restricted Subsidiaries or (y) the Borrower owing to any of its
Restricted Subsidiaries, and (ii) any Foreign Subsidiary that is a
Restricted Subsidiary of the Borrower owing to the Borrower or any U.S.
Subsidiary that is a Restricted Subsidiary of the Borrower; provided that
(A) any such Indebtedness described in this clause (d)(ii) (other than (I)
any such Indebtedness owing by Xxxxxxx River Japan, which is subject to
the provisions of clause (B) and (II) any such Indebtedness constituting
an Investment made pursuant to clause (a)(ii) of Section 7.2.5 and (III)
other than any such intercompany Indebtedness incurred to finance any
acquisition permitted hereunder) shall not exceed, when taken together
with the aggregate amount at such time of all outstanding Investments made
in all such Foreign Subsidiaries pursuant to clause (l) of Section 7.2.5
(other than any Investments made as part of, or to finance, any
acquisition permitted hereunder), $10,000,000 at any time outstanding and
(B) any Indebtedness described in this clause (d)(ii) owing by Xxxxxxx
River Japan shall not exceed, when taken together with all Investments in
Xxxxxxx River Japan (whether debt or equity), $40,000,000; provided
further that any Indebtedness described in this clause (d) which is owing
to the Borrower or any of its U.S. Subsidiaries that are Restricted
Subsidiaries, (1) to the extent requested by the Agents, such Indebtedness
shall be evidenced by one or more promissory notes in form and substance
satisfactory to the Agents which shall be duly executed and delivered to
(and indorsed to the order of) the Administrative Agent in pledge pursuant
to a Pledge Agreement and (2) in the case of any such Indebtedness owed by
a Person other than the Borrower or a Subsidiary Guarantor, such
Indebtedness shall not be forgiven or otherwise discharged for any
consideration other than payment (Dollar for Dollar) in cash unless the
Agents otherwise consent;
(e) Indebtedness evidenced by the Senior Subordinated Debt in an
aggregate outstanding principal amount not to exceed $150,000,000 and
subordinated guarantees thereof;
(f) Assumed Indebtedness of the Borrower and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $10,000,000 at
any time outstanding;
(g) Hedging Obligations of the Borrower or any of its Restricted
Subsidiaries in respect of the Credit Extensions or otherwise entered into
by the Borrower or any Restricted Subsidiary to hedge against interest
rate, currency exchange rate or commodity price risk, in each case arising
in the ordinary course of business of the Borrower and its Restricted
Subsidiaries and not for speculative purposes;
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(h) Indebtedness of Foreign Subsidiaries of the Borrower in an
aggregate principal amount not to exceed $5,000,000 at any time
outstanding;
(i) other unsecured Indebtedness of the Borrower and its Restricted
Subsidiaries in an aggregate principal amount at any time outstanding not
to exceed $10,000,000 plus the difference between the maximum amount of
additional Revolving Loan Commitments that have been or could be provided
under clause (c) of Section 2.1.2 and the then outstanding amount of
additional Revolving Loans made pursuant to clause (c) of Section 2.1.2;
(j) Indebtedness of any Foreign Subsidiary owing to any other Foreign
Subsidiary; and
(k) from and after the time that it becomes a Restricted Subsidiary,
Indebtedness of Xxxxxxx River Japan, which when taken together with all
Investments in Xxxxxxx River Japan (whether in debt or equity), does not
exceed an aggregate principal amount equal to $40,000,000.
provided, however, that (i) no Indebtedness otherwise permitted by clause (c),
(d) (as such clause (d) relates to loans made by the Borrower or any Subsidiary
Guarantor to Restricted Subsidiaries which are not party to a Subsidiary
Guaranty), (f), (h) or (i) may be incurred if, immediately before or after
giving effect to the incurrence thereof, any Default shall have occurred and be
continuing, and (ii) all such Indebtedness of the type described in clause
(d)(i)(y) above that is owed to Subsidiaries that are not Subsidiary Guarantors
shall be subordinated, in writing, to the Obligations upon terms satisfactory
to the Agents.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its property, revenues or assets, whether now owned or
hereafter acquired, except:
(a) Liens existing on the Closing Date and identified in Item
7.2.2(b) ("Ongoing Liens") of the Disclosure Schedule and extensions and
renewals thereof; provided that no such extension or renewal shall
increase the obligations secured by such Lien, extend such Lien to
additional assets or otherwise result in a Default hereunder;
(b) Liens securing payment of the Obligations or any obligation under
any Rate Protection Agreement granted pursuant to any Loan Document;
(c) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (c) of Section 7.2.2;
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(d) Liens for taxes, assessments or other governmental charges or
levies, including Liens pursuant to Section 107(l) of CERCLA or other
similar law, not at the time delinquent or thereafter payable without
penalty or being contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(e) Liens of carriers, warehousemen, mechanics, repairmen,
materialmen, contractors, laborers and landlords or other like Liens
incurred in the ordinary course of business for sums not overdue for a
period of more than 30 days or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books;
(f) Liens incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
bids, statutory or regulatory obligations, insurance obligations, leases
and contracts (other than for borrowed money) entered into in the ordinary
course of business or to secure obligations on surety or appeal bonds;
(g) judgment Liens in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full by a bond or a letter of credit or (subject to
a customary deductible) by insurance maintained with responsible insurance
companies and Liens in existence less than 30 days, which Liens secure any
such bond or reimbursement obligation with respect to such letter of
credit;
(h) (i) Liens with respect to minor imperfections of title and
easements, rights-of-way, restrictions, reservations, permits, servitudes
and other similar encumbrances on real property and fixtures which do not
materially detract from the value or materially impair the use by the
Borrower or any such Restricted Subsidiary in the ordinary course of their
business of the property subject thereto; (ii) in the case of any property
covered by a Mortgage, encumbrances disclosed in the title insurance
policy issued to, and reasonably approved by the Agents insuring the
Mortgage; and (iii) in the case of any property covered by a Mortgage,
upon certification by the Borrower that an easement, right-of-way,
restriction, reservation, permit, servitude or other similar encumbrance
granted or to be granted by the Borrower or any such Restricted Subsidiary
does not materially detract from the value of or materially impair the use
by the Borrower or such Restricted Subsidiary in the ordinary course of
its business of the property subject to or to be subject to such
encumbrance, the Administrative Agent shall execute such documents as are
reasonably requested to subordinate its Mortgage to such encumbrance;
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(i) leases or subleases granted by the Borrower or any of its
Restricted Subsidiaries to any other Person in the ordinary course of
business;
(j) Liens in the nature of trustees' Liens granted pursuant to any
indenture governing any Indebtedness permitted by Section 7.2.2, in each
case in favor of the trustee under such indenture and securing only
obligations to pay compensation to such trustee, to reimburse its expenses
and to indemnify it under the terms thereof;
(k) Liens of sellers of goods to the Borrower and its Restricted
Subsidiaries arising under Article 2 of the UCC or similar provisions of
applicable law in the ordinary course of business, covering only the goods
sold and securing only the unpaid purchase price for such goods and
related expenses;
(l) Liens securing Assumed Indebtedness of the Borrower and its
Restricted Subsidiaries permitted pursuant to clause (f) of Section 7.2.2;
provided, however, that (i) any such Liens attach only to the property of
the Subsidiary acquired, or the property acquired, in connection with such
Assumed Indebtedness and shall not attach to any assets of the Borrower or
any of its Restricted Subsidiaries theretofore existing or which arise
after the date thereof and (ii) the Assumed Indebtedness and other secured
Indebtedness of the Borrower and its Restricted Subsidiaries secured by
any such Lien shall not exceed 100% of the fair market value of the assets
being acquired in connection with such Assumed Indebtedness;
(m) Liens on assets of Foreign Subsidiaries of the Borrower securing
Indebtedness permitted pursuant to clause (h) or (j) of Section 7.2.2; and
(n) Liens on the Capital Stock of Unrestricted Subsidiaries securing
Debt incurred by such Unrestricted Subsidiaries.
SECTION 7.2.4. Financial Covenants.
(a) EBITDA. The Borrower will not permit EBITDA for the period of four
consecutive Fiscal Quarters ending on the last day of any Fiscal Quarter
occurring during any period set forth below to be less than the amount set
forth opposite such period:
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Period EBITDA
------ ------
01/01/00 to 12/31/00 $50,000,000
01/01/01 to 12/31/01 $50,000,000
01/01/02 to 12/31/02 $55,000,000
01/01/03 to 12/31/03 $60,000,000
01/01/04 to 12/31/04 $65,000,000
01/01/05 and thereafter $70,000,000;
provided that, to the extent the amount of EBITDA for any period of four
consecutive Fiscal Quarters exceeds the amount of EBITDA required to be
maintained for such period pursuant to this clause (a), an amount equal to 50%
of such excess amount may be carried forward to (but only to) the next
succeeding period of four consecutive Fiscal Quarters.
