EXECUTION COPY
$1,100,000,000
AMENDED AND RESTATED
CREDIT AND GUARANTEE AGREEMENT
dated as of
February 26, 1998
and amended and restated as of August 23, 1999
among
SFX Entertainment, Inc.
SFX U.K. Holdings Limited
The Eligible Subsidiaries Referred to Herein
The Lenders Party Hereto
The LC Issuing Bank Referred to Herein
The Apollo LC Issuer Referred to Herein
Xxxxxx Commercial Paper Inc.,
as Syndication Agent
Societe Generale,
as Documentation Agent
and
The Bank of New York,
as Administrative Agent
-----------------------------
BNY Capital Markets, Inc.
Xxxxxx Brothers Inc.
Joint-Lead Arrangers and Joint-Lead Book Managers
TABLE OF CONTENTS
-----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................1
SECTION 1.02. Accounting Terms and Determinations............................35
SECTION 1.03. Classes and Types of Loans and Borrowings......................35
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend............................................36
SECTION 2.02. Method of Borrowing............................................37
SECTION 2.03. Maturity of Loans; Mandatory Repayments and
Prepayments of Loans; Mandatory Termination and
Reductions of Commitments......................................39
SECTION 2.04. Interest Rates.................................................45
SECTION 2.05. Method of Electing Interest Rates..............................46
SECTION 2.06. Fees...........................................................48
SECTION 2.07. Optional Termination or Reduction of Commitments...............50
SECTION 2.08. Optional Prepayments...........................................50
SECTION 2.09. Option of Tranche B Lenders Not to Accept Prepayments..........51
SECTION 2.10. General Provisions as to Payments..............................53
SECTION 2.11. Funding Losses.................................................55
SECTION 2.12. Computation of Interest and Fees...............................55
SECTION 2.13. Notes; Registry................................................55
SECTION 2.14. Letters of Credit..............................................57
SECTION 2.15. Apollo Letter of Credit........................................64
SECTION 2.16. Judgment Currency..............................................70
SECTION 2.17. Designation of Subsidiary as a Borrower; Termination of
Designation....................................................70
SECTION 2.18. Foreign Subsidiary Costs.......................................71
SECTION 2.19. Determining Dollar Amounts of Alternative Currency
Loans, Alternative Currency Letters of Credit and Apollo
Letters of Credit; Related Mandatory Prepayments...............72
SECTION 2.20. Additional Reserve Costs.......................................74
SECTION 2.21. Changes in Market Practice Following EMU.......................75
SECTION 2.22. General Cash Collateral Account; Term Loan-A Cash
Collateral Account.............................................75
SECTION 2.23. Fronted Swedish Kroner Loans...................................77
PAGE
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness..................................................81
SECTION 3.02. Consequence of Effectiveness...................................84
SECTION 3.03. Borrowings, Issuances of Letters of Credit and Issuances
of Apollo Letters of Credit....................................84
SECTION 3.04. Additional Conditions on Issuance of Apollo Letters of
Credit; First Borrowing by or Issuance of Letter of Credit
for Account of UKHC............................................85
SECTION 3.05. First Borrowing by Each Eligible Subsidiary....................88
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Organization.........................................91
SECTION 4.02. Authorization; No Conflict.....................................92
SECTION 4.03. Binding Effect.................................................92
SECTION 4.04. Financial Statements...........................................92
SECTION 4.05. Litigation.....................................................93
SECTION 4.06. Compliance with ERISA..........................................93
SECTION 4.07. Environmental Matters..........................................93
SECTION 4.08. Taxes..........................................................94
SECTION 4.09. Subsidiaries; Domestic Subsidiary Guarantors...................94
SECTION 4.10. No Regulatory Restrictions on Borrowing........................94
SECTION 4.11. Full Disclosure................................................94
SECTION 4.12. Properties.....................................................95
SECTION 4.13. Collateral Documents...........................................95
SECTION 4.14. No Burdensome Restrictions.....................................95
SECTION 4.15. Labor Matters..................................................95
SECTION 4.16. Compliance with Laws and Agreements............................95
SECTION 4.17. Solvency.......................................................96
SECTION 4.18. Status as Senior Debt..........................................96
SECTION 4.19. Year 2000 Compliance...........................................96
SECTION 4.20. Eligible Subsidiaries..........................................96
SECTION 4.21. UKHC...........................................................97
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PAGE
ARTICLE 5
COVENANTS
SECTION 5.01. Financial Statements and Other Information.....................98
SECTION 5.02. Payment of Obligations........................................101
SECTION 5.03. Maintenance of Property; Insurance............................101
SECTION 5.04. Conduct of Business and Maintenance of Existence..............102
SECTION 5.05. Compliance with Laws .........................................102
SECTION 5.06. Inspection of Property, Books and Records.....................102
SECTION 5.07. Mergers; Consolidations; Asset Sales..........................103
SECTION 5.08. Use of Proceeds and Letters of Credit.........................103
SECTION 5.09. Subordinated Debt.............................................104
SECTION 5.10. Negative Pledge...............................................104
SECTION 5.11. Limitation on Indebtedness....................................105
SECTION 5.12. Total Leverage Ratio..........................................106
SECTION 5.13. Senior Leverage Ratio.........................................107
SECTION 5.14. Pro Forma Interest Expense Ratio..............................107
SECTION 5.15. Pro Forma Debt Service Ratio..................................107
SECTION 5.16. Fixed Charges Ratio...........................................107
SECTION 5.17. Adjusted Total Debt to Rental Expense Ratio...................108
SECTION 5.18. Limitation on Adjusted Operating Cash Flow from Foreign
Subsidiaries..................................................108
SECTION 5.19. Restricted Payments...........................................108
SECTION 5.20. Investments...................................................108
SECTION 5.21. Acquisitions; Acquisition Deposits............................109
SECTION 5.22. Transactions with Affiliates..................................110
SECTION 5.23. Limitation on Restrictions Affecting Subsidiaries.............111
SECTION 5.24. Sale and Leaseback............................................111
SECTION 5.25. Limitation of Interest Rate Risk..............................111
SECTION 5.26. Year 2000.....................................................112
SECTION 5.27. Limitation on Activities by Certain Subsidiaries..............112
SECTION 5.28. Modification of Certain Documents.............................112
SECTION 5.29. Further Assurances............................................112
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default.............................................119
SECTION 6.02. Notice of Default.............................................122
SECTION 6.03. General Cash Collateral.......................................122
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PAGE
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization.................................122
SECTION 7.02. Agents and Affiliates.........................................123
SECTION 7.03. Action by Agents..............................................123
SECTION 7.04. Consultation with Experts.....................................123
SECTION 7.05. Liability of Agents...........................................123
SECTION 7.06. Indemnification...............................................124
SECTION 7.07. Credit Decision...............................................124
SECTION 7.08. Successor Administrative Agent................................124
SECTION 7.09. Agents' Fee...................................................124
SECTION 7.10. Other Agents and Arrangers....................................124
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair......125
SECTION 8.02. Illegality....................................................125
SECTION 8.03. Increased Cost and Reduced Return.............................126
SECTION 8.04. Taxes.........................................................127
SECTION 8.05. ABR Loans Substituted for Affected Euro-Currency Loans........130
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES
SECTION 9.01. Corporate Existence and Power.................................131
SECTION 9.02. Corporate and Governmental Authorization;
Contravention.................................................131
SECTION 9.03. Binding Effect................................................131
SECTION 9.04. Limited Activities............................................132
SECTION 9.05. Taxes.........................................................132
ARTICLE 10
COMPANY GUARANTY
SECTION 10.01. The Company Guaranty.........................................132
SECTION 10.02. Guaranty Unconditional.......................................133
SECTION 10.03. Discharge Only upon Payment in Full; Reinstatement in
Certain Circumstances........................................133
SECTION 10.04. Waiver by the Company........................................134
SECTION 10.05. Subrogation..................................................134
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PAGE
SECTION 10.06. Stay of Acceleration.........................................134
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices......................................................135
SECTION 11.02. No Waivers...................................................135
SECTION 11.03. Expenses; Indemnification....................................135
SECTION 11.04. Set-Offs.....................................................136
SECTION 11.05. Amendments and Waivers.......................................137
SECTION 11.06. Successors; Participations and Assignments...................140
SECTION 11.07. Designated Lenders...........................................142
SECTION 11.08. No Reliance on Margin Stock..................................143
SECTION 11.09. Governing Law; Judicial Proceedings..........................144
SECTION 11.10. Counterparts; Effectiveness..................................145
SECTION 11.11. WAIVER OF JURY TRIAL.........................................145
SECTION 11.12. Acknowledgment of Lender Addendum............................145
PRICING SCHEDULE
Schedule 4.09 -- Subsidiaries of the Company
Schedule 5.10 -- Existing Liens
Schedule 5.11 -- Existing Indebtedness
Schedule 5.20 -- Existing Investments
Schedule 5.29 -- Designated Mortgaged Properties
EXHIBIT A - NOTE
EXHIBIT B - FORM OF DOMESTIC SECURITY AGREEMENT
EXHIBIT C - FORM OF MORTGAGE
EXHIBIT D - FORM OF DOMESTIC SUBSIDIARY GUARANTEE
EXHIBIT E - FORM OF DOMESTIC SUBSIDIARY GUARANTEE SUPPLEMENT
EXHIBIT F - FORM OF UKHC ACQUISITION HOLDCO PLEDGE AGREEMENT
EXHIBIT G - FORM OF UKHC COMPOSITE GUARANTEE AND DEBENTURE
EXHIBIT H - [RESERVED]
EXHIBIT I - MASTER ASSIGNMENT AGREEMENT
EXHIBIT J - [RESERVED]
EXHIBIT K-1 - OPINION OF WINSTON & XXXXXX, SPECIAL COUNSEL FOR THE OBLIGORS
EXHIBIT K-2 - OPINION OF ASSOCIATE GENERAL COUNSEL OF THE COMPANY
vi
EXHIBIT L-1 - OPINION OF XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL FOR THE
ADMINISTRATIVE AGENT
EXHIBIT L-2 - OPINION OF XXXXXX XXXX, SPECIAL ENGLISH COUNSEL FOR THE
ADMINISTRATIVE AGENT
EXHIBIT L-3 - POST-EFFECTIVE OPINION OF XXXXXX XXXX, SPECIAL ENGLISH COUNSEL
FOR THE ADMINISTRATIVE AGENT
EXHIBIT M - FORM OF ELECTION TO PARTICIPATE
EXHIBIT N - FORM OF ELECTION TO TERMINATE
EXHIBIT O - OPINION OF COUNSEL FOR ELIGIBLE SUBSIDIARY
EXHIBIT P - FORM OF OPINION OF REAL ESTATE COUNSEL FOR THE OBLIGORS
EXHIBIT Q - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT R - DESIGNATION AGREEMENT
EXHIBIT S - FORM OF COMPLIANCE CERTIFICATE
EXHIBIT T - MANDATORY COSTS RATE
EXHIBIT U - EXISTING LETTERS OF CREDIT
vii
AGREEMENT dated as of February 26, 1998 and amended and restated as of
August 23, 1999 among SFX ENTERTAINMENT, INC., SFX U.K. HOLDINGS LIMITED, the
ELIGIBLE SUBSIDIARIES referred to herein, the LENDERS party hereto, the LC
ISSUING BANK referred to herein, the APOLLO LC ISSUER referred to herein, XXXXXX
COMMERCIAL PAPER INC., as Syndication Agent, SOCIETE GENERALE, as Documentation
Agent, and THE BANK OF NEW YORK, as Administrative Agent.
WITNESSETH:
WHEREAS, certain of the parties hereto have heretofore entered into a
Credit and Guarantee Agreement dated as of February 26, 1998 (the "EXISTING
CREDIT AGREEMENT"); and
WHEREAS, the parties hereto desire to amend and restate the Existing
Credit Agreement to read in its entirety as set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"ABR LOAN" means a Loan that bears interest based on the Alternate Base
Rate pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or the last sentence of Section 2.05(a) or Article 8.
"ABR MARGIN" has the meaning specified in the Pricing Schedule.
"ACQUISITION" means any acquisition, whether in a single transaction or
series of related transactions, by the Company or any one or more Subsidiaries,
or any combination thereof, of (i) all or a substantial part of the assets, or a
going business or division, of any Person, whether through purchase of assets or
securities, by merger or otherwise, (ii) control of at least a majority of
securities of an existing corporation or other Person ordinarily (apart from
rights accruing under special circumstances) having the right to vote in the
election of the board of directors of such corporation or other Person or (iii)
control of a greater than 50% ownership interest in any existing partnership,
joint venture or other Person.
"ACQUISITION CONSIDERATION" means, with respect to any Acquisition, the
sum of (i) the cash consideration to be paid in connection with such
Acquisition, plus (ii) the fair market value of all non-cash consideration paid
or agreed to be paid in connection with such Acquisition, plus (iii) an amount
equal to the principal or stated amount of all liabilities assumed or incurred
by any Obligor in connection with such Acquisition.
"ACQUISITION HOLDCO" means UKHC or any other Wholly Owned Foreign
Subsidiary of the Company which, (i) as a result of one or more Specified
Acquisitions or other Investments permitted hereunder, directly owns (or, after
giving effect to any such Specified Acquisition or other Investment, will
directly own) Capital Stock of one or more Foreign Operating Companies, and (ii)
does not (and will not, after giving effect to any Specified Acquisition or
other Investment hereunder) own any other assets, and "ACQUISITION HOLDCOS"
means all of the foregoing.
"ACQUISITION HOLDCO PLEDGE AGREEMENT" means a pledge agreement between
each Acquisition Holdco and the Administrative Agent, (i) in the case of UKHC,
substantially in the form of Exhibit F hereto, and (ii) in the case of each
other Acquisition Holdco, in such form and with such changes as may be required
or advisable pursuant to laws of the relevant jurisdiction as requested or
approved by the Administrative Agent, in each case as amended from time to time,
and "ACQUISITION HOLDCO PLEDGE AGREEMENTS" means all of the foregoing.
"ADJUSTED LONDON INTERBANK OFFERED RATE" has the meaning specified in
Section 2.04(b).
"ADJUSTED OPERATING CASH FLOW" means, for any period, Operating Cash
Flow in respect of such period, provided, however, that, for purposes of this
definition only, Operating Cash Flow shall be computed, on a consistent basis,
to reflect each of the following during such period as if they had occurred at
the beginning of such period: Material Venue lease expirations and terminations
(except to the extent replaced with other venues), and acquisitions and
dispositions made by the Company and its Consolidated Subsidiaries.
"ADJUSTED TOTAL DEBT" means, as of any date, the sum of (i) Total Debt
as of such date less cash and Temporary Cash Investments held by the Company and
its Subsidiaries at such time in excess of $5,000,000 plus (ii) the product of
(x) 8 multiplied by (y) Rental Expense for the most recently completed period of
four Fiscal Quarters.
2
"ADJUSTED TOTAL DEBT TO RENTAL EXPENSE RATIO" means, at any date, the
ratio of (i) Adjusted Total Debt as of such date to (ii) the sum of Adjusted
Operating Cash Flow and Rental Expense for the most recently completed period of
four Fiscal Quarters.
"ADMINISTRATIVE AGENT" means The Bank of New York, in its capacity as
administrative agent for the Lenders hereunder, and its successors in such
capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent,
completed by such Lender and returned to the Administrative Agent (with a copy
to the Company).
"AFFILIATE" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls the Company (a "CONTROLLING PERSON") or
(ii) any Person (other than the Company or a Subsidiary) which is controlled by
or is under common control with a Controlling Person. As used herein, the term
"CONTROL" means possession, directly or indirectly, of the power to vote 10% or
more of any class of voting securities of a Person or to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"AGENTS" means the Administrative Agent, the Syndication Agent and the
Documentation Agent and "AGENT" means any or all of the foregoing, as the
context may require.
"AGGREGATE APOLLO LC EXPOSURE" means, at any time, the sum, without
duplication, of (i) the aggregate Dollar Amount that is (or may thereafter
become) available for drawing under the Apollo Letters of Credit outstanding at
such time and (ii) the aggregate unpaid Dollar Amount of all Apollo LC
Reimbursement Obligations at such time. The Aggregate Apollo LC Exposure of any
Lender at any time shall be its Term Loan-A Percentage of the Aggregate Apollo
LC Exposure at such time.
"AGGREGATE REVOLVING LC EXPOSURE" means, at any time, the sum, without
duplication, of (i) the aggregate Dollar Amount that is (or may thereafter
become) available for drawing under all Letters of Credit outstanding at such
time and (ii) the aggregate unpaid Dollar Amount of all LC Reimbursement
Obligations at such time. The Aggregate Revolving LC Exposure of any Lender at
any time shall be its Revolving Credit Percentage of the Aggregate Revolving LC
Exposure at such time. For avoidance of doubt, Aggregate Revolving LC Exposure
does not include Aggregate Apollo LC Exposure.
3
"AGREEMENT" means the Existing Credit Agreement, as amended and
restated by this Amended Agreement and as the same may be further amended from
time to time.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"ALTERNATIVE CURRENCIES" means Sterling and Euro; provided that Swedish
Kroner shall also be an Alternative Currency if (i) the Company requests at any
time, by notice to the Administrative Agent, that such currency be included as
an additional Alternative Currency for purposes of this Agreement, (ii) such
currency is freely transferable and is freely convertible into Dollars in the
London foreign exchange market, (iii) deposits in such currency are customarily
offered to banks in the London interbank market and (iv) every Lender affected
by such Alternative Currency request, by notice to the Administrative Agent,
approves the inclusion of such currency as an additional Alternative Currency
for purposes hereof.
"ALTERNATIVE CURRENCY LETTER OF CREDIT" means a Letter of Credit that
is available for drawing in an Alternative Currency.
"ALTERNATIVE CURRENCY LOAN" means a Loan (including, without
limitation, a Fronted Swedish Kroner Loan) that is made in an Alternative
Currency (including, without limitation, a Fronted Swedish Kroner Loan) pursuant
to the applicable Notice of Borrowing. Any Loan in the currency of a
Participating Member State shall be denominated in Euro Units. Any Loan made in
the currency of a Participating Member State before the date on which such
Participating Member State adopts the Euro as its currency (the "ENTRY DATE")
and still outstanding on the Entry Date shall be prepaid on the last day of the
Interest Period applicable thereto on the Entry Date.
"AMENDED AGREEMENT" means this Amended and Restated Credit and
Guarantee Agreement dated as of August 23, 1999, as it may be amended from time
to time.
"APOLLO ACQUISITION" means the series of transactions consisting of (i)
the acquisition by the Company of 50% of the Capital Stock of Apollo Parent,
(ii) the acquisition by UKHC of 50% of the Capital Stock of Apollo Parent and
(iii) within 45 days after the consummation of the transactions described in
clauses (i) and (ii), the contribution by the Company to UKHC of 50% of the
Capital Stock of Apollo Parent, with the result that UKHC owns 100% of the
Capital Stock of Apollo Parent.
4
"APOLLO ACQUISITION DOCUMENTS" means (i) the Apollo Purchase Agreement
and (ii) the Apollo Loan Notes.
"APOLLO LC ISSUER" means The Bank of New York, London Branch, in its
capacity as the Apollo LC Issuer under the letter of credit facility described
in Section 2.15.
"APOLLO LC REIMBURSEMENT OBLIGATIONS" means, at any time, all
obligations of the Company or UKHC, as the case may be, to reimburse the Apollo
LC Issuer for amounts paid by the Apollo LC Issuer in respect of drawings under
Apollo Letters of Credit, including any portion of any such obligations to which
a Lender has become subrogated pursuant to Section 2.15(i)(i).
"APOLLO LETTER OF CREDIT" means a letter of credit issued by the Apollo
LC Issuer hereunder on or after the Effective Date for the account of the
Company or UKHC.
"APOLLO LOAN NOTES" means the Guaranteed (A) Loan Notes 2005 and the
Guaranteed (B) Loan Notes 2005 to be issued by the Company upon consummation of
the Apollo Acquisition and the Guaranteed (A) Loan Notes 2005 and the Guaranteed
(B) Loan Notes 2005 to be issued by UKHC upon consummation of the Apollo
Acquisition, as evidenced by Loan Note Instruments substantially in the form
distributed to the Lenders prior to the Effective Date, in an aggregate amount
for all such instruments not to exceed (pound)129.0 million.
"APOLLO MORTGAGED PROPERTIES" means each property owned or leased by
Apollo Parent or any of its Subsidiaries (i) with respect to which a certificate
of title has been (or will be) issued in connection with the consummation of the
Apollo Acquisition or (ii) which the Administrative Agent has requested be
subject to a Mortgage.
"APOLLO PARENT" means (i) prior to the consummation of the Apollo
Acquisition, Apollo Leisure Group plc, an English public limited company and
(ii) on and after the consummation of the Apollo Acquisition, Apollo Leisure
Group plc, an English private limited company.
"APOLLO PURCHASE AGREEMENT" means the Share Purchase Agreement dated as
of August 3, 1999 among the Company and the Apollo Sellers.
"APOLLO SELLERS" mean Xxxxx Xxx Xxxxx, Xxxx Xxxxxxx Xxxxx, Xxxxx
Xxxxxxx Xxxxxx, Xxxxx Xxxxx Xxxxxx, Xxxxxx Xxxx Xxxxxxxxx, Xxxxx Xxxxxxxx Xxxxx
and Xxxxx Xxxx Xxxxx.
5
"APOLLO SUBSIDIARY" means any one of the direct and indirect
Subsidiaries of Apollo Parent, and "APOLLO SUBSIDIARIES" means two or more of
them, as the context may require.
"APPLICABLE LENDING OFFICE" means, with respect to any Lender, (i) in
the case of its ABR Loans and its participations in Dollar-Denominated Letters
of Credit, its Domestic Lending Office and (ii) in the case of its Euro-Currency
Loans and its participation in Alternative Currency Letters of Credit and Apollo
Letters of Credit, its Euro-Currency Lending Office.
"APPLICABLE MARGIN" means, on any date, with respect to any ABR Loan or
Eurocurrency Loan of any Class, or with respect to any Letter of Credit
participation fee payable hereunder, or with respect to any Apollo Letter of
Credit participation fee payable hereunder, as the case may be, the "ABR
MARGIN", "EUROCURRENCY MARGIN", "LC FEE RATE" or "APOLLO LC FEE RATE", as the
case may be, which is applicable on such date in accordance with the Pricing
Schedule.
"ARRANGERS" means BNY Capital Markets, Inc. and Xxxxxx Brothers Inc.
"ASSET SALE" means any sale, lease or other disposition (including any
such transaction effected by way of merger or consolidation) (each, a
"DISPOSITION") by the Company or any of its Subsidiaries of any asset, including
without limitation any sale-leaseback transaction, whether or not involving a
capital lease, but excluding (i) any disposition of inventory, cash, cash
equivalents and other cash management investments and obsolete and unused or
unnecessary equipment, in each case in the ordinary course of business, (ii) any
disposition to the Company or a Domestic Subsidiary Guarantor and (iii) any
other sale, assignment, lease, transfer or other disposition of any property or
assets by the Borrower or any Subsidiary, provided that the fair market value of
all consideration received by the Borrower and its Subsidiaries in connection
with each such transaction (or related series of transactions) under this clause
(iii) shall not exceed $5,000,000.
"ASSIGNEE" has the meaning specified in Section 11.06(c).
"BORROWER" means the Company, UKHC or any Eligible Subsidiary, as the
context may require, and their respective successors, and "BORROWERS" means all
of the foregoing. When used in connection with a specific Loan, Borrowing,
Letter of Credit or Apollo Letter of Credit, the term "BORROWER" means the
obligor (or proposed obligor) with respect thereto.
"BORROWING" has the meaning specified in Section 1.03.
6
"CAPITAL STOCK" means, as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations,
rights in or other equivalents (however designated) of such Person's equity
(however designated) and any rights, warrants or options exchangeable for or
convertible into such shares, interests, participations, rights or other equity.
"CHANGE OF CONTROL" means the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that any "person" (as such term is used in Section 13(d)(3) of the Exchange
Act), other than Xxxxxx F.X. Sillerman ("SILLERMAN") and his Related Parties (as
hereinafter defined), becomes the "beneficial owner" (as such term is defined in
Rule 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such person has the
right to acquire, whether such right is currently exercisable or is exercisable
only upon the occurrence of a subsequent condition), directly or indirectly, of
more than 35% of the combined voting power of all classes of issued and
outstanding Capital Stock of the Company that is entitled to vote in the
election of the Board of Directors of the Company. For purposes of this
definition, "RELATED PARTIES" means, with respect to Sillerman, (i) a spouse or
immediate family member of Sillerman or (ii) any trust, corporation, partnership
or other entity, the beneficiaries, stockholders, owners, partners, owners or
Persons beneficially holding an 80% or more controlling interest of which
consist of Sillerman and or such other Persons referred to in the immediately
preceding clause (i).
"CLASS" has the meaning specified in Section 1.03.
"COLLATERAL" means the collateral subject to the Collateral Documents.
"COLLATERAL DOCUMENTS" means the Pledge Agreements, the Security
Agreements, the Mortgages (including each Foreign Borrower Subsidiary Mortgage),
any additional pledge agreements, security agreements or mortgages required to
be delivered pursuant to the Loan Documents (including without limitation
pursuant to Section 5.29 of this Agreement) and any instruments of assignment or
other instruments or agreements executed pursuant to the foregoing.
"COMMITMENT" means any Term Commitment or Revolving Commitment, and
"COMMITMENTS" means all or any combination of the foregoing, as the context may
require.
"COMMITMENT FEE RATE" has the meaning set forth in the Pricing
Schedule.
"COMPANY" means SFX Entertainment, Inc., a Delaware corporation, and
its successors.
7
"COMPANY'S 1998 FORM 10-K" means the Company's annual report on Form
10-K for 1998, as filed with the SEC pursuant to the Exchange Act.
"COMPANY'S LATEST FORM 10-Q" means the Company's quarterly report on
Form 10-Q for the quarter ended March 31, 1999, as filed with the SEC pursuant
to the Exchange Act.
"COMPLIANCE CERTIFICATE" has the meaning specified in Section 5.01(c).
"CONSOLIDATED CAPITAL EXPENDITURES" means for any period, the sum of
the aggregate of all expenditures (whether paid in cash or other consideration
or accrued as a liability) by the Company and its Consolidated Subsidiaries on a
consolidated basis in accordance with GAAP during such period for fixed or
capital assets (excluding any capitalized interest and any such asset acquired
in connection with normal replacement and maintenance programs properly charged
to current operations and excluding any replacement assets acquired with Major
Casualty Proceeds).
"CONSOLIDATED SUBSIDIARY" means, at any date, each Subsidiary or other
entity the accounts of which would be consolidated with those of the Company in
its consolidated financial statements if such statements were prepared as of
such date.
"CREDIT EXPOSURE" means, with respect to any Lender at any time, the
sum, without duplication, of (i) such Lender's Revolving Commitment (whether
used or unused) at such time or, if its Revolving Commitment shall have been
terminated in its entirety, the aggregate amount of such Lender's Revolving
Outstandings at such time plus (ii) the sum of (x) the aggregate amount of such
Lender's unused Term Loan-A Commitment at such time plus (y) the aggregate
amount of such Lender's Term Loan-A Outstandings at such time plus (iii) such
Lender's Term Loan-B Commitment at such time or, if its Term Loan-B Commitment
shall have terminated in its entirety, the aggregate outstanding Dollar Amount
of such Lender's Term Loans-B at such time.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other
8
similar transaction (including any option with respect to any of the foregoing
transactions) or any combination of the foregoing transactions.
"DESIGNATED LENDER" means, with respect to any Designating Lender, an
Eligible Designee designated by it pursuant to Section 11.07(a) as a Designated
Lender for purposes of this Agreement.
"DESIGNATED MORTGAGED PROPERTIES" means each property identified on
Schedule 5.29 hereto.
"DESIGNATING LENDER" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 11.07(a).
"DISQUALIFIED STOCK" means any Capital Stock of any Person that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder thereof), or upon the happening
of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the date that is 91 days after the date on
which those Subordinated Notes issued pursuant to the Subordinated Indenture
dated as of February 11, 1998 mature; provided, however, that (x) Capital Stock
that would constitute Disqualified Stock solely because the holders thereof have
the right to require such Person to repurchase such Capital Stock upon the
occurrence of certain events shall not constitute Disqualified Stock if the
terms of such Capital Stock provide that the Company may not repurchase or
redeem any such Capital Stock pursuant to such provisions unless such repurchase
or redemption complies with Section 5.19 of this Agreement, and (y) with respect
to the Company, the 750,000 shares of Class A common stock of the Company issued
to the sellers in connection with the acquisition of PACE Entertainment subject
to the right of such sellers to put such shares to the Company at a purchase
price of $22.00 per share (i.e. a total purchase price of up to $16,500,000)
shall constitute Disqualified Capital Stock only when the price of the Class A
common stock of the Company is less than $22 per share.
"DOCUMENTATION AGENT" means Societe Generale, in its capacity as
documentation agent in connection with the credit facility provided under this
Agreement.
"DOLLAR AMOUNT" means, at any time:
(i) with respect to any Dollar-Denominated Loan, the principal
amount thereof then outstanding;
9
(ii) with respect to any Dollar-Denominated Letter of Credit, the
aggregate amount that is (or may thereafter become) available for
drawing;
(iii) with respect to any LC Reimbursement Obligation in respect
of a Dollar-Denominated Letter of Credit, the aggregate unpaid amount
thereof;
(iv) with respect to any Alternative Currency Loan, the principal
amount thereof then outstanding in the relevant Alternative Currency,
converted to Dollars at the Spot Rate most recently used by the
Administrative Agent to determine or redetermine the Dollar Amount of
such Loan pursuant to Section 2.19(a);
(v) with respect to any Alternative Currency Letter of Credit or
Apollo Letter of Credit, the aggregate amount that is (or may
thereafter become) available for drawing in the relevant Alternative
Currency, converted to Dollars at the Spot Rate most recently used by
the Administrative Agent to determine or redetermine the Dollar Amount
of such Alternative Currency Letter of Credit or Apollo Letter of
Credit, as the case may be, pursuant to Section 2.19(b) or (c), as the
case may be; and
(vi) with respect to any Apollo LC Reimbursement Obligation or any
LC Reimbursement Obligation in respect of an Alternative Currency
Letter of Credit, the aggregate unpaid amount thereof in the relevant
Alternative Currency, converted to Dollars at the Spot Rate most
recently used by the Administrative Agent to determine or redetermine
the Dollar Amount of Alternative Currency Letters of Credit or Apollo
Letters of Credit, pursuant to Section 2.19(b) or (c), as the case
may be.
"DOLLAR-DENOMINATED BORROWING" means a Borrowing comprised of one or
more Dollar-Denominated Loans.
"DOLLAR-DENOMINATED LETTER OF CREDIT" means a Letter of Credit that is
available for drawing in Dollars.
"DOLLAR-DENOMINATED LOAN" means a Loan that is made in Dollars pursuant
to the applicable Notice of Borrowing.
"DOLLARS" and the sign "$" mean lawful currency of the United States.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to close.
10
"DOMESTIC LENDING OFFICE" means, as to each Lender, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Company and the Administrative Agent.
"DOMESTIC MORTGAGE DOCUMENTS" has the meaning specified in Section
5.29.
"DOMESTIC MORTGAGED PROPERTY" means each parcel of real property and
improvements thereto located in the United States with respect to which a
Mortgage is granted pursuant to Section 5.29.
"DOMESTIC OBLIGORS" means the Company and each of the Domestic
Subsidiary Guarantors.
"DOMESTIC SECURITY AGREEMENT" means the security agreement
substantially in the form of Exhibit B among the Domestic Obligors and the
Administrative Agent, as amended or supplemented from time to time.
"DOMESTIC SUBSIDIARY" means each Subsidiary that is not a Foreign
Subsidiary.
"DOMESTIC SUBSIDIARY GUARANTEE" means the guarantee agreement
substantially in the form of Exhibit D by each Domestic Subsidiary Guarantor for
the benefit of the Administrative Agent, as amended or supplemented from time to
time.
"DOMESTIC SUBSIDIARY GUARANTEE SUPPLEMENT" means a supplement to the
Domestic Subsidiary Guarantee and the Domestic Security Agreement, substantially
in the form of Exhibit E.
"DOMESTIC SUBSIDIARY GUARANTOR" means (i) each Domestic Subsidiary
which is a party to the Domestic Subsidiary Guarantee as of the Effective Date
and (ii) each Domestic Subsidiary which becomes a party to the Domestic
Subsidiary Guarantee pursuant to Section 5.29.
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 3.01.
"EFFECTIVE DATE COLLATERAL DOCUMENTS" means the Domestic Security
Agreement.
11
"ELECTION TO PARTICIPATE" means an Election to Participate
substantially in the form of Exhibit M hereto.
"ELECTION TO TERMINATE" means an Election to Terminate substantially in
the form of Exhibit N hereto.
"ELIGIBLE DESIGNEE" means a special purpose corporation that (i) is
organized under the laws of the United States or any state thereof, (ii) is
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Xxxxx'x.
"ELIGIBLE SUBSIDIARY" means any Acquisition Holdco as to which (i) an
Election to Participate, in form and substance satisfactory to the
Administrative Agent, shall have been signed by the Company and the Required
Lenders and delivered to the Administrative Agent and (ii) an Election to
Terminate shall not have been delivered to the Administrative Agent.
"EMA TELSTAR ACQUISITION" means the proposed acquisition by a Swedish
Acquisition Holdco of at least 75% of the Capital Stock of EMA Telstar, a
Swedish corporation.
"EMU LEGISLATION" means legislative measures of the Council of the
European Union for the introduction of, changeover to or operation of the Euro.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment or the effect of the environment on human health or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment, including (without limitation)
ambient air, surface water, ground water or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Hazardous Substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
12
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EURO" means the single currency of the Participating Member States in
the Third Stage.
"EURO-CURRENCY BUSINESS DAY" means a Euro-Dollar Business Day, unless
such term is used in connection with an Alternative Currency Borrowing or
Alternative Currency Loan, Alternative Currency Letter of Credit or Apollo
Letter of Credit, in which case such day shall not be a Euro-Currency Business
Day unless commercial banks are open for international business (including
dealings in deposits in such Alternative Currency) in both London and the place
designated by the Administrative Agent for funds to be paid or made available in
such Alternative Currency.
"EURO-CURRENCY LENDING OFFICE" means, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Currency Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Currency Lending Office by
notice to the Company and the Administrative Agent; provided that any Lender may
from time to time by notice to the Company and the Administrative Agent
designate separate Euro-Currency Lending Offices for its Loans in different
currencies and/or for its Loans to different Borrowers, in which case all
references herein to the Euro-Currency Lending Office of such Lender shall be
deemed to refer to any or all of such offices, as the context may require.
"EURO-CURRENCY LOAN" means either a Euro-Dollar Loan or an Alternative
Currency Loan.
"EURO-CURRENCY MARGIN" has the meaning specified in the Pricing
Schedule.
"EURO-CURRENCY RATE" means a rate of interest determined pursuant to
Section 2.04(b) on the basis of a London Interbank Offered Rate.
"EURO-CURRENCY RESERVE PERCENTAGE" means, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "EUROCURRENCY LIABILITIES" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Currency Loans is determined or any category of extensions of credit or
other
13
assets which includes loans by a non-United States office of any Lender to
United States residents).
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"EURO-DOLLAR LOAN" means a Dollar-Denominated Loan that bears interest
at a Euro-Currency Rate pursuant to the applicable Notice of Borrowing or Notice
of Interest Rate Election.
"EURO UNIT" means the currency unit of the Euro.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCESS CASH FLOW" means Operating Cash Flow for each Fiscal Year minus
the sum of the following during such Fiscal Year: (a) Fixed Charges, (b) with
respect to all Indebtedness of the Company and its Consolidated Subsidiaries
under revolving credit facilities (including, without limitation, the Revolving
Outstandings), an amount equal to the excess, if any, of (i) the aggregate
outstanding principal balance of all such Indebtedness at the beginning of such
period, minus (ii) the aggregate amount of all commitments under such revolving
credit facilities at the end of such period, and (c) with respect to all other
Indebtedness of the Company and its Consolidated Subsidiaries (to the extent not
covered by clause (a) or (b)), all repayments of such Indebtedness (excluding
all mandatory prepayments made pursuant to Section 2.03(f)) which were made
during such period.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"EXISTING CREDIT AGREEMENT" has the meaning specified in the recitals
at the beginning of this Agreement.
"EXISTING LENDER" means a "LENDER" (as such term is defined in the
Existing Credit Agreement) that is a party to the Existing Credit Agreement
immediately before the Effective Date.
"EXISTING LETTERS OF CREDIT" means the letters of credit either (i)
issued on or before the Effective Date and listed in Exhibit U hereto or (ii)
issued after the date hereof but before the Effective Date under (and in
accordance with the provisions of) the Existing Credit Agreement.
14
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day; provided that (i) if such day is not a Domestic Business
Day, the Federal Funds Rate for such day shall be such rate on such transactions
on the next preceding Domestic Business Day as so published on the next
succeeding Domestic Business Day and (ii) if no such rate is so published on
such next succeeding Domestic Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to The Bank of New York on such day on such
transactions as determined by The Bank of New York and reported to the
Administrative Agent.
"FINANCIAL ASSISTANCE LAWS" means the laws prohibiting the giving of
financial assistance set forth in Section 151, et seq. of The Companies Xxx 0000
of England, and similar laws of other jurisdictions.
"FINANCIAL OFFICER" means, as to any Person, the chief financial
officer of such Person or such other officer as shall be satisfactory to the
Administrative Agent.
"FISCAL QUARTER" means a fiscal quarter of the Company.
"FISCAL YEAR" means a fiscal year of the Company.
"FIXED CHARGES" means, for the most recently completed period of four
Fiscal Quarters, on a consolidated basis for the Company and its Consolidated
Subsidiaries, the sum of the following: (a) all interest expense paid during
such period, (b) commitment fees incurred with respect to Total Debt and paid
during such period, (c) principal amounts that became payable (whether or not
paid and whether at the stated maturity, by acceleration or by reason of
optional prepayment or redemption or otherwise) by the Company or any
Consolidated Subsidiary in respect of Indebtedness of the Company or its
Consolidated Subsidiaries during such period, (d) cash income taxes paid during
such period, and (e) Consolidated Capital Expenditures (excluding certain
special capital expenditures associated with the Xxxxx Beach Marine
Amphitheater, the Seattle Amphitheater and the PNC Bank Arts Center and
acceptable to the Administrative Agent) during such period.
"FIXED CHARGES RATIO" means, at any date for the most recently
completed four Fiscal Quarters (taken as one accounting period), the ratio of
(i) Operating Cash Flow for such period to (ii) Fixed Charges for such period.
15
"FOREIGN BORROWER" means UKHC or any Eligible Subsidiary, and "FOREIGN
BORROWERS" means all of the foregoing.
"FOREIGN BORROWER PLEDGE AGREEMENT" means a pledge agreement between
each Foreign Borrower and the Administrative Agent, (i) in the case of UKHC,
substantially in the form of Exhibit G hereto and (ii) in the case of each
Eligible Subsidiary, in such form and with such changes as may be required or
advisable pursuant to laws of the relevant jurisdiction as requested or approved
by the Administrative Agent, in each case as amended from time to time, and
"FOREIGN BORROWER PLEDGE AGREEMENTS" means all of the foregoing.