(b) Leverage Ratio. The Borrower will not permit the Leverage Ratio as of
the end of any Fiscal Quarter occurring during any period set forth below to be
greater than the ratio set forth opposite such period:
Period Leverage Ratio
------ --------------
01/01/00 to 12/31/00 6.00:1
01/01/01 to 12/31/01 5.75:1
01/01/02 to 12/31/02 5.25:1
01/01/03 to 12/31/03 4.25:1
01/01/03 to 12/31/04 3.50:1
01/01/04 and thereafter 3.00:1.
(c) Interest Coverage Ratio. The Borrower will not permit the Interest
Coverage Ratio as of the end of any Fiscal Quarter ending after the Closing
Date and occurring during any period set forth below to be less than the ratio
set forth opposite such period:
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Interest Coverage
Period Ratio
------ --------------
01/01/00 to 12/31/00 1.40:1
01/01/01 to 12/31/01 1.50:1
01/01/02 to 12/31/02 1.75:1
01/01/03 to 12/31/03 2.00:1
01/01/03 to 12/31/04 2.25:1
01/01/05 and thereafter 2.50:1.
(d) Fixed Charge Coverage Ratio. The Borrower will not permit the Fixed
Charge Coverage Ratio as of the end of any Fiscal Quarter ending after the
Closing Date to be less than 1:1.
SECTION 7.2.5. Investments. The Borrower will not, and will not permit any
of its Restricted Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) (i) Investments existing on the Closing Date and identified in
Item 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule and
extensions or renewals thereof, provided that no such extension or renewal
shall be permitted if it would (x) increase the amount of such Investment
at the time of such extension or renewal or (y) result in a Default
hereunder and (ii) Investments resulting from the conversion or
recharacterization of Ongoing Investments (including the conversion of any
Ongoing Investments constituting equity Investments into debt
Investments), provided that no such Investment may be made in reliance on
this clause (a)(ii) if such Investment would require, at the time of the
making thereof, the contribution or other payment by the Borrower or any
of its U.S. Subsidiaries that are Restricted Subsidiaries of any
additional cash or other assets to any Subsidiary that is not a Subsidiary
Guarantor;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 7.2.7 (including any such Investments
which would otherwise constitute
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Xxxxxxx Xxxxxxxxxxxx but for the operation of clause (i) of the proviso to
the definition of "Capital Expenditures");
(e) Investments made by the Borrower or any of its Restricted
Subsidiaries, solely with proceeds which have been contributed, directly
or indirectly after the Closing Date, to the Borrower or such Restricted
Subsidiary as cash equity from holders of Holdco's Capital Stock for the
purpose of making an Investment identified in a notice to the Agents on or
prior to the date that such capital contribution is made, which
Investments shall result in the Borrower or such Restricted Subsidiary
acquiring a majority controlling interest in the Person in which such
Investment was made or increasing any such controlling interest already
maintained by it;
(f) Investments to the extent the consideration received pursuant to
clause (c)(i) of Section 7.2.9 is not all cash;
(g) Investments in the form of loans to officers, directors and
employees of the Borrower and its Restricted Subsidiaries for the sole
purpose of purchasing Holdco Capital Stock or the Capital Stock of any
entity that directly or indirectly holds Holdco Capital Stock or of
refinancing any such loans made by others (or purchases of such loans made
by others);
(h) Investments made in one or more transactions by the Borrower or
any of its Restricted Subsidiaries for the acquisition by the Borrower or
such Restricted Subsidiary of the Capital Stock of Xxxxxxx River Japan;
provided, however, that (i) Investments made pursuant to this clause (h)
shall not exceed (whether in debt or equity) an amount equal to, in the
aggregate, the product of (x) $40,000,000 and (y) a fraction, the
numerator of which is the percentage of ownership of Xxxxxxx River Japan
acquired by the Borrower after the Closing Date (including in connection
with any such Investment) and the denominator of which is 50 (provided
that the first such Investment made by the Borrower or such Restricted
Subsidiary on or subsequent to the Closing Date may be increased by an
additional $5,000,000 so long as the aggregate amount of all such
Investments does not exceed $40,000,000), (ii) the Borrower and its
Restricted Subsidiaries shall vote their respective direct or indirect
equity interest in Xxxxxxx River Japan against Xxxxxxx River Japan
entering into any agreement of the type described in clause (b) of Section
7.2.12 and (iii) the Borrower and its Restricted Subsidiaries shall vote
their respective direct or indirect equity interest in Xxxxxxx River Japan
against Xxxxxxx River Japan making any dividend or distribution to, or
Investment in, or entering into (or suffering to exist) any profit,
revenue or cash flow sharing arrangement with any owner (beneficial or
otherwise) of Xxxxxxx River Japan's common equity or any Affiliate thereof
which shall be disproportional to the fully diluted common equity
ownership percentage of such Person (except for (i) permitting the common
owners of Xxxxxxx River Japan to pay taxes from such dividend or
distribution and (ii) in the case of a
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recapitalization, pursuant to which the Borrower and its Restricted
Subsidiaries become the sole owner of Xxxxxxx River Japan);
(i) Letters of Credit issued in support of, and guarantees by the
Borrower or any Restricted Subsidiary of, Indebtedness permitted under
clauses (b), (c), (g) and (i) of Section 7.2.2;
(j) Investments made or held by any Foreign Subsidiary of the
Borrower that is a Restricted Subsidiary in any other Foreign Subsidiary
of the Borrower that is a Restricted Subsidiary;
(k) (i) Investments of the Borrower or any U.S. Subsidiary of the
Borrower that is a Restricted Subsidiary in the Borrower or any U.S.
Subsidiary of the Borrower that is a Restricted Subsidiary and (ii)
Investments by the Borrower or any U.S. Subsidiary of the Borrower that is
a Restricted Subsidiary in a Foreign Subsidiary of the Borrower that is a
Restricted Subsidiary in connection with the creation of such Foreign
Subsidiary; provided that in the case of clause (k)(ii), such Investment
is in the form of Capital Stock of one or more other Foreign Subsidiaries;
(l) Investments (other than Investments made under other clauses of
this Section 7.2.5) made by the Borrower or any of its Restricted
Subsidiaries in an aggregate amount not to exceed $25,000,000 in any
single transaction (or a series of related transactions) or $50,000,000 in
an aggregate amount over the term of this Agreement; provided that (i)
such Investments (x) result in the Borrower or the relevant Restricted
Subsidiary acquiring (subject to Section 7.2.1) a majority controlling
interest in the Person (or its assets and businesses) in which such
Investment was made, or increasing any such controlling interest
maintained by it in such Person or (y) result in the Person in which such
Investment was made becoming an Acquired Controlled Person and a
Restricted Subsidiary for the purposes set forth in the last sentence of
the definition of the term "Subsidiary"; (ii) to the extent any Assumed
Indebtedness permitted pursuant to clause (f) of Section 7.2.2 would be
incurred in connection with any such Investment to be made pursuant to
this clause (l), the permitted amounts set forth in this clause shall be
reduced, Dollar for Dollar, by the outstanding principal amount of any
such Assumed Indebtedness to be assumed; and (iii) the amount of
Investments made by the Borrower or any of its U.S. Subsidiaries that are
Restricted Subsidiaries in any of its Foreign Subsidiaries that are
Restricted Subsidiaries, when taken together with the outstanding
aggregate principal amount of Indebtedness incurred by such Foreign
Subsidiaries from the Borrower and such U.S. Subsidiaries pursuant to
clause (d)(ii) of Section 7.2.2, shall not exceed $10,000,000;
(m) extensions of trade credit in the ordinary course of business;
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(n) Investments in Hedging Obligations permitted hereunder;
(o) Investments (including debt obligations and Capital Stock)
received in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of and other
disputes with customers and suppliers arising in the ordinary course of
business; and
(p) other Investments in an aggregate amount at any time outstanding
not to exceed $10,000,000.