"FOREIGN BORROWER SUBSIDIARY GUARANTEE" means the guarantee agreement
by each Subsidiary of a Foreign Borrower for the benefit of the Administrative
Agent, (i) in the case of each Subsidiary of UKHC, substantially in the form of
Exhibit G and (ii) in the case of each Subsidiary of an Eligible Subsidiary, in
the form of Exhibit D with such changes as may be required or advisable pursuant
to laws of the relevant jurisdiction as requested or approved by the
Administrative Agent, in each case as amended from time to time.
"FOREIGN BORROWER SUBSIDIARY GUARANTOR" means each Subsidiary of a
Foreign Borrower which becomes a party to the Foreign Borrower Subsidiary
Guarantee pursuant to Section 3.04, 3.05 or 5.29, and "FOREIGN BORROWER
SUBSIDIARY GUARANTORS" means all of the foregoing.
"FOREIGN BORROWER SUBSIDIARY MORTGAGE" means a Mortgage or other
similar agreement or instrument between each Foreign Borrower Subsidiary
Guarantor party thereto, as mortgagor or trustor, and the Administrative Agent,
as mortgagee or beneficiary, (i) in the case of each Subsidiary of UKHC,
substantially in the form of Exhibit G hereto, and (ii) in the case of each
other Foreign Borrower Subsidiary Guarantor, in form and substance satisfactory
to the Administrative Agent (with such changes as may be required or advisable
pursuant to laws of the relevant jurisdiction as requested or approved by the
Administrative Agent), in each case as amended from time to time.
"FOREIGN BORROWER SUBSIDIARY PLEDGE AGREEMENT" means a pledge agreement
between each Foreign Borrower Subsidiary Guarantor and the Administrative Agent,
(i) in the case of each Subsidiary of UKHC, substantially in the form of Exhibit
G hereto and (ii) in the case of each other Foreign Borrower Subsidiary
Guarantor, in such form and with such changes as may be required or advisable
pursuant to laws of the relevant jurisdiction as requested or approved by the
Administrative Agent, in each case as amended from time to time, and "FOREIGN
BORROWER SUBSIDIARY PLEDGE AGREEMENTS" means all of the foregoing.
16
"FOREIGN BORROWER SUBSIDIARY SECURITY AGREEMENT" means a security
agreement between each Foreign Borrower Subsidiary Guarantor and the
Administrative Agent, (i) in the case of each Subsidiary of UKHC, substantially
in the form of Exhibit G hereto and (ii) in the case of each other Foreign
Borrower Subsidiary Guarantor, in such form and with such changes as may be
required or advisable pursuant to laws of the relevant jurisdiction as requested
or approved by the Administrative Agent, in each case as amended from time to
time, and "FOREIGN BORROWER SUBSIDIARY SECURITY AGREEMENTS" means all of the
foregoing.
"FOREIGN MORTGAGE DOCUMENTS" has the meaning specified in Section 5.29.
"FOREIGN MORTGAGED PROPERTY" means each parcel of real property and
improvements thereto located outside of the United States with respect to which
a Mortgage is granted pursuant to Section 3.04, 3.05 or 5.29.
"FOREIGN OBLIGORS" means the Foreign Borrowers and the Foreign Borrower
Subsidiary Guarantors, and "FOREIGN OBLIGOR" means any one of them.
"FOREIGN OPERATING COMPANY" means any Person (whether an operating
company or a Person that owns Capital Stock of one or more operating companies)
that becomes a Foreign Subsidiary as a result of its acquisition by an
Acquisition Holdco pursuant to a Specified Acquisition or other Investment
permitted hereunder, and "FOREIGN OPERATING COMPANIES" means two or more of the
foregoing.
"FOREIGN SUBSIDIARY" means any Subsidiary that is a "controlled foreign
corporation" within the meaning of Section 957 of the Internal Revenue Code of
1986, as amended from time to time.
"FRONTED SWEDISH KRONER LOAN" has the meaning set forth in Section
2.23.
"FRONTING LENDER" means The Bank of New York, in its capacity as
fronting Lender for any Alternative Currency Loan to be made, or Alternative
Currency Letter of Credit to be denominated, in Swedish Kroner.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied on a basis consistent (except for changes concurred in by
the Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Lenders.
17
"GENERAL CASH COLLATERAL ACCOUNT" has the meaning assigned to such term
in Section 2.22(a).
"GROUP OF LOANS" means, at any time, a group of Loans consisting of (i)
all Loans of the same Class to the same Borrower which are ABR Loans at such
time or (ii) all Euro-Currency Loans of the same Class to the same Borrower
which are in the same currency and have the same Interest Period at such time;
provided that, if a Loan of any particular Lender is converted to or made as a
ABR Loan pursuant to Article 8, such Loan shall be included in the same Group or
Groups of Loans from time to time as it would have been in if it had not been so
converted or made.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
or other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation (whether arising by virtue
of partnership arrangements, by virtue of an agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise), (ii) to reimburse a bank for amounts drawn
under a letter of credit for the purpose of paying such Indebtedness or other
obligation or (iii) entered into for the purpose of assuring in any other manner
the holder of such Indebtedness or other obligation of the payment thereof or to
protect such holder against loss in respect thereof (in whole or in part);
provided that the term "GUARANTEE" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "GUARANTEE" used as a
verb has a corresponding meaning.
"GUARANTOR" means any of the Domestic Subsidiary Guarantors, any of the
Foreign Borrower Subsidiary Guarantors, or the Company in its capacity as
guarantor of the obligations of UKHC and the Eligible Subsidiaries hereunder,
and "GUARANTORS" means two or more of them as the context may require.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives and
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics.
"INDEBTEDNESS" of any Person means, at any date without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person in respect of the deferred purchase price of property (other than
trade payables incurred in the ordinary course of business), (iii) all
obligations of such Person evidenced by notes, bonds, debentures or similar
instruments, (iv) all
18
obligations of such Person with respect to any conditional sale or title
retention agreement, (v) all obligations of such Person arising under acceptance
facilities and the amount available to be drawn under all letters of credit
issued for the account of such Person and, without duplication, all drafts drawn
thereunder to the extent such Person shall not have reimbursed the issuer in
respect of the issuer's payment thereof, (vi) liabilities secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned by such Person (other
than carriers', warehousemen's, mechanics', repairmen's or other like
non-consensual statutory liens arising in the ordinary course of business), even
though such Person has not assumed or otherwise become liable for the payment
thereof, (vii) all obligations of such Person as lessee which are capitalized in
accordance with GAAP, (viii) all obligations of such Person in respect of its
Disqualified Stock, if any, and (ix) all Guarantees by such person of
Indebtedness (of the types referred to in clauses (i) through (viii)) of others
(each such Guarantee to constitute Indebtedness in an amount equal to the amount
of such other Person's Indebtedness Guaranteed thereby). The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such person is not liable therefor.
"INDEMNITEE" has the meaning specified in Section 11.03(b).
"INFORMATION MEMORANDUM" means the confidential descriptive memorandum
dated July 1999 furnished to the Lenders in connection with the transactions
contemplated hereby.
"INTEREST PERIOD" means, with respect to each Euro-Currency Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in such notice; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Currency Business Day for the relevant currency shall,
subject to clauses (c) and (d) below, be extended to the next
succeeding Euro-Currency Business Day for such currency unless such
Euro-Currency Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Euro-Currency
Business Day for such currency;
(b) any Interest Period which begins on the last Euro-Currency
Business Day for the relevant currency in a calendar month (or on a day
19
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject to clauses (c)
and (d) below, end on the last Euro-Currency Business Day in a calendar
month;
(c) no Interest Period for any Revolving Loan shall extend beyond
the Revolving Credit Termination Date (or if such date is not a
Euro-Currency Business Day, the next preceding Euro-Currency Business
Day); and
(d) if any Interest Period pertaining to a Term Loan includes a
date on which a scheduled payment of principal of the Term Loans is
required to be made under Section 2.03(c) or 2.03(d) but does not end
on such date, then (i) the principal amount (if any) of each Term Loan
required to be repaid on such date shall have an Interest Period ending
on such date and (ii) the remainder (if any) of each such Term Loan
shall have an Interest Period determined as set forth above.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"INVESTMENT" means (i) any investment in any Person, whether by means
of share purchase, capital contribution, loan, Guarantee, time deposit or
otherwise (but not including any demand deposit) or (ii) any investment in any
Derivatives Obligation.
"LC FEE RATE" means a rate per annum determined in accordance with the
Pricing Schedule.
"LC INDEMNITEES" has the meaning specified in Section 2.14(l).
"LC ISSUING BANK" means The Bank of New York in its capacity as an LC
Issuing Bank under the letter of credit facility described in Section 2.14.
"LC OFFICE" means, with respect to the LC Issuing Bank, the office at
which it books any Letter of Credit issued by it.
"LC PAYMENT DATE" has the meaning specified in Section 2.14(h).
"LC REIMBURSEMENT DUE DATE" has the meaning specified in Section
2.14(i).
"LC REIMBURSEMENT OBLIGATIONS" means, at any time, all obligations of
the Borrowers to reimburse the LC Issuing Bank for amounts paid by the LC
Issuing Bank in respect of drawings under Letters of Credit, including any
portion
20
of any such obligations to which a Lender has become subrogated pursuant
to Section 2.14(j)(i).
"LENDER" means any Term Lender or Revolving Lender, and "Lenders" means
any or all of the foregoing, as the context may require.
"LENDER ADDENDUM" means, with respect to each Lender, a Lender Addendum
attached either to such Lender's signature page hereof or with respect to any
Lender that is an Assignee, attached to such Lender's Assignment and Assumption
Agreement, in each case setting forth the amounts of the Commitments (and, in
the case of an Assignee of outstanding Term Loans-B, the principal amounts of
such Term Loans-B) of such Lender.
"LENDER PARTIES" means the Lenders, the LC Issuing Bank, the Apollo LC
Issuer and the Agents, and "LENDER PARTY" means any of the foregoing, as the
context may require.
"LETTER OF CREDIT" means (i) an Existing Letter of Credit or (ii) a
letter of credit issued by the LC Issuing Bank hereunder on or after the
Effective Date.
"LETTER OF CREDIT TERMINATION DATE" means the tenth Domestic Business
Day prior to the Revolving Credit Termination Date.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect as a
security interest, in respect of such asset. For purposes hereof, the Company or
any Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"LIVENT ACQUISITION" means the acquisition by the Company of
substantially all of the assets of Livent Inc. pursuant to the Asset Purchase
Agreement dated as of May 28, 1999, as amended by Amendment No. 1 thereto dated
as of June 4, 1999, Amendment No. 2 thereto dated as of August 9, 1999, 1999,
and Amendment No. 3 thereto dated as of August 17, 1999, each among the Company,
Livent Inc., Livent (U.S.) Inc., Livent Realty (New York) Inc., Livent Realty
(Chicago) Inc. and Livent International Inc.
"LOAN" means any ABR Loan or Euro-Dollar Loan, and "Loans" means any
combination of the foregoing, as the context may require.
21
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters of
Credit, each Domestic Subsidiary Guarantee, each Foreign Borrower Subsidiary
Guarantee and the Collateral Documents.
"LONDON OFFICE" means the office of the Administrative Agent identified
on the signature pages hereof as its London office, or such other office of the
Administrative Agent as it may specify for such purpose by notice to the other
parties hereto.
"MAJOR CASUALTY PROCEEDS" means (i) the aggregate insurance proceeds
received in connection with one or more related events by the Company or any of
its Subsidiaries under any insurance policy maintained by the Company or any of
its Subsidiaries covering losses with respect to tangible real or personal
property or improvements or losses from business interruption or (ii) any award
or other compensation with respect to any condemnation of property (or any
transfer or disposition of property in lieu of condemnation) received by the
Company or any of its Subsidiaries if the amount of such aggregate proceeds or
award or other compensation exceeds $15,000,000.
"MARGIN STOCK" means "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System, as amended and in effect from
time to time.
"MASTER ASSIGNMENT AGREEMENT" means an assignment agreement among each
lender under the existing Credit Agreement that is not a Lender hereunder and
each of the Lenders, substantially in the form of Exhibit I hereto.
"MATERIAL ADVERSE EFFECT" means (i) any material adverse effect on the
condition (financial or otherwise), business, assets, properties, prospects,
operations, performance or capital structure of the Company and its
Subsidiaries, taken as a whole; (ii) any material adverse effect on the ability
of any Obligor to perform any of its obligations under the Loan Documents; or
(iii) any material adverse effect on any of the rights and remedies of the
Lender Parties under the Loan Documents.
"MATERIAL DEBT" means Indebtedness (except Indebtedness outstanding
hereunder) of the Company and/or one or more of its Subsidiaries, arising in one
or more related or unrelated transactions, in an aggregate principal or face
amount exceeding $5,000,000.
"MATERIAL FINANCIAL OBLIGATIONS" means a principal or face amount of
Indebtedness (except Indebtedness outstanding hereunder) and/or payment or
collateralization obligations in respect of Derivatives Obligations of the
Company
22
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, exceeding in the aggregate $5,000,000.
"MATERIAL PLAN" means, at any time, a Plan or Plans having aggregate
Unfunded Liabilities in excess of $1,000,000.
"MATERIAL SUBSIDIARY" means at any time any Subsidiary of the Company,
except Subsidiaries of the Company which, if aggregated and considered as a
single Subsidiary at such time, would not have either (i) total gross revenues
for the preceding four Fiscal Quarter period in excess of 5% of the total gross
revenues of the Company and its Consolidated Subsidiaries for such period or
(ii) total assets, as of the last day of the most recently ended Fiscal Quarter,
having a book value in excess of 5% of the aggregate book value of the assets of
the Company and its Consolidated Subsidiaries, in each case, based upon the most
recently available annual or quarterly financial statements of the Company and
its Consolidated Subsidiaries.
"MATERIAL VENUE" means as of any date, any Venue which contributes
$2,000,000 or more to Adjusted Operating Cash Flow for the most recently
completed period of four Fiscal Quarters.
"MATURITY DATE" means (i) with respect to Term Loans-A, December 31,
2005, (ii) with respect to Term Xxxxx-X, Xxxx 00, 0000, (xxx) with respect to
Revolving Loans, the Revolving Credit Termination Date and (iv) with respect to
any Apollo Letter of Credit, the sixth anniversary of the issuance of such
Apollo Letter of Credit.
"MCP/TMG ACQUISITION" means the proposed acquisition by UKHC of 100% of
the Capital Stock of, or all of the assets of, (i) Midland Concert Promotions
Group Limited, an English limited company, and (ii) The XxXxxxxx Group, an
English limited company.
"MOJO WORKS ACQUISITION" means the proposed acquisition by a Dutch
Acquisition Holdco of at least 75% of the Capital Stock of Mojo Works, B.V., a
Dutch corporation.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MORTGAGE" means each mortgage, deed of trust, deed to secure debt,
assignment of leases and rents, leasehold mortgage or other security document
(in the case of any such document to which a Domestic Subsidiary is party,
substantially in the form of Exhibit C hereto) between each Obligor party
thereto, as mortgagor or trustor, and the Administrative Agent, as mortgagee or
beneficiary, in each case as amended from time to time.
23
"MORTGAGE DOCUMENTS" means the Foreign Mortgage Documents or the
Domestic Mortgage Documents, as the context may require.
"MULTIEMPLOYER PLAN" means, at any time, an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"NATIONAL CURRENCY UNIT" or "NCU" means the unit of currency (other
than a Euro Unit) of a Participating Member State.
"NEJA/MCA ACQUISITION" means the proposed acquisition by the Company or
a Domestic Subsidiary of (i) the physical assets of Music Center Associates
L.L.P., an Illinois limited liability partnership, comprising the New World
Music Theater in Tinley Park, Illinois, and (ii) the remaining 50% limited
liability interest not already owned by the Company in NEJA Group, L.L.C., an
Illinois limited liability company.
"NET CASH PROCEEDS" means, with respect to any Reduction Event, an
amount equal to the cash proceeds received by the Company or any of its
Subsidiaries from or in respect of such Reduction Event (including any cash
proceeds received as income on, or other proceeds of, any noncash proceeds of
any Asset Sale), less (x) any expenses reasonably incurred by such Person in
respect of such Reduction Event, (y) if such Reduction Event is an Asset Sale,
(I) the amount of any Indebtedness secured by a Lien on any asset disposed of in
such Asset Sale and discharged from the proceeds thereof and (II) any taxes
actually paid by such Person (as reasonably estimated by a senior financial or
accounting officer of the Company, giving effect to the overall tax position of
the Company) in respect of such Asset Sale and (z) if the cash proceeds of such
Reduction Event are received by a Subsidiary which is not a wholly-owned
Subsidiary, Net Cash Proceeds shall include only the portion thereof
proportionately equivalent to the Company's direct and indirect interest in such
Subsidiary.
"NEW YORK OFFICE" means the office of the Administrative Agent
identified on the signature pages hereof as its New York office, or such other
office of the Administrative Agent as it may specify for such purpose by notice
to the other parties hereto.
"NOTES" means promissory notes of a Borrower, substantially in the form
of Exhibit A hereto (or, in the case of the Company, in the form of an amendment
and restatement of the promissory notes issued under the Existing Agreement,
which form shall be reasonably satisfactory to the Administrative Agent),
24
evidencing such Borrower's obligation to repay the Loans made to it, and "NOTE"
means any one of such promissory notes issued hereunder.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02.
"NOTICE OF INTEREST RATE ELECTION" has the meaning specified in Section
2.05.
"OBLIGORS" means all of the Domestic Obligors and the Foreign Obligors,
and "OBLIGOR" means any one of them.
"OPERATING CASH FLOW" means, for any period with respect to the Company
and its Consolidated Subsidiaries: (i) revenues minus (ii) expenses (excluding
depreciation, amortization, interest expense and income tax expense), minus
(iii) capitalized pre-production costs, plus (iv) certain non-recurring expense
items and non-cash expense items acceptable to the Administrative Agent, plus
(v) the lesser of (a) the equity income from Unconsolidated Investments, and (b)
cash dividends and other cash distributions received from Unconsolidated
Investments, in each case to the extent that the same would appear on a
consolidated income statement of the Company in respect of such period prepared
in accordance with GAAP, provided, however, that the total amount determined
under this clause (v) and added to Operating Cash Flow shall not exceed 10% of
Operating Cash Flow before corporate overhead, minus (vi) with respect to each
non wholly-owned Consolidated Subsidiary, the amount equal to (1) the Operating
Cash Flow attributable to such non wholly-owned Consolidated Subsidiary
multiplied by (2) the percentage of the ownership interests in such non
wholly-owned Consolidated Subsidiary which are not owned by the Company or any
other Guarantor.
"ORGANIZATIONAL DOCUMENTS" means (i) with respect to any corporation,
its certificate or articles of incorporation, by-laws and other constitutional
documents, including the certificate of designation for any series of its
preferred stock, (ii) with respect to any limited liability company, its
articles of organization and operating agreement, or other comparable documents
however named, and (iii) with respect to any partnership, its partnership
agreement.
"PARENT" means, with respect to any Lender, any Person controlling such
Lender.
"PARTICIPANT" has the meaning specified in Section 11.06(b).
"PARTICIPATING MEMBER STATES" means those members of the European Union
from time to time which adopt a single, shared currency in the Third Stage.
25
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERFECTION CERTIFICATE" means a certificate substantially in the form
of Annex A to the Security Agreement.
"PERSON" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"PLAN" means, at any time, an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PLEDGE AGREEMENTS" means all of the Acquisition Holdco Pledge
Agreements, the Foreign Borrower Pledge Agreements and the Foreign Borrower
Subsidiary Pledge Agreements, as the context may require, and "PLEDGE AGREEMENT"
means any one of the foregoing, as the context may require.
"PRICING SCHEDULE" means the Schedule attached hereto denominated as
such.
"PRIME RATE" means the rate of interest publicly announced by The Bank
of New York in New York City from time to time as its prime commercial lending
rate, such rate to be adjusted automatically (without notice) on the effective
date of any change in such publicly announced rate.
"PRO FORMA DEBT SERVICE" means, at any date, the sum of: (a) Pro Forma
Interest Expense plus (b) with respect to all Indebtedness of the Company and
its Consolidated Subsidiaries under revolving credit facilities (including,
without limitation, the Revolving Outstandings), an amount equal to the excess,
if any, of (i) the aggregate outstanding principal balance of all such
Indebtedness at such date, minus (ii) the aggregate amount of all commitments
under such revolving credit facilities which, as of such date, are scheduled to
remain in effect as of the end of the period of four Fiscal Quarters immediately
succeeding such date, plus (c) with respect to all other Indebtedness of the
Company and its Consolidated Subsidiaries, all repayments of such Indebtedness
which, as of such date, were scheduled to be made during the immediately
succeeding period of four Fiscal Quarters.
26
"PRO FORMA DEBT SERVICE RATIO" means, at any date, the ratio of (a)
Adjusted Operating Cash Flow for the most recently completed period of four
Fiscal Quarters, to (b) Pro Forma Debt Service for the period of four Fiscal
Quarters commencing immediately after the period utilized in determining
Adjusted Operating Cash Flow for purposes of clause (a) of this definition.
"PRO FORMA INTEREST EXPENSE" means, at any date, the sum of all
interest expense and all commitment fees payable in respect of Total Debt, in
each case of the Company and its Consolidated Subsidiaries on a consolidated
basis in accordance with GAAP, calculated for the period of four Fiscal Quarters
commencing on the first day of the Fiscal Quarter in which such date occurs,
giving effect to (a) the Total Debt outstanding and the rates in effect as of
such period end, and (b) principal amounts that are scheduled to become payable
by the Company or any Consolidated Subsidiary in respect of Indebtedness of the
Company or its Consolidated Subsidiaries during such period.
"PRO FORMA INTEREST EXPENSE RATIO" means, at any date, the ratio of (a)
Adjusted Operating Cash Flow for the most recently completed period of four
Fiscal Quarters, to (b) Pro Forma Interest Expense for the period of four Fiscal
Quarters commencing immediately after the period utilized in determining
Adjusted Operating Cash Flow for purposes of clause (a) of this definition.
"QUARTERLY PAYMENT DATES" means each March 31, June 30, September 30
and December 31.
"RATE FIXING DATE" means, with respect to any Interest Period, the day
on which quotes for deposits in the relevant currency for such Interest Period
are customarily taken in the London interbank market for delivery on the first
day of such Interest Period.
"REDUCTION EVENT" means (i) any Asset Sale or (ii) receipt by the
Company or any of its Subsidiaries of Major Casualty Proceeds; provided that
with respect to any such Major Casualty Proceeds, so long as no Default
specified in Section 6.01(a) or Event of Default has occurred and is continuing,
the receipt thereof shall not give rise to a Reduction Event to the extent that
within 365 days of receipt of such Major Casualty Proceeds, the Company or a
Subsidiary shall have actually expended such Major Casualty Proceeds for the
restoration or replacement of the asset in respect of which such Major Casualty
Proceeds were received, so that the Reduction Event, if any, occurring by reason
of the receipt of such Major Casualty Proceeds shall be deemed to occur on the
earlier of (a) such 365th day following receipt thereof as to the amount thereof
not expended as specified above and (b) the date on which the Company or the
relevant Subsidiary in receipt of such Major Casualty Proceeds determines that
such Major Casualty Proceeds will not be so expended.
27
"RELATED FUND" means, with respect to any Lender (or proposed Assignee
which becomes a Lender pursuant to Section 11.06(c)) that is a fund that invests
in bank loans, any other fund that invests in bank loans and is advised or
managed by the same investment advisor as such Lender, or by an Affiliate of
such Lender or investment advisor.
"RENTAL EXPENSE" means, for any period, amounts recorded during such
period as operating lease expenses on the financial statements of the Company
prepared in accordance with GAAP (excluding those operating lease expenses which
are contingent).
"REQUIRED LENDERS" means, at any time, Lenders having at least 51% in
aggregate amount of the Credit Exposures at such time.
"RESPONSIBLE OFFICER" means the President, the chief executive officer,
the chief financial officer, the chief accounting officer, the Treasurer or the
General Counsel of the Company.
"RESTRICTED PAYMENT" means, with respect to any Person, (i) any
dividend or other distribution on any shares of such Person's Capital Stock
(except dividends payable solely in shares of its Capital Stock other than
mandatorily redeemable preferred stock) or (ii) any payment on account of the
purchase, redemption, retirement or acquisition of (a) any shares of such
Person's Capital Stock or (b) any option, warrant or other right to acquire
shares of such Person's Capital Stock (but not including payments of principal,
premium (if any) or interest made pursuant to the terms of convertible debt
securities prior to conversion).
"REVOLVER COMMITMENT FEE RATE" has the meaning set forth in the Pricing
Schedule.
"REVOLVING COMMITMENT" means (i) with respect to each Revolving Lender,
the amount set forth opposite such Lender's name under the heading "Revolving
Commitment" in its Lender Addendum and (ii) with respect to any Assignee which
becomes a Revolving Lender pursuant to Section 11.06(c), the amount of the
Revolving Commitment thereby assumed by it, in each case as such amount may be
changed from time to time pursuant to Section 2.03, 2.07 or 11.06(c); provided
that, if the context so requires, the term "Revolving Commitment" means the
obligation of a Revolving Lender to extend credit up to such amount to the
Borrowers hereunder.
"REVOLVING CREDIT PERCENTAGE" means, with respect to any Revolving
Lender at any time, the percentage which the amount of its Revolving Commitment
at such time represents of the aggregate amount of all the Revolving
28
Commitments at such time. At any time after, the Revolving Commitments shall
have terminated, the term "REVOLVING CREDIT PERCENTAGE" shall refer to a
Revolving Lender's Revolving Credit Percentage immediately before such
termination, adjusted to reflect any subsequent assignments pursuant to Section
11.06(c).
"REVOLVING CREDIT PERIOD" means the period from and including the
Effective Date to but not including the Revolving Credit Termination Date.
"REVOLVING CREDIT TERMINATION DATE" means December 31, 2005, or if such
date is not a Euro-Currency Business Day, the next preceding Euro-Currency
Business Day.
"REVOLVING LENDER" means each Lender identified in its Lender Addendum
as having a Revolving Commitment and each Assignee which acquires a Revolving
Commitment and/or Revolving Loans pursuant to Section 11.06(c), and their
respective successors.
"REVOLVING LOAN" means a loan made by a Revolving Lender pursuant to
Section 2.01(c) or a loan made by the Fronting Lender pursuant to Section 2.23
and designated by the Borrower as a Revolving Loan hereunder.
"REVOLVING OUTSTANDINGS" means, at any time as to any Revolving Lender,
the sum of (i) the aggregate Dollar Amount of such Lender's Revolving Loans
(including, for this purpose, such Lender's Revolving Credit Percentage of the
aggregate Dollar Amount of Fronted Swedish Kroner Loans that are Revolving
Loans) plus (ii) such Lender's Revolving Credit Percentage of the Aggregate
Revolving LC Exposure at such time, all determined at such time after giving
effect to any prior assignments by or to such Lender pursuant to Section
11.06(c).
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SALE-LEASEBACK TRANSACTION" means any arrangement with any Person
providing for the leasing by the Company or any Subsidiary of any property that,
or of any property similar to and used for substantially the same purposes as
any other property that, has been or is to be sold, assigned, transferred or
otherwise disposed of by the Company or any of its Subsidiaries to such Person
with the intention of entering into such a lease.
"SEC" means the Securities and Exchange Commission.
29
"SECURITY AGREEMENTS" means the Domestic Security Agreement and all of
the Foreign Borrower Subsidiary Security Agreements, and "SECURITY AGREEMENT"
means any one of the foregoing, as the context may require.
"SENIOR DEBT" means Total Debt as of such date minus the Indebtedness
of the Company and its Subsidiaries in respect of the Subordinated Notes and
other permitted Subordinated Debt, to the extent that such Indebtedness would
appear on a consolidated balance sheet of the Company as at such date prepared
in accordance with GAAP.
"SENIOR LEVERAGE RATIO" means of any date, the ratio of (i) Senior Debt
as of such date less cash and Temporary Cash Investments held by the Company and
its Subsidiaries at such time in excess of $5,000,000 to (ii) Adjusted Operating
Cash Flow for the most recently completed period of four Fiscal Quarters.
"SPECIFIED ACQUISITIONS" means (i) the Apollo Acquisition, (ii) the
Livent Acquisition, (iii) the MCP/TMG Acquisition, (iv) the Mojo Works
Acquisition, (v) the EMA Telstar Acquisition and (vi) the NEJA/MCA Acquisition.
"SPOT RATE" means, for any Alternative Currency on any day, the spot
rate at which such Alternative Currency is offered for sale against Dollars as
shown on Reuters page FX, WRLD as of approximately 11:00 A.M. (London time) on
such day.
"STERLING" means the lawful currency of the United Kingdom.
"SUBORDINATED DEBT" means the Subordinated Notes and any other
subordinated debt issued by the Company which contains terms and conditions,
including subordination provisions, approved by the Administrative Agent.
"SUBORDINATED INDENTURES" means (i) the Indenture dated as of February
11, 1998 among the Company, the guarantors party thereto and The Chase Manhattan
Bank, as trustee, and (ii) the Indenture dated as of November 25, 1998 among the
Company, the guarantors party thereto and The Chase Manhattan Bank, as trustee,
in each case as amended, supplemented and modified through the Effective Date
and as each, subject to Section 5.09, may be further amended, supplemented or
modified pursuant to the terms thereof and "SUBORDINATED INDENTURE" means either
of the foregoing, as the context may require.
"SUBORDINATED NOTES" means, collectively, the 9-1/8% Series A Senior
Subordinated Notes due 2008 and the 9-1/8% Series B Senior Subordinated Notes
due 2008 issued by the Company pursuant to either Subordinated Indenture.
30
"SUBSIDIARY" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person. Unless
otherwise specified, "SUBSIDIARY" means a Subsidiary of the Company.
"SYNDICATION AGENT" means Xxxxxx Commercial Paper Inc., in its capacity
as syndication agent in connection with the credit facility provided under this
Agreement.
"TEMPORARY CASH INVESTMENT" means any Investment in (i) direct
obligations of the United States or any agency thereof or obligations guaranteed
by the United States or any agency thereof, (ii) commercial paper rated at least
A-1 by S&P and at least P-1 by Moody's, (iii) time deposits with, including
certificates of deposit issued by, any office located in the United States of
any bank or trust company which is organized or licensed under the laws of the
United States or any State thereof and has capital, surplus and undivided
profits aggregating at least $1,000,000,000, (iv) repurchase agreements with
respect to securities described in clause (i) above entered into with an office
of a bank or trust company meeting the criteria specified in clause (iii) above;
provided that any such Investment described in clause (i), (ii), (iii) or (iv)
above matures within one year after it is acquired by the Company or a
Subsidiary, (v) shares of money market mutual or similar funds which invest only
in assets satisfying the requirements of clause (i) through (iii) of this
definition, and (vi) with respect to Foreign Subsidiaries organized under the
laws of an Approved Country (as hereinafter defined), government obligations of
The United Kingdom and of any other country approved by the Administrative Agent
or whose debt securities are rated by S& P and Moody's A-1 or P-1, or the
equivalent thereof (if a short-term debt rating is provided by either) or at
least AA or Aa2, or the equivalent thereof (if a long-term unsecured debt rating
is provided by either) (each such country, an "APPROVED COUNTRY") in each case
with a maturity of less than 12 months.
"TERM COMMITMENTS" means the Term Loan-A Commitments and the Term
Loan-B Commitments, and "TERM COMMITMENT" means any of them, as the context may
require.
"TERM LENDERS" means the Term Loan-A Lenders and the Term Loan-B
Lenders, and "TERM LENDER" means any of them, as the context may require.
"TERM LOANS" means the Term Loans-A and the Term Loans-B, and "TERM
LOAN" means any of them, as the context may require.
31
"TERM LOAN-A" means a loan made by a Term Loan-A Lender pursuant to
Section 2.01(a) or a loan made by the Fronting Lender pursuant to Section 2.23
and designated by the Borrower as a Term Loan-A hereunder.
"TERM LOAN-A AVAILABILITY PERIOD" means the period from and including
the Effective Date to and including the sixth anniversary of the initial
issuance of an Apollo Letter of Credit hereunder (or if such date is not a Euro-
Currency Business Day, the next succeeding Euro-Currency Business Day).
"TERM LOAN-A CASH COLLATERAL ACCOUNT" has the meaning assigned to such
term in Section 2.22(b).
"TERM LOAN-A COMMITMENT" means (i) with respect to each Term Loan-A
Lender, the amount set forth opposite such Lender's name under the heading "Term
Loan-A Commitment" in its Lender Addendum, and (ii) with respect to any Assignee
which becomes a Term Loan-A Lender pursuant to Section 11.06(c), the amount of
the Term Loan-A Commitment thereby assumed by it, in each case as such amount
may be changed from time to time pursuant to Section 2.07 or 11.06(c); provided
that, if the context so requires, the term "Term Loan-A Commitment" means the
obligation of a Term Loan-A Lender to extend credit up to such amount to the
Borrowers hereunder.
"TERM LOAN-A COMMITMENT FEE RATE" has the meaning set forth in the
Pricing Schedule.
"TERM LOAN-A LENDER" means each Lender identified in its Lender
Addendum as having a Term Loan-A Commitment and each Assignee which acquires a
Term Loan-A Commitment and/or any Term Loan-A pursuant to Section 11.06(c), and
their respective successors.
"TERM LOAN-A OUTSTANDINGS" means, at any time as to any Term Loan-A
Lender, the sum of (i) the aggregate Dollar Amount of such Lender's Term Loans-A
(including, for this purpose, such Lender's Term Loan-A Percentage of the
aggregate Dollar Amount of Fronted Swedish Kroner Loans that are Term Loans-A)
plus (ii) such Lender's Term Loan-A Percentage of the Aggregate Apollo LC
Exposure at such time, all determined at such time after giving effect to any
prior assignments by or to such Lender pursuant to Section 11.06.
"TERM LOAN-A PERCENTAGE" means, with respect to any Term Loan-A Lender
at any time, the percentage which the amount of its Term Loan-A Commitment at
such time represents of the aggregate amount of all the Term Loan-A Commitments
at such time. At any time after, the Term Loan-A Commitments shall have
terminated, the term "TERM LOAN-A CREDIT PERCENTAGE" shall refer to a Term
Loan-A Lender's Term Loan-A Percentage
32
immediately before such termination, adjusted to reflect any subsequent
assignments pursuant to Section 11.06(c).
"TERM LOAN-B" means a loan made by a Term Loan-B Lender pursuant to
Section 2.01(b).
"TERM LOAN-B COMMITMENT" means (i) with respect to each Term Loan-B
Lender, the amount set forth opposite such Lender's name under the heading "Term
Loan-B Commitment" in its Lender Addendum, and (ii) with respect to any Assignee
which becomes a Term Loan-B Lender pursuant to Section 11.06(c), the amount of
the Term Loan-B Commitment thereby assumed by it, in each case as such amount
may be changed from time to time pursuant to Section 2.07 or 11.06(c); provided
that, if the context so requires, the term "Term Loan-B Commitment" means the
obligation of a Term Loan-B Lender to extend credit up to such amount to the
Borrowers hereunder.
"TERM LOAN-B LENDER" means each Lender identified in its Lender
Addendum as having a Term Loan-B Commitment and each Assignee which acquires a
Term Loan-B Commitment and/or any Term Loan-B pursuant to Section 11.06(c), and
their respective successors.
"THIRD STAGE" means the third stage of European economic and monetary
union pursuant to the Treaty on European Union.
"TOTAL DEBT" means Indebtedness of the Company and its Consolidated
Subsidiaries on a consolidated basis.
"TOTAL LEVERAGE RATIO" means, as of any date, the ratio of (i) Total
Debt as of such date less cash and Temporary Cash Investments held by the
Company and its Subsidiaries at such time in excess of $5,000,000 to (ii)
Adjusted Operating Cash Flow for the most recently completed period of four
Fiscal Quarters.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of March 25, 1957,
as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992, and came into force on November 1,
1993), as amended from time to time.
"TYPE" has the meaning specified in Section 1.03.
"UKHC" means SFX U.K. Holdings Limited, an English limited company, and
its successors.
33
"UNCONSOLIDATED INVESTMENTS" means, as of any date, any investment made
by the Company or any Subsidiary in any other person that, pursuant to GAAP as
in effect on such date, would not be consolidated with the Company for financial
reporting purposes immediately after giving effect to such investment.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNITED STATES" means the United States of America.
"VENUES" means each venue for a gathering hereafter owned or leased by
the Company or any of its Consolidated Subsidiaries, and "VENUE" means any one
of the foregoing.
"WHOLLY OWNED DOMESTIC SUBSIDIARY" means each Domestic Subsidiary all
the outstanding shares of which, other than directors' qualifying shares, shall
at the time be owned by the Company, or by the Company and one or more Wholly
Owned Domestic Subsidiaries, or by one or more Wholly Owned Domestic
Subsidiaries.
"WHOLLY OWNED FOREIGN SUBSIDIARY" means each Foreign Subsidiary all the
outstanding shares of which, other than directors' qualifying shares, shall at
the time be owned by the Company, or by the Company and one or more Wholly Owned
Foreign Subsidiaries, or by one or more Wholly Owned Foreign Subsidiaries.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with GAAP;
provided that, if the Company notifies the Administrative Agent that the Company
wishes to amend any provision hereof to eliminate the effect of any change in
GAAP (such notice to set forth in reasonable detail the nature of such change
and its effect on this Agreement) (or if the Administrative Agent notifies the
Company that the Required Lenders wish to amend any provision hereof for such
purpose), then such provision shall be applied on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is
34
withdrawn or such provision is amended in a manner satisfactory to the Company
and the Required Lenders.
SECTION 1.03. Classes and Types of Loans and Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more Lenders to be made
to the same Borrower pursuant to Article 2 on the same date, all of which Loans
are of the same Class and Type (subject to Article 8) and, in the case of Euro-
Currency Loans, have the same initial Interest Period. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make such a Loan or of a Borrowing comprised of such Loans) refers
to the determination whether such Loan is a Term Loan-A, Term Loan-B or
Revolving Loan, each of which constitutes a Class. The "Type" of a Loan refers
to the determination whether such Loan is a Euro-Currency Loan or an ABR Loan,
each of which constitutes a "TYPE". Identification of a Loan (or a Borrowing) by
both Class and Type (e.g., a "Euro-Currency Term Loan-A") indicates that such
Loan is both a Term Loan-A and a Euro-Currency Loan (or that such Borrowing is
comprised of such Loans).
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend. (a) Term Loan-A Facility. During the
Term Loan-A Availability Period, each Term Loan-A Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make Term Loans-A
(which may be denominated in Dollars or any Alternative Currency as the relevant
Borrower elects pursuant to Section 2.02) to the Company, UKHC and/or any
Eligible Subsidiary, as the case may be, from time to time; provided that (i)
immediately after each such Term Loan-A is made, the Term Loan-A Outstandings of
such Lender shall not exceed the amount of its Term Loan-A Commitment, (ii) no
more than three Term Loan-A Borrowings (counting (x) any Borrowing made
concurrently with the consummation of the Apollo Acquisition, together with (y)
any issuance of Apollo Letters of Credit concurrently with the consummation of
the Apollo Acquisition, together with (z) any Borrowing the proceeds of which
are used solely to repay Apollo LC Reimbursement Obligations, as a single
Borrowing for purposes of this clause (ii) only) shall be made during the Term
Loan-A Availability Period, and (iii) each Term Loan-A Borrowing shall be in an
aggregate Dollar Amount of not less than $25,000,000 (except that any such
Borrowing may be in the aggregate Dollar Amount of the unused Term Loan-A
Commitment and may be in the amount required to repay Apollo LC Reimbursement
Obligations). The Term Loan-A Commitments are not revolving in nature, and
amounts repaid or prepaid pursuant to Section 2.03 or 2.08 shall not be
reborrowed.