provided, however, that
(q) any Investment which when made complies with the requirements of
the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not
comply with such requirements; and
(r) no Investment otherwise permitted by clause (c) (except to the
extent permitted under Section 7.2.2), (g), (i) (to the extent that the
applicable Letter of Credit relates to Indebtedness permitted under clause
(c) or (j) of Section 7.2.2), (l) or (p) shall be permitted to be made if,
immediately before or after giving effect thereto, any Default shall have
occurred and be continuing.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
date hereof:
(a) the Borrower will not, and will not permit any of its Restricted
Subsidiaries to, declare, pay or make any payment, dividend, distribution
or exchange (in cash, property or obligations) on or in respect of any
shares of any class of Capital Stock (now or hereafter outstanding) of the
Borrower or on any warrants, options or other rights with respect to any
shares of any class of Capital Stock (now or hereafter outstanding) of the
Borrower (other than (i) dividends or distributions payable in its Capital
Stock or warrants to purchase its Capital Stock and (ii) splits or
reclassifications of its Capital Stock into additional or other shares of
its Capital Stock) or apply, or permit any of its Restricted Subsidiaries
to apply, any of its funds, property or assets to the purchase,
redemption, exchange, sinking fund or other retirement of, or agree or
permit any of its Subsidiaries to purchase, redeem or exchange, any shares
of any class of Capital Stock (now or hereafter outstanding) of the
Borrower, warrants, options or other rights with respect to any shares of
any class of Capital Stock (now or hereafter outstanding) of the Borrower;
(b) the Borrower will not, and will not permit any of its Restricted
Subsidiaries to, (i) directly or indirectly make any payment or prepayment
of principal of, or make any
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payment of interest on, any Senior Subordinated Debt on any day other than
the stated, scheduled date for such payment or prepayment set forth in the
Senior Subordinated Debt Documents or which would violate the
subordination provisions of such Senior Subordinated Debt, or (ii) redeem,
purchase or defease any Senior Subordinated Debt;
(the foregoing prohibited acts referred to in clauses (a) and (b) above are
herein collectively referred to as "Restricted Payments"); provided, however,
that
(c) notwithstanding the provisions of clauses (a) and (b) above, the
Borrower shall be permitted to make Restricted Payments to Holdco to the
extent necessary to enable Holdco to
(i) pay its overhead expenses (including advisory fees in an
amount not to exceed $500,000 in the aggregate in any Fiscal Year) in
an amount not to exceed $2,000,000 in the aggregate in any Fiscal
Year;
(ii) pay taxes;
(iii) so long as (A) no Default shall have occurred and be
continuing on the date such Restricted Payment is declared or to be
made, nor would a Default result from the making of such Restricted
Payment, (B) after giving effect to the making of such Restricted
Payment, the Borrower shall be in pro forma compliance with the
covenant set forth in clause (b) of Section 7.2.4 for the most recent
full Fiscal Quarter immediately preceding the date of the making of
such Restricted Payment for which the relevant financial information
has been delivered pursuant to clause (a) or clause (b) of Section
7.1.1, and (C) an Authorized Officer of the Borrower shall have
delivered a certificate to the Administrative Agent in form and
substance satisfactory to the Administrative Agent (including a
calculation of the Borrower's pro forma compliance with the covenant
set forth in clause (b) of Section 7.2.4 in reasonable detail)
certifying as to the accuracy of clauses (c)(iii)(A) and (c)(iii)(B)
above,
(x) repurchase, redeem or otherwise acquire or retire for
value any Capital Stock of Holdco, or any warrant, option or
other right to acquire any such Capital Stock of Holdco or the
Capital Stock of any entity that directly or indirectly holds
the Capital Stock of Holdco, held by any director, member of
management or an employee of the Borrower or any of its
Restricted Subsidiaries pursuant to any employment agreement,
management equity subscription agreement, restricted stock plan,
stock option agreement or other similar arrangement so long as
the total amount of such repurchases, redemptions, acquisitions,
retirements and payments shall not exceed (I) $5,000,000 in any
calendar year, subject to a
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maximum amount of $10,000,000 of the term of this Agreement plus
(II) the aggregate cash proceeds and aggregate principal amount
of any notes received by the Borrower during such calendar year
from any reissuance of Capital Stock of Holdco, and warrants,
options and other rights to acquire Capital Stock of Holdco, by
Holdco or the Borrower to directors, members of management and
employees of the Borrower and its Restricted Subsidiaries (to
the extent such proceeds are not otherwise required to be
applied pursuant to clause (d) of Section 3.1.1); and
(y) make cash payments of interest with respect to the
Senior Discount Debentures in accordance with the terms thereof;
and
(d) notwithstanding the provisions of clauses (a) and (b) above, the
Borrower and its Restricted Subsidiaries shall be permitted to make the
Restricted Payments included in the Transaction (including the Subco
Dividend).
SECTION 7.2.7. Capital Expenditures, etc. With respect to Capital
Expenditures, the parties covenant and agree as follows:
(a) The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, make or commit to make Capital Expenditures in any Fiscal
Year ending on or after to December 31, 2000, except Capital Expenditures
of the Borrower and its Restricted Subsidiaries, not to exceed an amount
(the "Base Amount") equal to (i) $17,500,000 in the case of any Fiscal
Year; plus (ii) an aggregate amount in addition to the Base Amount over
the term of this Agreement equal to $25,000,000; provided, however, that,
to the extent the Base Amount exceeds the aggregate amount of Capital
Expenditures (other than amounts permitted to be made pursuant to clause
(a)(ii) above or clause (b) below) actually made during such Fiscal Year,
such excess amount (up to an aggregate of 50% of the amount of the Base
Amount for such Fiscal Year) may be carried forward to (but only to) the
next succeeding Fiscal Year (any such amount to be certified by the
Borrower to the Agents in the Compliance Certificate delivered for the
last Fiscal Quarter of such Fiscal Year, and any such amount carried
forward to a succeeding Fiscal Year shall be deemed to be used prior to
the Borrower and its Restricted Subsidiaries using the Base Amount for
such succeeding Fiscal Year, without giving effect to such carry-forward).
(b) The parties acknowledge and agree that the permitted Capital
Expenditure level set forth in clause (a) above shall be exclusive of (i)
the amount of Capital Expenditures actually made with cash capital
contributions made to the Borrower or any of its Restricted Subsidiaries,
directly or indirectly, by any Person other than the Borrower and its
Restricted Subsidiaries, after the Closing Date and specifically
identified in a certificate delivered by an Authorized Officer of the
Borrower to the Agents on or about the time such capital contribution or
equity issuance is made (but in
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any event prior to the time of the Capital Expenditure made with such
capital contribution or equity issuance) (provided that, to the extent
such cash capital contributions or any proceeds from such equity issuance
constitute Net Equity Proceeds arising from the issuance by Holdco or the
Borrower of their respective Capital Stock, only that portion of such Net
Equity Proceeds which are not required to be applied as a prepayment
pursuant to clause (d) of Section 3.1.1 may be used for Capital
Expenditures pursuant to this clause (b)) and (ii) any portion of any
acquisition that is permitted under Section 7.2.5 (other than pursuant to
clause (d) thereof) that is accounted for as a Capital Expenditure.
SECTION 7.2.8. Consolidation, Merger, etc. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other corporation, or purchase or
otherwise acquire all or substantially all of the assets of any Person (or of
any division thereof), except
(a) any such Restricted Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the Borrower (so long as
the Borrower is the surviving corporation of such combination or merger)
or any other Restricted Subsidiary, and the assets or Capital Stock of any
Restricted Subsidiary may be purchased or otherwise acquired by the
Borrower or any other Restricted Subsidiary; provided, that
notwithstanding the above, a Restricted Subsidiary may only liquidate or
dissolve into, or merge with and into, another Restricted Subsidiary of
the Borrower if, after giving effect to such combination or merger, the
Borrower continues to own (directly or indirectly), and the Administrative
Agent continues to have pledged to it pursuant to a Pledge Agreement, a
percentage of the issued and outstanding shares of Capital Stock (on a
fully diluted basis) of the Restricted Subsidiary surviving such
combination or merger that is equal to or in excess of the percentage of
the issued and outstanding shares of Capital Stock (on a fully diluted
basis) of the Restricted Subsidiary that does not survive such combination
or merger that was (immediately prior to the combination or merger) owned
by the Borrower or pledged to the Administrative Agent;
(b) so long as no Default has occurred and is continuing or would
occur after giving effect thereto, the Borrower or any of its Restricted
Subsidiaries may purchase all or substantially all of the assets of any
Person (or any division thereof) not then a Restricted Subsidiary, or
acquire such Person by merger, if permitted (without duplication) pursuant
to Section 7.2.7 or clause (e), (f), (l), (o) or (p) of Section 7.2.5;
(c) the Borrower and its Restricted Subsidiaries may consummate the
Transaction; and
(d) the Borrower and its Restricted Subsidiaries may liquidate or
dissolve Xxxxxxx River China and Xxxxxxx River Mexico and may take any
action described in clause (b) or (d) of Section 8.1.9.
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SECTION 7.2.9. Asset Dispositions, etc. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, sell, transfer, lease,
contribute or otherwise convey, or grant options, warrants or other rights with
respect to, all or any part of its assets, whether now owned or hereafter
acquired (including accounts receivable and Capital Stock of Restricted
Subsidiaries) to any Person, unless:
(a) such sale, transfer, lease, contribution or conveyance of such
assets is (i) in the ordinary course of its business (and does not
constitute a sale, transfer, lease, contribution or other conveyance of
all or a substantial part of the Borrower's and its Restricted
Subsidiaries' assets, taken as a whole) or is of obsolete or worn out
property, (ii) permitted by Section 7.2.8, or (iii) between the Borrower
and one of its Restricted Subsidiaries or between Restricted Subsidiaries
of the Borrower;
(b) such sale, transfer, lease, contribution or conveyance
constitutes (i) an Investment permitted under Section 7.2.5, (ii) a Lien
permitted under Section 7.2.3, or (iii) a Restricted Payment permitted
under Section 7.2.6;
(c) (i) such sale, transfer, lease, contribution or conveyance of
such assets is for fair market value and the consideration consists of no
less than 75% in cash or is a Lien permitted under Section 7.2.3(h)(iii),
(ii) the Net Disposition Proceeds received from such assets, together with
the Net Disposition Proceeds of all other assets sold, transferred,
leased, contributed or conveyed pursuant to this clause (c) since the
Closing Date (but excluding any Net Disposition Proceeds received from the
sale to Merck & Co. by the Borrower and/or any of its Restricted
Subsidiaries of the two islands in the Florida Keys that were previously
used by them to study a non-human primate breeding colony), does not
exceed (individually or in the aggregate) $20,000,000 over the term of
this Agreement and (iii) an amount equal to the Net Disposition Proceeds
generated from such sale, transfer, lease (except leases or subleases
pursuant to Section 7.2.3(i)), contribution or conveyance, is reinvested
in the Business of the Borrower and its Restricted Subsidiaries or, to the
extent required thereunder, is applied to prepay the Loans pursuant to the
terms of Section 3.1.1 and Section 3.1.2;
(d) such sale, transfer, lease, contribution or conveyance results
from a casualty or condemnation in respect of such property or assets; or
(e) such sale, transfer or conveyance consists of the sale or
discount of overdue accounts receivable in the ordinary course of
business, but only in connection with the compromise or collection
thereof.
SECTION 7.2.10. Modification of Certain Agreements. Without the prior
written consent of the Required Lenders, the Borrower will not, and will not
permit any of its Restricted Subsidiaries to, consent to any amendment,
supplement, amendment and restatement, waiver or
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other modification of any of the terms or provisions contained in, or
applicable to, any Senior Subordinated Debt Document (including any agreement
or indenture related thereto or to the Subordinated Debt Issuance) or any
Material Document or any schedules, exhibits or agreements related thereto (the
"Restricted Agreements"), in each case which would materially adversely affect
the rights or remedies of the Lenders, or the Borrower's or any other Obligor's
ability to perform hereunder or under any Loan Document or which would (a)
increase the cash consideration payable in respect of the Recapitalization,
(b), in the case of the Recapitalization Agreement, increase the Borrower's or
any of its Restricted Subsidiaries' obligations or liabilities, contingent or
otherwise (other than adjustments to the cash consideration payable in respect
of the Acquisition made pursuant to the terms of the Recapitalization
Agreement), (c) increase the principal amount of, or increase the interest rate
on, or add or increase any fee with respect to the Indebtedness evidence by
such Senior Subordinated Debt or any such Restricted Agreement, advance any
dates upon which payments of principal or interest are due thereon or change
any of the covenants with respect thereto in a manner which is more restrictive
to the Borrower or any of its Restricted Subsidiaries or (d) in the case of any
Senior Subordinated Debt Document, change the subordination provisions thereof
(including any default or conditions to an event of default relating thereto),
or change any collateral therefor (other than to release such collateral), if
(in the case of this clause (d)), the effect of such amendment or change,
individually or together with all other amendments or changes made, is to
increase the obligations of the obligor thereunder or to confer any additional
rights on the holders of such Senior Subordinated Debt, or any such Restricted
Agreement (or a trustee or other representative on their behalf).
SECTION 7.2.11. Transactions with Affiliates. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, enter into, or cause,
suffer or permit to exist any arrangement or contract with any of its other
Affiliates (other than any Obligor or any other Restricted Subsidiary of the
Borrower) unless such arrangement or contract is fair and equitable to the
Borrower or such Restricted Subsidiary and is an arrangement or contract of the
kind which would be entered into by a prudent Person in the position of the
Borrower or such Restricted Subsidiary with a Person which is not one of its
Affiliates; provided, however that the Borrower and its Restricted Subsidiaries
shall be permitted to (i) enter into and perform their obligations, or take any
actions contemplated or permitted, under the Transaction Documents (including
the Investors' Agreement), (ii) make any Restricted Payment permitted under
Section 7.2.6 and (iii) enter into and perform their obligations under
arrangements with DLJ and its Affiliates for underwriting, investment banking
and advisory services (including payments of the fees in respect of advisory
services referred to in clause (c)(i) of Section 7.2.6) on usual and customary
terms, (iv) make payment of reasonable and customary fees and reimbursement of
expenses payable to directors of Holdco and (v) enter into employment
arrangements with respect to the procurement of services of directors, officers
and employees in the ordinary course of business and pay reasonable fees in
connection therewith.
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SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
enter into any agreement prohibiting
(a) the (i) creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired securing any
Obligation or any senior refinancing thereof (other than, in the case of
any assets acquired with the proceeds of any Indebtedness permitted under
Section 7.2.2(c), customary limitations and prohibitions contained in such
Indebtedness and in the case of any Indebtedness permitted under clauses
(f), (h), (i) and (j) of Section 7.2.2, customary limitations in respect
of the Foreign Subsidiaries of the Borrower that are Restricted
Subsidiaries that shall have incurred such Indebtedness and its assets),
or (ii) ability of the Borrower or any other Obligor to amend or otherwise
modify this Agreement or any other Loan Document; or
(b) any Restricted Subsidiary from making any payments, directly or
indirectly, to the Borrower by way of dividends, advances, repayments of
loans or advances, reimbursements of management and other intercompany
charges, expenses and accruals or other returns on investments, or any
other agreement or arrangement which restricts the ability of any such
Restricted Subsidiary to make any payment, directly or indirectly, to the
Borrower (other than customary limitations and prohibitions in any
Indebtedness permitted under clauses (b), (e), (g), (h) and (i) of Section
7.2.2 that are applicable to the Restricted Subsidiary of the Borrower
that has incurred such Indebtedness and its assets; provided, that such
limitations shall be limited solely to such Restricted Subsidiary (and any
of its Restricted Subsidiaries) and its (and their) assets).
SECTION 7.2.13. Securities of Subsidiaries. The Borrower will not permit
any Restricted Subsidiary to issue any Capital Stock (whether for value or
otherwise) to any Person other than the Borrower or another wholly-owned
Subsidiary of the Borrower that is a Restricted Subsidiary.
SECTION 7.2.14. Sale and Leaseback. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, enter into any agreement or
arrangement with any other Person providing for the leasing by the Borrower or
any of its Restricted Subsidiaries of real or personal property which has been
or is to be sold or transferred by the Borrower or any of its Restricted
Subsidiaries to such other Person or to any other Person to whom funds have
been or are to be advanced by such Person on the security of such property or
rental obligations of the Borrower or any of its Restricted Subsidiaries.
SECTION 7.2.15. Designation of Senior Indebtedness. The Borrower will not
permit any Indebtedness (other than the Indebtedness incurred hereunder or
under any other the Loan Document) to constitute "Designated Senior
Indebtedness" (or any other similar term) under the Senior Subordinated Debt
Documents, without the consent of the Required Lenders.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events or
occurrences described in this Section 8.1 shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. (a) The Borrower shall default
in the payment or prepayment of any principal of any Loan when due or any
Reimbursement Obligations or any deposit of cash for collateral purposes
pursuant to Section 2.6.4, as the case may be, or (b) any Obligor (including
the Borrower) shall default (and such default shall continue unremedied for a
period of three Business Days) in the payment when due of any interest or
commitment fee with respect to the Loans or Commitments or of any other
monetary Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of the
Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate
(including the Closing Date Certificate) furnished by or on behalf of the
Borrower or any other Obligor to the Agents, the Issuers, the Lead Arranger or
any Lender for the purposes of or in connection with this Agreement or any such
other Loan Document (including any certificates delivered pursuant to Article
V) is or shall be incorrect when made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations. The
Borrower shall default in the due performance and observance of any of its
obligations under Sections 7.1.1(e), 7.1.7(b), 7.1.9, 7.1.10, 7.1.11, 7.1.12 or
7.2 (other than Section 7.2.1).