35
(b) Term Loan-B Facility. On the Effective Date, each Term Loan-B
Lender severally agrees, on the terms and conditions set forth in this
Agreement, to make a Term Loan-B (which must be denominated in Dollars) to the
Company in an aggregate Dollar Amount up to but not exceeding the amount of such
Lender's Term Loan-B Commitment. The Term Loan-B Commitments are not revolving
in nature, and amounts repaid or prepaid pursuant to Section 2.03 or 2.08 shall
not be reborrowed.
(c) Revolving Credit Facility. During the Revolving Credit Period, each
Revolving Lender severally agrees, on the terms and conditions set forth in this
Agreement, to make Revolving Loans (which may be denominated in Dollars or any
Alternative Currency, as the Borrower elects pursuant to Section 2.02) to the
Company, UKHC and/or any Eligible Subsidiary, as the case may be, from time to
time; provided that immediately after each such Revolving Loan is made, the
Revolving Outstandings of such Lender shall not exceed the amount of its
Revolving Commitment. Each ABR Revolving Borrowing shall be in the aggregate
principal amount of $1,000,000 or any larger multiple of $500,000 (except that
any such ABR Revolving Borrowing may be in the aggregate amount of the unused
Revolving Commitments). Each Euro-Currency Revolving Borrowing shall be in an
aggregate Dollar Amount which, taken together with the aggregate Dollar Amount
of all Euro-Currency Loans to be converted to, or continued as, Euro-Currency
Loans having the same Interest Period as such new Euro-Currency Revolving
Borrowing on the date of such new Borrowing, is equal to $5,000,000 or any
larger multiple of $1,000,000. Within the limits set forth in this Agreement,
the Borrowers may borrow under this subsection (c), prepay Revolving Loans to
the extent permitted by Section 2.08 or required by Section 2.19 and reborrow at
any time during the Revolving Credit Period under this subsection (c).
(d) Borrowings Ratable. Except as provided in Section 2.23, each
Borrowing under this Section 2.01 shall be made from the several Lenders ratably
in proportion to their respective Commitments of the relevant Class.
(e) Loans in Swedish Kroner. Notwithstanding anything to the contrary
in this Agreement, all Loans denominated in Swedish Kroner shall be made in
accordance with Section 2.23.
SECTION 2.02. Method of Borrowing. (a) The relevant Borrower shall give
the Administrative Agent notice (a "NOTICE OF BORROWING") (1) at its New York
Office not later than 10:30 A.M. (New York time) on (y) the date of each ABR
Borrowing and (z) the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing and (2) at its London Office not later than 10:30 A.M. (London time)
on the fourth Euro-Currency Business Day before each Borrowing in an Alternative
Currency, specifying:
36
(i) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a ABR Borrowing or a Euro-Currency Business Day in
the case of a Euro-Currency Borrowing;
(ii) the currency and aggregate amount (in such currency) of such
Borrowing;
(iii) the Class and initial Type of Loans comprising such
Borrowing; and
(iv) in the case of a Euro-Currency Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions
of the definition of Interest Period.
In no event shall the total number of Groups of Loans at any one time
outstanding exceed 12.
(b) Promptly after receiving a Notice of Borrowing (and, in the case of
a Borrowing in an Alternative Currency, no later than the third Euro-Currency
Business Day before such Borrowing), the Administrative Agent shall notify each
Lender of the contents thereof and of such Lender's ratable share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
(c) On the date of each Borrowing, each Lender having a Commitment of
the relevant Class shall make available its ratable share of such Borrowing:
(A) if such Borrowing is to be made in Dollars, in Dollars not
later than 2:00 P.M. (New York City time), in Federal or other funds
immediately available in New York City, to the Administrative Agent at
its New York office; or
(B) except as otherwise provided in Section 2.23, if such
Borrowing is to be made in an Alternative Currency, in such Alternative
Currency (in such funds as may then be customary for the settlement of
international transactions in such Alternative Currency) to the account
of the Administrative Agent at such time and place as shall have been
notified by the Administrative Agent to the Lenders by at least four
Euro-Currency Business Days' notice.
Unless the Administrative Agent determines that any applicable
condition specified in Article 3 has not been satisfied, the Administrative
Agent will make the funds so received from the Lenders available to the Borrower
at the Administrative Agent's aforesaid address.
37
(d) If any Revolving Lender makes a Revolving Loan hereunder on a day
on which any Borrower is to repay all or any part of an outstanding Revolving
Loan in the same currency from such Revolving Lender, such Revolving Lender
shall apply the proceeds of its Revolving Loan to make such repayment and only
an amount equal to the difference (if any) between the amount being borrowed and
the amount being repaid shall be made available by such Revolving Lender to the
Administrative Agent as provided in Section 2.02(b), or remitted by the relevant
Borrower to the Administrative Agent as provided in Section 2.10, as the case
may be.
(e) Unless the Administrative Agent shall have received at its New York
Office notice from a Lender having a Commitment of the relevant Class before the
date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available to the
Administrative Agent on the date of such Borrowing in accordance with Section
2.02(c) and (d) and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such share
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) if such amount is repaid by the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable to such Borrowing pursuant to Section 2.04 and (ii) if
such amount is repaid by such Lender, the Federal Funds Rate (if such Borrowing
is in Dollars) or the applicable Adjusted London Interbank Offered Rate (if such
Borrowing is in an Alternative Currency). If such Lender shall repay to the
Administrative Agent such corresponding amount, the Borrower shall not be
required to repay such amount and the amount so repaid by such Lender shall
constitute such Lender's Loan included in such Borrowing for purposes of this
Agreement.
SECTION 2.03. Maturity of Loans; Mandatory Repayments and Prepayments
of Loans; Mandatory Termination and Reductions of Commitments. (a) Each Loan of
each Class shall mature, and the outstanding principal amount thereof shall be
due and payable (together with accrued interest thereon), on the Maturity Date
for such Class of Loans.
(b) Unless previously terminated, (i) the Term Loan-A Commitments that
exceed the aggregate amount of the Term Loan-A Outstandings on February 23, 2000
shall terminate on such date, and the remainder of the Term Loan-A Commitments
shall terminate in their entirety on the last day of the Term Xxxx-X
00
Xxxxxxxxxxxx Xxxxxx, (xx) the Term Loan-B Commitments shall terminate in their
entirety at the close of business on the Effective Date and (iii) the Revolving
Commitments shall terminate in their entirety on the Revolving Credit
Termination Date. The Term Loan-A Commitments shall be reduced, on each date on
which Apollo LC Reimbursement Obligations are repaid, by an amount equal to such
repayment.
(c) Term Loan-A Scheduled Amortization. In addition, on each date set
forth below, there shall become due and payable, and each Borrower shall pay its
ratable share of, an aggregate amount of cash equal to the amount set forth
below opposite such date (as such amount may be reduced pursuant to Section
2.03(f) and Section 2.08). Each such payment shall be applied, first, to repay
any outstanding Term Loans-A, and second, following repayment in full of all
outstanding Term Loans-A, to provide cover for Aggregate Apollo LC Exposure;
provided that to the extent any such payment is made to provide cover for
Aggregate Apollo LC Exposure, it shall be paid in Sterling in an amount, based
on the Spot Rate on such day, equivalent to the Dollar Amount required to be
paid pursuant to this subsection. Any such cash payments applied to repay
outstanding Term Loans-A shall be applied to such Group or Groups of Loans as
the Company may designate on or before the third Euro-Currency Business Day
prior to the date thereof (or, failing such designation, as determined by the
Administrative Agent), and shall be applied to repay ratably the Loans of the
several Lenders included in such Group or Groups. Cover for Aggregate Apollo LC
Exposure shall be effected by paying to the Administrative Agent Sterling, in
such funds as may then be customary for the settlement of international
transactions in Sterling, to be held by the Administrative Agent in the Term
Loan-A Cash Collateral Account, in an amount required by the first two sentences
of this subsection (after giving effect to repayments of the Term Loans-A
pursuant to the second sentence of this subsection), which amount shall be
retained by the Administrative Agent in such Term Loan-A Cash Collateral Account
until such time as the Apollo Letter of Credit shall have been terminated and
all of the Aggregate Apollo LC Exposure paid in full; provided that if all other
amounts payable hereunder shall have been paid in full and no Default shall have
occurred and be continuing, the Administrative Agent shall from time to time
upon the request of the relevant Borrower return to the relevant Borrower such
portion of such amount as the Administrative Agent in its sole discretion
determines is no longer needed to provide cover for Aggregate Apollo LC Exposure
and related fees and expenses payable under this Agreement.
DATE AMOUNT
---- ------
March 31, 2001 $ 9,375,000
June 30, 2001 $ 9,375,000
September 30, 2001 $ 9,375,000
December 31, 2001 $ 9,375,000
39
March 31, 2002 $ 9,375,000
June 30, 2002 $ 9,375,000
September 30, 2002 $ 9,375,000
December 31, 2002 $ 9,375,000
March 31, 2003 $ 12,500,000
June 30, 2003 $ 12,500,000
September 30, 2003 $ 12,500,000
December 31, 2003 $ 12,500,000
March 31, 2004 $ 15,625,000
June 30, 2004 $ 15,625,000
September 30, 2004 $ 15,625,000
December 31, 2004 $ 15,625,000
March 31, 2005 $ 15,625,000
June 30, 2005 $ 15,625,000
September 30, 2005 $ 15,625,000
December 31, 2005 $ 15,625,000
(d) Term Loan-B Scheduled Amortization. In addition, on each date set
forth below, there shall become due and payable, and each Borrower shall pay its
ratable share of, an aggregate principal amount of the Term Loans-B equal to the
amount set forth below opposite such date (as such amount may be reduced
pursuant to Section 2.03(f) and Section 2.08). Each such payment shall be
applied to such Group or Groups of Loans as the Company may designate on or
before the third Euro-Currency Business Day prior to the date thereof (or,
failing such designation, as determined by the Administrative Agent), and shall
be applied to repay ratably the Loans of the several Lenders included in such
Group or Groups.
40
DATE AMOUNT
---- ------
September 30, 2001 $ 1,500,000
December 31, 2001 $ 1,500,000
March 31, 2002 $ 1,500,000
June 30, 2002 $ 1,500,000
September 30, 2002 $ 1,500,000
December 31, 2002 $ 1,500,000
March 31, 2003 $ 1,500,000
June 30, 2003 $ 1,500,000
September 30, 2003 $ 1,500,000
December 31, 2003 $ 1,500,000
March 31, 2004 $ 1,500,000
June 30, 2004 $ 1,500,000
September 30, 2004 $ 1,500,000
December 31, 2004 $ 1,500,000
March 31, 2005 $ 1,500,000
June 30, 2005 $ 1,500,000
September 30, 2005 $144,000,000
December 31, 2005 $144,000,000
March 31, 2006 $144,000,000
June 30, 2006 $144,000,000
(e) Scheduled Reduction of Revolving Commitments. In addition, on each
date set forth below, the Revolving Commitments shall be reduced in an aggregate
principal amount equal to the amount set forth below opposite such date (as such
amount may be reduced pursuant to Section 2.03(f) and Section 2.08).
DATE AMOUNT
---- ------
March 31, 2003 $ 15,625,000
June 30, 2003 $ 15,625,000
September 30, 2003 $ 15,625,000
December 31, 2003 $ 15,625,000
March 31, 2004 $ 15,625,000
June 30, 2004 $ 15,625,000
September 30, 2004 $ 15,625,000
December 31, 2004 $ 15,625,000
March 31, 2005 $ 31,250,000
June 30, 2005 $ 31,250,000
September 30, 2005 $ 31,250,000
December 31, 2005 $ 31,250,000
(f) Contingent Prepayments and Reductions. In addition, the Borrowers
shall prepay the Term Loans (and, following repayment in full of all Term Loans-
A, shall provide cover for Aggregate Apollo LC Exposure), and the Revolving
41
Commitments shall be reduced (and, if required pursuant to subsection (h) of
this Section, the Revolving Loans shall be prepaid or cover shall be provided
for Aggregate Revolving LC Exposure), in the following amounts:
(i) in the event that the Company or any of its Subsidiaries shall
at any time, or from time to time, receive after the date hereof any
Net Cash Proceeds of any Reduction Event, an amount equal to 100% of
such Net Cash Proceeds; provided that, so long as no Default specified
in Section 6.01(a) or Event of Default has occurred and is continuing,
receipt of Net Cash Proceeds of an Asset Sale shall require prepayment
of the Term Loans (and, following repayment in full of all Term
Loans-A, cover for Aggregate Apollo LC Exposure) and reduction of the
Revolving Commitments (and, if required pursuant to subsection (h) of
this Section, prepayment of Revolving Loans and cover for Aggregate
Revolving LC Exposure) only to the extent that such Net Cash Proceeds
are not actually expended within 365 days of receipt for reinvestment
in other assets, owned by the Company or a Subsidiary, to be used in
the same line or lines of business in which the Company and its
Subsidiaries are engaged on the Effective Date; and
(ii) an amount, for each Fiscal Year (beginning with the Fiscal
Year ending December 31, 2001), equal to 50% of Excess Cash Flow for
such Fiscal Year.
(g) Application of Prepayments and Reductions. (i) The prepayments and
reductions required pursuant to subsection (f) of this Section shall be applied
ratably to prepay the Term Loans-A (and, following repayment in full of the Term
Loans-A, to provide cover for the Aggregate Apollo LC Exposure) and Term Loans-B
and to reduce the Revolving Commitments in accordance with the then outstanding
aggregate principal amounts of the Term Loans-A (and, following repayment in
full of the Term Loans-A, in accordance with the then outstanding Aggregate
Apollo LC Exposure) and the Term Loans-B and the aggregate amount of the
Revolving Commitments then in effect.
(ii) Each prepayment of any Class of Term Loans shall be applied
ratably to the respective Term Loans of such Class of all Term Loan
Lenders.
(iii) The amount of any prepayments of Term Loans-A (and,
following repayment in full of all the Term Loans-A, the amount of
cover provided for Aggregate Apollo LC Exposure) pursuant to subsection
(f) of this Section shall be applied to reduce pro rata the amount of
the subsequent scheduled payments pursuant to subsection (c) of this
Section.
42
(iv) The amount of any prepayments of Term Loans-B pursuant to
subsection (f) of this Section shall be applied to reduce pro rata the
amount of the subsequent scheduled prepayments of the Term Loans-B
pursuant to subsection (d) of this Section.
(v) The amount of any reductions of the Revolving Commitments
pursuant to subsection (f) of this Section shall be applied to reduce
pro rata the amount of the subsequent scheduled reductions of the
Revolving Commitments pursuant to subsection (e) of this Section.
(vi) Each payment of principal of the Term Loans of any Class
shall be made together with interest accrued and unpaid on the amount
repaid to the date of payment.
(vii) Each prepayment of the Term Loans of any Class shall be
applied to such Group or Group of Terms Loans of such Class as the
Company may designate.
(h) Mandatory Prepayments of Revolving Loans. On the date of
effectiveness (determined pursuant to subsection (i) of this Section) of any
reduction of the Revolving Commitments pursuant to subsection (e) or (f) of this
Section, the Borrowers shall prepay Revolving Loans or provide cover for the
Aggregate Revolving LC Exposure in such aggregate Dollar Amount (together with
accrued interest thereon) as shall be necessary so that, immediately after
giving effect to such payment, the aggregate amount of the Revolving
Outstandings of all Lenders minus the amount of any cover for Aggregate
Revolving LC Exposure then held by the Administrative Agent pursuant to this
clause (h) does not exceed the Revolving Commitments as then reduced, first, by
prepaying the Revolving Loans and second, following payment in full of all the
Revolving Loans, by providing cover for Aggregate Revolving LC Exposure. Cover
for Aggregate Revolving LC Exposure shall be effected by paying to the
Administrative Agent, (x) with respect to Aggregate Revolving LC Exposure in
respect of Dollar-Denominated Letters of Credit, Dollars in Federal or other
immediately available funds, and (y) with respect to Aggregate Revolving LC
Exposure in respect of Alternative Currency Letters of Credit, the relevant
Alternative Currency in such funds as may then be customary for the settlement
of international transactions in such Alternative Currency, in each case to be
held by the Administrative Agent in the General Cash Collateral Account, in an
amount required by the preceding sentence (after giving effect to repayments and
prepayments of the Revolving Loans pursuant to the preceding sentence), which
amount shall be retained by the Administrative Agent in such General Cash
Collateral Account until such time as the Letters of Credit shall have been
terminated and all of the Aggregate Revolving LC Exposure paid in full; provided
that if the Revolving Commitments shall have been terminated, all other amounts
43
payable hereunder shall have been paid in full and no Default shall have
occurred and be continuing, the Administrative Agent shall from time to time
upon the request of the relevant Borrower return to the relevant Borrower such
portion of such amount as the Administrative Agent in its sole discretion
determines is no longer needed to provide cover for Aggregate Revolving LC
Exposure and related fees and expenses payable under this Agreement.
(i) Timing of Prepayments and Reductions. Prepayment of the Loans and
payment of cover for Aggregate Apollo LC Exposure pursuant to subsection (f) of
this Section shall be made on, and reductions of the Commitments pursuant to
subsection (f) of this Section shall be effective on and as of, (x) in the case
of Net Cash Proceeds, the date of receipt of the relevant Net Cash Proceeds and
(y) in the case of Excess Cash Flow, on the 100th day following the last day of
each Fiscal Year (beginning with the Fiscal Year ending December 31, 2001);
provided that (i) if the aggregate amount of the Net Cash Proceeds in respect of
any Reduction Event is less than $5,000,000, such reduction shall be effective
upon receipt of proceeds such that, together with all other such amounts not
previously applied, the aggregate amount of such Net Cash Proceeds is equal to
at least $5,000,000; and (ii) if any such reduction would otherwise require
prepayment of Euro-Currency Loans or portions thereof prior to the last day of
the related Interest Period, such reduction (or portion thereof) shall, unless
the Administrative Agent otherwise notifies the Company upon the instructions of
the Required Lenders, be deferred to such last day.
(j) Notice of Prepayments and Reductions. The Company shall give the
Administrative Agent notice of prepayment at its New York Office not later than
10:30 A.M. (New York time) on the third Euro-Currency Business Day before each
prepayment of the Loans, each payment of cover for Aggregate Apollo LC Exposure
and each reduction of the Revolving Commitments required pursuant to this
Section. Promptly after receiving a notice pursuant to this subsection, the
Administrative Agent shall notify each affected Lender of the contents thereof,
and such notice shall not thereafter be revocable by the Company.
SECTION 2.04. Interest Rates. (a) Each ABR Loan of each Class shall
bear interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to the
sum of (x) the Alternate Base Rate for such day plus (y) the Applicable Margin.
Such interest shall be payable on the relevant Maturity Date, quarterly in
arrears on each Quarterly Payment Date prior to maturity and, with respect to
the principal amount of any ABR Loan that is prepaid or converted to a
Euro-Dollar Loan, on the date of such prepayment or conversion. Any overdue
principal of or interest on any ABR Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 2% plus the
Alternate Base Rate for such day plus the Applicable Margin.
44
(b) Each Euro-Currency Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of (x) the Adjusted London
Interbank Offered Rate applicable to such Interest Period plus (y) the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three months,
at intervals of three months after the first day thereof and, with respect to
the principal amount of any Euro-Currency Loan that is prepaid or converted to
an ABR Loan, on the date of such prepayment or conversion.
The "ADJUSTED LONDON INTERBANK OFFERED RATE" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing (i) the applicable London
Interbank Offered Rate by (ii) 1.00 minus the Euro-Currency Reserve Percentage.
The "LONDON INTERBANK OFFERED RATE" applicable to any Interest Period
means the rate per annum, as reported by The Bank of New York to the
Administrative Agent, equal to the offered quotation by The Bank of New York to
leading banks in the London interbank market for deposits of amounts in the
relevant currency comparable to the outstanding principal amount of the Euro-
Currency Loans for which an interest rate is then being determined with
maturities comparable to the Interest Period to be applicable to such
Euro-Currency Loans, determined as of 11:00 A.M. (London time) on the Rate
Fixing Date.
(c) Any overdue interest on any Euro-Currency Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
higher of (i) the sum of 2% plus the rate otherwise applicable to such
Euro-Currency Loan pursuant to subsections (a) and (b) of this Section, and (ii)
the sum of 2% plus the Alternate Base Rate for such day plus the Applicable
Margin.
(d) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall promptly
notify the Borrower and the participating Lenders of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(e) The Bank of New York agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If The
Bank of New York does not furnish a timely quotation, the provisions of Section
8.01 shall apply.
SECTION 2.05. Method of Electing Interest Rates. (a) Dollar Denominated
Loans. (i) The Dollar-Denominated Loans included in each Borrowing shall
45
initially be of the Type specified by the Borrower in the applicable Notice of
Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the Type of each Group of Dollar-Denominated Loans (subject to Section
2.05(a)(iv) and the provisions of Article 8), as follows:
(A) if such Loans are ABR Loans, the Borrower may elect to convert
such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day; and
(B) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to ABR Loans as of any Domestic Business Day, or may
elect to continue such Loans as Euro-Dollar Loans, as of the end of any
Interest Period applicable thereto, for an additional Interest Period,
subject to Section 2.11 if any such conversion is effective on any day
other than the last day of an Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "NOTICE OF INTEREST
RATE ELECTION") to the Administrative Agent at its New York Office not later
than 10:30 A.M. (New York City time), (x) in the case of a conversion of ABR
Loans to Euro-Dollar Loans or a continuation of Euro-Dollar Loans, on the third
Euro-Dollar Business Day before the conversion or continuation selected in such
notice is to be effective, and (y) in the case of a conversion of Euro-Dollar
Loans to ABR Loans, on the Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (x) such portion
is allocated ratably among the Loans comprising such Group and (y) the portion
to which such Notice applies, and the remaining portion to which it does not
apply, are each at least $5,000,000 (unless such portion is comprised of ABR
Loans). If no such notice is timely received before the end of an Interest
Period for any Group of Euro-Dollar Loans, the Borrower shall be deemed to have
elected that such Group of Loans be converted to ABR Loans at the end of such
Interest Period.
(ii) Each Notice of Interest Rate Election shall specify:
(A) the Group of Loans (or portion thereof) to which such notice
applies, and the Class of such Loans;
(B) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of Section 2.05(a)(i);
(C) if the Loans comprising such Group are to be converted, the
new Type of Loans and, if the Loans resulting from such conversion are
to
46
be Euro-Dollar Loans, the duration of the next succeeding Interest
Period applicable thereto; and
(D) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(iii) Promptly after receiving a Notice of Interest Rate Election from
a Borrower pursuant to Section 2.05(a)(i), the Administrative Agent shall notify
each Lender of the contents thereof and such notice shall not thereafter be
revocable by the Borrower.
(iv) The Borrower shall not be entitled to elect to convert any Loans
to, or continue any such Loans for an additional Interest Period as, Euro-Dollar
Loans if (x) the aggregate principal amount of any Group of Euro-Dollar Loans
created or continued as a result of such election would be less than $5,000,000
or (y) a Default shall have occurred and be continuing when the Borrower
delivers notice of such election to the Administrative Agent.
(b) Alternative Currency Loans. The initial Interest Period for each
Group of Alternative Currency Loans shall be specified by the Borrower in the
applicable Notice of Borrowing. The Borrower may specify the duration of each
subsequent Interest Period applicable to such Group of Loans by delivering to
the Administrative Agent at its London Office not later than 10:30 A.M. (London
time) on the fourth Euro-Currency Business Day before the end of the immediately
preceding Interest Period, a notice specifying the Group of Loans to which such
notice applies and the duration of such subsequent Interest Period (which shall
comply with the provisions of the definition of Interest Period). Such notice
may, if it so specifies, apply to only a portion of the aggregate principal
amount of the relevant Group of Loans; provided that (i) such portion is
allocated ratably among the Loans comprising such Group and (ii) the Dollar
Amounts of the portion to which such notice applies, and the remaining portion
to which it does not apply, are each at least $5,000,000. If no such notice is
timely received by the Administrative Agent before the end of any applicable
Interest Period, the Borrower shall be deemed to have elected that the
subsequent Interest Period for such Group of Loans shall have a duration of one
month (subject to the provisions of the definition of Interest Period).
SECTION 2.06. Fees. (a) The Company shall pay to the Administrative
Agent, for the account of the Revolving Lenders ratably in proportion to their
Revolving Commitments, a commitment fee calculated for each day at the
Commitment Fee Rate with respect to Revolving Commitments for such day
47
(determined in accordance with the Pricing Schedule) on the amount by which the
aggregate amount of the Revolving Commitments exceeds the aggregate Revolving
Outstandings on such day. Such commitment fee shall accrue from and including
the Effective Date to but excluding the Revolving Credit Termination Date, and
shall be payable in accordance with Section 2.06(h).
(b) The Company shall pay to the Administrative Agent, for the account
of the Term Loan-A Lenders ratably in proportion to their Term Loan-A
Commitments, a commitment fee calculated for each day at the Term Loan-A
Commitment Fee Rate for such day (determined in accordance with the Pricing
Schedule) on the amount by which the aggregate amount of the Term Loan-A
Commitments on such day exceeds the aggregate Term Loan-A Outstandings on such
day. Such commitment fee shall accrue from and including the Effective Date to
but excluding February 23, 2000, and shall be payable in accordance with Section
2.06(h).
(c) The Company shall pay to the Administrative Agent, for the account
of the Revolving Lenders ratably in proportion to their Revolving Credit
Percentages, a letter of credit participation fee calculated for each day at the
Applicable Margin for such day on the aggregate amount available for drawing
(whether or not conditions for drawing have been satisfied) under all Letters of
Credit outstanding at the close of business on such day, and shall be payable in
accordance with Section 2.06(h).
(d) The Company shall pay to the LC Issuing Bank fronting fees and
other charges in the amounts and at the times agreed between the Company and the
LC Issuing Bank.
(e) The Company shall pay to the Fronting Lender fronting fees and
other charges in the amounts and at the times agreed between the Company and the
Fronting Lender.
(f) The Company shall pay to the Administrative Agent, for the account
of the Term Loan-A Lenders ratably in proportion to their Term Loan-A
Percentages, an Apollo Letter of Credit participation fee calculated for each
day at the Applicable Margin for such day on the aggregate amount available for
drawing (whether or not conditions for drawing have been satisfied) under any
Apollo Letter of Credit outstanding at the close of business on such day, and
shall be payable in accordance with Section 2.06(h).
(g) The Company shall pay to the Apollo LC Issuer fronting fees and
other charges in amounts and at the times agreed between the Company and the
Apollo LC Issuer.
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(h) Fees accrued for the account of the Lenders under this Section
shall be payable (i) quarterly in arrears on each Quarterly Payment Date, (ii)
with respect to the Revolving Commitments, in accordance with clause (i) of this
subsection (h) and on the Revolving Credit Termination Date and on any date of
any reduction of the Revolving Commitments pursuant to Section 2.03(e) or
Section 2.07 (payable on the portion of the Revolving Commitments so terminated
or reduced), and (iii) with respect to the Term Loan-A Commitments, in
accordance with clause (i) of this subsection (h) and on the last day of the
Term Loan-A Availability Period and on any date of any reduction of the Term
Loan-A Commitments pursuant to Section 2.07 (payable on the portion of the Term
Loan-A Commitments so terminated or reduced).
(i) Any overdue fees payable under this Section and any other amounts
(other than principal of or interest on Loans and reimbursement obligations) not
paid when due hereunder shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the Alternate Base
Rate for such day.
SECTION 2.07. Optional Termination or Reduction of Commitments. The
Company may, upon at least three Domestic Business Days' notice to the
Administrative Agent at its New York Office, (i) terminate the Commitments of
any Class at any time, if no Loans of such Class (or, in the case of the Term
Loan-A Commitments and the Revolving Commitments, no Term Loan-A Outstandings or
Revolving Outstandings, as the case may be) are outstanding at such time (after
giving effect to any concurrent mandatory or optional prepayments), or (ii)
ratably reduce from time to time by an aggregate amount of $5,000,000 or any
larger multiple of $1,000,000, the aggregate amount of the Commitments of any
Class in excess of the aggregate outstanding Dollar Amount of the Loans of such
Class (or, in the case of the Term Loan-A Commitments and the Revolving
Commitments, in excess of the Term Loan A Outstandings or Revolving
Outstandings, as the case may be) at the date of such reduction. Promptly after
receiving a notice pursuant to this Section, the Administrative Agent shall
notify each Lender of the contents thereof, and such notice shall not thereafter
be revocable by the Company.
SECTION 2.08. Optional Prepayments. (a) Subject in the case of Euro-
Currency Loans to Section 2.11, a Borrower may, upon notice to the
Administrative Agent (i) at its New York Office not later than 10:30 A.M. (New
York City time) on the Domestic Business Day preceding the date of prepayment of
any Group of ABR Loans or the third Euro-Dollar Business Day before the date of
prepayment of any Group of Euro-Dollar Loans, prepay any Group of
Dollar-Denominated Loans or (ii) at its London Office not later than 11:00 A.M.
(London time) on the third Euro-Currency Business Day before the date of
prepayment, prepay any Group of Alternative Currency Loans, in each case in
whole at any
49
time, or from time to time in part in Dollar Amounts aggregating not less than
the Minimum Prepayment Amount (or, if less, the entire outstanding principal
amount of the Loans), by paying (in the relevant currency) the principal amount
to be prepaid together with interest accrued thereon to the date of prepayment;
provided that no partial prepayment of any Group of Euro-Currency Loans that
were made, converted or continued on the same date shall be permitted pursuant
to this subsection unless, after giving effect to such partial prepayment, the
outstanding principal balance of such Group of Euro-Currency Loans shall be at
least $5,000,000. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Lenders included in such Group of Loans. For
purposes of this subsection, the "MINIMUM PREPAYMENT AMOUNT" means an amount
equal to (x) in the case of any Group of ABR Loans, $1,000,000 or any larger
multiple of $500,000 and (y) in the case of any Group of Euro-Currency Loans,
$5,000,000 or any larger multiple of $1,000,000.
(b) Any notice of prepayment delivered pursuant to this subsection
shall specify (i) the Group of Loans designated by the Borrower to be prepaid,
(ii) the Class of such Loans, (iii) the amount to be prepaid, and (iv) the date
of prepayment.
(c) Promptly after receiving a notice of prepayment pursuant to this
Section, the Administrative Agent shall notify each Lender of the contents
thereof and of such Lender's ratable share (if any) of such prepayment, and such
notice shall not thereafter be revocable by the Borrower.
(d) The amount of any prepayment of the Loans pursuant to this Section
shall be applied pro rata to all subsequent scheduled payments in respect of the
relevant Class of Loans designated by the Borrower to be prepaid pursuant to
Section 2.03(c), 2.03(d) or 2.03(e), as the case may be.
SECTION 2.09. Option of Tranche B Lenders Not to Accept Prepayments.
(a) Notice. At least one Business Day prior to any date (an "UNSCHEDULED
PREPAYMENT DATE") on which any prepayment of the Term Loans-B would, but for the
provisions of this Section 2.09, otherwise have been made pursuant to Section
2.03 (an "UNSCHEDULED MANDATORY TERM LOANS-B PREPAYMENT") or Section 2.08 (an
"UNSCHEDULED OPTIONAL TERM LOANS-B PREPAYMENT" and, together with any
Unscheduled Mandatory Term Loan-B Prepayment, an "UNSCHEDULED PREPAYMENT"), the
Borrower shall deliver a notice conforming to the requirements set forth below
(a "PREPAYMENT NOTICE") to the Administrative Agent, and such Unscheduled
Prepayment shall not occur on such Unscheduled Prepayment Date but shall instead
be deferred as hereinafter provided in this Section 2.09. Upon receipt of any
Prepayment Notice, the Administrative Agent shall promptly notify each Term
Loan-B Lender of the contents thereof.
50
(b) Prepayment Notices. Each Prepayment Notice shall be in writing,
shall refer to this Section 2.09 and shall:
(i) set forth the amount of the Unscheduled Prepayment, and
indicate whether the Unscheduled Prepayment is an Unscheduled Mandatory
Term Loans-B Prepayment or an Unscheduled Optional Term Loans-B
Prepayment;
(ii) contain an offer to prepay on a specified date (each such
date, a "DEFERRED UNSCHEDULED PREPAYMENT DATE"), which shall be the
tenth Euro-Dollar Business Day after the date of such Prepayment
Notice, the Term Loans-B of each Term Loan-B Lender by an aggregate
principal amount equal to such Term Loan-B Lender's ratable share of
such Unscheduled Prepayment (determined by reference to the outstanding
principal amount of such Lender's Term Loans-B as a proportion of the
aggregate outstanding principal amount of the Term Loans-B of all of
the Term Loan-B Lenders) (the "UNSCHEDULED PREPAYMENT OFFERED AMOUNT"),
and set forth the amount of each Term Loan-B Lender's Unscheduled
Prepayment Offered Amount;
(iii) request each Term Loan-B Lender to notify the Company, the
Borrower (if other than the Company) and the Administrative Agent in
writing, no later than the fourth Euro-Dollar Business Day after the
date of such Prepayment Notice, (A) in the case of an offer to make an
Unscheduled Mandatory Term Loans-B Payment, of such Lender's acceptance
or rejection (in each case, in whole and not in part) of such offer of
prepayment or (B) in the case of an offer to make an Unscheduled
Optional Term Loans-B Prepayment, of such Lender's (1) acceptance as a
Pro-Rata Accepting Lender (as defined below), (2) acceptance as an
Unlimited Accepting Lender (as defined below) or (3) rejection (in each
case, in whole and not in part) of such offer of prepayment;
(iv) inform such Lender that the failure by such Lender to reject
such offer (or accept such offer as an Unlimited Accepting Lender (as
defined below) in the case of an offer to make an Unscheduled Optional
Term Loans-B Prepayment) in writing on or before the fourth Euro-Dollar
Business Day after the date of such Prepayment Notice shall be deemed
an acceptance by such Lender of such prepayment offer (and, in the case
of an offer to make an Unscheduled Optional Term Loans-B Prepayment,
shall be deemed an acceptance by such Lender as a Pro-Rata Accepting
Lender (as defined below)).
51
Each Prepayment Notice shall be given by telecopy, confirmed hand delivery or
overnight courier service, in each case addressed to the Administrative Agent
and each Term Loan-B Lender as provided in Section 11.01.
Each Lender that notifies the Company, the Borrower (if other than the
Company) and the Administrative Agent of its acceptance of an Unscheduled
Prepayment Offer in accordance with this Section 2.09(b) shall be an "ACCEPTING
LENDER" for purposes of this Section 2.09.
(c) Alternative Acceptance Methods for Unscheduled Optional Term
Loans-B Prepayment. In the case of any offer to make an Unscheduled Optional
Term Loans-B Prepayment, each Accepting Lender shall designate, as part of its
notice of acceptance of such offer pursuant to Section 2.09(b), that it either
(i) wishes to receive its Unscheduled Payment Offered Amount only (each such
Accepting Lender, a "PRO-RATA ACCEPTING LENDER") or (ii) wishes to receive its
Unscheduled Payment Offered Amount plus any amounts applied to such Lender by
the Administrative Agent pursuant to Section 2.09(d)(ii) (each such Accepting
Lender, an "UNLIMITED ACCEPTING LENDER"). Each Accepting Lender that fails to so
designate itself in its acceptance shall be deemed a Pro-Rata Accepting Lender.
(d) Application of Unscheduled Prepayments. On each Deferred
Unscheduled Prepayment Date, the Borrower shall pay to the Administrative Agent
an amount equal to the amount that would have been payable by the Borrower
pursuant to Section 2.03 or Section 2.08, as applicable, on the related
Unscheduled Prepayment Date but for the provisions of this Section 2.09. Of such
amount, the Administrative Agent shall apply to the prepayment of the
outstanding Term Loans-B of each of the Term Loan-B Lenders that shall have
accepted (or been deemed to have accepted) prepayment such Lender's Unscheduled
Payment Offered Amount, and shall apply the balance of the amount so paid by the
Borrower as follows:
(i) in the case of amounts paid in respect of an Unscheduled
Mandatory Term Loans-B Prepayment, ratably to prepay the principal of
the then outstanding Term Loans-B of the Accepting Lenders, the then
outstanding Term Loans-A (and following repayment in full of the Term
Loans-A, to provide cover for the Aggregate Apollo LC Exposure) and to
reduce the Revolving Commitments, in each case in accordance with the
then outstanding principal amounts of the Term-Loans B of the Accepting
Lenders, the Term Loans-A (and following repayment in full of the Term
Loans-A, in accordance with the then outstanding Aggregate Apollo LC
Exposure) and the aggregate amount of the Revolving Commitments, all in
accordance with Section 2.03; and
52
(ii) in the case of amounts paid in respect of an Unscheduled
Optional Term Loans-B Prepayment, ratably to prepay the principal of
the then outstanding Term Loans-B of the Unlimited Accepting Lenders in
proportion to their outstanding principal amounts until such Unlimited
Accepting Lenders have been repaid in full, and then to prepay the
principal of the remaining outstanding Term Loans-B of the remaining
Lenders (whether or not any such remaining Lender is an Accepting
Lender) in proportion to their outstanding principal amounts.
SECTION 2.10. General Provisions as to Payments. (a) The Borrowers
shall make each payment of principal of, and interest on, the Dollar-Denominated
Loans and the LC Reimbursement Obligations in respect of any Dollar-Denominated
Letter of Credit and each payment of fees hereunder (except fees payable
directly to the LC Issuing Bank) not later than 1:00 P.M. (New York City time)
on the date when due, in Federal or other funds immediately available in New
York City, to the Administrative Agent at its address in New York City specified
in or pursuant to Section 11.01 and without reduction by reason of any setoff or
counterclaim. The Borrowers shall make each payment of principal of, and
interest on, the Alternative Currency Loans, the Apollo LC Reimbursement
Obligations and the LC Reimbursement Obligations in respect of any Alternative
Currency Letter of Credit in the relevant Alternative Currency in such funds as
may then be customary for the settlement of international transactions in such
Alternative Currency, to such account and at such time and at such place as
shall have been notified by the Administrative Agent to the relevant Borrower
and the Banks by at least three Euro-Currency Business Days' notice. The
Administrative Agent will promptly distribute to each Lender its ratable share
(if any) of each such payment received by the Administrative Agent for the
account of the Lenders. Whenever any payment of principal of, or interest on,
the ABR Loans or LC Reimbursement Obligations in respect of Dollar-Denominated
Letters of Credit or any payment of fees shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Currency Loans, Apollo LC Reimbursement Obligations or LC
Reimbursement Obligations in respect of Alternative Currency Letters of Credit
shall be due on a day which is not a Euro-Currency Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Currency Business
Day unless such Euro-Currency Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding
Euro-Currency Business Day. If the date for any payment of principal is extended
by operation of law or otherwise, interest thereon shall be payable for such
extended time.
(b) Unless a Borrower notifies the Administrative Agent before the date
on which any payment is due from such Borrower to the Lenders hereunder that
53
such Borrower will not make such payment in full, the Administrative Agent may
assume that such Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance on such
assumption, cause to be distributed to each relevant Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent that such
payment shall not have been so made by such Borrower, each such Lender shall
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Administrative Agent, at (i) the Federal Funds Rate (if such
amount was distributed in Dollars) or (ii) the rate per annum at which one-day
deposits in the relevant currency are offered to the Administrative Agent in the
London interbank market for such day (if such amount was distributed in an
Alternative Currency).
(c) Each payment by the Administrative Agent in Euro will be made in
Euro Units rather than National Currency Units, unless the Administrative Agent
notifies the recipient otherwise.