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Administrative Agent at
the direction of the Required Lenders.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur (i) in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness, other than Indebtedness
described in Section 8.1.1, of the Borrower or any of its Restricted
Subsidiaries or Holdco having a principal amount, individually or in the
aggregate for Holdco, the Borrower and its Restricted Subsidiaries, in excess
of $5,000,000, or (ii) a default shall occur in the performance or observance
of any obligation or condition with respect to such Indebtedness having a
principal amount, individually or in the aggregate, in excess of $5,000,000 if
the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or
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holders of such Indebtedness, or any trustee or agent for such holders, to
cause such Indebtedness to become due and payable prior to its expressed
maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of money
in excess of $5,000,000 in the aggregate for Holdco, the Borrower and its
Restricted Subsidiaries (not covered by insurance from a responsible insurance
company that is not denying its liability with respect thereto) shall be
rendered against the Borrower or any of its Restricted Subsidiaries or Holdco
and remain unvacated and unpaid and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order, or (ii) there
shall be any period of 30 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur with
respect to any Pension Plan (i) the termination of any Pension Plan if, as a
result of such termination, the Borrower would be required to make a
contribution to such Pension Plan, or would reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $5,000,000, or (ii)
a contribution failure occurs with respect to any Pension Plan sufficient to
give rise to a Lien under Section 302(f) of ERISA in an amount in excess of
$5,000,000.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any of its
Restricted Subsidiaries (other than Subsidiaries that are not Material
Subsidiaries) or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Borrower or any
of its Restricted Subsidiaries (other than Subsidiaries that are not
Material Subsidiaries) or any other Obligor or any material property of
any thereof, or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent, acquiescence or
assignment, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of its
Restricted Subsidiaries (other than Subsidiaries that are not Material
Subsidiaries) or any other Obligor or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or other
custodian shall not be discharged within 60 days, provided that the
Borrower, each such Restricted Subsidiary and each other Obligor hereby
expressly authorizes the Agents, the Issuers
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and each Lender to appear in any court conducting any relevant proceeding
during such 60-day period to preserve, protect and defend their rights
under the Loan Documents;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Borrower or any of its
Restricted Subsidiaries (other than Subsidiaries that are not Material
Subsidiaries) or any other Obligor, and, if any such case or proceeding is
not commenced by the Borrower or such Restricted Subsidiary or such other
Obligor, such case or proceeding shall be consented to or acquiesced in by
the Borrower or such Restricted Subsidiary or such other Obligor or shall
result in the entry of an order for relief or shall remain for 60 days
undismissed, provided that the Borrower, such Restricted Subsidiary and
each other Obligor hereby expressly authorizes the Agents, the Issuers and
each Lender to appear in any court conducting any such case or proceeding
during such 60-day period to preserve, protect and defend their rights
under the Loan Documents; or
(e) take any action (corporate or otherwise) authorizing, or in
furtherance of, any of the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document, or any
Lien granted thereunder, shall (except in accordance with its terms or pursuant
to an agreement of the parties thereto), in whole or in part, terminate, cease
to be in full force and effect or cease to be the legally valid, binding and
enforceable obligation of any Obligor party thereto; the Borrower or any other
Obligor shall, directly or indirectly, contest in any manner the effectiveness,
validity, binding nature or enforceability thereof; or any Lien securing any
Obligation shall, in whole or in part, cease to be a perfected first priority
Lien, subject only to those exceptions expressly permitted by the Loan
Documents, except to the extent any event referred to above (a) relates to
assets of the Borrower or any of its Restricted Subsidiaries which are
immaterial, (b) results from the failure of the Administrative Agent to
maintain possession of certificates representing securities pledged under any
Pledge Agreement or to file continuation statements under the UCC of any
applicable jurisdiction or (c) is covered by a lender's title insurance policy
and the relevant insurer promptly after the occurrence thereof shall have
acknowledged in writing that the same is covered by such title insurance
policy.
SECTION 8.1.11. Subordinated Notes. The subordination provisions relating
to the Senior Subordinated Notes or any other subordinated debt of the Borrower
or any of its Restricted Subsidiaries (the "Subordination Provisions") shall
fail to be enforceable by the Lenders (which have not effectively waived the
benefits thereof) in accordance with the terms thereof, or the principal or
interest on any Loan, Reimbursement Obligation or other Obligations shall fail
to constitute "Senior Indebtedness" (as defined in any Senior Subordinated
Note) or "senior indebtedness" (or any other similar term) under any document
instrument or agreement
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evidencing any such other subordinated debt; or the Borrower or any of its
Subsidiaries shall, directly or indirectly, disavow or contest in any manner
(i) the effectiveness, validity or enforceability of any of the Subordination
Provisions, or (ii) that any of such Subordination Provisions exist for the
benefit of the Agents and the Lenders.
SECTION 8.2. Action if Bankruptcy, etc. If any Event of Default described
in clauses (b), (c) and (d) of Section 8.1.9 shall occur with respect to any
Obligor (other than Subsidiaries that are not Material Subsidiaries), the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations (including Reimbursement Obligations) shall automatically be and
become immediately due and payable, without notice or demand and the Borrower
shall automatically and immediately be obligated to deposit with the
Administrative Agent cash collateral in an amount equal to all Letter of Credit
Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than an Event of Default described in clauses (b), (c) and (d) of
Section 8.1.9 with respect to any Obligor (other than Subsidiaries that are not
Material Subsidiaries)) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Administrative Agent, upon the direction of
the Required Lenders, shall by notice to the Borrower declare all or any
portion of the outstanding principal amount of the Loans and other Obligations
(including Reimbursement Obligations) to be due and payable, require the
Borrower to provide cash collateral to be deposited with the Administrative
Agent in an amount equal to the undrawn amount of all Letters of Credit
outstanding and/or declare the Commitments (if not theretofore terminated) to
be terminated, whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate and the Borrower
shall deposit with the Administrative Agent cash collateral in an amount equal
to all Letters of Credit Outstandings.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints DLJ as its Syndication
Agent and UBOC as its Administrative Agent under and for purposes of this
Agreement and each other Loan Document. Each Lender authorizes the Agents to
act on behalf of such Lender under this Agreement and each other Loan Document
and, in the absence of other written instructions from the Required Lenders
received from time to time by the Agents (with respect to which each of the
Agents agrees that it will comply, except as otherwise provided in this Section
or as otherwise advised by counsel), to exercise such powers hereunder and
thereunder as are specifically delegated to or required of the Agents by the
terms hereof and thereof, together with
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such powers as may be reasonably incidental thereto. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this Agreement)
the Agents, ratably in accordance with their respective Term Loans outstanding
and Commitments (or, if no Term Loans or Commitments are at the time
outstanding and in effect, then ratably in accordance with the principal amount
of Term Loans held by such Lender and their respective Commitments as in effect
in each case on the date of the termination of this Agreement), from and
against any and all liabilities, obligations, losses, damages, claims, costs or
expenses of any kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, either of the Agents in any way relating to
or arising out of this Agreement and any other Loan Document, including
reasonable attorneys' fees, and as to which any Agent is not reimbursed by the
Borrower or any other Obligor (and without limiting the obligation of the
Borrower or any other Obligor to do so); provided, however, that no Lender
shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are determined by
a court of competent jurisdiction in a final proceeding to have resulted solely
from such Agent's gross negligence or willful misconduct. The Agents shall not
be required to take any action hereunder or under any other Loan Document, or
to prosecute or defend any suit in respect of this Agreement or any other Loan
Document, unless it is indemnified hereunder to its satisfaction. If any
indemnity in favor of either of the Agents shall be or become, in such Agent's
determination, inadequate, such Agent may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given. The Borrower and the Lenders agree that the
Administrative Agent may delegate any of its duties under this Agreement to any
of its Affiliates. Any such Affiliate (and such Affiliate's directors,
officers, agents and employees) which performs duties in connection with this
Agreement shall be entitled to the same benefits of the indemnification, waiver
and other protective provisions to which such Agent is entitled under Articles
IX and X.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Lender by 1:00
p.m., Los Angeles time, on the Business day prior to a Borrowing or
disbursement with respect to a Letter of Credit pursuant to Section 2.6.2 that
such Lender will not make available the amount which would constitute its
Percentage of such Borrowing on the date specified therefor, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent and, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If and to the extent that such Lender
shall not have made such amount available to the Administrative Agent, such
Lender severally agrees and the Borrower agrees to repay the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Administrative Agent made such amount
available to the Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing.
SECTION 9.3. Exculpation; Notice of Default. (a) None of the Agents or the
Lead Arranger nor any of their respective directors, officers, employees or
agents shall be liable to any
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Lender for any action taken or omitted to be taken by it under this Agreement
or any other Loan Document, or in connection herewith or therewith, except for
its own willful misconduct or gross negligence, nor responsible for any
recitals or warranties herein or therein, nor for the effectiveness,
enforceability, validity or due execution of this Agreement or any other Loan
Document, nor for the creation, perfection or priority of any Liens purported
to be created by any of the Loan Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security, nor
to make any inquiry respecting the performance by the Borrower of its
obligations hereunder or under any other Loan Document. Any such inquiry which
may be made by any Agent or any Issuer shall not obligate it to make any
further inquiry or to take any action. The Agents and each Issuer shall be
entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the Agents or the
Issuers, as applicable, believe to be genuine and to have been presented by a
proper Person.