(d) The foregoing provisions do not affect the rights of any party
under the EMU Legislation or other applicable law to make Euro payments in a
National Currency Unit or to receive Euro payments credited to its account in a
National Currency Unit.
SECTION 2.11. Funding Losses. If a Borrower makes any payment of
principal with respect to any Euro-Currency Loan or any Euro-Dollar Loan is
converted to an ABR Loan (whether such payment or conversion is pursuant to
Article 2, 6 or 8 or otherwise) on any day other than the last day of an
Interest Period applicable thereto, or the last day of an applicable period
fixed pursuant to Section 2.04(c), or if a Borrower fails to borrow, prepay,
convert or continue any Euro-Currency Loan after notice has been given to any
Lender in accordance with Section 2.02(b), 2.03(j), 2.05(a)(iii) or 2.08(c),
such Borrower shall reimburse each Lender within 15 days after demand for any
resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties and
reasonable internal processing charges customarily charged by such Lender, but
excluding loss of margin for the period after such payment or conversion or
failure to borrow, prepay, convert or continue; provided that such Lender shall
have delivered to such Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive absent manifest error.
SECTION 2.12. Computation of Interest and Fees. Interest based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a
54
leap year) and paid for the actual number of days elapsed (including the first
day but excluding the last day). All other interest and fees shall be computed
on the basis of a year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last day).
SECTION 2.13. Notes; Registry. (a) If any Lender so requests in
writing, each Borrower's obligation to repay the Loans made to it by such Lender
shall be evidenced by a single Note of such Borrower payable to the order of
such Lender for the account of its Applicable Lending Office.
(b) Each Lender may, by notice to a Borrower and the Administrative
Agent, request that such Borrower's obligation to repay such Lender's Loans of a
particular Type, currency or Class to such Borrower be evidenced by a separate
Note. Each such Note shall be in substantially the form of Exhibit A hereto with
appropriate modifications to reflect the fact that it relates solely to Loans of
the relevant Type, currency or Class. Each reference in this Agreement to the
"NOTE" of such Borrower payable to the order of such Lender shall be deemed to
refer to and include any or all of such Notes, as the context may require.
(c) Promptly after it receives a Note for any Lender pursuant to
Section 3.01(b) or Section 3.05(a), the Administrative Agent shall forward such
Note to such Lender. Each Lender shall record the date, currency, amount (in
such currency) and maturity of each Loan made by it to each Borrower and the
date and amount of each payment of principal made with respect thereto, and may,
if such Lender so elects in connection with any transfer or enforcement of its
Note of any Borrower, endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each of its
Loans to such Borrower then outstanding; provided that a Lender's failure to
make (or any error in making) any such recordation or endorsement shall not
affect any Borrower's obligations hereunder or under its Notes. Each Lender is
hereby irrevocably authorized by each Borrower so to endorse such Borrower's
Note payable to the order of such Lender and to attach to and make a part of
such Note a continuation of any such schedule as and when required.
(d) The Administrative Agent shall maintain a copy of each Assignment
and Assumption Agreement delivered to it and a register (the "REGISTER") on
which it will record the name, address and Commitments of each Lender, each Loan
made by such Lender, each repayment of any Loan made by such Lender and the
Aggregate Revolving LC Exposure and the Aggregate Apollo LC Exposure of such
Lender. With respect to any Lender, the assignment or other transfer of the
Commitments of such Lender and the rights to the principal of, and interest on,
any Loan made, Note issued and Aggregate Revolving LC Exposure and Aggregate
Apollo LC Exposure pursuant to this Agreement shall not be effective until such
assignment or other transfer is recorded on the Register and
55
otherwise complies with Section 11.06(c). The registration of assignment or
other transfer of all or part of any Commitments, Loans, Notes, Aggregate
Revolving LC Exposure and Aggregate Apollo LC Exposure for a Lender shall be
recorded by the Administrative Agent on the Register only upon the acceptance by
the Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement referred to in Section 11.06(c). Promptly after so
recording any registration of assignment or other transfer on the Register, the
Administrative Agent shall notify the relevant assignees and assignors of such
recordation. The Register shall be available at the offices where kept by the
Administrative Agent for inspection by the Borrowers, the LC Issuer, the Apollo
LC Issuer and any Lender at any reasonable time upon reasonable prior notice to
the Administrative Agent. Each Lender shall record on its internal records
(including computerized systems) the foregoing information as to its own
Commitments and Loans and the LC Reimbursement Obligations and Apollo LC
Reimbursement Obligations owing to it. Failure to make any such recordation, or
any error in such recordation, shall not affect the obligations of any Obligor
under the Loan Documents.
SECTION 2.14. Letters of Credit. (a) On the Effective Date, the LC
Issuing Bank shall be deemed, without further action by any party hereto, to
have sold to each Revolving Lender, and each Revolving Lender shall be deemed,
without further action by any party hereto, to have purchased from the LC
Issuing Bank, a participation (on the terms specified in this Section) in each
Existing Letter of Credit equal to such Revolving Lender's Revolving Credit
Percentage thereof. Concurrently with such sale, the participations in the
Existing Letters of Credit sold to the Existing Lenders under the Existing
Credit Agreement shall be automatically cancelled without further action by any
of the parties thereto.
(b) Issuance. The LC Issuing Bank agrees, on the terms and conditions
set forth in this Agreement, to issue letters of credit hereunder at the request
of the Borrower (which letters of credit may be denominated in Dollars or any
Alternative Currency as such Borrower elects in such request) from time to time
prior to the date that is 30 Domestic Business Days before the Revolving Credit
Termination Date; provided that no such letter of credit shall have a face
amount less than $20,000; and provided further that, immediately after each such
letter of credit is issued and participations therein are sold to the Revolving
Lenders as provided in this subsection:
(i) the Aggregate Revolving LC Exposure shall not exceed
$75,000,000;
(ii) in the case of each Revolving Lender, its Revolving
Outstandings shall not exceed its Revolving Commitment;
56
(iii) the aggregate amount of the Revolving Outstandings shall not
exceed the aggregate amount of the Revolving Commitments; and
(iv) no more than twenty Letters of Credit shall be outstanding
hereunder.
Whenever the LC Issuing Bank issues a Letter of Credit hereunder, the LC Issuing
Bank shall be deemed, without further action by any party hereto, to have sold
to each Revolving Lender, and each Revolving Lender shall be deemed, without
further action by any party hereto, to have purchased from the LC Issuing Bank,
a participation (on the terms specified in this Section) in such Letter of
Credit equal to such Lender's Revolving Credit Percentage thereof.
(c) Notice of Proposed Issuance. With respect to each Letter of Credit,
the relevant Borrower shall give the LC Issuing Bank and the Administrative
Agent at least three Domestic Business Days' (or, in the case of any Letter of
Credit denominated in an Alternative Currency four Euro-Currency Business Days')
prior notice (i) specifying the date such Letter of Credit is to be issued and
(ii) describing the proposed terms of such Letter of Credit (including, without
limitation, the currency in which such Letter of Credit shall be denominated)
and the nature of the transactions to be supported thereby. Promptly after it
receives such notice, the Administrative Agent shall notify each Revolving
Lender of the contents thereof.
(d) Conditions to Issuance. The LC Issuing Bank shall not issue any
Letter of Credit unless:
(i) such Letter of Credit shall be satisfactory in form and
substance to the LC Issuing Bank,
(ii) the relevant Borrower shall have executed and delivered such
other instruments and agreements relating to such Letter of Credit as
the LC Issuing Bank shall have reasonably requested,
(iii) the LC Issuing Bank shall have confirmed with the
Administrative Agent on the date of such issuance that the limitations
specified in Section 2.14(b) will not be exceeded immediately after
such Letter of Credit is issued, and
(iv) the LC Issuing Bank shall not have been notified in writing
by the Company or the relevant Borrower (if other than the Company) or
the Administrative Agent expressly to the effect that any condition
specified in Section 3.03(c) or 3.03(d) is not satisfied at the time
such Letter of Credit is to be issued.
57
(e) Notice of Actual Issuance. Promptly after it issues any Letter of
Credit, the LC Issuing Bank shall notify the Administrative Agent of the date,
face amount, currency denomination, beneficiary or beneficiaries and expiry date
of such Letter of Credit. Promptly after it receives such notice, the
Administrative Agent shall notify each Revolving Lender of the contents thereof
and the amount of such Lender's participation in such Letter of Credit. Promptly
after it issues any Letter of Credit, the LC Issuing Bank shall send a copy of
such Letter of Credit to the Administrative Agent.
(f) Expiry Dates. No Letter of Credit shall have an expiry date later
than the fifth Domestic Business Day before the Revolving Credit Termination
Date. Subject to the preceding sentence, each Letter of Credit issued hereunder
shall expire on or before the first anniversary of the date of such issuance;
provided that the expiry date of any Letter of Credit may be extended from time
to time at the Borrower's request, so long as such extension is for a period not
exceeding one year and is granted (or the last day on which notice can be given
to prevent such extension occurs) no earlier than three months before the then
existing expiry date thereof.
(g) Notice of Proposed Extensions of Expiry Dates. The LC Issuing Bank
shall give the Administrative Agent at least three Domestic Business Days'
notice before the LC Issuing Bank extends the expiry date of any Letter of
Credit issued by it. Such notice shall identify such Letter of Credit, the date
on which it is to be extended and the date to which it is to be extended.
Promptly after it receives such notice, the Administrative Agent shall notify
each Revolving Lender of the contents thereof. The LC Issuing Bank shall not
extend the expiry date of any Letter of Credit if:
(i) such extension does not comply with Section 2.14(f), or
(ii) the LC Issuing Bank shall have been notified by the Company
or the relevant Borrower (if other than the Company) or the
Administrative Agent expressly to the effect that any condition
specified in Section 3.03(c) or 3.03(d) is not satisfied at the time of
such proposed extension.
If any Letter of Credit is not extended after notice of a proposed extension
thereof has been given to the Revolving Lenders, the LC Issuing Bank shall
promptly notify the Administrative Agent of such failure to extend. Promptly
after it receives such notice, the Administrative Agent shall notify each
Revolving Lender thereof.
(h) Drawings. If the LC Issuing Bank receives a demand for payment
under any Letter of Credit issued by it and determines that such demand should
be
58
honored, the LC Issuing Bank shall (i) promptly notify the relevant Borrower and
the Administrative Agent as to the amount to be paid by the LC Issuing Bank as a
result of such demand and the date of such payment (an "LC PAYMENT DATE") and
(ii) make such payment in accordance with the terms of such Letter of Credit.
(i) Reimbursement by the Borrower. (i) If any amount is drawn under any
Letter of Credit, the Borrower irrevocably and unconditionally agrees to
reimburse the LC Issuing Bank for such amount, together with any and all
reasonable charges and expenses which the LC Issuing Bank may pay or incur
relative to such drawing. Such reimbursement shall be due and payable on the
relevant LC Payment Date or the date on which the LC Issuing Bank notifies the
Borrower of such drawing, whichever is later; provided that, if such notice is
given after 12:00 Noon (New York City time) on the later of such dates, such
reimbursement shall be due and payable on the next following Domestic Business
Day (the date on which it is due and payable being an "LC REIMBURSEMENT DUE
DATE").
(ii) In addition, the Borrower agrees to pay, on the applicable LC
Reimbursement Due Date, interest on each amount drawn under a Letter of
Credit, for each day from and including the date such amount is drawn
to but excluding such LC Reimbursement Due Date, (A) in the case of
amounts drawn under Dollar-Denominated Letters of Credit, at the
Alternate Base Rate for such day plus the Applicable Margin with
respect to ABR Loans for such day, and (B) in the case of amounts drawn
under Alternative Currency Letters of Credit, at the higher of (I) the
Alternate Base Rate for such day plus the Applicable Margin with
respect to ABR Loans for such day and (II) the rate which would be
applicable to a one-month Loan in the relevant Alternative Currency
borrowed on such day. The Borrower also agrees to pay, on demand,
interest on any overdue amount (including any overdue interest) payable
under this Section 2.14(i), for each day from and including the day
such amount becomes due to but excluding the day such amount is paid in
full, at a rate per annum equal to the sum of 2% plus the rate
applicable to such reimbursement amounts for such day, as determined
pursuant to the immediately preceding sentence.
(iii) Each payment by the Borrower pursuant to this Section
2.14(i) shall be made (i) in the case of Dollar-Denominated Letters of
Credit, in Federal or other funds immediately available to it and (ii)
in the case of Alternative Currency Letters of Credit, in the relevant
Alternative Currency in such funds as may then be customary for the
settlement of international transactions in such Alternative Currency,
in each case to the LC Issuing Bank at its address specified in or
pursuant to Section 11.01.
59
(j) Payment by Lenders. (i) If the Borrower fails to pay any LC
Reimbursement Obligation in full when due, the LC Issuing Bank may notify the
Administrative Agent of the unreimbursed amount and request that the Revolving
Lenders reimburse the LC Issuing Bank for their respective Revolving Credit
Percentages thereof. Promptly after it receives any such notice, the
Administrative Agent shall notify each Revolving Lender of the unreimbursed
amount and such Lender's Revolving Credit Percentage thereof. Upon receiving
such notice from the Administrative Agent, each Revolving Lender shall make
available to the LC Issuing Bank, at its address specified in or pursuant to
Section 11.01, an amount equal to such Lender's Revolving Credit Percentage of
such unreimbursed amount. Such amount shall be paid to the LC Issuing Bank (A)
in the case of LC Reimbursement Obligations in respect of Dollar Denominated
Letters of Credit, in Federal or other funds immediately available to the LC
Issuing Bank, and (B) in the case of LC Reimbursement Obligations in respect of
Alternative Currency Letter of Credit, in the relevant Alternative Currency in
such funds as may then be customary for the settlement of international
transactions in such Alternative Currency, in each case by 3:00 P.M. (New York
City time) (A) on the day such Revolving Lender receives such notice if it is
received at or before 12:00 Noon (New York City time) on such day or (B) on the
next Domestic Business Day if such notice is received after 12:00 Noon (New York
City time) on the date of receipt. Each such amount shall be paid together with
interest thereon for each day from and including the relevant LC Payment Date to
but excluding the day such payment is due from such Revolving Lender, (A) in the
case of LC Reimbursement Obligations in respect of Dollar-Denominated Letters of
Credit, at the Federal Funds Rate for such day and (B) in the case of LC
Reimbursement Obligations in respect of Alternative Currency Letter of Credit,
at the rate which would be applicable to a one-month Loan in the relevant
Alternative Currency borrowed on such day. Upon payment in full thereof, such
Revolving Lender shall be subrogated to the rights of the LC Issuing Bank
against the Borrower to the extent of such Lender's Revolving Credit Percentage
of the related LC Reimbursement Obligation (including interest accrued thereon).
(ii) If any Revolving Lender fails to pay when due any amount to
be paid by it pursuant to clause (i) of this subsection, interest shall
accrue on such Revolving Lender's obligation to make such payment, for
each day from and including the date such payment became due to but
excluding the date such Revolving Lender makes such payment, at a rate
per annum equal to (A) in the case of amounts due in respect of
Dollar-Denominated Letters of Credit, (I) for each day from the day
such payment is due to the third succeeding Domestic Business Day,
inclusive, the Federal Funds Rate for such day and (II) for each day
thereafter, the rate applicable to Revolving ABR Loans for such day,
and (B) in the case of amounts due in respect of Alternative Currency
Letters of Credit, (I) for each day from the day such payment is due to
the third succeeding Euro-
60
Currency Business Day, the rate which would be applicable to a
one-month Loan in the relevant Alternative Currency borrowed on
such day and (II) for each day thereafter, the sum of 2% plus the
rate applicable to Revolving Euro-Currency Loans denominated in
the relevant Alternative Currency with an Interest Period of one
month for such day.
(iii) If the Borrower shall reimburse the LC Issuing Bank for any
drawing with respect to which any Revolving Lender shall have made
funds available to the LC Issuing Bank in accordance with clause (i) of
this subsection, the LC Issuing Bank shall promptly upon receipt of
such reimbursement distribute to such Revolving Lender its Revolving
Credit Percentage thereof, including interest, to the extent received
by the LC Issuing Bank.
(k) Exculpatory Provisions. The obligations of the Borrower and the
Revolving Lenders under this Section shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or any Revolving Lender may have or have
had against the LC Issuing Bank, any Lender, any beneficiary of any Letter of
Credit, the Administrative Agent or any other Person. The Borrower assumes all
risks of the acts or omissions of any beneficiary of any Letter of Credit with
respect to the use of such Letter of Credit by such beneficiary. None of the LC
Issuing Bank, the Lenders, the Administrative Agent and their respective
officers, directors, employees and agents shall be responsible for, and the
obligations of each Revolving Lender to make payments to the LC Issuing Bank and
of the Borrower to reimburse the LC Issuing Bank for drawings pursuant to this
Section shall not be excused or affected by, among other things, (i) the use
which may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents presented under any Letter of Credit or
of any endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by the LC Issuing Bank against presentation of documents to it which do
not comply with the terms of the relevant Letter of Credit; or (iv) any dispute
between or among the Borrower, any beneficiary of any Letter of Credit or any
other Person or any claims or defenses whatsoever of the Borrower or any other
Person against any beneficiary of any Letter of Credit. The LC Issuing Bank
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. Any action taken or
omitted by the LC Issuing Bank in connection with any Letter of Credit and the
related drafts and documents shall be binding upon the Borrower and shall not
place the LC Issuing Bank or any Revolving Lender under any liability to the
Borrower. Notwithstanding the foregoing, the provisions of this subsection shall
not relieve
61
the LC Issuing Bank from responsibility for its own gross negligence or willful
misconduct.
(l) Indemnification by Borrower. The Borrower agrees to indemnify and
hold harmless each Revolving Lender, the LC Issuing Bank and the Administrative
Agent (collectively, the "LC INDEMNITEES") from and against any and all claims,
damages, losses, liabilities, costs and expenses (including, without limitation,
reasonable fees and disbursements of counsel) which such LC Indemnitee may
reasonably incur (or which may be claimed against such LC Indemnitee by any
Person whatsoever) by reason of or in connection with any execution and delivery
or transfer of or payment or failure to pay under any Letter of Credit or any
actual or proposed use of any Letter of Credit; provided that the Borrower shall
not be required to indemnify the LC Issuing Bank for any such claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
caused by (i) its own willful misconduct or gross negligence or (ii) its failure
to pay under any Letter of Credit issued by it after the presentation to it of a
request strictly complying with the terms and conditions of such Letter of
Credit. Nothing in this subsection is intended to limit the obligations of the
Borrower under any other provision of this Section.
(m) Indemnification by Revolving Lenders. The Revolving Lenders shall,
ratably in proportion to their Revolving Credit Percentages, indemnify the LC
Issuing Bank (to the extent not reimbursed by the Borrower) against any claims,
damages, losses, liabilities, reasonable costs and reasonable expenses
(including, without limitation, reasonable fees and disbursements of counsel)
that any such indemnitee may suffer or incur in connection with this Section or
any action taken or omitted by such indemnitee under this Section; provided that
the Revolving Lenders shall not be required to indemnify the LC Issuing Bank for
any such claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, caused by (i) its own gross negligence or willful
misconduct, (ii) its failure to pay under any Letter of Credit issued by it
after the presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, (iii) its failure to comply with Section
2.14(f), (iv) its liabilities under any Letter of Credit issued by it in
contravention of Section 2.14(d)(iii) (to the extent that the limitations
referred to therein were in fact exceeded) or Section 2.14(d)(iv) or (v) its
liabilities under any Letter of Credit extended by it in contravention of
Section 2.14(g)(ii) or 2.15(f)(ii); and provided further that no Revolving
Lender shall be required to indemnify the LC Issuing Bank for any such claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by the failure of another Revolving Lender to pay its Revolving
Credit Percentage of any LC Reimbursement Obligation unpaid by the Borrower.
(n) Liability for Damages. Nothing in this Section shall preclude the
Borrower or any Revolving Lender from asserting against the LC Issuing Bank
62
any claim for damages suffered by the Borrower or such Revolving Lender to the
extent, but only to the extent, caused by (i) the willful misconduct or gross
negligence of the LC Issuing Bank or (ii) the LC Issuing Bank's failure to pay
under any Letter of Credit issued by it after the presentation to it of a
request strictly complying with the terms and conditions thereof.
(o) Dual Capacities. In its capacity as a Lender, the LC Issuing Bank
shall have the same rights and obligations under this Section as any other
Lender.
(p) Information to be Provided to Administrative Agent. The LC Issuing
Bank shall furnish to the Administrative Agent upon request such information as
the Administrative Agent shall reasonably request in order to calculate (i) the
Aggregate Revolving LC Exposure existing from time to time and (ii) the amount
of any fee payable for the account of the Lenders under Section 2.06(c).
SECTION 2.15. Apollo Letter of Credit. (a) The Apollo LC Issuer agrees,
on the terms and conditions set forth in this Agreement, to issue one or more
Apollo Letters of Credit hereunder, at the request of the Company (which Apollo
Letters of Credit shall be denominated in Sterling) on a single date on or prior
to December 31, 1999; provided that the consummation of the Apollo Acquisition
shall have occurred concurrently with or prior to such issuance; and provided
further that, immediately after such Apollo Letters of Credit are issued and
participations therein are sold to the Term Loan-A Lenders as provided in this
subsection:
(i) the sum of (x) the aggregate amount that is (or may thereafter
become) available for drawing under any Apollo Letter of Credit
outstanding at such time, plus (y) the aggregate unpaid amount of all
Apollo LC Reimbursement Obligations at such time, shall not exceed the
sum of the aggregate principal amount of the Apollo Loan Notes plus
interest thereon accrued for a period not to exceed fifteen months at
the rate set forth in the Apollo Loan Notes;
(ii) in the case of each Term Loan-A Lender, its Term Loan-A
Outstandings shall not exceed its Term Loan-A Commitments; and
(iii) the aggregate amount of the Term Loan-A Outstandings shall
not exceed the aggregate amount of the Term Loan-A Commitments.
Whenever the Apollo LC Issuer issues an Apollo Letter of Credit hereunder, such
Apollo LC Issuer shall be deemed, without further action by any party hereto, to
have sold to each Term Loan-A Lender, and each Term Loan-A Lender shall be
deemed, without further action by any party hereto, to have purchased from the
63
Apollo LC Issuer, a participation (on the terms specified in this Section) in
such Apollo Letter of Credit equal to such Lender's Term Loan-A Percentage
thereof.
(b) Notice of Proposed Issuance. With respect to any Apollo Letter of
Credit, the Company or UKHC, as applicable, shall give the Apollo LC Issuer and
the Administrative Agent at least five Euro-Dollar Business Days' prior notice
specifying the date such Apollo Letter of Credit is to be issued. Promptly after
it receives such notice, the Administrative Agent shall notify each Term Loan-A
Lender of the contents thereof.
(c) Conditions to Issuance. The Apollo LC Issuer shall not issue any
Apollo Letter of Credit unless:
(i) such Apollo Letter of Credit shall be satisfactory in form and
substance to the Apollo LC Issuer,
(ii) the Company or UKHC, as applicable, shall have executed and
delivered such other instruments and agreements relating to such Apollo
Letter of Credit as the Apollo LC Issuer shall have reasonably
requested,
(iii) the Apollo LC Issuer shall have confirmed with the
Administrative Agent on the date of such issuance that the limitations
specified in Section 2.15(a) will not be exceeded immediately after
such Apollo Letter of Credit is issued, and
(iv) the Apollo LC Issuer shall not have been notified in writing
by the Company or the Administrative Agent expressly to the effect that
any condition specified in Section 3.03(c) or 3.03(d) is not satisfied
at the time such Apollo Letter of Credit is to be issued.
(d) Notice of Actual Issuance. Promptly after it issues an Apollo
Letter of Credit, the Apollo LC Issuer shall notify the Administrative Agent of
the date, face amount, beneficiary or beneficiaries and expiry date of such
Apollo Letter of Credit. Promptly after it receives such notice, the
Administrative Agent shall notify each Term Loan-A Lender of the contents
thereof and the amount of such Lender's participation in such Apollo Letter of
Credit. Promptly after it issues an Apollo Letter of Credit, the Apollo LC
Issuer shall send a copy of such Apollo Letter of Credit to the Administrative
Agent.
(e) Expiry Date. Each Apollo Letter of Credit shall expire on or before
the first anniversary of the date of issuance; provided that the expiry date of
any Apollo Letter of Credit may be extended from time to time at the account
party's request, so long as such extension is for a period not exceeding one
year and is
64
granted (or the last day on which notice to prevent such extension occurs) no
earlier than three months before the then existing expiry date thereof.
Notwithstanding the foregoing, no Apollo Letter of Credit issued hereunder shall
have an expiry date later than the sixth anniversary of the date of original
issuance thereof.
(f) Notice of Proposed Extensions of Expiry Dates. The Apollo LC Issuer
shall give the Administrative Agent at least three Domestic Business Days'
notice before the Apollo LC Issuer extends the expiry date of any Apollo Letter
of Credit. Such notice shall identify such Apollo Letter of Credit, the date on
which it is to be extended and the date to which it is to be extended. Promptly
after it receives such notice, the Administrative Agent shall notify each Term
Loan-A Lender of the contents thereof. The Apollo LC Issuer shall not extend the
expiry date of any Apollo Letter of Credit if:
(i) such extension does not comply with Section 2.15(e), or
(ii) the Apollo LC Issuer shall have been notified by the Company,
UKHC or the Administrative Agent expressly to the effect that any
condition specified in Section 3.03(c) or 3.03(d) is not satisfied at
the time of such proposed extension.
If any Apollo Letter of Credit is not extended after notice of a proposed
extension thereof has been given to the Term Loan A Lenders, the Apollo LC
Issuer shall promptly notify the Administrative Agent of such failure to extend.
Promptly after it receives such notice, the Administrative Agent shall notify
each Term Loan-A Lender thereof.
(g) Drawings. If the Apollo LC Issuer receives a demand for payment
under an Apollo Letter of Credit issued by it and determines that such demand
should be honored, the Apollo LC Issuer shall (i) promptly notify the Company or
UKHC, as applicable, and the Administrative Agent as to the amount to be paid by
the Apollo LC Issuer as a result of such demand and the date of such payment (an
"APOLLO LC PAYMENT DATE") and (ii) make such payment in accordance with the
terms of such Apollo Letter of Credit.
(h) Reimbursement by the Borrower. (i) If any amount is drawn under an
Apollo Letter of Credit, each of the Company and UKHC, as applicable,
irrevocably and unconditionally agrees to reimburse the Apollo LC Issuer for
such amount, together with any and all reasonable charges and expenses which
such Apollo LC Issuer may pay or incur relative to such payment. Such
reimbursement shall be due and payable on the relevant Apollo LC Payment Date or
the date on which such Apollo LC Issuer notifies the Company or UKHC, as
applicable, of such payment, whichever is later; provided that, if such notice
is given after 12:00
65
Noon (New York City time) on the later of such dates, such reimbursement shall
be due and payable on the next following Euro-Dollar Business Day (the date on
which it is due and payable being an "APOLLO LC REIMBURSEMENT DUE DATE").
(ii) In addition, each of the Company and UKHC, as applicable,
agrees to pay, on the applicable Apollo LC Reimbursement Due Date,
interest on each amount paid under an Apollo Letter of Credit, for each
day from and including the date such amount is drawn to but excluding
such Apollo LC Reimbursement Due Date, at the rate which would be
applicable to a one-month Loan made in Sterling borrowed on such day.
Each of the Company and UKHC, as applicable, also agrees to pay, on
demand, interest on any overdue amount (including any overdue interest)
payable under this Section 2.15(h), for each day from and including the
day such amount becomes due to but excluding the day such amount is
paid in full, at a rate per annum equal to the sum of 2% plus the rate
which would be applicable to a one-month Loan made in Sterling borrowed
on such day.
(iii) Each payment by the Borrower pursuant to this Section
2.15(h) shall be made to the Apollo LC Issuer in Sterling (in such
funds as may then be customary for the settlement of international
transactions in Sterling) at its address specified in or pursuant to
Section 11.01.
(i) Payments by Term Loan-A Lenders. (i) If either the Company or UKHC,
as applicable, fails to pay any Apollo LC Reimbursement Obligation in full when
due, the Apollo LC Issuer may notify the Administrative Agent of the
unreimbursed amount and request that the Term Loan-A Lenders reimburse such
Apollo LC Issuer for their respective Term Loan-A Percentages thereof. Promptly
after it receives any such notice, the Administrative Agent shall notify each
Term Loan-A Lender of the unreimbursed amount and such Lender's Term Loan-A
Percentage thereof. Upon receiving such notice from the Administrative Agent,
each Term Loan-A Lender shall make available to the Apollo LC Issuer, at its
address specified in or pursuant to Section 11.01, an amount equal to such
Lender's Term Loan-A Percentage of such unreimbursed amount, in Sterling (in
such funds as may then be customary for the settlement of international
transactions in Sterling), by 3:00 P.M. (London time) (A) on the day such Term
Loan-A Lender receives such notice if it is received at or before 12:00 Noon
(London time) on such day or (B) on the next Euro-Dollar Business Day if such
notice is received after 12:00 Noon (London time) on the date of receipt, in
each case together with interest on such amount for each day from and including
the relevant Apollo LC Payment Date to but excluding the day such payment is due
from such Term Loan-A Lender at the Adjusted London Interbank Offered Rate for
such day. Upon payment in full thereof, such Term Loan-A Lender shall be
subrogated to the rights of the Apollo LC Issuer against the Company or UKHC,
66
as the case may be, to the extent of such Lender's Term Loan-A Percentage of the
related Apollo LC Reimbursement Obligation (including interest accrued thereon).
(ii) If any Term Loan-A Lender fails to pay when due any amount to
be paid by it pursuant to clause (i) of this subsection, interest shall
accrue on such Term Loan-A Lender's obligation to make such payment,
for each day from and including the date such payment became due to but
excluding the date such Term Loan-A Lender makes such payment, at a
rate per annum equal to (x) for each day from the day such payment is
due to the third succeeding Euro-Dollar Business Day, inclusive, the
Adjusted London Interbank Offered Rate for such day and (y) for each
day thereafter the rate applicable to Euro-Currency Term Loans-A
denominated in Sterling with an Interest Period of one month for such
day.
(iii) If the Company or UKHC, as applicable, shall reimburse the
Apollo LC Issuer for any drawing with respect to which any Term Loan-A
Lender shall have made funds available to Apollo LC Issuer in
accordance with clause (i) of this subsection, such Apollo LC Issuer
shall promptly upon receipt of such reimbursement distribute to such
Term Loan-A Lender its Term Loan-A Percentage thereof, including
interest, to the extent received by such Apollo LC Issuer.
(j) Exculpatory Provisions. The obligations of the Company, UKHC and
the Term Loan-A Lenders under this Section shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Company, UKHC or any Term Loan-A Lender may have or
have had against the Apollo LC Issuer, any Lender, any beneficiary of an Apollo
Letter of Credit, the Administrative Agent or any other Person. None of the
Apollo LC Issuer, the Lenders, the Administrative Agent and their respective
officers, directors, employees and agents shall be responsible for, and the
obligations of each Term Loan-A Lender to make payments to the Apollo LC Issuer
and of the Borrower to reimburse the Apollo LC Issuer for drawings pursuant to
this Section shall not be excused or affected by, among other things, (i) the
use which may be made of any Apollo Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents presented under an Apollo Letter of
Credit or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, insufficient, fraudulent or forged;
(iii) payment by the Apollo LC Issuer against presentation of documents to it
which do not comply with the terms of the relevant Apollo Letter of Credit or
(iv) any dispute between or among the Company, UKHC, any beneficiary of any
Apollo Letter of Credit or any other Person or any claims or
67
defenses whatsoever of the Company, UKHC or any other Person against any
beneficiary of an Apollo Letter of Credit. The Apollo LC Issuer shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with an
Apollo Letter of Credit. Any action taken or omitted by the Apollo LC Issuer in
connection with an Apollo Letter of Credit and the related drafts and documents
shall be binding upon the Company and UKHC and shall not place the Apollo LC
Issuer or any Term Loan-A Lender under any liability to the Company or UKHC.
Notwithstanding the foregoing, the provisions of this subsection shall not
relieve the Apollo LC Issuer from responsibility for its own gross negligence or
willful misconduct.
(k) Indemnification by Borrower. Each of the Company and UKHC, as
applicable, agrees to indemnify and hold harmless each Term Loan-A Lender, the
Apollo LC Issuer and the Administrative Agent (collectively, the "APOLLO LC
INDEMNITEES") from and against any and all claims, damages, losses, liabilities,
costs and expenses (including, without limitation, reasonable fees and
disbursements of counsel) which such Apollo LC Indemnitee may reasonably incur
(or which may be claimed against such Apollo LC Indemnitee by any Person
whatsoever) by reason of or in connection with any execution and delivery or
transfer of or payment or failure to pay under an Apollo Letter of Credit or any
actual or proposed use of an Apollo Letter of Credit; provided that neither the
Company nor UKHC shall be required to indemnify any Apollo LC Issuer for any
such claims, damages, losses, liabilities, costs or expenses to the extent, but
only to the extent, caused by (i) its own willful misconduct or gross negligence
or (ii) its failure to pay under any Apollo Letter of Credit issued by it after
the presentation to it of a request strictly complying with the terms and
conditions of such Apollo Letter of Credit. Nothing in this subsection is
intended to limit the obligations of the Company or UKHC under any other
provision of this Section.
(l) Indemnification by Term Loan-A Lenders. The Term Loan-A Lenders
shall, ratably in proportion to their Term Loan-A Percentages, indemnify the
Apollo LC Issuer (to the extent not reimbursed by the Company or UKHC, as
applicable) against any claims, damages, losses, liabilities, reasonable costs
and reasonable expenses (including, without limitation, reasonable fees and
disbursements of counsel) that any such indemnitee may suffer or incur in
connection with this Section or any action taken or omitted by such indemnitee
under this Section; provided that the Term Loan-A Lenders shall not be required
to indemnify the Apollo LC Issuer for any such claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by
(i) its own gross negligence or willful misconduct, (ii) its failure to pay
under an Apollo Letter of Credit issued by it after the presentation to it of a
request strictly complying with the terms and conditions of such Apollo Letter
of Credit, (iii) its failure to comply with Section 2.15(e), (iv) its
liabilities under any Apollo Letter
68
of Credit issued by it in contravention of Section 2.15(c)(iii) (to the extent
that the limitations referred to therein were in fact exceeded) or Section
2.15(c)(iv) or (v) its liabilities under any Apollo Letter of Credit extended by
it in contravention of Section 2.15(f)(ii); and provided further that no Term
Loan-A Lender shall be required to indemnify the Apollo LC Issuer for any such
claims, damages, losses, liabilities, costs or expenses to the extent, but only
to the extent, caused by the failure of another Term Loan-A Lender to pay its
Term Loan-A Percentage of any Apollo LC Reimbursement Obligation unpaid by the
Company or UKHC.
(m) Liability for Damages. Nothing in this Section shall preclude the
Company or UKHC, as applicable, or any Term Loan-A Lender from asserting against
the Apollo LC Issuer any claim for damages suffered by the Company, UKHC or such
Term Loan-A Lender to the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of such Apollo LC Issuer or (ii) such
Apollo LC Issuer's failure to pay under an Apollo Letter of Credit issued by it
after the presentation to it of a request strictly complying with the terms and
conditions thereof.
(n) Dual Capacities. In its capacity as a Lender, the Apollo LC Issuer
shall have the same rights and obligations under this Section as any other
Lender.
(o) Information to be Provided to Administrative Agent. The Apollo LC
Issuer shall furnish to the Administrative Agent upon request such information
as the Administrative Agent shall reasonably request in order to calculate (i)
the Aggregate Apollo LC Exposure existing from time to time and (ii) the amount
of any fee payable for the account of the Term Loan-A Lenders under Section
2.06(h).
SECTION 2.16. Judgment Currency. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due from any Borrower
hereunder or under any Note in the currency expressed to be payable herein or
therein (the "SPECIFIED CURRENCY") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's New York office on the
Euro-Currency Business Day preceding that on which final judgment is given. The
obligations of each Borrower in respect of any sum due to any Lender or the
Administrative Agent hereunder or under any Note shall, notwithstanding any
judgment in a currency other than the specified currency be discharged only to
the extent that, on the Euro-Currency Business Day following receipt by such
Lender or the Administrative Agent (as the case may be) of any sum adjudged to
be so due in such other currency, such Lender or the Administrative Agent (as
the case may be) may in accordance with normal banking procedures purchase the
specified
69
currency with such other currency. If the amount of the specified currency so
purchased is less than the sum originally due to such Lender or the
Administrative Agent, as the case may be, in the specified currency, the
relevant Borrower agrees, to the fullest extent that it may effectively do so,
as a separate obligation and notwithstanding any such judgment, to indemnify
such Lender or the Administrative Agent, as the case may be, against such loss.
If the amount of the specified currency so purchased exceeds (a) the sum
originally due to any Lender or the Administrative Agent, as the case may be,
and (b) any amounts shared with other Lenders as a result of allocations of such
excess as a disproportionate payment to such Lender under Section 11.04, such
Lender or the Administrative Agent, as the case may be, agrees to remit such
excess to such Borrower.
SECTION 2.17. Designation of Subsidiary as a Borrower; Termination of
Designation. (a) The Company may from time to time designate any Acquisition
Holdco as an Eligible Subsidiary for purposes of this Agreement by delivering to
the Administrative Agent: (i) a written request (an "ELIGIBLE SUBSIDIARY
REQUEST"), duly executed by the Company and the relevant Acquisition Holdco,
certifying that material cost savings to the Company and such Acquisition Holdco
will be achieved as a result of such Acquisition Holdco's designation as an
Eligible Subsidiary hereunder (and attaching reasonably detailed information and
calculations demonstrating the foregoing), together with (ii) an Election to
Participate, in form and substance satisfactory to the Administrative Agent,
duly executed on behalf of such Acquisition Holdco and the Company, each in such
number of copies as the Administrative Agent may request.
(b) The Administrative Agent shall promptly notify the Lenders of its
receipt of any Eligible Subsidiary Request and Election to Participate. The
Required Lenders may consent to such designation of an Eligible Subsidiary by
executing such Election to Participate; provided that any Lender may withhold
consent in its sole discretion. When the Company has delivered an Eligible
Subsidiary Request complying with Section 2.17(a)(i) and an Election to
Participate complying with Section 2.17(a)(ii), and the Required Lenders have
executed such Election to Participate, the designated Acquisition Holdco shall
thereupon be an Eligible Subsidiary for all purposes hereunder, and the
Administrative Agent shall promptly notify the Company and the Lenders to such
effect.
(c) The Company may at any time terminate the status of any Acquisition
Holdco as an Eligible Subsidiary for purposes of this Agreement by delivering to
the Administrative Agent an Election to Terminate duly executed on behalf of
such Acquisition Holdco and the Company in such number of copies as the
Administrative Agent may request. The delivery of such an Election to Terminate
shall not affect any obligation of such Acquisition Holdco theretofore incurred
under this Agreement and its Notes or any rights of the Lenders and the
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Administrative Agent against such Acquisition Holdco or against the Company in
its capacity as guarantor of the obligations of such Acquisition Holdco. The
Administrative Agent shall promptly notify the Lenders of its receipt of any
Election to Terminate.