(b) No Agent shall be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless such Agent has received
written notice from (A) in the case of the Administrative Agent, a Lender or
the Borrower referring to this Agreement describing such Default or Event of
Default and stating that such notice is a "notice of default" and (B) in the
case of the Syndication Agent, from the Administrative Agent as set forth in
the immediately following sentence. In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Syndication Agent and the Lenders.
SECTION 9.4. Successor. The Syndication Agent may resign as such upon one
Business Day's notice to the Borrower and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days'
prior notice to the Borrower and all Lenders. If the Administrative Agent at
any time shall resign, the Required Lenders may, with the prior consent of the
Borrower (which consent shall not be unreasonably withheld), appoint another
Lender as a successor Administrative Agent which shall thereupon become the
Administrative Agent hereunder. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be one of
the Lenders or a commercial banking institution organized under the laws of the
United States or a United States branch or agency of a commercial banking
institution, and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall be entitled to receive from the retiring Administrative Agent such
documents of transfer and assignment as such successor Administrative Agent may
reasonably request, and shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring
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Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of (i) this Article IX shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent under
this Agreement, and (ii) Section 10.3 and Section 10.4 shall continue to inure
to its benefit.
SECTION 9.5. Credit Extensions by each Agent. Each Agent and each Issuer
shall have the same rights and powers with respect to (x) (i) in the case of an
Agent, the Credit Extensions made by it or any of its Affiliates and (ii) in
the case of an Issuer, the Loans made by it or any of its Affiliates, and (y)
the Notes held by it or any of its Affiliates as any other Lender and may
exercise the same as if it were not an Agent or Issuer. Each Agent, each Issuer
and each of their respective Affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the Borrower or any
Subsidiary or Affiliate of the Borrower as if such Agent or Issuer were not an
Agent or Issuer hereunder.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent, the Lead Arranger, each Issuer and each other
Lender, and based on such Lender's review of the financial information of the
Borrower, this Agreement, the other Loan Documents (the terms and provisions of
which being satisfactory to such Lender) and such other documents, information
and investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitments. Each Lender also acknowledges that it will,
independently of each Agent, the Lead Arranger, each Issuer and each other
Lender, and based on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own credit decisions
as to exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for such Lender's account and copies of all other communications
received by the Administrative Agent from the Borrower for distribution to the
Lenders by the Administrative Agent in accordance with the terms of this
Agreement.
SECTION 9.8. The Syndication Agent and the Administrative Agent.
Notwithstanding anything else to the contrary contained in this Agreement or
any other Loan Document, the Agents, in their respective capacities as such,
each in such capacity, shall have no duties or responsibilities under this
Agreement or any other Loan Document nor any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against either Agent, as applicable, in such capacity except as are explicitly
set forth herein or in the other Loan Documents.
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SECTION 9.9. Documentation Agent. The Lender identified on the signature
pages of this Agreement as the "Documentation Agent" shall not have any right,
power, obligation, liability, responsibility or duty under this Agreement (or
any other Loan Document) other than those applicable to all Lenders as such.
Without limiting the foregoing, the Lender so identified as the "Documentation
Agent" shall not have or be deemed to have any fiduciary relationship with any
other Lender. Each Lender acknowledges that it has not relied, and will not
rely, on the Lender so identified as the "Documentation Agent" in deciding to
enter into this Agreement and each other Loan Document to which it is a party
or in taking or not taking action hereunder or thereunder.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented
to by the Borrower and each Obligor party thereto and by the Required Lenders;
provided, however, that any such amendment, modification or waiver of the type
set forth below shall require the consent of the Person or Persons described
below for such amendment, modification or waiver:
(a) Unless consented to by each Lender, no such amendment,
modification or waiver shall be effective if it would modify any
requirement hereunder that any particular action be taken by all the
Lenders, all the Lenders with respect to any Tranche of Loans or
Commitments or by the Required Lenders, release Holdco from its
obligations under the Holdco Guaranty and Pledge Agreement, release any
Subsidiary Guarantor that is a Material Subsidiary from its obligations
under the Subsidiary Guaranty (except as otherwise provided in the
Subsidiary Guaranty), if any, or release all or substantially all of the
collateral security (except in each case as otherwise specifically
provided in this Agreement, any such Subsidiary Guaranty or a Pledge
Agreement).
(b) Unless consented to by each Lender adversely affected thereby, no
such amendment, modification or waiver shall be effective if it would
modify this Section 10.1, or clause (i) of Section 10.10, change the
definition of "Required Lenders", increase any Commitment Amount or the
Percentage of any Lender (other than pursuant to clause (c) of Section
2.1.2), reduce any fees described in Section 3.3 (other than the
administration fee referred to in Section 3.3.2) or extend any Commitment
Termination Date.
(c) No such amendment, modification or waiver shall be effective if
it would extend the Stated Maturity Date for any Loan or reduce the
principal amount of or rate of
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interest on or fees payable in respect of any Loan or any Reimbursement
Obligations (which shall in each case include the conversion of all or any
part of the Obligations into equity of any Obligor), unless such
amendment, modification or waiver shall have been consented to by the
Lender which has made such Loan or, in the case of a Reimbursement
Obligation, the Issuer owed, and those Lenders participating in, such
Reimbursement Obligation.
(d) No such amendment, modification or waiver shall be effective if
it would affect adversely the interests, rights or obligations of any
Agent, Issuer or Lead Arranger (in its capacity as Agent, Issuer or Lead
Arranger), unless such amendment, modification or waiver shall have been
consented to by such Agent, Issuer or Lead Arranger, as the case may be.
(e) No such amendment, modification or waiver shall be effective if
it would have the effect (either immediately or at some later time) of
enabling the Borrower to satisfy a condition precedent to the making of a
Revolving Loan or the issuance of a Letter of Credit unless such
amendment, modification or waiver shall have been consented to by the
holders of at least 51% of the Revolving Loan Commitments.
(f) No such amendment, modification or waiver shall be effective if
it would amend, modify or waive the provisions of clause (a)(i) of Section
3.1.1 or clause (b) of Section 3.1.2 or effect any amendment, modification
or waiver that by its terms adversely affects the rights of Lenders
participating in any Tranche differently from those of Lenders
participating in other Tranches, unless such amendment, modification or
waiver shall have been consented to by the holders of at least 51% of the
aggregate amount of Loans outstanding under the Tranche or Tranches
affected by such modification, or, in the case of a modification affecting
the Revolving Loan Commitments, the Lenders holding at least 51% of the
Revolving Loan Commitments.
No failure or delay on the part of any Agent, any Issuer, any Lender or any
other Secured Party in exercising any power or right under this Agreement or
any other Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by any Agent, any Issuer
or any Lender under this Agreement or any other Loan Document shall, except as
may be otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
For purposes of this Section 10.1, the Syndication Agent, in coordination
with the Administrative Agent, shall have primary responsibility, together with
the Borrower, in the negotiation, preparation and documentation relating to any
amendment, modification or waiver
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under this Agreement, any other Loan Document or any other agreement or
document related hereto or thereto contemplated pursuant to this Section.
SECTION 10.2. Notices. All notices and other communications provided to
any party under this Agreement or any other Loan Document shall be in writing
or by facsimile and addressed, delivered or transmitted to such party (a) in
the case of any Lender by any party other than the Administrative Agent, to
such Lender in care of the Administrative Agent at its address or facsimile
number set forth on its signature page hereto or on Schedule II hereto (and the
Administrative Agent shall promptly forward such notice to the address or
facsimile number of such Lender set forth on such Lender's signature page
hereto or on Schedule II hereto or in the Lender Assignment Agreement pursuant
to which such Lender became a Lender hereunder), (b) in the case of any Lender
by the Administrative Agent, to such Lender at its address or facsimile number
set forth on its signature page hereto or in the Lender Assignment Agreement
pursuant to which it became a party hereto, (c) in the case of any Agent, at
its address or facsimile number set forth below its signature hereto, and (d)
in the case of the Borrower, to its address or facsimile number set forth on
its signature page hereto, or, in any case, at such address or facsimile number
as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
transmitted (receipt acknowledged).
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay on
demand all reasonable expenses of each of the Agents (including the reasonable
fees and out-of-pocket expenses of counsel to the Agents and of local or
foreign counsel, if any, who may be retained by counsel to the Agents) in
connection with
(a) the syndication by the Syndication Agent and the Lead Arranger of
the Loans, the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of each Mortgage
and each Pledge Agreement and/or any UCC financing statements relating
thereto and all amendments, supplements and modifications to any thereof
and any and all other documents or instruments of further assurance
required to be filed or recorded or refiled or rerecorded by the terms
hereof or of such Mortgage or Pledge Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
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The Borrower further agrees to pay, and to save the Agents, the Issuers and the
Lenders harmless from all liability for, any stamp or other similar taxes which
may be payable in connection with the execution or delivery of this Agreement,
the Credit Extensions made hereunder or the issuance of any Notes or Letters of
Credit or any other Loan Documents. The Borrower also agrees to reimburse each
Agent, each Issuer and each Lender upon demand for all reasonable out-of-pocket
expenses (including reasonable attorneys' fees and legal expenses) incurred by
such Agent, such Issuer or such Lender in connection with (x) the negotiation
of any restructuring or "work-out", whether or not consummated, of any
Obligations and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby, to the fullest extent permitted under applicable law,
indemnifies, exonerates and holds each Agent, each Issuer, the Lead Arranger
and each Lender and each of their respective Affiliates, and each of their
respective partners, officers, directors, employees and agents, and each other
Person controlling any of the foregoing within the meaning of either Section 15
of the Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended (collectively, the "Indemnified Parties"),
free and harmless from and against any and all actions, causes of action,
suits, losses, costs, liabilities and damages, and expenses actually incurred
in connection therewith (irrespective of whether any such Indemnified Party is
a party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Credit Extension;
(b) the entering into and performance of this Agreement and any other
Loan Document by any of the Indemnified Parties (excluding any successful
action brought by or on behalf of the Borrower as the result of any
failure by any Lender to make any Credit Extension hereunder);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the Capital Stock or assets of any
Person, whether or not such Agent, such Issuer, such Lead Arranger or such
Lender is party thereto;
(d) any alleged or actual investigation, litigation or proceeding
related to any environmental cleanup, audit or noncompliance with or
liability under any Environmental Law relating to the use, ownership or
operation by Holdco, the Borrower or any of their respective Subsidiaries
of any Hazardous Material; or
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(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission or release from, any real property owned or
operated by Holdco, the Borrower or any Subsidiary thereof of any
Hazardous Material present on or under such property in a manner giving
rise to liability at or prior to the time Holdco, the Borrower or such
Subsidiary owned or operated such property (including any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether caused by, or
within the control of, Holdco, the Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or willful misconduct or any Hazardous Materials that are
manufactured, emitted, generated, treated, released, stored or disposed of on
any real property of the Borrower or any of its Subsidiaries or any violation
of Environmental Law that occurs on or with respect to any real property of the
Borrower or any of its Subsidiaries to the extent occurring after such real
property is transferred to any Indemnified Person or its successor by
foreclosure sale, deed in lieu of foreclosure, or similar transfer, except to
the extent such manufacture, emission, release, generation, treatment, storage
or disposal or violation is actually caused by Holdco, the Borrower or any of
the Borrower's Subsidiaries. The Borrower and its permitted successors and
assigns hereby waive, release and agree not to make any claim, or bring any
cost recovery action against, any Agent, any Issuer, the Lead Arranger or any
Lender under CERCLA or any state equivalent, or any similar law now existing or
hereafter enacted, except to the extent arising out of the gross negligence or
willful misconduct of any Indemnified Party or arising out of any Hazardous
Materials that are manufactured, emitted, generated, treated, released, stored
or disposed of on any real property of the Borrower or any of its Subsidiaries
or any violation of Environmental Law that occurs on or with respect to any
real property of the Borrower or any of its Subsidiaries to the extent
occurring after such real property is transferred to any Indemnified Person or
its successor by foreclosure sale, deed in lieu of foreclosure, or similar
transfer. It is expressly understood and agreed that to the extent that any
Indemnified Party is strictly liable under any Environmental Laws, the
Borrower's obligation to such Indemnified Party under this indemnity shall
likewise be without regard to fault on the part of the Borrower, to the extent
permitted under applicable law, with respect to the violation or condition
which results in liability of such Indemnified Party. Notwithstanding anything
to the contrary herein, each Agent, each Issuer, the Lead Arranger and each
Lender shall be responsible with respect to any Hazardous Materials that are
manufactured, emitted, generated, treated, released, stored or disposed of on
any real property of the Borrower or any of its Subsidiaries or any violation
of Environmental Law that occurs on or with respect to any such real property
to the extent it occurs after such real property is transferred to any Agent,
Issuer, Lead Arranger or Lender to its successor by foreclosure sale, deed in
lieu of foreclosure, or similar transfer, except to the extent such
manufacture, emission, release, generation, treatment, storage or disposal or
violation is actually caused by Holdco, the Borrower or any of the Borrower's
Subsidiaries. If and to the extent that the foregoing undertaking may be
unenforceable for any reason, the
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Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Sections 4.8 and 9.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations and the termination of all
Commitments. The representations and warranties made by the Borrower and each
other Obligor in this Agreement and in each other Loan Document shall survive
the execution and delivery of this Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, ANY NOTES
AND, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED THEREIN, EACH OTHER LOAN
DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement and the other Loan
Documents constitute the entire understanding among the parties hereto with
respect to the subject matter hereof and supersede any prior agreements,
written or oral, with respect thereto. Upon the execution and delivery of this
Agreement by the parties hereto, all obligations and liabilities of DLJ
Merchant Banking II, Inc. under or relating or with respect to the Commitment
Letter shall be terminated and of no further force or effect.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that (i) the Borrower may not assign
or transfer its rights or obligations hereunder without the prior written
consent of each of the Agents and all Lenders, and (ii) the rights of sale,
assignment and transfer of the Lenders are subject to Section 10.11.
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SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons, on a non pro rata basis (except
as provided below), in accordance with this Section 10.11.
SECTION 10.11.1. Assignments. Any Lender (the "Assignor Lender"),
(a) with the written consents of the Borrower, the Agents and (in the
case of any assignment of participations in Letters of Credit or Revolving
Loan Commitments) the Issuers (which consents (i) shall not be
unreasonably delayed or withheld, (ii) of the Borrower shall not be
required upon the occurrence and during the continuance of any Event of
Default and (iii) of the Agents and the Issuers shall not be required in
the case of assignments made by DLJ or any of its Affiliates), may at any
time assign and delegate to one or more commercial banks, funds that are
regularly engaged in making, purchasing or investing in loans or
securities, or other financial institutions, and
(b) with notice to the Borrower, the Agents, and (in the case of any
assignment of participations in Letters of Credit or Revolving Loan
Commitments) the Issuers, but without the consent of the Borrower, the
Agents or the Issuers, may assign and delegate to any of its Affiliates or
Related Funds or to any other Lender or any Affiliate or Related Fund of
any other Lender
(each Person described in either of the foregoing clauses as being the Person
to whom such assignment and delegation is to be made, being hereinafter
referred to as an "Assignee Lender"), all or any fraction of such Assignor
Lender's Loans, participations in Letters of Credit and Letter of Credit
Outstandings with respect thereto and Commitments (which assignment and
delegation shall be, as among Revolving Loan Commitments, Revolving Loans and
participations in Letters of Credit, of a constant, and not a varying,
percentage) is in a minimum aggregate amount of (i) $2,000,000 (provided that
(1) assignments that are made on the same day to funds that (x) invest in
commercial loans and (y) are managed or advised by the same investment advisor
or any Affiliate of such investment advisor may be treated as a single
assignment for purposes of the minimum amount and (2) no minimum amount shall
be required in the case of any assignment between two Lenders so long as the
Assignor Lender has an aggregate amount of Loans and Commitments of at least
$2,000,000 following such assignment) unless the Borrower and the Agents
otherwise consent or (ii) the then remaining amount of such Assignor Lender's
Loans and Commitments; provided, however, that any such Assignee Lender will
comply, if applicable, with the provisions contained in Section 4.6 and the
Borrower, each other Obligor and the Agents shall be entitled to continue to
deal solely and directly with such Assignor Lender in connection with the
interests so assigned and delegated to an Assignee Lender until
(c) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to
such Assignee Lender,
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shall have been given to the Borrower and the Agents by such Assignor
Lender and such Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to the
Borrower and the Agents a Lender Assignment Agreement, accepted by the
Agents;
(e) the processing fees described below shall have been paid; and
(f) the Administrative Agent shall have registered such assignment
and delegation in the Register pursuant to clause (b) of Section 2.7.