SECTION 2.18. Foreign Subsidiary Costs. (a) If any of (x) the cost to
any Lender of making or maintaining any Loan to a Foreign Borrower or
participating in any Letter of Credit or Apollo Letter of Credit issued for the
account of a Foreign Borrower, or (y) the cost to the LC Issuing Bank of issuing
a Letter of Credit for the account of a Foreign Borrower, or (z) the cost to any
Apollo LC Issuer of issuing an Apollo Letter of Credit for the account of a
Foreign Borrower, is increased (or the amount of any sum received or receivable
by any Lender (or its Applicable Lending Office), the LC Issuing Bank or the
Apollo LC Issuer is reduced) by an amount deemed by such Lender, LC Issuing Bank
or Apollo LC Issuer to be material, by reason of the fact that such Foreign
Borrower is incorporated in, or conducts business in, a jurisdiction outside the
United States, such Foreign Borrower shall indemnify such Lender, LC Issuing
Bank or Apollo LC Issuer, as the case may be, for such increased cost or
reduction within 15 days after demand by such Lender, LC Issuing Bank or Apollo
LC Issuer (in each case, with a copy to the Administrative Agent). A certificate
of such Lender, LC Issuing Bank or Apollo LC Issuer claiming compensation under
this subsection and setting forth the additional amount or amounts to be paid to
it hereunder shall be conclusive in the absence of manifest error.
(b) Each Lender, LC Issuing Bank and Apollo LC Issuer will promptly
notify the Company and the Administrative Agent of any event of which it has
knowledge that will entitle such Lender, LC Issuing Bank or Apollo LC Issuer to
additional interest or payments pursuant to Section 2.18(a) and, in the case of
any Lender, will designate a different Applicable Lending Office, if, in the
judgment of such Lender, such designation will avoid the need for, or reduce the
amount of, such compensation and will not be otherwise disadvantageous to such
Lender.
SECTION 2.19. Determining Dollar Amounts of Alternative Currency Loans,
Alternative Currency Letters of Credit and Apollo Letters of Credit; Related
Mandatory Prepayments. (a) The Administrative Agent shall determine the Dollar
Amount of each Alternative Currency Loan promptly after it receives the related
Notice of Borrowing based on the Spot Rate on the day it receives such notice.
Thereafter, the Administrative Agent shall redetermine the Dollar Amount of each
Alternative Currency Loan on the last Euro-Currency Business Day of each
calendar month while such Alternative Currency Loan remains outstanding based on
the Spot Rate on such Euro-Currency Business Day. The Administrative Agent shall
promptly notify the Company, the relevant Borrower (if other than the Company)
and the participating Lenders of each Dollar Amount so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
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(b) The Administrative Agent shall determine the Dollar Amount of each
Alternative Currency Letter of Credit promptly after it receives the Borrower's
notice of proposed issuance therefor based on the Spot Rate on the day it
receives such request. Thereafter, the Administrative Agent shall redetermine
the Dollar Amount of each Alternative Currency Letter of Credit on the last
Euro-Currency Business Day of each calendar month while such Alternative
Currency Letter of Credit remains outstanding based on the Spot Rate on such
Euro-Currency Business Day. The Administrative Agent shall promptly notify the
Company, the relevant Borrower (if other than the Company), the LC Issuing Bank
and the participating Lenders of each Dollar Amount so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(c) The Administrative Agent shall determine the aggregate Dollar
Amount of each Apollo Letter of Credit promptly after the Borrower's notice of
proposed issuance therefor based on the Spot Rate on the day it receives such
request. Thereafter, the Administrative Agent shall redetermine the Dollar
Amount of each Apollo Letter of Credit on the last Euro-Currency Business Day of
each calendar month while such Apollo Letter of Credit remains outstanding based
on the Spot Rate on such Euro-Currency Business Day. The Administrative Agent
shall promptly notify the Company, the relevant Borrower (if other than the
Company), the Apollo LC Issuer and the participating Lenders of each Dollar
Amount so determined, and its determination thereof shall be conclusive in the
absence of manifest error.
(d) If, after giving effect to any redetermination of a Dollar Amount
pursuant to Section 2.19(a), (b) or (g), the sum of (i) the aggregate Dollar
Amount of all outstanding Revolving Loans plus (ii) the Aggregate Revolving LC
Exposure exceeds (x) in the case of any redetermination pursuant to Section
2.19(a) or (b), the aggregate amount of the Revolving Commitments, or (y) in the
case of any redetermination pursuant to Section 2.19(g), 105% of the aggregate
amount of the Revolving Commitments, the Administrative Agent shall notify the
Company and the Lenders that the Company is required to cause one or more
Revolving Loans to be prepaid pursuant to this subsection. Within five
Euro-Currency Business Days after receiving such notice, the Company shall cause
one or more Borrowers to prepay Revolving Loans (in accordance with the
procedure for prepaying Loans set forth in Section 2.08) and, following
repayment in full of all Revolving Loans, to provide cash cover for Aggregate
Revolving LC Exposure (in accordance with the procedure for providing cover set
forth in Section 2.03(h)), in each case to the extent required to eliminate any
such excess.
(e) If, after giving effect to any redetermination of a Dollar Amount
pursuant to Section 2.19(a), (c) or (g), the sum of (i) the aggregate Dollar
Amount of all outstanding Term Loans-A plus (ii) the Aggregate Apollo LC
Exposure exceeds (x) in the case of any redetermination pursuant to Section
2.19(a) or (c),
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the aggregate amount of the Term Loan-A Commitments, or (y) in the case of any
redetermination pursuant to Section 2.19(g), 105% of the aggregate amount of the
Term Loan-A Commitments, the Administrative Agent shall notify the Company and
the Lenders that the Company is required to cause one or more Term Loans-A to be
prepaid pursuant to this subsection. Within five Euro-Currency Business Days
after receiving such notice, the Company shall cause one or more Borrowers to
prepay Term Loans-A (in accordance with the procedure for prepaying Loans set
forth in Section 2.08) and, following repayment in full of all Term Loans-A, to
provide cash cover for Aggregate Apollo LC Exposure (in accordance with the
procedure for providing cover set forth in Section 2.03(a)), in each case to the
extent required to eliminate any such excess.
(f) If, after giving effect to any redetermination of a Dollar Amount
pursuant to Section 2.19(a) or (g), the aggregate Dollar Amount of all
outstanding Fronted Swedish Kroner Loans exceeds (x) in the case of any
redetermination pursuant to Section 2.19(a), $35,000,000 (the "KRONER
SUBLIMIT"), or (y) in the case of any redetermination pursuant to Section
2.19(g), 105% of such Kroner Sublimit, the Administrative Agent shall notify the
Company and the Lenders that the Company is required to cause one or more
Fronted Swedish Kroner Loans to be prepaid pursuant to this subsection. Within
five Euro-Currency Business Days after receiving such notice, the Company shall
cause one or more Borrowers to prepay Fronted Swedish Kroner Loans (in
accordance with the procedure for prepaying Loans set forth in Section 2.08) to
the extent required to eliminate any such excess.
(g) In addition to the determinations required pursuant to clauses (a),
(b) and (c) of this Section, the Administrative Agent (i) shall promptly, at the
request of the Required Lenders, and (ii) may, if it determines in its sole
discretion that a significant fluctuation in the relevant currency market has
occurred, determine the aggregate Dollar Amount of any Alternative Currency
Loan, Alternative Currency Letter of Credit or Apollo Letter of Credit, in each
case at the Spot Rate on such date of determination.
SECTION 2.20. Additional Reserve Costs. (a) If and so long as any
Lender or the LC Issuing Bank is required to make special deposits with the Bank
of England, to maintain reserve asset ratios or to pay fees, in each case in
respect of such Lender's or LC Issuing Bank's Euro-Currency Loans in any
Alternative Currency or participations in Alternative Currency Letters of
Credit, such Lender or LC Issuing Bank may require the relevant Borrower to pay,
contemporaneously with each payment of interest on each of such Loans or LC
Reimbursement Obligations in respect of Alternative Currency Letters of Credit,
additional interest on such Loan or LC Reimbursement Obligation at a rate per
annum equal to the Mandatory Costs Rate calculated in accordance with the
formula and in the manner set forth in Exhibit T hereto.
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(b) If and so long as any Lender or the LC Issuing Bank is required to
comply with reserve assets, liquidity, cash margin or other requirements of any
monetary or other authority (including any such requirement imposed by the
European Central Bank or the European System of Central Banks, but excluding
requirements reflected in an applicable Euro-Currency Reserve Percentage or
Mandatory Costs Rate) in respect of any of such Lender's or LC Issuing Bank's
Euro-Currency Loans in any Alternative Currency or participations in Alternative
Currency Letters of Credit, such Lender or LC Issuing Bank may require the
relevant Borrower to pay, contemporaneously with each payment of interest on
each of such Lender's Euro-Currency Loans or LC Reimbursement Obligations in
respect of Alternative Currency Letters of Credit subject to such requirements,
additional interest on such Loans or LC Reimbursement Obligations at a rate per
annum specified by such Lender or LC Issuing Bank to be the cost to such Lender
or LC Issuing Bank of complying with such requirements in relation to such Loan
or Letter of Credit.
(c) Any additional interest owed pursuant to subsection (a) or (b)
above shall be determined by the relevant Lender, which determination shall be
conclusive in the absence of manifest error, and notified to the relevant
Borrower (with a copy to the Administrative Agent) at least five Euro-Currency
Business Days before each date on which interest is payable for the relevant
Loan, and such additional interest so notified to the relevant Borrower by such
Lender shall be payable to the Administrative Agent for the account of such
Lender on each date on which interest is payable for such Loan.
SECTION 2.21. Changes in Market Practice Following EMU. Market practice
relating to the inter-bank deposit market, the method and timing of rate fixing
and the calculation of interest may change in the Third Stage. As a result, it
may differ from the method of rate fixing and the calculation of interest
prescribed under the terms of this Agreement and may also change in relation to
borrowings in any currency substituted by the Euro after the date of this
Agreement. In this event, the Administrative Agent may notify the Company and
Lenders of modifications to this Agreement which are required or reasonably
desirable to reflect and conform to these changes. Such modifications may
provide for the use of London interbank market offered rates or interbank market
offered rates from a wider European market (or, in either case, screen rates
reflecting these offered rates). They may also change, among other things, the
rate-fixing time or date, the definition of "Euro-Currency Business Day" and the
provisions of Section 2.12. The modifications set out in the Administrative
Agent's notice will take effect on the later of the date specified in such
notice, the date 10 Euro-Currency Business Days after the date of such notice
and (in the case of such changes being made due to a country becoming a
Participating Member State after the date of this Agreement) the date on which
such participation commences. The modifications will not apply to interest which
is computed for any Interest Period starting before
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the date the modifications take effect. This Section may, in appropriate
circumstances, be invoked more than once.
SECTION 2.22. General Cash Collateral Account; Term Loan-A Cash
Collateral Account. (a) General Cash Collateral Account. At, or at any time
before, the time any Borrower shall be required to make a deposit into the
General Cash Collateral Account, the Administrative Agent shall establish and
maintain at its offices at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx in the name of
the Company but under the sole dominion and control of the Administrative Agent,
a cash collateral account designated as "SFX Entertainment, Inc./Cash Collateral
Account" (the "GENERAL CASH COLLATERAL ACCOUNT"). Any Borrower may from time to
time make one or more deposits into the General Cash Collateral Account, and all
amounts paid to the Administrative Agent pursuant to Section 6.03 shall be
deposited into the General Cash Collateral Account. The Company hereby grants to
the Administrative Agent, for the benefit of the Lender Parties, a Lien on and
security interest in the General Cash Collateral Account and all sums at any
time and from time to time on deposit therein (the General Cash Collateral
Account, together with all sums on deposit therein, sometimes referred to herein
collectively as the "GENERAL CASH COLLATERAL"), as collateral security for the
prompt payment in full when due, whether at stated maturity, by acceleration or
otherwise, of the obligations of each Obligor under the Loan Documents. The
Company agrees that at any time and from time to time at its expense, it will,
and will cause each other Borrower to, promptly execute and deliver to the
Administrative Agent any further instruments and documents, and take any further
actions, that may be necessary or that the Administrative Agent may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Administrative Agent to exercise
and enforce its rights and remedies hereunder with respect to any General Cash
Collateral. The Company agrees that it will not (i) sell or otherwise dispose of
any of the General Cash Collateral, or (ii) create or permit to exist any Lien
upon any of the General Cash Collateral. The Company and each other Borrower
hereby authorizes the Administrative Agent, promptly after each drawing under
any Letter of Credit shall become due and payable, to apply cash on deposit in
the Cash Collateral Account towards the payment of any LC Reimbursement
Obligations for all sums paid in respect of such drawing, and all obligations
under the Loan Documents which shall then be due and owing. The Administrative
Agent shall notify the Company promptly of any such application.
(b) Term-Loan A Cash Collateral Account. At, or at any time before, the
time any Borrower shall be required to make a deposit into the Term Loan-A Cash
Collateral Account, the Administrative Agent shall establish and maintain at its
offices at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx in the name of the Company but
under the sole dominion and control of the Administrative Agent, a cash
collateral account designated as "SFX Entertainment, Inc./ Term Loan-A Cash
75
Collateral Account" (the "TERM LOAN-A CASH COLLATERAL ACCOUNT"). Any Borrower
may from time to time make one or more deposits into the Term Loan-A Cash
Collateral Account. The Company hereby grants to the Administrative Agent, for
the benefit of the Term Loan-A Lenders, a Lien on and security interest in the
Term Loan-A Cash Collateral Account and all sums at any time and from time to
time on deposit therein (the Term Loan-A Cash Collateral Account, together with
all sums on deposit therein, sometimes referred to herein collectively as the
"TERM LOAN-A CASH COLLATERAL"), as collateral security for the prompt payment in
full when due, whether at stated maturity, by acceleration or otherwise, of all
Apollo LC Reimbursement Obligations and all other amounts payable in respect of
the Apollo Letters of Credit. The Company agrees that at any time and from time
to time at its expense, it will, and will cause each other Borrower to, promptly
execute and deliver to the Administrative Agent any further instruments and
documents, and take any further actions, that may be necessary or that the
Administrative Agent may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Term Loan-A Cash Collateral. The Company agrees that it will
not (i) sell or otherwise dispose of any of the Term Loan-A Cash Collateral, or
(ii) create or permit to exist any Lien upon any of the Term Loan-A Cash
Collateral. The Company and each other Borrower hereby authorizes the
Administrative Agent, promptly after each drawing under any Apollo Letter of
Credit shall become due and payable, to apply cash on deposit in the Term Loan-A
Cash Collateral Account towards the payment of any Apollo LC Reimbursement
Obligations for all sums paid in respect of such drawing. The Administrative
Agent shall notify the Company promptly of any such application.
SECTION 2.23. Fronted Swedish Kroner Loans. (a) Subject to the terms
and conditions hereof, and at any time when Swedish Kroner is included as an
"Alternative Currency" pursuant to the definition thereof, the Fronting Lender
agrees, on the terms and conditions set forth in this Agreement, to make Term
Loans-A and Revolving Loans denominated in Swedish Kroner (each, a "FRONTED
SWEDISH KRONER LOAN") to the relevant Borrowers from time to time during the
Term Loan-A Availability Period or Revolving Credit Period, as the case may be;
provided that, subject to Section 2.19(f), the aggregate Dollar Amount of
Fronted Swedish Kroner Loans shall at no time exceed $35,000,000.
(b) Any Borrower may borrow (i) Fronted Swedish Kroner Loans that are
Term Loans-A (each, a "FRONTED SWEDISH KRONER TERM LOAN-A") during the first six
months of the Term Loan-A Availability Period and (ii) Fronted Swedish Kroner
Loans that are Revolving Loans (each, a "FRONTED SWEDISH KRONER REVOLVING LOAN")
during the Revolving Credit Period, in each case on any Euro-Currency Business
Day, provided that the Company or such Borrower (if other than the Company)
shall give the Fronting Lender and the Administrative
76
Agent irrevocable written notice in the form of a Notice of Borrowing (which
Notice of Borrowing must be received by the Fronting Lender and the
Administrative Agent prior to 10:30 A.M. on the fourth Euro-Currency Business
Day before such Borrowing) specifying (x) all of the information required to be
included in such Notice of Borrowing pursuant to Section 2.02, (y) the identity
of the Borrower to which such Fronted Swedish Kroner Loan is to be made and (z)
whether the requested Loan shall be a Revolving Loan or a Term Loan-A. Each
Borrowing of Fronted Swedish Kroner Loans shall be in an amount not less than
the minimum Dollar Amount applicable to Term Loan-A Borrowings or Revolving
Borrowings, as the case may be, pursuant to Section 2.01. The proceeds of each
Fronted Swedish Kroner Loan will be made available by the Fronting Lender to the
relevant Borrower at the Fronting Lender's payment office identified on the
signature pages hereof (or such other office as the Fronting Lender may specify
for such purpose by notice to the other parties hereto) no later than 3:30 P.M.
(London time) on the date of such Borrowing and in such funds as may then be
customary for the settlement of international transactions in Swedish Kroner.
(c) Each Borrower shall pay to the Fronting Lender, for the account of
the Term Loan-A Lenders or the Revolving Lenders, as the case may be, a
participation fee with respect to each Fronted Swedish Kroner Loan made by such
Fronting Lender to such Borrower, with respect to the period from and including
the date of such Loan to but excluding the date of repayment thereof, computed
at a rate per annum equal to the Applicable Margin in respect of Euro-Currency
Term Loans-A or Euro-Currency Revolving Loans, as the case may be, from time to
time in effect on the average daily principal amount of such Fronted Swedish
Kroner Loan outstanding during the period for which such fee is calculated. Each
such participation fee shall be shared ratably among the relevant Term Loan-A
Lenders or Revolving Lenders, as the case may be, in accordance with their
respective Term Loan-A Percentages or Revolving Credit Percentages. Each such
participation fee shall be payable in arrears on each Quarterly Payment Date to
occur after the making of the relevant Fronted Swedish Kroner Loan and on the
final maturity date in respect of such Fronted Swedish Kroner Loan (or on such
earlier date as such Fronted Swedish Kroner Loan shall become due and payable as
provided herein) and shall be nonrefundable. Upon receipt of any payment
pursuant to this clause, the Fronting Lender shall promptly convert such payment
to Dollars at the Spot the Rate determined by the Fronting Lender to be in
effect on the date of such conversion and shall promptly forward such amount in
Dollars to the Administrative Agent. Notwithstanding the foregoing, any Obligor
may pay a participation fee on behalf of a Borrower, in which case such fee
shall be paid directly to the Administrative Agent in Dollars (determined based
on the Spot Rate determined by the Administrative Agent to be in effect on the
relevant date).
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(d) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Term Loan-A Lenders or the Revolving Lenders, as
applicable, all fees received by the Administrative Agent for their respective
accounts pursuant to Section 2.23(c).
(e) The Fronting Lender irrevocably agrees to grant and hereby grants
to each Term Loan-A Lender and, to induce the Fronting Lender to make Fronted
Swedish Kroner Loans hereunder, each such Term Loan-A Lender irrevocably agrees
to accept and purchase and hereby accepts and purchases from such Fronting
Lender, on the terms and conditions hereinafter stated, for such Term Loan-A
Lender's own account and risk, an undivided interest equal to its Term Loan-A
Percentage of the Fronting Lender's obligations and rights in respect of each
Fronted Swedish Kroner Term Loan-A made by the Fronting Lender hereunder. Each
such Term Loan-A Lender unconditionally and irrevocably agrees with the Fronting
Lender that if any amount in respect of the principal, interest or fees owing to
the Fronted Lender in respect of a Fronted Swedish Kroner Term Loan-A is not
paid when due in accordance with the terms of this Agreement (collectively,
"TERM LOAN-A FRONTED OVERDUE AMOUNTS"), such Term Loan-A Lender shall pay to the
Fronting Lender (through the Administrative Agent) upon demand an amount in
Dollars equal to such Term Loan-A Lender's Term Loan-A Percentage of the Dollar
equivalent of such Term Loan-A Fronted Overdue Amounts (such Dollar equivalent
to be determined based on the Spot Rate determined by the Administrative Agent
to be in effect on such demand date).
(f) The Fronting Lender irrevocably agrees to grant and hereby grants
to each Revolving Lender and, to induce the Fronting Lender to make Fronted
Swedish Kroner Loans hereunder, each such Revolving Lender irrevocably agrees to
accept and purchase and hereby accepts and purchases from such Fronting Lender,
on the terms and conditions hereinafter stated, for such Revolving Lender's own
account and risk an undivided interest equal to its Revolving Credit Percentage
of the Fronting Lender's obligations and rights in respect of each Fronted
Swedish Kroner Revolving Loan made by the Fronting Lender hereunder. Each such
Revolving Lender unconditionally and irrevocably agrees with the Fronting Lender
that, if any amount in respect of the principal, interest or fees owing to the
Fronted Lender in respect of a Fronted Swedish Kroner Revolving Loan is not paid
when due in accordance with the terms of this Agreement (collectively,
"REVOLVING FRONTED OVERDUE AMOUNTS"), such Revolving Lender shall pay to the
Fronting Lender (through the Administrative Agent) upon demand an amount in
Dollars equal to such Revolving Lender's Revolving Credit Percentage of the
Dollar equivalent of such Revolving Fronted Overdue Amounts (such Dollar
equivalent to be determined based on the Spot Rate determined by the
Administrative Agent to be in effect on such demand date).
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(g) The purchase of participations in any Term Loan-A Fronted Overdue
Amount or Revolving Fronted Overdue Amount pursuant to clause (e) or (f) of this
Section shall not relieve the relevant Borrower of any default in the payment
thereof, and the relevant Borrower's repayment obligation in respect of any such
Term Loan-A Fronted Overdue Amount or Revolving Fronted Overdue Amount shall
automatically be converted into Dollars based on the Spot Rate in effect at the
time such amount became overdue. The relevant Borrower shall be obligated to pay
interest in respect of all such Term Loan-A Fronted Overdue Amounts and
Revolving Fronted Overdue Amounts at a rate per annum equal to the sum of 2%
plus the higher of (i) the Alternate Base Rate for such day and (ii) the rate
which would be applicable to a one-month Loan made in Swedish Kroner borrowed on
such day.
(h) The obligation of each Term Loan-A Lender and each Revolving Lender
to make the payments referred to in clause (e) or (f), as the case may be, shall
be absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim, recoupment,
defense or other right which any Term Loan-A Lender or Revolving Lender or any
Borrower may have against the Fronting Lender, any Borrower or any other Person
for any reason whatsoever, (ii) the occurrence or continuance of a Default or
Event of Default, (iii) any adverse change in the condition (financial or
otherwise) of any Borrower, (iv) any breach of this Agreement or any other Loan
Document by any Obligor or any of the Lender Parties or (v) any other
circumstance, happening or event whatsoever.
(i) If any amount required to be paid by a Term Loan-A Lender or a
Revolving Lender to the Fronting Lender pursuant to the foregoing clauses of
this Section is not paid to the Fronting Lender when due, such Term Loan-A
Lender or Revolving Lender, as the case may be, shall pay interest on such
amount to the Fronting Lender on demand computed at a rate per annum equal to
the rate which would be applicable to a one-month Loan in Swedish Kroner
borrowed on such day. A certificate of the Fronting Lender submitted to any Term
Loan-A Lender or Revolving Lender, as the case may be, with respect to amounts
owing under this Section shall be conclusive in the absence of manifest error.
(j) Whenever, at any time after the Fronting Lender has received from
any Term Loan-A Lender or Revolving Lender the full amount owing by such Term
Loan-A Lender or Revolving Lender, as the case may be, pursuant to and in
accordance with this Section in respect of Fronted Swedish Kroner Loans, the
Fronting Lender receives any payment related to such Fronted Swedish Kroner Loan
(whether directly from the Borrower or otherwise, including proceeds of
collateral applied thereto by the Fronting Lender), or any payment of interest
on account thereof, the Fronting Lender will promptly distribute to such Term
Loan-A Lender or Revolving Lender, as applicable, its pro rata share thereof.
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(k) If any payment received by the Fronting Lender pursuant to clause
(j) of this Section with respect to any Fronted Swedish Kroner Term Loan-A is
required to be returned by such Fronting Lender, each Term Loan-A Lender shall
pay to the Fronting Lender its pro rata share thereof. If any payment received
by the Fronting Lender pursuant to clause (j) of this Section with respect to
any Fronted Swedish Kroner Revolving Loan is required to be returned by such
Fronting Lender, each Revolving Lender shall pay to the Fronting Lender its pro
rata share thereof.
(l) Each Borrower hereby unconditionally promises to pay to the
Fronting Lender the then unpaid principal amount of each Fronted Swedish Kroner
Loan made to it by the Fronting Lender on the applicable Maturity Date for such
Fronted Swedish Kroner Term Loans-A or Fronted Swedish Kroner Revolving Loans,
as the case may be (or such earlier date on which such Fronted Swedish Kroner
Loan becomes due and payable hereunder).
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness. This Amended Agreement shall become
effective when all the following conditions have been satisfied:
(a) the Administrative Agent shall have received, from each party
listed on the signature pages hereof, either a counterpart hereof
signed by such party or facsimile or other written confirmation
satisfactory to the Administrative Agent confirming that such party has
signed a counterpart hereof;
(b) the Administrative Agent shall have received a duly executed
Note of the Company for the account of each Lender which shall have
made written request therefor not less than one Domestic Business Day
prior to the Effective Date, dated on or before the Effective Date and
complying with the provisions of Section 2.13;
(c) the Administrative Agent shall have received duly executed
counterparts of the Domestic Subsidiary Guarantee signed on behalf of
each Domestic Subsidiary Guarantor;
(d) the Administrative Agent shall have received (i) duly executed
counterparts of each Effective Date Collateral Document, together with
evidence satisfactory to it in its sole good faith discretion of
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the effectiveness and the perfection of the Liens contemplated thereby
(including the filing of UCC-1s and the delivery of any stock
certificates or promissory notes comprising the Collateral) and (ii) a
completed and duly executed Perfection Certificate of the Company and
each Domestic Subsidiary Guarantor, dated the Effective Date,
substantially in the form of Annex A to the Domestic Security
Agreement;
(e) the Administrative Agent shall have received (i) an opinion of
Winston & Xxxxxx, counsel for the Obligors, substantially in the form
of Exhibit K-1 hereto, and (ii) an opinion of the Associate General
Counsel of the Company, substantially in the form of Exhibit K-2
hereto, each dated the Effective Date and covering such additional
matters relating to the transactions contemplated hereby as the
Required Lenders may reasonably request;
(f) the Administrative Agent shall have received (i) an opinion of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Administrative Agent,
substantially in the form of Exhibit L-1 hereto and (ii) an opinion of
Xxxxxx Xxxx, special English counsel for the Administrative Agent
substantially in the form of Exhibit L-2 hereto, each dated the
Effective Date and covering such additional matters relating to the
transactions contemplated hereby as the Required Lenders may reasonably
request;
(g) the Administrative Agent shall have received duly executed
counterparts of the Master Assignment Agreement, and all payments
required to be made thereunder shall have been made (or arrangements
satisfactory to the Administrative Agent shall have been made for the
making of such payments), and the Company shall have paid in full (or
made arrangements satisfactory to the Administrative Agent for paying
in full) on the Effective Date all interest and fees accrued under the
Existing Credit Agreement to but excluding the Effective Date and all
other amounts (if any) then due and payable by the Company thereunder;
(h) the Administrative Agent shall have received evidence
satisfactory to it of the insurance coverage required by Section 5.03
and the Effective Date Collateral Documents;
(i) the Administrative Agent shall have received all costs, fees,
expense and other amounts payable on or prior to the Effective Date for
the account of the Lenders, the Agents or the Arrangers in the amounts
previously agreed to be payable on the Effective Date (including,
without limitation, reimbursement or payment of all legal fees and
other out-of-pocket expenses required to be reimbursed or paid by the
Company in connection with the Loan Documents);
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(j) the Administrative Agent shall have received all documents the
Administrative Agent may reasonably request relating to the existence
of the Obligors, the corporate authority for and the validity of the
Loan Documents, and any other matters relevant hereto, all in form and
substance satisfactory to the Agents.
(k) the Administrative Agent shall have received evidence
satisfactory to it that all Indebtedness of the Obligors under the Loan
Documents shall constitute "Senior Debt" and "Designated Senior Debt"
as each such term is defined under each Subordinated Indenture;
(l) the Administrative Agent shall have received evidence
satisfactory to it that neither the amendment and restatement of the
Existing Credit Agreement as set forth in this Amended Agreement, nor
the transactions contemplated by the Loan Documents, violate or will
violate any term or provision of either Subordinated Indenture;
(m) the Administrative Agent shall have received a certificate of
the Chief Financial Officer of the Company, dated the Effective Date,
as to the solvency of each Obligor, in form and substance satisfactory
to the Administrative Agent;
(n) the Administrative Agent shall have received, for all Venues
that are leased, a fully executed copy of the lease for such Venue,
certified by the Secretary or Assistant Secretary of the Company to be
a true and complete copy thereof;
(o) the Administrative Agent shall have received a fully executed
copy of the Apollo Purchase Agreement (together with all exhibits,
schedules or other attachments thereto);
(p) the Administrative Agent shall have received copies of all due
diligence reports prepared by the Company or its counsel in connection
with the Apollo Acquisition and addressed to the Administrative Agent
(in its capacity as such), together with such additional documentation
or information relating to such due diligence as the Administrative
Agent may reasonably request;
(q) the Administrative Agent shall have received a certificate of
the chief financial officer of the Company, dated the Effective Date,
which certificate contains calculations demonstrating on the basis of
such financial statements that the Company is in compliance with the
covenants contained in Section 5.12 to Section 5.18, inclusive, after
giving effect to
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all Borrowings and issuances of Letters of Credit and issuances of
Apollo Letters of Credit (if any) on the Effective Date, all in form
and substance satisfactory to the Administrative Agent; and
(r) the Required Lenders shall not have determined in good faith
that there has been an action, suit or proceeding pending or threatened
(i) in which there is a reasonable possibility of an adverse decision
which could have a Material Adverse Effect or (ii) which in any manner
draws into question the validity or enforceability of the Loan
Documents.
Promptly after the Effective Date occurs, the Administrative Agent shall notify
the Company and the Lenders thereof, and such notice shall be conclusive and
binding on all parties hereto.
SECTION 3.02. Consequence of Effectiveness. (a) On the Effective Date,
without further action by any of the parties thereto, (i) the Existing Credit
Agreement will be automatically amended and restated to read as this Agreement
reads, (ii) each lender not a party to the Existing Agreement shall become a
Lender party to this Agreement with the Commitments set forth on its Lender
Addendum and (iii) the Commitments of the Lenders shall be as set forth on their
respective Lender Addenda.
(b) On and after the Effective Date, the rights and obligations of the
parties hereto shall be governed by the provisions of this Amended Agreement.
The rights and obligations of the parties to the Existing Credit Agreement with
respect to the period before the Effective Date shall continue to be governed by
the provisions thereof as in effect before the Effective Date, except that all
interest and fees accrued under the Existing Credit Agreement to but excluding
the Effective Date shall be paid on the Effective Date.
(c) Notwithstanding the amendment and restatement of the Existing
Credit Agreement, the Loans under, and as defined in, the Existing Credit
Agreement ("CONTINUING LOANS") which are outstanding as of the date hereof will
remain outstanding as of the Effective Date, and will constitute continuing
obligations hereunder and shall continue to be secured by the Collateral. All
Continuing Loans shall be Term Loans-B under this Agreement.
SECTION 3.03. Borrowings, Issuances of Letters of Credit and Issuances
of Apollo Letters of Credit. The obligation of any Lender to make a Loan on the
occasion of any Borrowing, the obligation of the LC Issuing Bank to issue (or
extend the expiry date of) any Letter of Credit, and the obligation of the
Apollo LC Issuer to issue (or extend the expiry date of) any Apollo Letter of
Credit are subject to the limitations in Sections 2.01, 2.14(b) and 2.15, as
applicable, and to the satisfaction of the following conditions:
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(a) the Effective Date shall have occurred;
(b) receipt by the Administrative Agent of a Notice of Borrowing
as required by Section 2.02, or receipt by the LC Issuing Bank of a
notice of proposed issuance or extension as required by Section 2.14(d)
or 2.14(g), or receipt by the Apollo LC Issuer of a notice of proposed
issuance or extension as required by Section 2.15(b) or 2.15(f), as the
case may be;
(c) the fact that, immediately before and after such Borrowing or
issuance or extension of a Letter of Credit or an Apollo Letter of
Credit, no Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the
Borrowers set forth in this Agreement shall be true on and as of the
date of such Borrowing or issuance or extension of a Letter of Credit
or an Apollo Letter of Credit.
Each Borrowing and each issuance or extension of a Letter of Credit or an Apollo
Letter of Credit hereunder shall be deemed to be a representation and warranty
by the Borrower on the date thereof as to the facts specified in clauses (a),
(c) and (d) of this Section.
SECTION 3.04. Additional Conditions on Issuance of Apollo Letters of
Credit; First Borrowing by or Issuance of Letter of Credit for Account of UKHC.
The obligation of the Apollo LC Issuer to issue any Apollo Letter of Credit, and
of each Lender to make a Loan on the occasion of the first Borrowing by UKHC,
and of the LC Issuing Bank to issue an initial Letter of Credit for the account
of UKHC are subject to the satisfaction of the following further conditions:
(a) satisfaction of the Administrative Agent in its sole
discretion with the terms and conditions of the Apollo Acquisition
Documents and receipt by the Administrative Agent of evidence
satisfactory to it in its sole discretion of the satisfaction (without
waiver) of all conditions to the closing of the Apollo Acquisition, and
that the Apollo Acquisition will be consummated prior to or
simultaneously with such Borrowing, issuance of Letter of Credit or
issuance of an Apollo Letter of Credit;
(b) the Administrative Agent shall have received all documents the
Administrative Agent may reasonably request relating to the existence
of UKHC and each direct and indirect Subsidiary of UKHC (after giving
effect to the consummation of all transactions contemplated to occur on
such date), the corporate authority for and the validity of the Loan
84
Documents, and any other matters relevant hereto, all in form and
substance satisfactory to the Agents;
(c) receipt by the Administrative Agent of a duly executed
original copy of an Acquisition Holdco Pledge Agreement signed on
behalf of UKHC, pursuant to which UKHC shall have pledged, or caused to
be pledged, (i) 66% of the Capital Stock of Apollo Parent and (ii) 66%
of the Capital Stock of any other Subsidiary owned directly by UKHC
(after giving effect to the consummation of the transactions
contemplated to occur on such date);
(d) receipt by the Administrative Agent of a duly executed
original copy of a Foreign Borrower Pledge Agreement signed on behalf
of UKHC, pursuant to which UKHC shall have pledged, or caused to be
pledged, all of the Capital Stock of Apollo Parent and any other
Subsidiary owned directly by UKHC (after giving effect to the
consummation of the transactions contemplated to occur on such date);
provided that the foregoing condition shall be waived or modified
(including, without limitation, a modification that would require such
condition to be satisfied by a certain date after the occurrence of the
first Borrowing by, or initial issuance of a Letter of Credit or Apollo
Letter of Credit to, UKHC) (in each case, as reasonably determined by
the Administrative Agent) to the extent necessary to avoid any
violation of applicable law (including, without limitation, Financial
Assistance Laws) which cannot be avoided pursuant to an available
exception or exemption;
(e) receipt by the Administrative Agent of copies (which, in the
case of clauses (i)-(iv), shall be duly executed original copies) of
each of the following:
(i) a Foreign Borrower Subsidiary Guarantee signed on behalf of
Apollo Parent and each other direct and indirect Subsidiary of UKHC
(after giving effect to the consummation of the transactions
contemplated to occur on such date);
(ii) a Foreign Borrower Subsidiary Pledge Agreement signed on
behalf of Apollo Parent and each other direct and indirect Subsidiary
of UKHC (after giving effect to the consummation of all transactions
contemplated to occur on such date), pursuant to which each such Person
shall have pledged, or cause to be pledged, 100% of any Capital Stock
owned directly by it to secure its obligations under its Foreign
Borrower Subsidiary Guarantee;
85
(iii) a Foreign Borrower Subsidiary Security Agreement signed on
behalf of Apollo Parent and each other direct and indirect Subsidiary
of UKHC (after giving effect to the consummation of the transactions
contemplated to occur on such date), together with (x) any other
documents or agreements, in each case in form and substance
satisfactory to the Administrative Agent, as may be necessary or
desirable in order to grant a perfected first priority security
interest upon all of the assets of each such Person to secure its
obligations under the Foreign Borrower Subsidiary Guarantee, and (y)
evidence reasonably satisfactory to the Administrative Agent that the
Company and UKHC have used their commercially reasonable efforts to
obtain all landlord or other third party consents required to be
obtained in connection with the creation of a Lien on any leasehold
property subject to the Foreign Borrower Subsidiary Security Agreement;
(iv) the Foreign Mortgage Documents with respect to Apollo Parent
and each other direct and indirect Subsidiary of UKHC (after giving
effect to the consummation of the transactions contemplated to occur on
such date), in each case acceptable in form and substance to the
Administrative Agent and its counsel in their sole discretion; and
(v) all necessary statutory declarations, reports and resolutions
required to comply with Sections 151 to 158 Companies Xxx 0000 in
respect of each of the Collateral Documents, Foreign Borrower
Subsidiary Guarantees and other Loan Documents to be executed by UKHC,
Apollo Parent or any Apollo Subsidiary;
provided that the conditions set forth in this subsection (e) shall be
waived or modified (including, without limitation, a modification that would
require such condition to be satisfied by a certain date after the occurrence of
the first Borrowing by, or initial issuance of a Letter of Credit or Apollo
Letter of Credit to, UKHC) (in each case, as reasonably determined by the
Administrative Agent) to the extent necessary to avoid any violation of
applicable law (including, without limitation, Financial Assistance Laws) which
cannot be avoided pursuant to an available exception or exemption; and
provided further that the conditions set forth in clauses (iii) and
(iv) of this subsection shall be waived or modified (including, without
limitation, a modification that would require such condition to be satisfied by
a certain date after the occurrence of the first Borrowing by, or initial
issuance of a Letter of Credit or Apollo Letter of Credit to, UKHC) (in each
case, as reasonably determined by the Administrative Agent) to the extent
necessary to avoid contravention of or default under any contract or agreement
restricting the creation
86
of Liens on personal or real property held by Subsidiaries that are not Wholly
Owned Foreign Subsidiaries; and
provided further that the conditions set forth in clauses (iii) and
(iv) of this subsection with respect to any assets or real property (other than
assets or real property of Apollo Parent or any Apollo Subsidiary) shall be
waived or modified (including, without limitation, a modification that would
require such condition to be satisfied by a certain date after the occurrence of
the first Borrowing by, or initial issuance of a Letter of Credit or Apollo
Letter of Credit to, UKHC) (in each case, as reasonably determined by the
Administrative Agent) to the extent necessary to avoid or reduce (x) any
materially adverse tax consequences reasonably expected to result therefrom (as
determined by the Administrative Agent and the Company) or (y) other materially
burdensome costs reasonably expected to be incurred in connection therewith (as
determined by the Administrative Agent and the Company); and
provided further that if the Administrative Agent shall determine in
its sole good faith discretion that, with respect to any Subsidiary of UKHC that
is not a Wholly Owned Foreign Subsidiary, satisfaction of any or all of the
conditions set forth in this subsection (e) is impossible, impractical or
unreasonably burdensome, the Administrative Agent may, in its good faith
discretion, consent to a waiver of any or all of such conditions with respect to
any such Subsidiary of UKHC that is not a Wholly Owned Foreign Subsidiary;
(f) receipt by the Administrative Agent of certificates of title
to all of the Apollo Mortgaged Properties, each addressed to the
Administrative Agent (in its capacity as such) and in form and
substance satisfactory to the Administrative Agent;
(g) receipt by the Administrative Agent of such evidence as it may
reasonably require that, except as the Administrative Agent shall have
otherwise determined in its sole discretion, all Indebtedness of Apollo
Parent and the Apollo Subsidiaries has been retired, and all
commitments with respect thereto terminated, on terms and conditions
satisfactory to the Administrative Agent, and all Liens securing such
Indebtedness have been discharged;
(h) receipt by the Administrative Agent of an opinion of Xxxxxx
Xxxx, special English counsel for the Administrative Agent,
substantially in the form of Exhibit L-3, dated as of the date of such
issuance of an Apollo Letter of Credit, or first Borrowing by, or
issuance of an initial Letter of Credit for the account of, UKHC;
87
(i) receipt by the Administrative Agent of a duly executed Note of
UKHC for the account of each Lender which shall have made written
request therefore not less than one Domestic Business Day prior to the
Effective Date, dated on or before the Effective Date and complying
with the provisions of Section 2.13; and
(j) in the case of an issuance of any Apollo Letter of Credit, the
date of such issuance shall be on or prior to December 31, 1999.
SECTION 3.05. First Borrowing by Each Eligible Subsidiary. The
obligation of each Lender to make a Loan on the occasion of the first Borrowing
by each Eligible Subsidiary, and of the LC Issuing Bank to issue an initial
Letter of Credit for the account of each Eligible Subsidiary, are subject to the
satisfaction of the following further conditions:
(a) receipt by the Administrative Agent for the account of each
Lender of a duly executed Note of such Eligible Subsidiary, dated on or
before the date of such Borrowing, complying with the provisions of
Section 2.13;
(b) receipt by the Administrative Agent of an opinion of counsel
for such Eligible Subsidiary acceptable to the Administrative Agent,
substantially to the effect of Exhibit O hereto and covering such
additional matters (including, without limitation, the effectiveness
and perfection of any security interests granted to the Administrative
Agent by such Eligible Subsidiary and its Subsidiaries) relating to the
transactions contemplated hereby as the Required Lenders may reasonably
request;
(c) receipt by the Administrative Agent of all documents which it
may reasonably request relating to the existence of such Eligible
Subsidiary, its authority for and the validity of its Election to
Participate, this Agreement and the other Loan Documents, and any other
matters relevant thereto, all in form and substance satisfactory to the
Administrative Agent;
(d) receipt by the Administrative Agent of duly executed
counterparts of an Acquisition Holdco Pledge Agreement signed on behalf
of such Eligible Subsidiary, pursuant to which such Eligible Subsidiary
shall have pledged, or caused to be pledged, 66% of the Capital Stock
of any other Foreign Operating Company owned directly by it (after
giving effect to the consummation of the transactions contemplated to
occur on such date);
88
(e) receipt by the Administrative Agent of duly executed
counterparts of a Foreign Borrower Pledge Agreement signed on behalf of
such Eligible Subsidiary, pursuant to which such Eligible Subsidiary
shall have pledged, or caused to be pledged, 34% of the Capital Stock
of any Foreign Operating Company owned directly by it (after giving
effect to the consummation of the transactions contemplated to occur on
such date); provided that the foregoing condition shall be waived or
modified (including, without limitation, a modification that would
require such condition to be satisfied by a certain date after the
occurrence of the first Borrowing by, or initial issuance of a Letter
of Credit to, such Eligible Subsidiary) (in each case, as reasonably
determined by the Administrative Agent) to the extent necessary to
avoid (x) any violation of applicable law (including, without
limitation, Financial Assistance Laws) which cannot be avoided pursuant
to an available exception or exemption, (y) any materially adverse tax
consequences reasonably expected to result therefrom (as determined by
the Administrative Agent and the Company) or (z) other materially
burdensome costs reasonably expected to be incurred in connection
therewith (as determined by the Administrative Agent and the Company);
(f) receipt by the Administrative Agent of duly executed
counterparts (or, in the case of clause (iv) below, original versions
of):
(i) a Foreign Borrower Subsidiary Guarantee signed on behalf of
each direct and indirect Subsidiary of such Eligible Subsidiary (after
giving effect to the consummation of the transactions contemplated to
occur on such date);
(ii) a Foreign Borrower Subsidiary Pledge Agreement signed on
behalf of each direct and indirect Subsidiary of such Eligible
Subsidiary (after giving effect to the consummation of all transactions
contemplated to occur on such date), pursuant to which each such Person
shall have pledged, or cause to be pledged, 100% of any Capital Stock
owned directly by it to secure its obligations under its Foreign
Borrower Subsidiary Guarantee;
(iii) a Foreign Borrower Subsidiary Security Agreement signed on
behalf of each direct and indirect Subsidiary of such Eligible
Subsidiary (after giving effect to the consummation of the transactions
contemplated to occur on such date), together with any other documents
or agreements, in each case in form and substance satisfactory to the
Administrative Agent, as may be necessary or desirable in order to
grant a perfected first priority security interest upon all of the
assets of each such Person to
89
secure its obligations under the Foreign Borrower Subsidiary
Guarantee; and
(iv) originals of the Foreign Mortgage Documents with respect to
each direct and indirect Subsidiary of such Eligible Subsidiary (after
giving effect to the consummation of the transactions contemplated to
occur on such date), in each case acceptable in form and substance to
the Administrative Agent and its counsel in their sole discretion;
provided that the conditions set forth in this subsection (f) shall be
waived or modified (including, without limitation, a modification that would
require such condition to be satisfied by a certain date after the occurrence of
the first Borrowing by, or initial issuance of a Letter of Credit to, such
Eligible Subsidiary) (in each case, as reasonably determined by the
Administrative Agent) to the extent necessary to avoid any violation of
applicable law (including, without limitation, Financial Assistance Laws) which
cannot be avoided pursuant to an available exception or exemption; and
provided further that the conditions set forth in clauses (iii) and
(iv) of this subsection (f) shall be waived or modified (including, without
limitation, a modification that would require such condition to be satisfied by
a certain date after the occurrence of the first Borrowing by, or initial
issuance of a Letter of Credit or Apollo Letter of Credit to, UKHC) (in each
case, as reasonably determined by the Administrative Agent) to the extent
necessary to avoid (x) contravention of or default under any contract or
agreement restricting the creation of Liens on personal or real property held by
Subsidiaries that are not Wholly Owned Foreign Subsidiaries, (y) any materially
adverse tax consequences reasonably expected to result therefrom (as determined
by the Administrative Agent and the Company) or (z) other materially burdensome
costs reasonably expected to be incurred in connection therewith (as determined
by the Administrative Agent and the Company); and
provided further that if the Administrative Agent shall determine in
its sole good faith discretion that, with respect to any Subsidiary of an
Eligible Subsidiary that is not a Wholly Owned Foreign Subsidiary, satisfaction
of any or all of the conditions set forth in this subsection (f) is impossible,
impractical or unreasonably burdensome, the Administrative Agent may, in its
good faith discretion, consent to a waiver of any or all of such conditions with
respect to any such Subsidiary of an Eligible Subsidiary that is not a Wholly
Owned Foreign Subsidiary.
The opinion referred to in Section 3.05(b) shall be dated on or before the date
of the first Borrowing by such Eligible Subsidiary.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Company (and, for purposes of Section 4.21, each of the Company
and UKHC) represents and warrants that:
SECTION 4.01. Corporate Organization. The Company is a corporation duly
incorporated and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, consents, authorizations and approvals required to carry on its
business as now conducted, and is duly qualified and in good standing as a
foreign corporation authorized to do business in each jurisdiction where,
because of the nature of its activities or properties, such qualification is
required, except where the failure to so qualify could not reasonably be
expected to have a Material Adverse Effect.
SECTION 4.02. Authorization; No Conflict. The execution, delivery and
performance by the Company of the Loan Documents are within the Company's
corporate powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any governmental body,
agency or official (other than filings which have been made on or prior to the
Effective Date, and are in full force and effect) and do not and will not (i)
contravene, or constitute a default under, any provision of applicable law or
regulation or (ii) contravene, or constitute a default under, any provision of
the Company's Organizational Documents or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or any
Subsidiary or (iii) except as contemplated by the Collateral Documents, result
in the creation or imposition of any Lien on any asset of the Company or any
Subsidiary.
SECTION 4.03. Binding Effect. Each of the Loan Documents (other than
the Notes) is a legal, valid and binding obligation of the Company, and the
Notes, when executed and delivered in accordance with this Agreement will be,
legal, valid and binding obligations of the Company, in each case enforceable
against the Company in accordance with their respective terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
SECTION 4.04. Financial Statements. (a) The consolidated balance sheets
of the Company and its Consolidated Subsidiaries as of December 31, 1998 and the
related consolidated statements of operations, cash flows and shareholders'
equity for the Fiscal Year then ended, reported on by Ernst & Young LLP and set
forth in the Company's 1998 Form 10-K, fairly present, in conformity with GAAP,
the consolidated financial condition of the Company and its Consolidated
91
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such Fiscal Year.
(b) The unaudited consolidated balance sheets of the Company and its
Consolidated Subsidiaries as of March 31, 1999 and the related unaudited
consolidated statements of operations, cash flows and shareholders' equity for
the three months then ended, set forth in the Company's Latest Form 10-Q, fairly
present, on a basis consistent with the financial statements referred to in
Section 4.04(a), the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such three month period (subject to normal
year-end adjustments).
(c) Since December 31, 1998, there has been no material adverse change
in the business, financial position, assets, properties, prospects, operations,
performance or capital structure of the Company and its Consolidated
Subsidiaries, taken as a whole.
SECTION 4.05. Litigation. There is no action, suit or proceeding
pending against, or to the Company's knowledge threatened against or affecting,
the Company or any Subsidiary before any court or arbitrator or any governmental
body, agency or official in which there is a reasonable possibility of an
adverse decision which could have a Material Adverse Effect or which in any
manner draws into question the validity or enforceability of the Loan Documents.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (x) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (y) failed to make any
contribution or payment required to be made to a Plan or Multiemployer Plan, or
made any amendment to any Plan, which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security under ERISA or
the Internal Revenue Code or (z) incurred any liability under Title IV of ERISA
other than the liability to the Pension Benefit Guaranty Corporation for
premiums under Section 4007 of ERISA.
SECTION 4.07. Environmental Matters. In the ordinary course of its
business, the Company conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously
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owned, any capital or operating expenditures required to achieve or maintain
compliance with environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site disposal
of wastes or Hazardous Substances and any actual or potential liabilities to
third parties, including employees, and any related costs and expenses). On the
basis of this review, the Company has reasonably concluded that such associated
liabilities and costs, including the costs of complying with Environmental Laws,
are unlikely to have a Material Adverse Effect.
SECTION 4.08. Taxes. The Company and its Subsidiaries have filed all
United Stated federal income tax returns and all other material tax returns
which are required to have been filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company
or any Subsidiary, except to the extent that any such assessment is being
contested in good faith by appropriate proceedings. The charges, accruals and
reserves on the books of the Company and its Subsidiaries in respect of taxes or
other governmental charges are, in the Company's opinion, adequate.
SECTION 4.09. Subsidiaries; Domestic Subsidiary Guarantors. (a) Each of
the Company's Subsidiaries is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted,
except where the failure to be so licensed or possess such authorizations,
consents or approvals could not reasonably be expected to have a Material
Adverse Effect.
(b) Schedule 4.09 lists all of the Subsidiaries of the Company as of
the Effective Date. Each Domestic Subsidiary of the Company is a Domestic
Subsidiary Guarantor, and each Domestic Subsidiary Guarantor is a direct or
indirect Subsidiary of the Company.
(c) Each of the representations made by each Domestic Subsidiary
Guarantor in the Domestic Subsidiary Guarantee is true and correct.
SECTION 4.10. No Regulatory Restrictions on Borrowing. Neither the
Company nor any of its Subsidiaries is (i) an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, (ii) a "holding
company" or a "subsidiary company" of a holding company within the meaning of
the Public Utility Holding Company Act of 1935, as amended, or (iii) otherwise
subject to any regulatory scheme which restricts its ability to incur debt.
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SECTION 4.11. Full Disclosure. All information heretofore furnished by
the Company to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Company to the Administrative
Agent or any Lender will be, true and accurate in all material respects on the
date as of which such information is stated or certified, provided that any
projections or pro-forma financial information contained therein are understood
and agreed to be based upon good faith estimates and assumptions believed by the
Company to be reasonable at the time made, it being understood and agreed that
such projections as to future events are not to be viewed as facts, and that
actual results during the period or periods covered thereby may differ from the
projected results. The Company has disclosed to the Lenders in writing any and
all facts which materially and adversely affect, or may affect (to the extent
the Company can now reasonably foresee), the business, operations or financial
condition of the Company and its Consolidated Subsidiaries, taken as a whole, or
any Obligor's ability to perform its obligations under the Loan Documents.
SECTION 4.12. Properties. (a) Each of the Company and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes.
(b) Each of the Company and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.13. Collateral Documents. Each of the representations made by
each of the Company and its Subsidiaries in the Collateral Documents to which it
is a party is true and correct.
SECTION 4.14. No Burdensome Restrictions. No contract, lease, agreement
or other instrument to which the Company or any of its Subsidiaries is a party
or by which any of its property is bound or affected, no charge, corporate
restriction, judgment, decree or order and no provision of applicable law or
governmental regulation has had or is reasonably expected to have a Material
Adverse Effect.
SECTION 4.15. Labor Matters. There are no strikes or other labor
disputes pending or, to the best knowledge of the Company, threatened, against
the Company or any of its Subsidiaries, except which either individually or in
the
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aggregate could not reasonably be expected to have a Material Adverse
Effect. Hours worked and payments made to the employees of the Company and its
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable law dealing with such matters. All payments due from the
Company or any of its Subsidiaries, or for which any claim may be made against
any of them, on account of wages and employee health and welfare insurance and
other benefits have been paid or accrued as a liability on their books.
SECTION 4.16. Compliance with Laws and Agreements. Each of the Company
and its Subsidiaries is in compliance with all laws, regulations and orders of
any governmental authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 4.17. Solvency. As of the Effective Date, after giving effect
to the transactions contemplated hereby to occur on the Effective Date, and on
the occasion of any extension of credit under this Agreement: (i) the aggregate
fair market value of the assets of each of the Company and its Material
Subsidiaries will exceed its liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities), (ii) each of the Company and its
Material Subsidiaries will be able to pay its debts as they mature and (iii)
each of the Company and its Material Subsidiaries will not have unreasonably
small capital for the business in which it is engaged.
SECTION 4.18. Status as Senior Debt. The Indebtedness of the Obligors
under the Loan Documents constitutes "Designated Senior Debt" and "Senior Debt",
as each such term is defined in each of the Subordinated Indentures.
SECTION 4.19. Year 2000 Compliance. The Company has (i) initiated a
review and assessment of all areas within the business and operations of the
Company and each of its Subsidiaries (including those areas affected by
suppliers and vendors) that could be adversely affected by the "YEAR 2000
PROBLEM" (that is, the risk that computer applications used by it or any of its
Subsidiaries (or their respective suppliers and vendors) may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999), (ii) developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis and (iii) to
date, implemented such plan in accordance with such timetable. The Company
reasonably believes that all computer applications (including those of suppliers
and vendors) that are material to the business or operations of the Company or
any of its Subsidiaries will on a timely basis be able to perform properly
date-sensitive functions for all dates before and from and after January 1, 2000
(that is, be "YEAR 2000 COMPLIANT"),
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except to the extent that a failure to do so could not reasonably be expected to
have a Material Adverse Effect.
SECTION 4.20. Eligible Subsidiaries. (a) Each Eligible Subsidiary is
duly organized and existing under the laws of its jurisdiction of organization.
(b) The execution and delivery by each Eligible Subsidiary of its
Election to Participate, its Notes and the other Loan Documents executed by it,
and the performance by it of this Agreement, its Notes and the other Loan
Documents to which it is a party, are within its legal powers, have been duly
authorized by all necessary legal action, require no action by or in respect of,
or filing with, any governmental body, agency or official (other than (i)
Exchange Act reporting requirements and (ii) actions which have been taken, and
filings which have been made, and are in full force and effect) and do not and
will not contravene, or constitute a default under, any provision of applicable
law or regulation or of the organizational documents of such Eligible
Subsidiary, or of any agreement for borrowed money or other material agreement
binding upon the Company or any of its Subsidiaries. Such Eligible Subsidiary
has duly executed and delivered its Election to Participate.
(c) This Agreement is a legal, valid and binding obligation of each
Eligible Subsidiary, and its Notes, when duly executed and delivered will be,
legal, valid and binding obligations of such Eligible Subsidiary, in each case
enforceable against such Eligible Subsidiary in accordance with their respective
terms, subject to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity.
(d) Except as disclosed in its Election to Participate, there is no
income, stamp or other tax of any country, or any taxing authority thereof or
therein, in the nature of a withholding tax or otherwise, which is imposed on
any payment to be made by each Eligible Subsidiary pursuant to this Agreement or
its Notes, or is imposed in respect of the execution, delivery or enforcement of
its Election to Participate, this Agreement or its Notes.
(e) Each of the representations of each Eligible Subsidiary set forth
herein is true and correct.
SECTION 4.21. UKHC. (a) UKHC is duly organized and existing under the
laws of its jurisdiction of organization.
(b) The execution, delivery and performance by UKHC of this Agreement,
its Notes and the other Loan Documents to which it is a party are within its
legal powers, have been duly authorized by all necessary legal action, require
no action by or in respect of, or filing with, any governmental body,
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agency or official (other than (i) Exchange Act reporting requirements and (ii)
actions which have been taken, and filings which have been made on or prior to
the Effective Date, and are in full force and effect) and do not and will not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the Organizational Documents of UKHC, or of any agreement for
borrowed money or other material agreement binding upon the Company or any of
its Subsidiaries.
(c) This Agreement is a legal, valid and binding obligation of UKHC,
and its Notes, when duly executed and delivered will be, legal, valid and
binding obligations of UKHC, in each case enforceable against UKHC in accordance
with their respective terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles of
equity.
ARTICLE 5
COVENANTS
The Company agrees that, so long as any Lender has any Credit Exposure
hereunder or any interest or fees accrued hereunder remain unpaid:
SECTION 5.01. Financial Statements and Other Information. The Company
will deliver to each of the Lenders:
(a) as soon as available and in any event within 90 days after the end
of each Fiscal Year, the consolidated balance sheets of the Company and its
Consolidated Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of operations, cash flows and shareholders' equity for
such Fiscal Year, setting forth in each case in comparative form the figures for
the previous Fiscal Year, all reported on in a manner acceptable to the SEC
(without (i) a "going concern" or like qualification or exception, (y) any
qualification or exception as the scope of such audit or (z) any exception or
qualification which relates to the treatment or classification of any item and
which, as a condition to the removal of such qualification, would require an
adjustment to such item, the effect of which would be to cause the Company to be
in default of any of its obligations under Section 5.12 through 5.18, inclusive)
by Ernst & Young LLP or other independent public accountants of nationally
recognized standing selected by the Company and reasonably satisfactory to the
Administrative Agent;
(b) as soon as available and in any event within 45 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year, the consolidated
balance sheets of the Company and its Consolidated Subsidiaries as of the end of
such Fiscal Quarter, the related consolidated statement of operations for such
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Fiscal Quarter and the related consolidated statements of operations, cash flows
and shareholders' equity for the portion of the Fiscal Year ended at the end of
such Fiscal Quarter, setting forth in the case of each such statement of
operations, cash flows and changes in shareholders' equity in comparative form
the figures for the corresponding period in the previous Fiscal Year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation and consistency with GAAP by the Company's chief financial officer
or chief accounting officer;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses 5.01(a) and 5.01(b) above, a certificate in
the form of Exhibit S of the Company's chief financial officer or chief
accounting officer (each such certificate called a "COMPLIANCE CERTIFICATE"),
(i) setting forth in reasonable detail the calculations required to establish
whether the Company was in compliance with the requirements of Sections 5.10 to
5.21, inclusive, on the date of such financial statements and (ii) stating
whether any Default exists on the date of such certificate and, if any Default
then exists, setting forth the details thereof and the action which the Company
is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in Section 5.01(a) above, a statement of the firm of
independent public accountants which reported on such statements, stating
whether anything has come to their attention to cause them to believe that any
Default existed on the date of such financial statements (which certificate may
be limited to the extent required by accounting rules or guidelines);
(e) within five Domestic Business Days after any officer of the Company
obtains knowledge of any Default, if such Default is then continuing, a
certificate of the Company's chief financial officer or chief accounting officer
setting forth the details thereof and the action which the Company is taking or
proposes to take with respect thereto;
(f) promptly after the mailing thereof to the Company's shareholders
generally, copies of all financial statements, reports and proxy statements so
mailed;
(g) promptly after the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) filed by the Company with the SEC;
(h) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
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termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any Plan which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the Company's chief financial officer or chief
accounting officer setting forth details as to such occurrence and the action,
if any, which the Company or applicable member of the ERISA Group is required or
proposes to take; and
(i) as soon as available but in any event no later than 30 days after
the end of each calendar month, (i) a report on the Unconsolidated Investments
in such form as shall be mutually agreed upon by the Company and the
Administrative Agent, and (ii) unaudited revenue and expense statements as of
the end of such calendar month and for the period from the beginning of the then
current Fiscal Year to the end of such calendar month, including comparative
figures from comparable periods in the prior year and a comparison of actual
results to those set forth in the budget for such period, all prepared by the
Company and otherwise in form and detail satisfactory to the Administrative
Agent;
(j) concurrently with any delivery of financial statements under
subsection (a) above, a certificate executed by an executive financial officer
and the general counsel of the Company (i) setting forth the information
required pursuant to Section 1(a) and Section 2 of the Perfection Certificate or
confirming that there has been no change in such information since the date of
such Perfection Certificate or the date of the most recent certificate delivered
pursuant to this subsection (j), (ii) certifying that all Uniform Commercial
Code financing statements or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and re-registrations,
containing a description of the Collateral, have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interest of the Administrative
99
Agent for a period of not less than 18 months after the date of such certificate
(except as noted therein with respect to any continuation statements to be filed
within such period) and (iii) identifying in the format of Schedules 9, 10 and
11 to the Perfection Certificate, as applicable, the intellectual property
assets of the Company and each Domestic Subsidiary Guarantor, the Equity
Interests (as defined in the Domestic Security Agreement) of the Company and
each Domestic Subsidiary Guarantor, and the Instruments (as defined in the
Domestic Security Agreement) of the Company and each Domestic Subsidiary
Guarantor in existence on the date thereof and not then listed on such Schedules
or previously so identified to the Administrative Agent;
(k) not later than 30 days after the first day of each Fiscal Year, a
budget for the Company and its Subsidiaries for such Fiscal Year, in form and
substance reasonably satisfactory to the Administrative Agent; and
(l) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries as the
Administrative Agent, at the request of any Lender, may reasonably request.
Information required to be delivered pursuant to Section 5.01(a), 5.01(b),
5.01(f), or 5.01(g) above shall be deemed to have been delivered on the date on
which the Company provides notice to the Lenders that such information has been
posted on the Company's website on the Internet at the website address listed on
the signature pages hereof, at xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website
identified in such notice and accessible by the Lenders without charge; provided
that (i) such notice may be included in a certificate delivered pursuant to
Section 5.01(c) and (ii) the Company shall deliver paper copies of the
information referred to in Section 5.01(a), 5.01(b), 5.01(f) or 5.01(g) to any
Lender which requests such delivery.
SECTION 5.02. Payment of Obligations. The Company will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective material obligations and liabilities (including,
without limitation, tax liabilities and claims of materialmen, warehousemen and
the like which if unpaid might by law give rise to a Lien), which, if unpaid,
could reasonably be expected to result in a Material Adverse Effect, except
where (i) the validity or amount thereof is being contested in good faith by
appropriate proceedings diligently conducted, (ii) the Company or such
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (iii) the failure to make payment pending such contest
could not reasonably be excepted to result in a Material Adverse Effect.
SECTION 5.03. Maintenance of Property; Insurance. (a) The Company
shall, and shall cause each Subsidiary to, maintain, protect and keep in good
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repair, working order and condition (ordinary wear and tear excepted) at all
times, all of its property other than property, the loss of which could not
reasonably be expected to have a Material Adverse Effect.
(b) The Company will, and will cause each Subsidiary to, maintain
(either in the Company's name or in such Subsidiary's own name) with financially
sound and responsible insurance companies, insurance on all their respective
properties in at least such amounts (with no greater risk retention) and against
at least such risks as are usually maintained, retained or insured against in
the same general area by companies of established repute engaged in the same or
a similar business. The Company will furnish to the Lenders, upon request from
the Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
SECTION 5.04. Conduct of Business and Maintenance of Existence. The
Company and its Subsidiaries will continue to engage in business limited to the
live entertainment business of the same general type as now conducted by the
Company and its Subsidiaries (and any business reasonably similar,
complementary, ancillary or related thereto), and will preserve, renew and keep
in full force and effect their respective corporate existences and their
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that nothing in this Section shall
prohibit:
(a) the merger of a Subsidiary into the Company if, after giving
effect thereto, no Default shall have occurred and be continuing;
(b) the merger or consolidation of a Subsidiary with or into a
Person other than the Company if the corporation surviving such
consolidation or merger is a Subsidiary and, after giving effect
thereto, no Default shall have occurred and be continuing; or
(c) the termination of the corporate existence of a Subsidiary if
the Company in good faith determines that such termination is in the
best interest of the Company and is not materially disadvantageous to
the Lenders.
SECTION 5.05. Compliance with Laws . The Company will comply, and will
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder), except where the necessity of compliance
therewith is contested in good faith by appropriate proceedings or where the
failure to so comply could not reasonably be expected to have a Material Adverse
Effect.
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SECTION 5.06. Inspection of Property, Books and Records. The Company
will keep, and will cause each Subsidiary to keep, proper books of record and
account in which full and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit, and
will cause each Subsidiary to permit, representatives of any Lender at such
Lender's expense to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all at such reasonable
times upon reasonable prior notice and as often as may reasonably be requested.
SECTION 5.07. Mergers; Consolidations; Asset Sales. (a) The Company
will not, and will not permit any Subsidiary to, consolidate or merge with or
into any other Person; provided that nothing in this Section shall prohibit (i)
the Company from merging with another Person if the Company is the corporation
surviving such merger and, immediately after giving effect to such merger, no
Default shall have occurred and be continuing, or (ii) any Subsidiary from
merging with another Person (including another Subsidiary) in a transaction in
which the surviving entity is a Subsidiary (and if either party to such merger
is a Domestic Subsidiary Guarantor, the entity surviving the merger is a
Domestic Subsidiary Guarantor) and, immediately after giving effect to such
merger, no Default shall have occurred and be continuing; and provided further
that any such merger involving a Person that is not a Wholly Owned Domestic
Subsidiary or a Wholly Owned Foreign Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by Section 5.20.
(b) The Company will not, and will not permit any Subsidiary to, make
any Asset Sale unless (i) at the time of such proposed Asset Sale and
immediately after giving effect thereto, no Default shall have occurred and be
continuing, (ii) the aggregate amount of Operating Cash Flow attributable to
Asset Sales in the period of four Fiscal Quarters most recently completed on the
date of the proposed Asset Sale (or, in the case of any proposed Asset Sale
occurring prior to the first anniversary of the Effective Date, during the
period beginning on the Effective Date and ending on the date of such proposed
Asset Sale) shall not exceed 10% of the aggregate amount of Operating Cash Flow
for such four Fiscal Quarter (or applicable shorter) period, (iii) the aggregate
amount of Operating Cash Flow attributable to Asset Sales made from and after
the Effective Date (calculated after giving effect to the proposed Asset Sale)
shall not exceed 20% of the aggregate amount of Operating Cash Flow for such
period, (iv) the consideration received in respect of such proposed Asset Sale
is equal to the fair market value of the assets subject thereto and (v) at least
75% of the consideration received in respect of such proposed Asset Sale
consists of cash or cash equivalents payable at the closing thereof.
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SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of
Loans will be applied by the Borrowers for working capital and general corporate
purposes, including without limitation to finance directly or indirectly
(through the making of intercompany loans to Subsidiaries) the Specified
Acquisitions and other Acquisitions permitted under this Agreement; provided
that after February 23, 2000, the proceeds of Term Loans-A may only be applied
to repay Apollo LC Reimbursement Obligations. Letters of Credit (other than an
Apollo Letter of Credit) will be issued only to support obligations of the
Company and its Subsidiaries incurred in the ordinary course of business. An
Apollo Letter of Credit will be issued only to support the obligations of the
Company and UKHC under the Apollo Loan Notes. Neither such proceeds of the Loans
nor the Letters of Credit will be used, directly or indirectly, for the purpose,
whether immediate, incidental or ultimate, of buying or carrying any Margin
Stock.
SECTION 5.09. Subordinated Debt. The Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, redeem, retire,
purchase, acquire, defease or otherwise make any payment in respect of the
principal of any Subordinated Debt other than regularly scheduled mandatory
redemptions or sinking fund payments. Without the prior written consent of the
Required Lenders, the Company will not, and will not permit any of its
Subsidiaries to, amend, supplement, waive or otherwise modify, or consent to or
solicit any amendment, supplement, waiver or other modification of, any
agreement or instrument evidencing or governing any Subordinated Debt, if the
effect of such amendment, supplement, waiver or modification is to (A) increase
the interest rate payable on any Subordinated Debt, (B) advance the dates upon
which payments of principal or interest are due on any Subordinated Debt
(including any such change that adds or modifies mandatory or voluntary
prepayments), (C) change, in a manner which is adverse to the Company and its
Subsidiaries or which confers additional rights on the holders thereof, any
event of default or covenant (or any definition relating thereto) with respect
to any Subordinated Debt, (D) change the redemption or repurchase provisions
with respect to any Subordinated Debt in a manner which is adverse to the
Company and its Subsidiaries or which confers additional rights on the holders
thereof, (E) change the subordination provisions of any Subordinated Debt or (F)
otherwise materially increase the obligations of the obligor or confer material
additional rights or benefits on the holders of any Subordinated Debt.
SECTION 5.10. Negative Pledge. Neither the Company nor any Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and set forth in
Schedule 5.10; provided that (i) such Lien shall not apply to any other
property or asset of the Company or any Subsidiary and (ii) such Lien
shall
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secure only those obligations which it secures on the date hereof
and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(b) any Lien existing on any fixed or capital asset of any Person
at the time such Person becomes a Subsidiary and not created in
contemplation of such event;
(c) any Lien on any fixed or capital asset of any Person existing
at the time such Person is merged or consolidated with or into the
Company or a Subsidiary and not created in contemplation of such event;
(d) any Lien existing on any fixed or capital asset prior to the
acquisition thereof by the Company or a Subsidiary and not created in
contemplation of such acquisition;
(e) Liens arising in the ordinary course of its business which (i)
do not secure Indebtedness or Derivatives Obligations, (ii) do not
secure any single obligation (or class of obligations having a common
cause) in an amount exceeding $15,000,000 and (iii) do not, in the
aggregate, secure obligations in an aggregate amount exceeding
$50,000,000 (it being understood that judgment liens shall be
considered to be Liens arising in the ordinary course of business to
the extent they do not give rise to an Event of Default under Section
6.01(j));
(f) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens shall at no time exceed $1,000,000;
(g) Liens in favor of the Trustee under each Subordinated
Indenture to the extent such Liens are permitted under each
Subordinated Indenture; and
(h) Liens created under the Collateral Documents.
SECTION 5.11. Limitation on Indebtedness. The Company will not, and
will not permit any of its Subsidiaries to, incur or at any time be liable with
respect to any Indebtedness except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness (i) of the Company to any Domestic Subsidiary
Guarantor or (ii) of any Domestic Subsidiary Guarantor to the Company
or any other Domestic Subsidiary Guarantor or (iii) of an Acquisition
Holdco
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to the Company to the extent the proceeds of such Indebtedness are used
to finance a permitted Acquisition of, or other Investment in, a
Foreign Operating Company hereunder;
(c) Guarantees by the Company of Indebtedness of any Domestic
Subsidiary Guarantor, and by any Domestic Subsidiary Guarantor of
Indebtedness of the Company or any other Domestic Subsidiary Guarantor;
(d) Indebtedness outstanding on the date hereof and identified on
Schedule 5.11 and refinancings thereof; provided that (i) the principal
amount thereof is not increased beyond the amount outstanding
thereunder on the date hereof and (ii) the terms thereof are no more
onerous to the Company or its Subsidiaries than the terms of the
Indebtedness being refinanced;
(e) Indebtedness secured by Liens permitted by Section 5.10;
(f) other unsecured Indebtedness of the Company owing to one or
more institutions not otherwise permitted by this Section incurred
after the Effective Date in an aggregate principal amount at any time
outstanding not to exceed $750,000,000; provided that (i) any such
Indebtedness requires no payment of principal prior to June 30, 2007,
(ii) except for an aggregate principal amount of Indebtedness not to
exceed $250,000,000, Indebtedness incurred pursuant to this subsection
(f) shall be Subordinated Debt, and (iii) any Indebtedness (other than
Subordinated Debt) otherwise permitted pursuant to this subsection (f)
shall contain terms and conditions which are no more restrictive to the
issuer, and no more favorable to the holders, of such Indebtedness than
the terms and conditions (excluding the subordination provisions)
governing the Subordinated Notes;
(g) Indebtedness not otherwise permitted by this Section
consisting of obligations of the Company or any of its Subsidiaries as
lessee which are capitalized in accordance with GAAP in an aggregate
amount not to exceed $25,000,000;
(h) Indebtedness represented by the Apollo Loan Notes and
reimbursement obligations with respect to the Apollo Loan Note
Guarantee; and
(i) other Indebtedness of the Company and its Subsidiaries not
otherwise permitted by this Section in an aggregate principal amount at
any time outstanding not to exceed $25,000,000;
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provided that, notwithstanding anything to the contrary set forth in
this Section, no Foreign Subsidiary of the Company (other than an Acquisition
Holdco or a Subsidiary of an Acquisition Holdco) shall incur or at any time be
liable with respect to any Indebtedness (other than pursuant to Section
5.20(f)(iii)) in excess of $2,000,000 at any time outstanding.
SECTION 5.12. Total Leverage Ratio. At any time during any period set
forth below, the Total Leverage Ratio will not exceed the ratio set forth below
opposite such period:
PERIOD RATIO
------ -----
Effective Date - September 29, 2000 6.00:1
September 30, 2000 - September 29, 2001 5.50:1
September 30, 2001 - September 29, 2002 5.00:1
September 30, 2002 - September 29, 2003 4.50:1
September 30, 2003 - September 29, 2004 4.00:1
On or after September 30, 2004 3.50:1
; provided that at any time during the period from August 1, 1999 to
and including September 29, 2000 when the Company shall have consummated one or
more issuances of Capital Stock (other than Disqualified Stock) for aggregate
net cash proceeds in excess of $100,000,000, the ratio set forth above shall be
5.75:1.00.
SECTION 5.13. Senior Leverage Ratio. At any time during any period set
forth below, the Senior Leverage Ratio will not exceed the ratio set forth below
opposite such period:
PERIOD RATIO
------ -----
Effective Date - September 29, 2000 4.00:1
September 30, 2000 - September 29, 2001 3.50:1
September 30, 2001 - September 29, 2002 3.00:1
On or after September 30, 2002 2.50:1
SECTION 5.14. Pro Forma Interest Expense Ratio. At the last day of any
Fiscal Quarter ending during any period set forth below, the Pro Forma Interest
Expense Ratio shall not be less than the ratio set forth below opposite such
period:
PERIOD RATIO
------ -----
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Effective Date - September 29, 2000 1.50:1
September 30, 2000 - September 29, 2001 1.75:1
On or after September 30, 2001 2.00:1
SECTION 5.15. Pro Forma Debt Service Ratio. At the last day of any
Fiscal Quarter, the Pro Forma Debt Service Ratio shall not be less than
1.50:1.00.
SECTION 5.16. Fixed Charges Ratio. At the last day of any Fiscal
Quarter, the Fixed Charges Ratio shall not be less than 1.05:1.00.
SECTION 5.17. Adjusted Total Debt to Rental Expense Ratio. At the last
day of any Fiscal Quarter, the Adjusted Total Debt to Rental Expense Ratio will
not exceed 6.50:1.00.
SECTION 5.18. Limitation on Adjusted Operating Cash Flow from Foreign
Subsidiaries. At the last day of any Fiscal Quarter, the portion of Adjusted
Operating Cash Flow derived from operations and businesses owned by Foreign
Subsidiaries (after giving pro forma effect to all investments, acquisitions and
dispositions of assets made by the Company and its Consolidated Subsidiaries
during the period of four consecutive Fiscal Quarters ending on such date (the
"MEASUREMENT PERIOD") as if the same had occurred at the beginning of such
Measurement Period) shall not exceed 35% of pro forma Adjusted Operating Cash
Flow for such Measurement Period.
SECTION 5.19. Restricted Payments. Neither the Company nor any
Subsidiary will declare or make any Restricted Payment, except (a) any
Subsidiary may declare and pay dividends or distributions ratably with respect
to its equity securities, (b) the Company may make Restricted Payments pursuant
to and in accordance with employee stock option plans in an aggregate amount not
to exceed $1,000,000 during the term of this Agreement, and (c) the Company and
its Subsidiaries may make Restricted Payments in cash in an amount not to exceed
50% of Excess Cash Flow for the Fiscal Year then most recently ended (beginning
with the Fiscal Year ending December 31, 2001); provided that no such Restricted
Payment referred to in this subsection (c) shall be permitted hereunder unless
(i) the Company shall have delivered to each of the Lenders a Compliance
Certificate with respect to the Fiscal Year in respect of the Excess Cash Flow
of which such Restricted Payment is being made, (ii) immediately prior to and
after giving effect to such Restricted Payment, no Default or Event of Default
shall exist and (iii) immediately prior to and after giving effect to such
Restricted Payment, the Total Leverage Ratio (calculated for purposes hereof as
if such Restricted Payment were made during the applicable period of four Fiscal
Quarters for which Adjusted Operating Cash Flow is measured) shall be less than
3.50:1.
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SECTION 5.20. Investments. Neither the Company nor any Subsidiary will
hold, make or acquire any Investment in any Person other than:
(a) Investments in existence on the Effective Date and listed on
Schedule 5.20;
(b) Temporary Cash Investments;
(c) (i) Unconsolidated Investments made by the Borrower or any
Domestic Subsidiary Guarantor and (ii) Investments made after the
Effective Date in non-wholly owned Subsidiaries not permitted by any of
the foregoing clauses, in an aggregate amount for all such
Unconsolidated Investments and other Investments not to exceed
$20,000,000 in any period of four Fiscal Quarters;
(d) Acquisitions permitted pursuant to Section 5.21;
(e) Guarantees constituting Indebtedness permitted by Section
5.11;
(f) (i) loans or advances made by the Company to any Domestic
Subsidiary Guarantor, or by any Domestic Subsidiary Guarantor to the
Company or another Domestic Subsidiary Guarantor; (ii) loans or
advances made by the Company to any Subsidiary (other than a Domestic
Subsidiary Guarantor), or by any Subsidiary to another Subsidiary
(other than a Domestic Subsidiary Guarantor), provided that the
aggregate principal amount of loans or advances at any time outstanding
and permitted by this clause (ii) shall not exceed $5,000,000; (iii)
loans or advances made by any Foreign Subsidiary to another Foreign
Subsidiary in the ordinary course of business consistent with past
practice of such Subsidiary or the Company's other Subsidiaries and
(iv) loans (but not capital contributions or other advances) made by
the Company to an Acquisition Holdco or another Foreign Subsidiary, the
proceeds of which are used by such Acquisition Holdco or other Foreign
Subsidiary to finance Acquisitions permitted pursuant to Section 5.21;
provided that the Company may make capital contributions or other
advances to a Foreign Subsidiary in connection with an Acquisition
permitted pursuant to Section 5.21 to the extent required (in the good
faith determination of the Company, based on advice of legal counsel)
to comply with capitalization requirements under applicable tax laws to
preserve the deductibility of interest payments made by such Foreign
Subsidiary; and
(g) employee loans and advances for travel, relocation,
entertainment and other ordinary business expense.