From and after the date that the Agents accept such Lender Assignment Agreement
and such assignment and delegation is registered pursuant to clause (b) of
Section 2.7, (x) the Assignee Lender thereunder shall be deemed automatically
to have become a party hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Assignee Lender in
connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the Assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Any Assignor Lender that shall have previously requested and
received any Note or Notes in respect of any Tranche to which any such
assignment applies shall, upon the acceptance by the Administrative Agent of
the applicable Lender Assignment Agreement, xxxx such Note or Notes "exchanged"
and deliver them to the Borrower (against, if the Assignor Lender has retained
Loans or Commitments with respect to the applicable Tranche and has requested
replacement Notes pursuant to clause (b)(ii) of Section 2.7, its receipt from
the Borrower of replacement Notes in the principal amount of the Loans and
Commitments of the applicable Tranche retained by it). Such Assignor Lender or
such Assignee Lender (unless the Assignor Lender or the Assignee Lender is DLJ
or one of its Affiliates) must also pay a processing fee to the Administrative
Agent upon delivery of any Lender Assignment Agreement in the amount of $2,500,
unless such assignment and delegation is by a Lender to its Affiliate or
Related Fund or if such assignment and delegation is by a Lender to a Federal
Reserve Bank, as provided below or is otherwise consented to by the
Administrative Agent. Any attempted assignment and delegation not made in
accordance with this Section 10.11.1 shall be null and void. Nothing contained
in this Section 10.11.1 shall prevent or prohibit any Lender from pledging its
rights (but not its obligations to make Loans or participate in Letters of
Credit of Letter of Credit Outstandings) under this Agreement and/or its Loans
hereunder to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank and any Lender that is a fund that
invests in bank loans may pledge all or any portion of its rights (but not its
obligations to make Loans or participate in Letters of Credit or Letter of
Credit Outstandings) hereunder to any trustee or any other representative of
holders of obligations owed or securities issued by such fund as security for
such obligations or securities. In the event that S&P, Xxxxx'x or Xxxxxxxx'x
BankWatch (or InsuranceWatch Ratings Service, in the case of
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Lenders that are insurance companies (or Best's Insurance Reports, if such
insurance company is not rated by Insurance Watch Ratings Service)) shall,
after the date that any Lender with a Commitment to make Revolving Loans or
participate in Letters of Credit becomes a Lender, downgrade the long-term
certificate of deposit rating or long-term senior unsecured debt rating of such
Lender, and the resulting rating shall be below BBB-, Baa3 or C (or BB, in the
case of Lender that is an insurance company (or B, in the case of an insurance
company not rated by InsuranceWatch Ratings Service)) respectively, then the
applicable Issuer or the Borrower shall have the right, but not the obligation,
upon notice to such Lender and the Agents, to replace such Lender with an
Assignee Lender in accordance with and subject to the restrictions contained in
this Section, and such Lender hereby agrees to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in this
Section) all its interests, rights and obligations in respect of its Revolving
Loan Commitment under this Agreement to such Assignee Lender; provided,
however, that (i) no such assignment shall conflict with any law, regulation or
order of any governmental authority and (ii) such Assignee Lender shall pay to
such Lender in immediately available funds on the date of such assignment the
principal of and interest and fees (if any) accrued to the date of payment on
the Loans made, and Letters of Credit participated in, by such Lender hereunder
and all other amounts accrued for such Lender's account or owed to it
hereunder.
SECTION 10.11.2. Participations. Any Lender may at any time sell to one or
more commercial banks or other Persons (each such commercial bank and other
Person being herein called a "Participant") participating interests in any of
the Loans, Commitments, participations in Letters of Credit and Letters of
Credit Outstandings or other interests of such Lender hereunder; provided,
however, that
(a) no participation contemplated in this Section shall relieve such
Lender from its Commitments or its other obligations hereunder or under
any other Loan Document;
(b) such Lender shall remain solely responsible for the performance
of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Agents shall continue
to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and each of the other
Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any Participant that such
Lender will not, without such Participant's consent, agree to (i) any
reduction in the interest rate or amount of fees that such Participant is
otherwise entitled to, (ii) a decrease in the principal amount, or an
extension of the final Stated Maturity Date, of any Loan in which such
Participant has purchased a participating
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interest or (iii) a release of all or substantially all of the collateral
security under the Loan Documents or any Material Subsidiary that is a
Subsidiary Guarantor under the Subsidiary Guaranty, in each case except as
otherwise specifically provided in a Loan Document; and
(e) the Borrower shall not be required to pay any amount under
Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that is greater than the amount
which it would have been required to pay had no participating interest
been sold.
The Borrower acknowledges and agrees, subject to clause (e) above, that, to the
fullest extent permitted under applicable law, each Participant, for purposes
of Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender.
SECTION 10.12. Other Transactions. Nothing contained herein shall preclude
any Agent or any other Lender from engaging in any transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Affiliates in which the Borrower or such Affiliate is
not restricted hereby from engaging with any other Person.
SECTION 10.13. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS,
THE ISSUERS OR THE BORROWER RELATING THERETO SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY (TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) IN THE COURTS OF THE
STATE OF NEW YORK, NEW YORK COUNTY, OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK,
NEW YORK COUNTY, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE
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FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE
BORROWER HEREBY IRREVOCABLY WAIVES (TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW) SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
SECTION 10.14. Waiver of Jury Trial. THE AGENTS, THE ISSUERS, THE LENDERS
AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE ISSUERS, THE LENDERS OR
THE BORROWER RELATING THERETO. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.15. Confidentiality. The Agents, the Issuers, the Lead Arranger
and the Lenders shall hold all non-public information obtained pursuant to or
in connection with this Agreement or obtained by them based on a review of the
books and records of the Borrower or any of its Subsidiaries in accordance with
their customary procedures for handling confidential information of this
nature, but may make disclosure to any of their examiners, Affiliates, Related
Funds, investment advisors or Affiliates thereof, outside auditors, counsel and
other professional advisors in connection with this Agreement or as reasonably
required by any potential bona fide transferee, participant or assignee, or to
any direct or indirect contractual counterparties in swap agreements or such
contractual counterparties' professional advisors, or in connection with the
exercise of remedies under a Loan Document, or as requested by any governmental
or regulatory agency, any rating agency or the National Association of
Insurance Commissioners, or representative of any thereof or pursuant to legal
process; provided, however, that
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(a) unless specifically prohibited by applicable law or court order,
each Agent, each Issuer, the Lead Arranger and each Lender shall promptly
notify the Borrower of any request by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of such Agent, such Issuer, the
Lead Arranger and such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such
information;
(b) prior to any such disclosure pursuant to this Section 10.15, each
Agent, each Issuer, the Lead Arranger and each Lender shall require any
such bona fide transferee, participant and assignee receiving a disclosure
of non-public information to agree in writing
(i) to be bound by this Section 10.15; and
(ii) to require such Person to require any other Person to whom
such Person discloses such non-public information to be similarly
bound by this Section 10.15; and
(c) except as may be required by an order of a court of competent
jurisdiction and to the extent set forth therein, no Lender shall be
obligated or required to return any materials furnished by the Borrower or
any Subsidiary.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXXXX RIVER LABORATORIES, INC.
By:________________________________
Name:
Title:
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx
Telecopier: (000) 000-0000
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DLJ CAPITAL FUNDING, INC.,
as Syndication Agent and as a Lender
By:________________________________
Name:
Title:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Paradise
Telecopier: (000) 000-0000
Commitment Percentages:
-----------------------
Percentage of Revolving Loans:
Percentage of Term-A Loans:
Percentage of Term-B Loans:
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UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent and as a Lender
By:________________________________
Name:
Title:
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Commitment Percentages:
----------------------
Percentage of Revolving Loans:
Percentage of Term-A Loans:
Percentage of Term-B Loans:
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NATIONAL CITY BANK,
as Documentation Agent and as a Lender
By:________________________________
Name:
Title:
0000 Xxxx Xxxxx Xxxxxx
Mail Locator 2077
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
Commitment Percentages:
----------------------
Percentage of Revolving Loans:
Percentage of Term-A Loans:
Percentage of Term-B Loans:
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SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 6.7 Litigation.
Description of Proceeding Action or Claim Sought
------------------------- ----------------------
ITEM 6.8 Existing Subsidiaries.
ITEM 6.11 Employee Benefit Plans.
ITEM 6.12 Environmental Matters.
ITEM 7.1.11 Intellectual Property.
ITEM 7.1.12 Mortgaged Properties.
ITEM 7.2.2(a) Ongoing Indebtedness.
ITEM 7.2.2 (b) Ongoing Liens.
ITEM 7.2.5(a) Ongoing Investments.
SCHEDULE II
Percentages and Administrative Information
Revolving Term-A Term-B Address for Notices
Loan Loan Loan (other than Notices
Lender Commitment Commitment Commitment relating to LIBO Rate Loans) LIBOR Office
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DLJ Capital 64.2857143% 64.2857143% 100% 000 Xxxx Xxxxxx 277 Park Avenue
Funding, Inc. Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxx Paradise Attention: Xxxxx
Telephone: (000) 000-0000 Paradise
Telecopier: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Union Bank of 35.0000000% 35.7142857% 0% 000 Xxxxx Xxxxxxxx Xx. 000 Xxxxx Xxxxxxxx Xx.
Xxxxxxxxxx, N.A. Mail Code: 916-075 Mail Code: 916-075
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Telecopier: (000) 000-0000
III-2