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SECTION 5.21. Acquisitions; Acquisition Deposits. (a) The Company shall
not, and shall not permit any Subsidiary to make any Acquisition other than:
(i) the Specified Acquisitions;
(ii) other Acquisitions, provided that: (A) the Acquisition
Consideration for such Acquisition does not exceed $75,000,000, (B) no Default
exists immediately before and immediately after giving effect to such
Acquisition, (C) all of the representations and warranties set forth in Article
4 of this Agreement shall be true on and as of the date of such Acquisition, (D)
if the Acquisition Consideration for such Acquisition exceeds $5,000,000, the
Company shall have delivered, or cause to be delivered to the Administrative
Agent and each Lender (x) at least five Domestic Business Days' prior written
notice of such Acquisition, (y) a certificate of the chief financial officer or
chief accounting officer of the Company, certifying that (1) no Default has
occurred and is continuing, both before and after giving effect to the
consummation of such Acquisition, (2) such Acquisition will be consummated in
accordance with the terms of the applicable Acquisition documents with no
amendment, supplement or other modification of any term or provision thereof
which adversely affects the interests of any Lender Party under the Loan
Documents, (3) the Company is in compliance with all covenants on a pro-forma
basis after giving effect to such Acquisition, and (4) attaching a copy of a
pro-forma consolidated balance sheet of the Company utilized for purposes of
preparing such Compliance Certificate, which pro-forma consolidated balance
sheet presents the Company's good faith estimate of its pro-forma consolidated
financial condition at the date thereof, after giving effect to such
Acquisition, and (z) such other information and documents as the Administrative
Agent shall reasonably request; and
(iii) other Acquisitions with the prior written consent of the Required
Lenders; and
(b) The Company shall not, and shall not permit any Subsidiary to, make
any deposit in connection with a potential Acquisition, unless (i) immediately
after giving effect to each deposit, the aggregate amount of all outstanding
deposits under this Section 5.21(b) does not exceed $25,000,000, (ii) each such
deposit (together with earnings thereon) is to be applied in full to the
purchase price of the related Acquisition if such Acquisition is consummated,
and (iii) such deposit is invested in Temporary Cash Investments pending such
application.
SECTION 5.22. Transactions with Affiliates. The Company will not, and
will not permit any Subsidiary to, directly or indirectly, (i) pay any funds to
or for the account of any Affiliate, (ii) make any investment in any Affiliate
(whether by acquisition of stock or indebtedness, by loan, advance, transfer of
property,
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guarantee or other agreement to pay, purchase or service, directly or
indirectly, any Indebtedness, or otherwise), (iii) lease, sell, transfer or
otherwise dispose of any assets, tangible or intangible, to any Affiliate, or
(iv) participate in, or effect, any transaction with any Affiliate, except in
each case on an arms-length basis on terms at least as favorable to the Company
or such Subsidiary as could have been obtained from a third party that was not
an Affiliate; provided that the foregoing provisions of this Section shall not
prohibit (x) any such Person from declaring or paying any lawful dividend or
other payment ratably in respect of all its Capital Stock of the relevant class
so long as, after giving effect thereto, no Event of Default shall have occurred
and be continuing, (y) so long as no Event of Default has occurred and is
continuing, payments by the Company or any Subsidiary pursuant to executive
compensation arrangements in the form of salary, bonuses or stock options
approved by the Company's Board of Directors in accordance with the Company's
by-laws and (z) transactions between and among the Company and its Wholly Owned
Subsidiaries.
SECTION 5.23. Limitation on Restrictions Affecting Subsidiaries.
Neither the Company nor any of its Subsidiaries will enter into, or suffer to
exist, any agreement with any Person, other than this Agreement, which prohibits
or limits the ability of any Subsidiary to (a) pay dividends or make other
distributions or pay any Indebtedness owed to the Company or any Subsidiary or
to Guarantee any Indebtedness of the Company or any other Subsidiary, (b) make
loans or advances to the Company or any Subsidiary, (c) transfer any of its
properties or assets to Company or any Subsidiary or (d) create, incur, assume
or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired (other than with respect to assets
subject to consensual liens permitted under Section 5.10); provided that the
foregoing shall not apply to (i) restrictions imposed by law or pursuant to the
Loan Documents, (ii) restrictions in effect on the date of this Agreement
contained in agreements governing Indebtedness outstanding on the date of this
Agreement and, if such Indebtedness is renewed, extended or refinanced,
restrictions in the agreements governing the renewed, extended or refinancing
Indebtedness (and successive renewals, extensions and refinancings thereof) if
such restrictions are no more restrictive than those contained in the agreements
governing the Indebtedness being renewed, extended or refinanced or (iii)
restrictions contained in agreements governing Indebtedness permitted to be
incurred after the Effective Date pursuant to the terms of this Agreement so
long as such restrictions are no more restrictive than those contained in the
Subordinated Indentures.
SECTION 5.24. Sale and Leaseback. Neither the Company nor any of its
Subsidiaries will engage in any Sale-Leaseback Transactions.
SECTION 5.25. Limitation of Interest Rate Risk. Not later than six
months after the Effective Date, the Company shall have entered into at its own
cost and
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expense, and shall thereafter maintain in full force and effect for a period of
three years after such date, (i) agreements or arrangements whereby the interest
rate payable on its Indebtedness is fixed rate interest and/or (ii) interest
rate protection agreements between the Company and one or more Lenders
effectively limiting the Company's floating rate interest risk with respect to
the interest rate payable on its Indebtedness, such that at least 40% of the
aggregate Indebtedness of the Company either bears interest at a fixed rate or
is subject to such interest rate protection agreements, all in a manner
satisfactory to the Administrative Agent.
SECTION 5.26. Year 2000. The Company will take all action necessary to
(i) implement its plan for addressing the Year 2000 Problem (as defined in
Section 4.19) in accordance with its current timetable and (ii) ensure that all
computer applications (including those of suppliers and vendors) that are
material to the business or operations of the Company or any of its Subsidiaries
will be Year 2000 compliant (as defined in Section 4.19) on a timely basis,
except to the extent that a failure to be Year 2000 compliant could not
reasonably be expected to have a Material Adverse Effect. At the request of the
Administrative Agent, the Company shall provide assurance reasonably acceptable
to the Administrative Agent of such Year 2000 compliance.
SECTION 5.27. Limitation on Activities by Certain Subsidiaries. None of
the Foreign Subsidiaries of the Company (other than the Foreign Operating
Companies and their respective Subsidiaries) shall engage in any business or
conduct any activity other than (i) the holding, directly or indirectly, of the
investments in the Foreign Operating Companies and any holding companies through
which such investments in the Foreign Operating Companies may be held, (ii) the
payment and provision of compensation and benefits to members of senior
management of regional or national groups of Foreign Subsidiaries with funds
provided to it in compliance with Section 5.22, (iii) the performance of the
Loan Documents, their respective Organizational Documents and other operating
documents, and instruments evidencing Indebtedness not prohibited hereunder, in
each case in accordance with the terms thereof and (iv) the ministerial
activities incidental thereto.
SECTION 5.28. Modification of Certain Documents. Without the consent of
the Administrative Agent, the Company will not, and will not permit any of its
Subsidiaries to, consent to or solicit or enter into any amendment or supplement
to, or any waiver or other modification of, the certificate of incorporation or
bylaws of the Company or any of its Subsidiaries, which amendment, supplement,
waiver or modification, as the case may be, could reasonably be expected to have
a material adverse effect on the rights of the Lenders or the Administrative
Agent under the Loan Documents.
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SECTION 5.29. Further Assurances. (a) The Company will and will cause
each of the other Obligors to, at the Company's sole cost and expense, do,
execute, acknowledge and deliver all such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment and transfers as the
Administrative Agent shall from time to time request, which may be necessary or
desirable in the reasonable judgment of the Administrative Agent from time to
time to assure, perfect, convey, assign and transfer to the Administrative Agent
the property and rights conveyed or assigned pursuant to the Collateral
Documents, or which may facilitate the performance of the terms of the
Collateral Documents, or the filing, registering or recording of the Collateral
Documents.
(b) All costs and expenses in connection with the grant of any security
interests under the Collateral Documents, including, without limitation,
reasonable legal fees and other reasonable costs and expenses in connection with
the granting, perfecting and maintenance of any security interests under the
Collateral Documents or the preparation, execution, delivery, recordation or
filing of documents and any other acts as the Administrative Agent may
reasonably request in connection with the grant of such security interests,
shall be paid by the Company promptly upon demand.
(c) The Company will:
(i) cause each Person which becomes a Domestic Subsidiary of the
Company after the Effective Date (A) to become a party to the Domestic
Subsidiary Guarantee by executing a Domestic Subsidiary Guarantee
Supplement and (B) to enter into a Domestic Subsidiary Security
Agreement and any other agreements, each in form and substance
satisfactory to the Administrative Agent, as may be necessary or
desirable in order to grant perfected first priority security interests
upon all of its assets to secure its obligations under the Domestic
Subsidiary Guarantee;
(ii) pledge, or cause to be pledged, pursuant to the Domestic
Security Agreement, (A) all of the Capital Stock owned directly or
indirectly by the Company of any Domestic Subsidiary described in
clause (i), and (B) Capital Stock owned directly or indirectly by the
Company of any joint venture or partnership in which the Company or a
Domestic Subsidiary has an interest;
(iii) cause each Person which becomes an Acquisition Holdco on or
after the Effective Date to pledge, or cause to be pledged, pursuant to
an Acquisition Holdco Pledge Agreement, 66% of any Capital Stock of any
Foreign Operating Company owned directly by it;
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(iv) cause each Person which becomes a direct or indirect
Subsidiary of UKHC or any Eligible Subsidiary on or after the Effective
Date (A) to become a party to the Foreign Borrower Subsidiary Guarantee
or a supplement thereof in form and substance satisfactory to the
Administrative Agent, (B) to enter into a Foreign Borrower Subsidiary
Security Agreement, a Foreign Borrower Subsidiary Mortgage and any
other agreements, each in form and substance satisfactory to the
Administrative Agent, as may be necessary or desirable in order to
grant perfected first priority security interests upon all of its
assets to secure its obligations under the Foreign Borrower Subsidiary
Guarantee and (C) to pledge, or cause to be pledged, pursuant to an
Foreign Borrower Subsidiary Pledge Agreement, 100% of any Capital Stock
owned directly by it to secure its obligations under the Foreign
Borrower Subsidiary Guarantee;
(v) cause each Person which, after the Effective Date, becomes a
direct or indirect Subsidiary of any Acquisition Holdco to which the
Company or any Subsidiary of the Company has made an intercompany loan
to (A) enter into a Security Agreement, and any other agreements, each
in form and substance satisfactory to the Administrative Agent, as may
be necessary or desirable in order to grant perfected first priority
security interests upon all of its assets to secure the obligations of
the Acquisition Holdco under such intercompany loan, and (B) deliver
appropriate Foreign Mortgage Documents to secure such intercompany loan
obligations; and
(vi) cause each Person which has entered into a Foreign Borrower
Subsidiary Mortgage to use its commercially reasonable efforts to
obtain all landlord or other third party consents required to be
obtained in connection with the creation of a Lien on any leasehold
properties subject to such Foreign Borrower Subsidiary Mortgage.
The Company shall take, or shall cause the relevant Person described in
clause (i), (iii), (iv) or (v) above to take, such actions as may be necessary
or desirable to effect the foregoing within 30 days after the relevant Person
becomes a Subsidiary (or, in the case of clause (ii)(B) above, within 30 days
after the Company acquires the Capital Stock of such joint venture or
partnership, or in the case of clause (iii) above, within 30 days after such
Acquisition Holdco acquires a Foreign Operating Company), including, without
limitation, causing such Person to (x) execute and deliver to the Administrative
Agent such number of copies as the Administrative Agent may specify of such
supplements, pledge agreements, security agreements and other documents creating
security interests and (y) deliver such certificates, evidences of corporate
action or other documents as the Administrative Agent may reasonably request,
all in form and substance
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satisfactory to the Administrative Agent, relating to the satisfaction of the
Company's obligations under this Section.
(d) (i) As promptly as practicable (and in any event within 45 days)
after the Effective Date with respect to the Designated Mortgaged Properties
(other than the Ford Oriental Theater in Chicago, Illinois (the "FORD ORIENTAL
THEATER"), (ii) as promptly as practicable (and in any event on or before
December 1, 1999 (or, if the Company has not received the requisite certificate
of completion for redevelopment work by such date, on or before such later date
as the Administrative Agent may determine in its sole discretion)) after the
Effective Date with respect to the Ford Oriental Theater, (iii) as promptly as
practicable (and in any event within 45 days) after completion of the Apollo
Acquisition with respect to the Apollo Mortgaged Properties, and (iv) at any
time, and from time to time, after the Effective Date, at the request of the
Administrative Agent or the Required Lenders with respect to any other property
owned or leased by an Obligor (or any property owned or leased by a Subsidiary
of an Acquisition Holdco subject to the provisions of Section 5.29(c)(v)), the
Company will, and will cause each of its Subsidiaries to:
(A) with respect to Domestic Mortgaged Properties, provide the
Administrative Agent, all at the expense of the Obligors, with
originals of the following items, each of which must, unless indicated
otherwise, be acceptable in form and substance to the Administrative
Agent and its counsel in their sole discretion (collectively, the
"DOMESTIC MORTGAGE DOCUMENTS"): (i) counterparts of a Mortgage with
respect to each Mortgaged Property duly signed on behalf of the record
owner or lessee, as applicable, of such Domestic Mortgaged Property
properly acknowledged and in recordable form, (ii) an original policy
or policies of title insurance issued by Chicago Title Insurance
Company or another nationally recognized title insurance company
reasonably acceptable to the Administrative Agent, insuring the Lien of
each such Mortgage as a valid first Lien on the Domestic Mortgaged
Property described therein, free of any other Liens except as permitted
by Section 5.10(e) , in form and substance reasonably acceptable to the
Administrative Agent, together with such endorsements, coinsurance and
reinsurance as the Administrative Agent or the Required Lenders may
reasonably request, (iii) such surveys as may be required pursuant to
such Mortgages (except in the case of Mortgaged Properties with respect
to which the Administrative Agent has, in its sole good faith
discretion, waived such survey requirement) or as the Administrative
Agent or the Required Lenders may reasonably request, (iv) upon request
of the Administrative Agent or the Required Lenders a copy of the
original permanent certificate or temporary certificate of occupancy as
the same may have been amended or issued from time to time, covering
each improvement located upon the
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Domestic Mortgaged Properties, that were required to have been issued
by the appropriate governmental authority for such improvement, (v)
upon request of the Administrative Agent or the Required Lenders, and
to the extent available, written confirmation from the applicable
zoning commission or other appropriate governmental authority stating
that with respect to each Domestic Mortgaged Property as built it
complies with existing land use and zoning ordinances, regulations and
restrictions applicable to such Domestic Mortgaged Property, (vi) upon
request of the Administrative Agent or the Required Lenders for each of
the Domestic Mortgaged Properties, a current appraisal of the land and
the improvements thereon prepared by an appraiser selected by the
Administrative Agent, which appraisal must indicate an appraised value
satisfactory to the Administrative Agent and which must be, in all
other respects, satisfactory to the Administrative Agent, (vii) an
environmental audit (which shall be a Phase I Audit, unless the initial
findings indicate a need for additional review) in form and substance
satisfactory to it from Dames and Xxxxx (or another environmental
consulting firm acceptable to the Administrative Agent) with respect to
any environmental hazards, conditions or liabilities (contingent or
otherwise) to which any Obligor may be subject (or, in the case of
properties for which environmental audits conforming to this
description have been previously delivered pursuant to the Existing
Agreement, updates of such environmental audits in form and substance
satisfactory to the Administrative Agent), (viii) UCC-1 Financing
Statements with respect to each Domestic Mortgaged Property duly signed
on behalf of the recorded owner or lessee, as applicable, of each of
the Domestic Mortgaged Properties in recordable form, covering all
fixtures and appurtenances situated upon such Domestic Mortgaged
Properties, (ix) certificates of insurance confirming fire, hazard and
liability coverage in amounts satisfactory to the Administrative Agent,
naming the Administrative Agent as mortgagee, with true and complete
copies of such policies, and (x) flood insurance policies or evidence
that the Domestic Mortgaged Properties are not located in Federal Flood
Hazard Areas, (xi) an opinion from the Borrower's counsel concerning
the execution and enforceability of the Mortgages and other documents
required to be delivered by the Obligors to the Administrative Agent in
connection with the Mortgages, any litigation, judgment or agreement
adversely affecting any record owner or lessee, as applicable, or the
ability of such record owner or lessee, as applicable, to perform their
respective obligations under the Mortgages, (xii) with respect to any
Mortgage which will be a leasehold mortgage, a copy of the ground lease
for such Domestic Mortgaged Properties (the "GROUND LEASE") duly
executed by the ground landlord and ground tenant, (xiii) with respect
to any Mortgage which will be a leasehold mortgage, use its
commercially reasonable efforts to obtain a duly executed consent (if
necessary) from the ground landlord under the
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Ground Lease in form and substance reasonably satisfactory to the
Administrative Agent, and (xiv) any and all other documents, financing
statements, agreements and instruments that may be required under any
applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to create and perfect a first mortgage
Lien against the Domestic Mortgaged Properties, all at the expense of
the Obligors;
(B) with respect to the Apollo Mortgaged Properties, provide the
Administrative Agent with originals of the following items, each of
which must, unless indicated otherwise, be acceptable in form and
substance to the Administrative Agent and its counsel in their sole
discretion (collectively, the "APOLLO MORTGAGE DOCUMENTS"): (i) with
respect to any registered land, (x) the relevant land or charge
certificates, (y) all pre-registration deeds and documents (if any),
and (z) forms DS1 in respect of any charges to be discharged, (ii) with
respect to any unregistered land, all relevant title deeds and
documents and deeds of release in respect of any charges or mortgages
to be discharged, (iii) with respect to any properties acquired
pursuant to an asset sale, duly stamped transfers in respect of such
properties (if any), (iv) landlord consents with respect to any
assignment of and the charging of any leasehold properties where such
consent is required (or, in the case of any such consents not provided
to the Administrative Agent, evidence reasonably satisfactory to the
Administrative Agent that UKHC and its relevant Subsidiaries have used
their commercially reasonable efforts to obtain such consents), (v)
Land Registry of England and Wales (the "HM LAND REGISTRY") application
forms in respect of the transfer of any property and the registration
of charge in favor of the Administrative Agent duly completed on behalf
of each charging Foreign Borrower Subsidiary, together with all
appropriate fees, (vi) an undertaking of counsel for the charging
Foreign Borrower Subsidiaries to use reasonable endeavors to address
and resolve any requisitions raised by HM Land Registry and relating to
any transfer of properties to any of the charging Foreign Borrower
Subsidiaries, and (vii) at the request of the Administrative Agent,
surveys and environmental audits to be delivered within a reasonable
period (as determined by the Administrative Agent after consultation
with the Company and its counsel) after such request is made; and
(C) with respect to Foreign Mortgaged Properties (other than the
Apollo Mortgaged Properties), provide the Administrative Agent with
originals of the following items, each of which must, unless indicated
otherwise, be acceptable in form and substance to the Administrative
Agent and its counsel in their sole discretion (collectively, the
"FOREIGN MORTGAGE DOCUMENTS"): (A) counterparts of a Foreign Borrower
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Subsidiary Mortgage and such other security documents as may be
necessary or desirable to subject all real property owned or leased by
it (subject to certain exceptions to be mutually agreed by the
Administrative Agent, the Company and such Subsidiary) to a first Lien
securing its obligations under the Foreign Borrower Subsidiary
Guarantee (subject only to Liens permitted thereby) (or, in the case of
a Mortgage granted pursuant to Section 5.29(c)(v), securing the
mortgagor's obligations in respect of the relevant intercompany loan),
duly signed on behalf of the record owner or lessee, as applicable, of
the relevant Foreign Mortgaged Property, properly acknowledged and in
recordable form, (B) an opinion from the Obligor's (or other
mortgagor's) counsel concerning the execution and enforceability of the
Mortgages and other documents required to be delivered by the Obligors
(or other mortgagor) to the Administrative Agent in connection with the
Mortgages, any litigation, judgment or agreement adversely affecting
any record owner or lessee, as applicable, or the ability of such
record owner or lessee, as applicable, to perform their respective
obligations under the Mortgages, compliance of the Foreign Mortgaged
Properties with all laws and governmental ordinances, and other matters
as may be required by the Administrative Agent or its counsel, (C) in
the case of Foreign Mortgaged Properties of a Subsidiary of UKHC (other
than the Apollo Parent and the Apollo Subsidiaries), the documents and
other items described in Section 5.29(d)(B) above (all on the terms set
forth in such Section 5.29(d)(B)), (D) with respect to Foreign
Mortgaged Properties other than those described in the immediately
preceding clause (C), such documents as are analogous to those required
pursuant to such immediately preceding clause or are otherwise
customarily required (in the good faith discretion of the
Administrative Agent, based on advice of counsel) in connection with a
mortgage on property in the relevant jurisdiction of such Foreign
Mortgaged Property, and (E) any and all other documents, financing
statements, agreements and instruments that may be required under any
applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to create and perfect a first mortgage
Lien against the Foreign Mortgaged Properties, all at the expense of
the Obligors.
(e) The Company will not, and will not permit any of its Subsidiaries
to, enter into or become subject to any agreement which would impair their
ability to comply, or which would purport to prohibit them from complying, with
the provisions of this Section.
(f) Notwithstanding anything to the contrary in this Section 5.29, if
the Administrative Agent shall determine in its sole good faith discretion that,
with respect to any Subsidiary that is neither a Wholly Owned Domestic
Subsidiary nor
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a Wholly Owned Foreign Subsidiary, satisfaction of any or all of
the conditions set forth in this Section 5.29 is impossible, impractical or
unreasonably burdensome, the Administrative Agent may, in its good faith
discretion, consent to a waiver of any or all of such conditions with respect to
any such Subsidiary.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) any principal of any Loan or any LC Reimbursement Obligation
or any Apollo LC Reimbursement Obligation payable by a Borrower
hereunder shall not be paid when due, or any interest, fee or other
amount payable by a Borrower hereunder shall not be paid within three
Domestic Business Days of the date when due;
(b) the Company shall fail to observe or perform any covenant
contained in Article 5, other than those contained in Sections
5.01(a)-(d), Sections 5.01(f)-(l) and Sections 5.02 through 5.06, or
any Domestic Obligor shall fail to observe or perform any covenant
contained in Section 4.01(a) or 5.04 of the Domestic Security
Agreement, or any Obligor shall fail to observe or perform any covenant
contained in provisions substantially similar to the foregoing set
forth in the Collateral Documents to which such Obligor is a party;
(c) any Obligor shall fail to observe or perform any covenant,
condition or agreement (other than those covered by clause (a) or (b)
above) contained in the Loan Documents for 30 days after the
Administrative Agent gives notice thereof to the Company at the request
of any Lender;
(d) any representation, warranty, certification or statement made
(or deemed made) by or on behalf of any Obligor in connection with the
Loan Documents or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with the Loan Documents
or any amendment or modification thereof or waiver thereunder, shall
prove to have been incorrect in any material respect when made (or
deemed made);
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(e) one or more payments in respect of Material Financial
Obligations shall not be paid when due or within any applicable grace
period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or, with
the giving of notice or lapse of time or both, would enable) the holder
of such Material Debt or any Person acting on such holder's behalf to
accelerate the maturity thereof;
(g) the Company or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in
an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or
any Material Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $5,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer, any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be terminated;
or there shall occur a complete or partial
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withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a
current payment obligation in excess of $5,000,000;
(j) judgments or orders for the payment of money exceeding
$5,000,000 in aggregate amount shall be rendered, in each case against
the Company and/or one or more Subsidiaries, and such judgments or
orders shall continue unsatisfied and unstayed for a period of 60 days;
(k) a Change of Control shall occur;
(l) the Company Guarantee set forth in Article 10 shall at any
time fail to constitute a valid and binding agreement of the Company in
full force and effect, or any Obligor shall so assert in writing;
(m) (i) the Domestic Subsidiary Guarantee shall at any time fail
to constitute a valid and binding agreement of each Domestic Subsidiary
Guarantor in full force and effect, or any Obligor shall so assert in
writing, or (ii) the Foreign Borrower Subsidiary Guarantee shall at any
time fail to constitute a valid and binding agreement of each Foreign
Borrower Subsidiary Guarantor in full force and effect, or any Obligor
shall so assert in writing; or
(n) any Lien created by any of the Collateral Documents shall at
any time fail to constitute a valid and (to the extent required by the
Collateral Documents) perfected first priority Lien on the Collateral
securing the obligations purported to be secured thereby, or any
Obligor shall so assert in writing;
then, and in every such event, the Administrative Agent shall:
(i) if requested by Lenders having more than 50% in aggregate
amount of the Commitments, by notice to the Company terminate the
Commitments and they shall thereupon terminate;
(ii) if requested by Lenders having more than 50% of the Aggregate
Revolving LC Exposure, by notice to the LC Issuing Bank instruct the LC
Issuing Bank not to extend the expiry date of any outstanding Letter of
Credit, whereupon the LC Issuing Bank shall deliver notice to that
effect promptly (or as soon thereafter as is permitted by the
provisions of the relevant Letter of Credit) to the beneficiary of each
such Letter of Credit and the Borrower; and
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(iii) if requested by Lenders holding Notes evidencing more than
50% in aggregate unpaid Dollar Amount of the Loans, by notice to each
Borrower declare the Loans (together with accrued interest thereon) to
be, and the Loans (together with accrued interest thereon) shall
thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by each Borrower;
provided that, if any Event of Default specified in clause (g) or (h) above
occurs with respect to the Company or any other Borrower, then without any
notice to any Borrower or any other act by the Administrative Agent or the
Lenders, the Commitments shall thereupon terminate and the Loans (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower.
SECTION 6.02. Notice of Default. The Administrative Agent shall give
notice to the Company under Section 6.01(c) promptly upon being requested to do
so by any Lender and shall thereupon notify all the Lenders thereof.
SECTION 6.03. General Cash Collateral. If an Event of Default shall
have occurred and be continuing and Lenders having (x) more than 50% of the
Aggregate Revolving LC Exposure, or (y) more than 50% of the Aggregate Apollo LC
Exposure, instruct the Administrative Agent to request cash collateral pursuant
to this Section, the Borrower will, promptly after it receives such request from
the Administrative Agent, pay to the Administrative Agent an amount in
immediately available funds equal to the then aggregate amount available for
subsequent drawings under all outstanding Letters of Credit or Apollo Letters of
Credit, as the case may be, to be held by the Administrative Agent, under
arrangements satisfactory to it, to secure the payment of (i) all LC
Reimbursement Obligations arising from subsequent drawings under such Letters of
Credit, or (ii) all Apollo LC Reimbursement Obligations arising from subsequent
drawings under any Apollo Letter of Credit, as the case may be; provided that,
if any Event of Default specified in Section 6.01(g) or 6.01(h) occurs with
respect to the Borrower, the Borrower shall pay such amount to the
Administrative Agent forthwith without any notice or demand or any other act by
the Administrative Agent or the Lenders.
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ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization. Each Lender irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. Each Agent shall have the same
rights and powers under the Loan Documents as any other Lender and may exercise
or refrain from exercising the same as though it were not one of the Agents.
Each Agent and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Company or any Subsidiary or
affiliate of the Company as if it were not one of the Agents.
SECTION 7.03. Action by Agents. The obligations of the Agents hereunder
are only those expressly set forth herein. Without limiting the generality of
the foregoing, no Agent shall be required to take any action with respect to any
Default or Event of Default, except as expressly provided in Article 6.
SECTION 7.04. Consultation with Experts. Each Agent may consult with
legal counsel (who may be counsel for any Obligor), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agents. None of the Agents, their affiliates
and their respective directors, officers, agents and employees shall be liable
for any action taken or not taken by it in connection herewith (i) with the
consent or at the request of the Required Lenders (or such different number of
Lenders as any provision hereof expressly requires for such consent or request)
or (ii) in the absence of its own gross negligence or willful misconduct. None
of the Agents, their affiliates and their respective directors, officers, agents
and employees shall be responsible for or have any duty to ascertain, inquire
into or verify (i) any statement, warranty or representation made in connection
with the Loan Documents or any borrowing or issuance of a Letter of Credit
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any Obligor; (iii) the satisfaction of any condition specified in
Article 3 except, in the case of the Administrative Agent, receipt of items
required to be delivered to it; (iv) the validity, effectiveness or genuineness
of any Loan Document or any other instrument or writing furnished in connection
herewith or (v) the existence, validity or sufficiency of any Collateral. No
Agent shall incur any liability by acting in reliance upon any notice, consent,
certificate, statement or other writing
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(which may be a bank wire, telex, facsimile or similar writing) believed by it
to be genuine or to be signed by the proper party or parties. Without limiting
the generality of the foregoing, the use of the term "agent" in this Agreement
with reference to any Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable
law. Instead, such term is used merely as a matter of market custom and is
intended to create or reflect only an administrative relationship between
independent contracting parties.
SECTION 7.06. Indemnification. The Lenders shall, ratably in proportion
to their Credit Exposures, indemnify the Agents, their respective affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
SECTION 7.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance on any other Lender Party, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance on any other
Lender Party, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving notice thereof to the Lenders and the Company.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent. 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 gives notice
of resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $100,000,000. Upon
the acceptance of its appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent resigns as Administrative Agent hereunder, the
provisions
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of this Article shall inure to its benefit as to actions taken or omitted to be
taken by it while it was Administrative Agent.
SECTION 7.09. Agents' Fee. The Company shall pay to each Agent for its
own account fees in the amounts and at the times previously agreed upon by the
Company and such Agent.
SECTION 7.10. Other Agents and Arrangers. Neither the Documentation
Agent nor the Arrangers, in their capacities as such, shall have any duties or
obligations of any kind under this Agreement.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or before the first day of any Interest Period for any Euro-Currency Loans
of any Class, Lenders having at least 50% in aggregate amount of the Commitments
of such Class (or (x) in the case of the Term Loan-A Lenders after the Term
Loan-A Availability Period, holding at least 50% of the Term Loan-A
Outstandings, and (y) in the case of the Term Loan-B Lenders after the Effective
Date, holding at least 50% of the aggregate outstanding principal amount of the
Term Loans-B) advise the Administrative Agent that the Adjusted London Interbank
Offered Rate as determined by the Administrative Agent will not adequately and
fairly reflect the cost to such Lenders of funding their Euro-Currency Loans in
the relevant currency for such Interest Period, the Administrative Agent shall
forthwith give notice thereof to the Company and the Lenders, whereupon until
the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Lenders to make Euro-Currency Loans in the relevant currency
or to continue or convert outstanding Loans as or into Euro-Currency Loans in
the relevant currency shall be suspended.
SECTION 8.02. Illegality. (a) If, on or after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency, shall make it unlawful or impossible for any Lender (or its
Applicable Lending Office) to make, maintain or fund its Euro-Currency Loans in
any currency to any Borrower and such Lender shall so notify the Administrative
Agent, the
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Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Company, whereupon until such Lender notifies the Company and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Lender to make Euro-Currency Loans to such
Borrower in such currency or to continue outstanding Loans to such Borrower as
Euro-Currency Loans in such currency, shall be suspended. Before giving any
notice to the Administrative Agent pursuant to this Section, such Lender shall
designate a different Applicable Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
(b) If such notice is given, each Euro-Dollar Loan of such Lender in
such currency then outstanding to such Borrower shall be converted to an ABR
Loan either (i) on the last day of the then current Interest Period applicable
to such Euro-Currency Loan if such Lender may lawfully continue to maintain and
fund such Loan as a Euro-Currency Loan to such day or (ii) immediately if such
Lender shall determine that it may not lawfully continue to maintain and fund
such Loan as a Euro-Currency Loan to such day. Interest and principal on any
such ABR Loan shall be payable on the same dates as, and on a pro rata basis
with, the interest and principal payable on the related Euro-Currency Loans of
the other Lenders.
SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office), the LC
Issuing Bank or the Apollo LC Issuer with any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency, shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding any such requirement with respect to which
such Lender is entitled to compensation during the relevant Interest Period
under Section 2.20), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
(including letters of credit and participations therein) extended by, any Lender
(or its Applicable Lending Office), the LC Issuing Bank or the Apollo LC Issuer
or shall impose on any Lender (or its Applicable Lending Office), the LC Issuing
Bank or the Apollo LC Issuer or the London interbank market any other condition
affecting its Euro-Currency Loans, its Notes or its obligation to make
Euro-Currency Loans or its obligations hereunder in respect of Letters of Credit
or Apollo Letters of Credit and the result of any of the foregoing is to
increase the cost to such Lender (or its Applicable Lending Office), the LC
Issuing Bank or the Apollo LC Issuer of making or
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maintaining any Euro-Currency Loan or issuing or participating in any Letter of
Credit or Apollo Letter of Credit, or to reduce the amount of any sum received
or receivable by such Lender (or its Applicable Lending Office), the LC Issuing
Bank or the Apollo LC Issuer under this Agreement or under its Note with respect
thereto, by an amount deemed by such Lender, LC Issuing Bank or Apollo LC Issuer
to be material, then, within 15 days after demand by such Lender (with a copy to
the Administrative Agent), the relevant Borrower shall pay to such Lender, LC
Issuing Bank or Apollo LC Issuer such additional amount or amounts as will
compensate such Lender, LC Issuing Bank or Apollo LC Issuer for such increased
cost or reduction.
(b) If any Lender shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Lender (or its Parent) as a consequence of such Lender's
obligations hereunder to a level below that which such Lender (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within 15 days
after demand by such Lender (with a copy to the Administrative Agent), the
Company shall pay (or cause the relevant Borrowers to pay) to such Lender such
additional amount or amounts as will compensate such Lender (or its Parent) for
such reduction.
(c) Each Lender, LC Issuing Bank and Apollo LC Issuer will promptly
notify the Company and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender, LC
Issuing Bank or Apollo LC Issuer to compensation pursuant to this Section and
will designate a different Applicable Lending Office or LC Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, LC Issuing Bank or Apollo LC
Issuer, be otherwise disadvantageous to it. A certificate of any Lender, LC
Issuing Bank or Apollo LC Issuer claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
Lender, LC Issuing Bank or Apollo LC Issuer may use any reasonable averaging and
attribution methods.
SECTION 8.04. Taxes. (a) For purposes of this Section 8.04, the
following terms have the following meanings:
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"TAXES" means any and all present or future taxes or other charges of
any nature deducted, withheld or otherwise imposed with respect to any payment
by any Borrower pursuant to this Agreement or any Note, and all liabilities with
respect thereto, excluding:
(i) with respect to each Lender Party, taxes imposed on its net
income (other than income taxes payable in respect of gross-up payments
pursuant to this Section), and franchise or similar taxes imposed on
it, by a jurisdiction under the laws of which it is organized or in
which its principal executive office or Applicable Lending Office or LC
Office is located, and
(ii) any withholding tax required by law and imposed, in the case
of the Company, by the United States of America, in the case of UKHC,
the United Kingdom or, in the case of any Eligible Subsidiary, the
jurisdiction of organization of such Eligible Subsidiary (or, if
different, the jurisdiction from which it makes any payment) on such
payment ("WITHHOLDING TAX"), but not excluding any portion of such tax
that exceeds the Withholding Tax which would have been imposed on such
a payment to such Lender Party under the laws and treaties in effect
when such Lender Party first becomes a party to this Agreement (taking
into account the laws applicable to any branch from which a Lender
Party advances funds under this Agreement).
"OTHER TAXES" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or any Note or from the
execution, delivery, registration or enforcement of, or otherwise with respect
to, this Agreement or any Note.
(b) Each payment by a Borrower to or for the account of a Lender Party
hereunder or under any Note shall be made without deduction for any Taxes or
Other Taxes; provided that, if a Borrower shall be required by law to deduct any
Taxes or Other Taxes from such payment, (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) such Lender Party
receives an amount equal to the sum it would have received had no such deduction
been made, (ii) such Borrower shall make such deduction, (iii) such Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law and (iv) such Borrower shall
promptly furnish to the Administrative Agent, at its address specified in or
pursuant to Section 11.01, the original or a certified copy of a receipt
evidencing payment thereof.
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(c) The relevant Borrower shall indemnify each Lender Party for the
full amount of any Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted (whether or not correctly) by any
jurisdiction on amounts payable under this Section) paid by such Lender Party
with respect to amounts paid by such Borrower pursuant to this Agreement or any
Note, and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, provided that such Lender Party shall
cooperate in good faith to obtain a refund of any Taxes or Other Taxes that are,
in the sole opinion of such Lender Party, incorrectly imposed. This
indemnification shall be paid within 15 days after such Lender Party makes
written demand therefor.
(d) Each Lender Party organized under the laws of a jurisdiction
outside the United States, before it signs and delivers this Agreement in the
case of each Lender Party listed on the signature pages hereof and before it
becomes a Lender Party in the case of each other Lender Party, and from time to
time thereafter if requested in writing by any Borrower (but only so long as
such Lender Party remains lawfully able to do so), shall provide such Borrower
and the Administrative Agent with any form or certificate that is required by
any taxing authority, including (i) Internal Revenue Service Form 1001 or 4224
in duplicate, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender Party is entitled to benefits under
an income tax treaty to which the United States is a party which exempts such
Lender Party from United States withholding tax or reduces the rate of
withholding tax on payments of interest for the account of such Lender Party or
certifying that the income receivable by it pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States or (ii) solely if such Lender is claiming exemption from United States
withholding tax under Section 871(h) or 881(c) of the Internal Revenue Code with
respect to payments of "portfolio interest", a Form W-8, or any successor form
prescribed by the Internal Revenue Service, and a certificate representing that
such Lender is not a bank for purposes of Section 881(c) of the Internal Revenue
Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of such Borrower and is not a
controlled foreign corporation related to such Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue Code). In the event that a payment
under this Agreement is made by a Borrower which is not organized under the laws
of the United States, each Lender Party that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which such
Borrower is located, or any treaty to which such jurisdiction is a party, shall
comply with the certification procedures set forth in the preceding sentence.
Each Lender Party represents that its Loans to UKHC will be made through either
a Lender Party organized under the laws of the United Kingdom, or a United
Kingdom branch of a Lender Party which is not organized under the laws of the
United Kingdom, provided that in each case, such Lender
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Party or United Kingdom branch of a Lender Party is within the charge to United
Kingdom corporation tax in respect of interest on such Loans.
(e) For any period with respect to which a Lender Party has failed to
provide the Borrower or the Administrative Agent with the appropriate form as
required by Section 8.04(d) (unless such failure is due to a change in treaty,
law or regulation occurring after the date on which such form originally was
required to be provided or results from the Company's failure to make a timely
written request pursuant to Section 8.04(d)), such Lender Party shall not be
entitled to indemnification under Section 8.04(b) or 8.04(c) with respect to
Taxes imposed by the United States; provided that if a Lender Party, which is
otherwise exempt from or subject to a reduced rate of withholding tax, becomes
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrowers shall take such steps as such Lender Party shall reasonably
request to assist such Lender Party to recover such Taxes.
(f) If any Borrower is required to pay additional amounts to or for the
account of a Lender Party pursuant to this Section as a result of a change of
law or treaty occurring after such Lender Party first became a party to this
Agreement, such Lender Party will, at the Company's request, change the
jurisdiction of its Applicable Lending Office if, in the sole judgment of such
Lender Party, such change (i) will eliminate or reduce any such additional
payment which may thereafter accrue and (ii) is not otherwise disadvantageous to
such Lender Party.
(g) If any Lender Party, in its sole opinion, determines that it has
finally and irrevocably received or been granted a refund in respect of any
Taxes or Other Taxes as to which indemnification has been paid by any Borrower
pursuant to Section 8.04(b) or 8.04(d), it shall promptly remit such refund
(including any interest) to such Borrower, net of all out-of-pocket expenses of
such Lender Party; provided, however, that such Borrower, upon the request of
such Lender Party, agrees promptly to return such refund (plus any interest) to
such party in the event such party is required to repay such refund to the
relevant taxing authority. Such Lender Party shall provide the Borrower with a
copy of any notice or assessment from the relevant taxing authority (deleting
any confidential information contained therein) requiring repayment of such
refund. Nothing contained herein shall impose an obligation on any Lender Party
to apply for any refund or to disclose to any party any information regarding
their proprietary information regarding tax affairs and computations.
SECTION 8.05. ABR Loans Substituted for Affected Euro-Currency Loans.
If (i) the obligation of any Lender to make, or to continue or convert
outstanding Loans as or to, Euro-Currency Loans in any currency to any Borrower
has been suspended pursuant to Section 8.01 or Section 8.02 or (ii) any Lender
has demanded compensation under Section 8.03 or 8.04 with respect to its Euro-
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Currency Loans in any currency and the Company shall, by at least five
Euro-Currency Business Days' prior notice to such Lender through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Lender, then, unless and until such Lender notifies the Company
that the circumstances giving rise to such suspension or demand for compensation
no longer exist, all Loans to such Borrower which would otherwise be made by
such Lender as (or continued as or converted to) Euro-Currency Loans in such
currency shall instead be ABR Loans (in the case of Alternative Currency Loans,
in the same Dollar Amount as the Euro-Currency Loan that such Lender would
otherwise have made in the Alternative Currency) on which interest and principal
shall be payable contemporaneously with the related Euro-Currency Loans of the
other Lenders (or, if Section 8.01 applies, shall be payable as provided in
Section 2.04(a)). If such Lender (or, in the case of Section 8.01, the
Administrative Agent) notifies the Company that the circumstances giving rise to
such suspension or demand for compensation no longer exist, the principal amount
of each such ABR Loan shall be converted into a Euro-Currency Loan on the first
day of the next succeeding Interest Period applicable to the related
Euro-Currency Loans of the other Lenders (or, if Section 8.01 was applicable, on
the Euro-Currency Business Day following the date of such notice). If such Loan
is converted into an Alternative Currency Loan, each affected Lender, the
Administrative Agent and the relevant Borrower shall make such arrangements as
shall be required (including increasing or decreasing the amount of such
Alternative Currency Loan) so that such Alternative Currency Loan shall be in
the same amount as it would have been if the provisions of this Section had
never applied thereto.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES
Each Eligible Subsidiary shall be deemed by the execution and delivery
of its Election to Participate to have represented and warranted as of the date
thereof that:
SECTION 9.01. Corporate Existence and Power. It is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and is an Acquisition Holdco.
SECTION 9.02. Corporate and Governmental Authorization; Contravention.
The execution and delivery by it of its Election to Participate, and the
execution, delivery and performance by it of the Loan Documents to which it is a
party, are within its corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a
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default under, any provision of applicable law or regulation or of
its Organizational Documents or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Company or such Eligible Subsidiary
or result in the creation or imposition of any Lien (other than Liens created by
the Collateral Documents) on any asset of the Company or any of its
Subsidiaries.
SECTION 9.03. Binding Effect. Each Loan Document to which it is a party
(other than the Notes) constitutes a valid and binding agreement of such
Eligible Subsidiary, and each of its Notes, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of such Eligible Subsidiary, in each case enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and general principles of
equity.
SECTION 9.04. Limited Activities. It does not (and will not, after
giving effect to any Specified Acquisition or other Investment to be financed
with proceeds of borrowings hereunder) engage in any business, conduct any
activity, or own assets, other than (i) the holding of its investment in one or
more Foreign Operating Companies, (ii) the performance of the Loan Documents to
which it is a party, its Organizational Documents and other operating documents,
and instruments evidencing Indebtedness not prohibited hereunder, in each case
in accordance with the terms thereof, and (iii) the performance of ministerial
activities incidental thereto.
SECTION 9.05. Taxes. Except as disclosed in its Election to
Participate, there is no income, stamp or other tax of any country, or any
taxing authority thereof or therein, imposed by or in the nature of withholding
or otherwise, which is imposed on any payment to be made by such Eligible
Subsidiary pursuant to the Loan Documents to which it is a party, or is imposed
on or by virtue of the execution, delivery or enforcement of its Election to
Participate or any of the Loan Documents to which it is a party.
ARTICLE 10
COMPANY GUARANTY
SECTION 10.01. The Company Guaranty. The Company hereby
unconditionally, absolutely and irrevocably guarantees the full and punctual
payment (whether at stated maturity, upon acceleration or otherwise) of the
principal of and interest on each Loan made to UKHC and any Eligible Subsidiary
pursuant to this Agreement, each LC Reimbursement Obligation of UKHC and any
Eligible Subsidiary pursuant to this Agreement and all interest thereon, each
Apollo LC Reimbursement Obligation of UKHC pursuant to this Agreement and
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interest thereon, and the full and punctual payment of all other amounts payable
by UKHC and any Eligible Subsidiary under the Loan Documents. The Company's
obligations hereunder constitute a guaranty of payment and not of collection
merely. Upon failure by any Eligible Subsidiary to pay punctually any such
amount, the Company shall forthwith on demand pay the amount not so paid at the
place and in the manner and currency specified in this Agreement.
SECTION 10.02. Guaranty Unconditional. The obligations of the Company
under this Article 10 shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(a) any extension, renewal, settlement, compromise, waiver or release
in respect of any obligation of UKHC or any Eligible Subsidiary under any Loan
Document, by operation of law or otherwise;
(b) any modification or amendment of or supplement to this Agreement,
any Note, any Letter of Credit, any Apollo Letter of Credit or any other Loan
Document;
(c) any release, impairment, non-perfection or invalidity of any direct
or indirect security for any obligation of UKHC or any Eligible Subsidiary under
any Loan Document;
(d) any change in the corporate existence, structure or ownership of
UKHC or any Eligible Subsidiary, or any bankruptcy, insolvency, reorganization
or other similar proceeding affecting UKHC or any Eligible Subsidiary or its
assets or any resulting release or discharge of any obligation of UKHC or any
Eligible Subsidiary contained in any Loan Document;
(e) the existence of any claim, set-off or other rights which the
Company may have at any time against UKHC or any Eligible Subsidiary, any Agent,
any Lender or any other Person, whether in connection with this Agreement or any
unrelated transactions, provided that nothing herein shall prevent the assertion
of any such claim by separate suit or compulsory counterclaim;
(f) the invalidity or unenforceability relating to or against UKHC or
any Eligible Subsidiary for any reason of this Agreement, any of its Notes, any
Letter of Credit, any Apollo Letter of Credit or any other Loan Document, or any
provision of applicable law or regulation purporting to prohibit the payment by
UKHC or any Eligible Subsidiary of the principal of or interest on any of its
Notes or any other amount payable by it under the Loan Documents; or
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(g) any other act or omission to act or delay of any kind by UKHC or
any Eligible Subsidiary, the Administrative Agent, any Lender or any other
Person or any other circumstance whatsoever which might, but for the provisions
of this Section, constitute a legal or equitable discharge of the Company's
obligations hereunder.
SECTION 10.03. Discharge Only upon Payment in Full; Reinstatement in
Certain Circumstances. The Company's obligations under this Article 10 shall
remain in full force and effect until (i) the Commitments shall have terminated,
(ii) the principal of and interest on the Loans made to UKHC and each Eligible
Subsidiary, the LC Reimbursement Obligations of UKHC and each Eligible
Subsidiary and all interest thereon, the Apollo LC Reimbursement Obligations of
UKHC and all interest thereon and all other amounts payable by each Eligible
Subsidiary under the Loan Documents shall have been paid in full, and (iii) the
Letters of Credit and any Apollo Letters of Credit shall have expired or been
cancelled. If at any time any payment of the principal of or interest on any
Loan made to UKHC or an Eligible Subsidiary, or any payment of LC Reimbursement
Obligations of UKHC or an Eligible Subsidiary or interest thereon, or any
payment of Apollo LC Reimbursement Obligations of UKHC or interest thereon, or
any other amount payable by UKHC or an Eligible Subsidiary under the Loan
Documents is rescinded or must be otherwise restored or returned upon the
bankruptcy, insolvency or reorganization of UKHC or such Eligible Subsidiary or
otherwise, the Company's obligations hereunder with respect to such payment
shall be reinstated at such time as though such payment had been due but not
made at such time.
SECTION 10.04. Waiver by the Company. The Company irrevocably waives
acceptance hereof, presentment, protest, demand of payment, and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against UKHC or any Eligible Subsidiary or any other Person.
SECTION 10.05. Subrogation. Upon making full payment with respect to
any obligation of UKHC or any Eligible Subsidiary under this Article 10, the
Company shall be subrogated to the rights of the payee against UKHC or such
Eligible Subsidiary, as the case may be, with respect to such obligation;
provided that the Company shall not enforce any payment by way of subrogation
against UKHC or such Eligible Subsidiary so long as (i) any Lender has any
Commitment hereunder, (ii) any Letter of Credit or Apollo Letter of Credit is
outstanding or (iii) any amount payable by UKHC or such Eligible Subsidiary
under the Loan Documents remains unpaid.
SECTION 10.06. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by UKHC or any Eligible Subsidiary under any
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Loan Document is stayed upon any bankruptcy, insolvency or reorganization of
UKHC or such Eligible Subsidiary or otherwise, all such amounts otherwise
subject to acceleration under the terms of this Agreement shall nonetheless be
payable by the Company hereunder forthwith on demand by the Administrative Agent
made at the request of the Required Lenders.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile or similar writing) and shall be given to such party: (a) in the case
of the Company, at its address, facsimile number or telex number set forth on
the signature pages hereof, (b) in the case of the Administrative Agent, the LC
Issuing Bank and the Apollo LC Issuer, at its address, facsimile number or telex
number in New York City set forth on the signature pages hereof (or, where so
provided herein, at its London Office), (c) in the case of an Eligible
Subsidiary, at its address, facsimile number or telex number set forth in its
Election to Participate, (d) in the case of any Lender, at its address,
facsimile number or telex number set forth in its Administrative Questionnaire
or (e) in the case of any party, at such other address, facsimile number or
telex number as such party may hereafter specify for the purpose by notice to
the Administrative Agent and the Company. Each such notice, request or other
communication shall be effective (i) if given by telex, when transmitted to the
telex number referred to in this Section and the appropriate answerback is
received, (ii) if given by facsimile, when transmitted to the facsimile number
referred to in this Section and confirmation of receipt is received, (iii) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (iv) if given by any
other means, when delivered at the address referred to in this Section; provided
that notices to the Administrative Agent or the LC Issuing Bank under Article 2
or Article 8 shall not be effective until received.
SECTION 11.02. No Waivers. No failure or delay by any Lender Party in
exercising any right, power or privilege under any Loan Document shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 11.03. Expenses; Indemnification. (a) The Company shall pay (i)
all out-of-pocket expenses of the Administrative Agent and the Syndication
Agent, including fees and disbursements of special counsel for the Agents, in
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connection with the preparation and administration of this Agreement, any waiver
or consent hereunder or any amendment hereof or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all out-of-pocket expenses
incurred by each Lender Party, including (without duplication) the fees and
disbursements of outside counsel and the allocated cost of inside counsel, in
connection with such Event of Default and collection, or any bankruptcy,
insolvency, reorganization or other enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Agents, the LC Issuing Bank,
the Apollo LC Issuer and each Lender, their respective affiliates and the
respective directors, officers, agents and employees of the foregoing (each an
"INDEMNITEE") against, and hold each Indemnitee harmless from, any and all
liabilities, losses, damages, costs and expenses of any kind, including, without
limitation, reasonable fees and disbursements of counsel, which may be incurred
by such Indemnitee in connection with any investigative, administrative or
judicial proceeding (whether or not such Indemnitee shall be designated a party
thereto) brought or threatened relating to or arising out of this Agreement or
any actual or proposed use of any Letter of Credit or Apollo Letter of Credit or
any proceeds of Loans hereunder; provided that no Indemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own gross negligence or
willful misconduct as determined by a court of competent jurisdiction.
SECTION 11.04. Set-Offs. (a) If (i) an Event of Default has occurred
and is continuing and (ii) the requisite Lenders have requested the
Administrative Agent to declare the Loans to be immediately due and payable
pursuant to Section 6.01, or the Loans have become immediately due and payable
without notice as provided in Section 6.01, then each Lender Party is hereby
authorized by each Borrower at any time and from time to time, to the extent
permitted by applicable law, without notice to such Borrower (any such notice
being expressly waived by such Borrower), to set off and apply all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender Party to or for the account
of such Borrower against any obligations of such Borrower to such Lender Party
now or hereafter existing under this Agreement, regardless of whether any such
deposit or other obligation is then due and payable or is in the same currency
or is booked or otherwise payable at the same office as the obligation against
which it is set off and regardless of whether such Lender Party shall have made
any demand for payment under this Agreement. Each Lender Party agrees promptly
to notify the relevant Borrower after any such set-off and application made by
such Lender Party; provided that any failure to give such notice shall not
affect the validity of such setoff and application. The rights of the Lender
Parties under this subsection are in addition to any other rights and remedies
which they may have.
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(b) Each Lender agrees that if it shall, by exercising any right of
set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest then due with respect to the
participations in LC Reimbursement Obligations, participations in Apollo LC
Reimbursement Obligations and Loans to any Borrower held by it which is greater
than the proportion received by any other Lender in respect of the aggregate
amount of principal and interest then due with respect to the participations in
LC Reimbursement Obligations, participations in Apollo LC Reimbursement
Obligations and Loans to the same Borrower held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in LC Reimbursement Obligations and Apollo LC Reimbursement
Obligations and Loans to such Borrower held by the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the participations in LC Reimbursement
Obligations and Apollo LC Reimbursement Obligations and Loans to such Borrower
held by the Lenders shall be shared by the Lenders pro rata; provided that
nothing in this Section shall impair the right of any Lender to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the relevant Borrower other than
its indebtedness in respect of the Loans, the LC Reimbursement Obligations and
the Apollo LC Obligations. Each Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in an
LC Reimbursement Obligation, participation in an Apollo LC Reimbursement
Obligation or Loan to such Borrower, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and other
rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of such Borrower in the amount of such
participation.
SECTION 11.05. Amendments and Waivers. (a) Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Company and the Required Lenders
(and, if the rights or duties of any Agent, LC Issuing Bank, Apollo LC Issuer or
Fronting Lender are affected thereby, by such Agent, the LC Issuing Bank, the
Apollo LC Issuer or such Fronting Lender, as the case may be); provided that no
such amendment or waiver shall:
(i) unless signed by all the Lenders of the affected Class, (A)
increase or decrease the Commitment of such Class of any Lender (except
for a ratable decrease in the Commitments of such Class of all the
Lenders) or subject any Lender to any additional obligation, (B) reduce
the principal of or rate of interest on any Loan of such Class or the
amount of any LC Reimbursement Obligation or the amount of any Apollo
LC Reimbursement Obligation or any interest thereon or any fees
hereunder, (C) postpone the date fixed for any payment of principal of
or interest on
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any Loan of such Class or of any LC Reimbursement Obligation or of
any Apollo LC Reimbursement Obligation or any fees hereunder or for the
scheduled reduction or termination of any Commitment or (except as
expressly set forth in Sections 2.14 and 2.15) extend the expiry date
of any Letter of Credit, (D) change the percentage of the Commitments
of such Class or of the Aggregate Revolving LC Exposure or of the
Aggregate Apollo LC Exposure or of the aggregate unpaid principal
amount of the Loans of such Class, or the number of Lenders, which
shall be required for the Lenders or any of them to take any action
under this Section or any other provision of this Agreement (it being
understood that, pursuant to subsection (c) of this Section 11.05,
additional extensions of credit may be included in the determination of
"Required Lenders" on substantially the same basis as the extensions of
Loans and Commitments are included on the Effective Date) or (E) change
this Section 11.05(a)(i);
(ii) unless signed by Lenders having at least 51% in aggregate
amount of the Credit Exposure of each affected Class (determined, for
this purpose, separately for each Class, and not as the sum of the
credit exposures of every Class), (A) amend or modify the provisions
set forth in Section 2.03(f) or 2.03(g) hereof, (B) amend or modify the
events requiring mandatory prepayments pursuant to Section 2.03(f) (or
the related definitions), (C) waive any prepayment so required pursuant
to Section 2.03(f), (D) amend or modify Section 5.10 to permit the
sharing of the Collateral to secure Indebtedness or other obligations
which are not described in the definition of "Secured Obligations" set
forth in the Domestic Security Agreement as in effect on the Effective
Date), or (D) change this Section 11.05(a)(ii);
(iii) unless signed by (A) a Designated Lender or its Designating
Lender, (I) subject such Designated Lender to any additional
obligation, or (II) affect its rights hereunder (unless the rights of
all the Lenders hereunder are similarly affected) or (B) all Designated
Lenders, change this Section 11.05(a)(iii);
(iv) unless signed by (A) an Eligible Subsidiary, (I) subject such
Eligible Subsidiary to any additional obligation, (II) increase the
principal of or rate of interest on any outstanding Loan to such
Eligible Subsidiary, or (III) accelerate the stated maturity of any
outstanding Loan to such Eligible Subsidiary or (B) all Eligible
Subsidiaries, change this Section 11.05(a)(iv);
(v) unless signed by all the Lenders, release all or substantially
all of the Collateral from the Liens of the Collateral Documents or
release any of the Guarantors from their respective obligations under
this
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Agreement, the Domestic Subsidiary Guarantee or the Foreign
Borrower Subsidiary Guarantee, as the case may be; or
(vi) unless signed by all the Lenders, amend or modify the
definition of "Interest Period" such that any Interest Period could
exceed six months (before giving effect to the provisions set forth in
the proviso to the definition of "Interest Period").
(b) Any provision of the Collateral Documents, the Domestic Subsidiary
Guarantee or the Foreign Borrower Subsidiary Guarantee may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by each
Obligor party thereto and the Administrative Agent with the consent of the
Required Lenders; provided that no such amendment or waiver shall, unless signed
by all the Lenders, effect or permit a release of all or substantially all of
the Collateral or permit termination of the Subsidiary Guarantee or the Foreign
Borrower Subsidiary Guarantee.
Notwithstanding Section 11.05(a)(v) or Section 11.05(b), Obligors shall
be released from their obligations under the Domestic Subsidiary Guarantee or
the Foreign Borrower Subsidiary Guarantee, as the case may be, and Collateral
(but not the proceeds thereof) shall be released from the Lien of the Collateral
Documents from time to time as necessary to effect any sale of assets, including
the sale of a Domestic Subsidiary Guarantor or a Foreign Borrower Subsidiary
Guarantor, permitted by the Loan Documents, and the Administrative Agent shall
execute and deliver all release documents reasonably requested to evidence such
release.
(c) Notwithstanding anything to the contrary set forth in subsection
(a) above, at any time or from time to time after the Effective Date and prior
to (w) February 23, 2000, in the case of Term Loan-A Commitments, (x) March 31,
2001, in the case of Term Loans-A, (y) September 30, 2001, in the case of Term
Loans-B, and (z) March 31, 2003, in the case of Revolving Commitments, if no
Default shall have occurred and be continuing, the Company may, if it so elects
(and without the consent of the Required Lenders), increase the aggregate amount
of the Term Loan-A Commitments, Term Loans-A, Term Loans-B or Revolving
Commitments, either (i) by designating a financial institution not theretofore a
Lender to become a Lender (such designation to be effective only with the prior
written consent of the Administrative Agent and the Syndication Agent, which
consent will not be unreasonably withheld) or (ii) by agreeing with an existing
Lender that such Lender's Commitment or Loans of the relevant Class shall be
increased, in each case on terms acceptable to the Administrative Agent and the
Syndication Agent. Upon execution and delivery by the Company and such Lender or
other financial institution of an instrument in form reasonably satisfactory to
the Administrative Agent, such existing Lender shall have a
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Commitment or Loans of the relevant Class as therein set forth or such other
financial institution shall become a Lender with a Commitment or Loans of the
relevant Class as therein set forth and all the rights and obligations of a
Lender with such a Commitment or Loans hereunder; provided:
(i) that the Company shall provide prompt notice of such increase
to the Administrative Agent, who shall promptly notify the Lenders;
(ii) that the amount of such increase shall be equal to or greater
than $25,000,000;
(iii) that the amount of such increase, together with the
aggregate amount of all other increases in the Commitments and Loans
pursuant to this Section 11.05(c) since the Effective Date, does not
exceed $200,000,000; and
(iv) such additional Commitments or Loans shall be subject to the
same terms (including, without limitation, interest rates and
commitment fees) as are applicable to the existing Commitments or Loans
of such Class hereunder, provided that notwithstanding any other
provision of this Agreement, the reductions of Commitments or payments
of Loans of such Class scheduled pursuant to Section 2.03 shall be
increased pro rata to reflect the increase in aggregate Commitments or
Loans as a result of the operation of this Section 11.05(c).
Upon any increase in the aggregate amount of the Term Loan-A
Commitments pursuant to this Section 11.05(c), the Term Loan-A Lenders shall
purchase and sell participations in or assignments of outstanding Term Loans-A
to the extent necessary so that each Term Loan-A Lender's Term Loan-A
Outstandings (taking such participations and assignments into account) reflect
its Term Loan-A Percentage. Upon any increase in the aggregate amount of the
Revolving Commitments pursuant to this Section 11.05(c), (i) each repayment of
Revolving Loans then outstanding shall be made in accordance with the respective
Revolving Commitments without giving effect to any increase hereunder and (ii)
each new Revolving Borrowing shall be made from the Revolving Lenders in
proportion to their respective Revolving Commitments after giving effect to such
increase.
(d) Modifications to this Agreement by the Administrative Agent
pursuant to Section 2.21 or Exhibit T are not amendments subject to the
provisions of this Section.
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SECTION 11.06. Successors; Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except that no
Borrower may assign or otherwise transfer any of its rights under this Agreement
without the prior written consent of all the Lender Parties.
(b) Any Lender may at any time grant to one or more banks or other
entities (each a "PARTICIPANT") participating interests in any of its
Commitments or any or all of its Loans, participations in Letters of Credit and
participations in Apollo Letters of Credit. If a Lender grants any such
participating interest to a Participant, whether or not upon notice to any of
the Borrowers or the Administrative Agent, such Lender shall remain responsible
for the performance of its obligations hereunder, and the Borrowers, the LC
Issuing Bank, the Apollo LC Issuer and the Administrative Agent shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement pursuant to which any
Lender may grant such a participating interest shall provide that such Lender
shall retain the sole right and responsibility to enforce the obligations of the
Borrowers, the LC Issuing Bank and the Apollo LC Issuer hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that such Lender will not agree to any modification, amendment or
waiver of this Agreement described in clause (i) of Section 11.05(a) without the
consent of the Participant. Each Borrower agrees that each Participant shall, to
the extent provided in its participation agreement, be entitled to the benefits
of Sections 2.16, 2.18 and 2.20 and Article 8 with respect to its participating
interest. An assignment or other transfer which is not permitted by Section
11.06(c) or 11.06(d) shall be given effect for purposes of this Agreement only
to the extent of a participating interest granted in accordance with this
subsection.
(c) Any Lender may at any time assign to one or more banks or other
entities (each, an "ASSIGNEE") all, or a proportionate part of all, of its
rights and obligations under this Agreement and its Note, and such Assignee
shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement substantially in the form of Exhibit Q hereto signed by
such Assignee and such transferor Lender, with (and subject to) the subscribed
consent of the Company (which shall not be unreasonably withheld or delayed),
the Administrative Agent (and, in the case of an assignment of a Term Loan-A
Commitment or Term Loan-A Outstandings or a Revolving Commitment, the Apollo LC
Issuer or LC Issuing Bank, as the case may be); provided that (i) unless the
Company and the Administrative Agent otherwise consent, after giving effect to
any proposed assignment (A) the Credit Exposure of the transferor Lender
(together with its affiliates or, in the case of a transferor Lender that is a
fund, the aggregate Credit Exposure of such Lender and its Related Funds) shall
be equal to
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$0 or at least $5,000,000, and (B) the Credit Exposure of the proposed Assignee
(together with its affiliates or, in the case of an Assignee that is a fund, the
aggregate Credit Exposure of such proposed Assignee and its Related Funds) shall
be at least equal to $5,000,000 and (ii) if a proposed Assignee is an affiliate
of a Lender, a Related Fund of any Lender or was a Lender immediately before
such assignment, no such consent of the Company, the Administrative Agent, the
LC Issuing Bank or the Apollo LC Issuer shall be required; and provided further
that no such consent of the Company shall be required if at the time an Event of
Default is continuing. When such Assignment and Assumption Agreement has been
signed and delivered by the parties thereto, and such Assignee has paid to such
transferor Lender the purchase price agreed between them, such Assignee shall be
a Lender party to this Agreement and shall have all the rights and obligations
of a Lender with a Commitment(s) and, if applicable, Loans as set forth in such
instrument of assumption, and the transferor Lender shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection, the transferor Lender, the Administrative Agent and
the Borrowers shall make appropriate arrangements so that, if required, new
Notes are issued to the Assignee. In connection with any such assignment, the
transferor Lender shall pay to the Administrative Agent an administrative fee
for processing such assignment in the amount of $3,500; provided that only one
such fee shall be due in respect of a simultaneous assignment to more than one
Related Fund. If the Assignee is not incorporated under the laws of the United
States or a State thereof, it shall deliver to the Company and the
Administrative Agent certification as to exemption from deduction or withholding
of United States federal income taxes in accordance with Section 8.04.
(d) The provisions of this Section 11.06 concerning assignments relate
only to absolute assignments; such provisions do not prohibit assignments
creating security interests, including, without limitation, any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law. No such assignment creating any security
interest shall release the transferor Lender from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Lender's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Lender to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
SECTION 11.07. Designated Lenders. (a) Subject to the provisions of
this subsection (a), any Lender may at any time designate an Eligible Designee
to
141
provide all or a portion of the Loans to be made by such Lender pursuant to this
Agreement; provided that such designation shall not be effective unless the
Company and the Administrative Agent consent thereto (which consents shall not
be unreasonably withheld). When a Lender and its Eligible Designee shall have
signed an agreement substantially in the form of Exhibit R hereto (a
"DESIGNATION AGREEMENT") and the Company and the Administrative Agent shall have
signed their respective consents thereto, such Eligible Designee shall become a
Designated Lender for purposes of this Agreement. The Designating Lender shall
thereafter have the right to permit such Designated Lender to provide all or a
portion of the Loans to be made by such Designating Lender pursuant to Section
2.01, and the making of such Loans or portion thereof shall satisfy the
obligation of the Designating Lender to the same extent, and as if, such Loans
or portion thereof were made by the Designating Lender. As to any Loans or
portion thereof made by it, each Designated Lender shall have all the rights
that a Lender making such Loans or portion thereof would have had under this
Agreement and otherwise; provided that (x) its voting rights under this
Agreement shall be exercised solely by its Designating Lender and (y) its
Designating Lender shall remain solely responsible to the other parties hereto
for the performance of such Designated Lender's obligations under this
Agreement, including its obligations in respect of the Loans or portion thereof
made by it. No additional Note shall be required to evidence the Loans or
portion thereof made by a Designated Lender; and the Designating Lender shall be
deemed to hold its Note as agent for its Designated Lender to the extent of the
Loans or portion thereof funded by such Designated Lender. Each Designating
Lender shall act as administrative agent for its Designated Lender and give and
receive notices and other communications on its behalf. Any payments for the
account of any Designated Lender shall be paid to its Designating Lender as
administrative agent for such Designated Lender and neither the Borrowers nor
the Administrative Agent shall be responsible for any Designating Lender's
application of such payments. In addition, any Designated Lender may, with
notice to (but without the prior written consent of) the Company and the
Administrative Agent, (i) assign all or portions of its interest in any Loans to
its Designating Lender or to any financial institutions consented to by the
Company and the Administrative Agent that provide liquidity and/or credit
facilities to or for the account of such Designated Lender to support the
funding of Loans or portions thereof made by it and (ii) disclose on a
confidential basis any non-public information relating to its Loans or portions
thereof to any rating agency, commercial paper dealer or provider of any
guarantee, surety, credit or liquidity enhancement to such Designated Lender.
(b) Each party to this Agreement agrees that it will not institute
against, or join any other person in instituting against, any Designated Lender
any bankruptcy, insolvency, reorganization or other similar proceeding under any
federal or state bankruptcy or similar law, for one year and a day after all
outstanding senior indebtedness of such Designated Lender is paid in full. The
142
Designating Lender for each Designated Lender agrees to indemnify, save, and
hold harmless each other party hereto for any loss, cost, damage and expense
arising out of its inability to institute any such proceeding against such
Designated Lender. This subsection (b) shall survive the termination of this
Agreement.
SECTION 11.08. No Reliance on Margin Stock. Each Lender represents to
the Administrative Agent and each of the other Lenders that it in good faith is
not relying upon any Margin Stock as collateral in the extension or maintenance
of the credit provided for in this Agreement.
SECTION 11.09. Governing Law; Judicial Proceedings. (a) This Agreement
and each Note shall be governed by and construed in accordance with the laws of
the State of New York.
(b) Each of the Company and the Foreign Borrowers hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each of the Company and the
Foreign Borrowers irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
(c) Each Borrower (other than the Company) irrevocably designates and
appoints the Company as such Borrower's authorized agent, to accept and
acknowledge on its behalf service of any and all process which may be served in
any suit, action or proceeding referred to in Section 11.09(b) in any federal or
New York State court sitting in New York City. Each Borrower (other than the
Company) represents and warrants that such agent has agreed to accept such
appointment. Said designation and appointment shall not be revocable by any
Borrower until the Commitments have terminated (or, in the case of an Eligible
Subsidiary, its status as a Borrower hereunder is terminated) and all principal,
interest and other amounts payable by it hereunder shall have been paid in full.
If such agent shall cease to act as agent for any Borrower, such Borrower agrees
to designate irrevocably and appoint without delay another such agent
satisfactory to the Administrative Agent.
(d) Each Borrower consents to process being served in any suit, action
or proceeding referred to in Section 11.09(b) in any federal or New York State
court sitting in New York City by service of process upon its agent appointed as
provided in Section 11.09(c); provided that, to the extent lawful and possible,
notice of said service upon such agent shall be mailed by registered or
certified air mail, postage prepaid, return receipt requested, to such Borrower
at its address
143
specified in or pursuant to Section 11.01. Each of the Company and the Foreign
Borrowers irrevocably waives, to the fullest extent permitted by law, all claim
or error by reason of service in such manner and agrees that such service shall
be deemed in every respect effective service of process upon the Company or such
Foreign Borrower in any such suit, action or proceeding and shall, to the
fullest extent permitted by law, constitute valid and personal service upon and
personal delivery to the Company or such Foreign Borrower.
(e) Nothing in this Section shall affect the right of the
Administrative Agent or any Lender to serve process in any other manner
permitted by law or limit the right of the Administrative Agent or any Lender to
bring proceedings against the Company or any Borrower in the courts of any
jurisdiction or jurisdictions.
SECTION 11.10. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. The Loans Documents and any separate letter agreements with respect
to fees payable to the Agents constitute the entire agreement and understanding
among the parties hereto and supercede any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
SECTION 11.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
SECTION 11.12. Acknowledgment of Lender Addendum. By its execution
hereof, each Lender acknowledges that the information set forth in its Lender
Addendum, attached to its signature page hereof, is true and correct.
144
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
SFX ENTERTAINMENT, INC.
By: /s/
--------------------------------------
Title:
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
with a copy to:
Facsimile:
Web Site:
SFX U.K. HOLDINGS LIMITED
By: /s/
--------------------------------------
Title:
Address:
Attn:
Facsimile:
THE BANK OF NEW YORK, as Lender, as
LC Issuing Bank, as Apollo LC Issuer,
and as Administrative Agent
By: /s/
--------------------------------------
Title:
New York Office
---------------
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
(P)
(F)
London Office
-------------
The Bank of New York
London Office
Attn:
(P)
(F)
XXXXXX COMMERCIAL PAPER INC., as
Lender and as Syndication Agent
By: /s/
--------------------------------------
Title:
SOCIETE GENERALE, as Lender and as
Documentation Agent
By: /s/
--------------------------------------
Title:
OTHER LENDERS:
--------------
BANKBOSTON, N.A.
By: /s/
--------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK
BRANCH
By: /s/
--------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By: /s/
--------------------------------------
Name:
Title:
ABN-AMRO BANK N.V.
By: /s/
--------------------------------------
Name:
Title:
By: /s/
--------------------------------------
Name:
Title:
NATIONAL CITY BANK
By: /s/
--------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By: /s/
--------------------------------------
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/
--------------------------------------
Name:
Title:
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/
--------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/
--------------------------------------
Name:
Title:
FRANKLIN FLOATING RATE TRUST
By: /s/
--------------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC.
By: /s/
--------------------------------------
Name:
Title:
KZH SHOSHONE LLC
By: /s/
--------------------------------------
Name:
Title:
PRICING SCHEDULE
"ABR MARGIN" means, with respect to ABR Loans of any Class at any date,
the applicable percentage rate per annum for ABR Loans of such Class set forth
in Table I, based on the Total Leverage Ratio on such date; provided that until
the date on which the Company has delivered the financial statements required to
be delivered pursuant to Section 5.01(b) of the Amended Agreement with respect
to the Fiscal Quarter ending September 30, 1999, together with the related
Compliance Certificate, the Total Leverage Ratio shall be deemed to be in excess
of 5.50:1.00 for purposes of calculating the ABR Margin hereunder.
"EUROCURRENCY MARGIN" means, with respect to Eurocurrency Loans of any
Class at any date, the applicable percentage rate per annum for Eurocurrency
Loans of such Class set forth in Table I, based on the Total Leverage Ratio on
such date; provided that until the date on which the Company has delivered the
financial statements required to be delivered pursuant to Section 5.01(b) of the
Amended Agreement with respect to the Fiscal Quarter ending September 30, 1999,
together with the related Compliance Certificate, the Total Leverage Ratio shall
be deemed to be in excess of 5.50:1.00 for purposes of calculating the
Eurocurrency Margin hereunder.
"LC FEE RATE" means at any date, the applicable percentage rate per
annum set forth in Table I below under the heading "LC Fee Rate", based on the
Total Leverage Ratio on such date; provided that until the date on which the
Company has delivered the financial statements required to be delivered pursuant
to Section 5.01(b) of the Amended Agreement with respect to the Fiscal Quarter
ending September 30, 1999, together with the related Compliance Certificate, the
Total Leverage Ratio shall be deemed to be in excess of 5.50:1.00 for purposes
of calculating any LC Fee Rate hereunder.
"APOLLO LC FEE RATE" means at any date, the applicable percentage rate
per annum set forth in Table I below under the heading "Apollo LC Fee Rate",
based on the Total Leverage Ratio on such date; provided that until the date on
which the Company has delivered the financial statements required to be
delivered pursuant to Section 5.01(b) of the Amended Agreement with respect to
the Fiscal Quarter ending September 30, 1999, together with the related
Compliance Certificate, the Total Leverage Ratio shall be deemed to be in excess
of 5.50:1.00 for purposes of calculating any Apollo LC Fee Rate hereunder.
TABLE I - APPLICABLE MARGINS, LC FEE RATES AND APOLLO LC FEE RATES
----------------------------------------------------------------------------------------------------------------------------
EUROCURRENCY
ABR MARGIN FOR MARGIN FOR
TERM LOANS-A TERM LOANS-A EUROCURRENCY LC FEE RATE
AND REVOLVING AND REVOLVING ABR MARGIN FOR MARGIN FOR AND APOLLO LC
TOTAL LEVERAGE RATIO LOANS LOANS TERM LOANS-B TERM LOANS-B FEE RATE
----------------------------------------------------------------------------------------------------------------------------
x (greater than or equal to) 5.50 2.000% 3.125% 2.375% 3.500% 3.125%
----------------------------------------------------------------------------------------------------------------------------
5.00 (less than or equal to) x (less than) 5.50 1.750% 2.875% 2.375% 3.500% 2.875%
----------------------------------------------------------------------------------------------------------------------------
4.50 (less than or equal to) x (less than) 5.00 1.375% 2.500% 2.375% 3.500% 2.500%
----------------------------------------------------------------------------------------------------------------------------
4.00 (less than or equal to) x (less than) 4.50 1.125% 2.250% 2.375% 3.500% 2.250%
----------------------------------------------------------------------------------------------------------------------------
3.50 (less than or equal to) x (less than) 4.00 0.875% 2.000% 2.375% 3.500% 2.000%
----------------------------------------------------------------------------------------------------------------------------
x (less than) 3.50 0.500% 1.625% 2.375% 3.500% 1.625%
----------------------------------------------------------------------------------------------------------------------------
"COMMITMENT FEE RATE" means (i) with respect to Term Loan-A Commitments
for any date prior to the three-month anniversary of the Effective Date, a rate
per annum equal to 0.750%, and (ii) with respect to Revolving Commitments for
any date, and with respect to Term Loan-A Commitments for any date from the
three-month anniversary of the Effective Date to the six-month anniversary of
the Effective Date, inclusive, the applicable rate per annum for Commitments of
such Class set forth in Table II below, based on the Total Leverage Ratio on
such date; provided that until the date on which the Company has delivered the
financial statements required to be delivered pursuant to Section of the Amended
Agreement with respect to the Fiscal Quarter ending September 30, 1999, together
with the related Compliance Certificate, the Total Leverage Ratio shall be
deemed to be in excess of 5.50:1.00 for purposes of calculating any Commitment
Fee Rate hereunder.
TABLE II - COMMITMENT FEE RATES
-------------------------------------------------------------------------------------
REVOLVER TERM LOAN-A
TOTAL LEVERAGE RATIO COMMITMENT FEE COMMITMENT FEE(1)
-------------------------------------------------------------------------------------
x (greater than or equal to) 5.50 0.750% 1.5625%
-------------------------------------------------------------------------------------
5.00 (less than or equal to) x (less than) 5.50 0.625% 1.4375%
-------------------------------------------------------------------------------------
4.50 (less than or equal to) x (less than) 5.00 0.500% 1.2500%
-------------------------------------------------------------------------------------
4.00 (less than or equal to) x (less than) 4.50 0.500% 1.1250%
-------------------------------------------------------------------------------------
3.50 (less than or equal to) x (less than) 4.00 0.500% 1.0000%
-------------------------------------------------------------------------------------
x (less than) 3.50 0.500% 0.8125%
-------------------------------------------------------------------------------------
--------------
(1) From the three-month anniversary of the Effective Date to the six-month
anniversary of the Effective Date.
