CREDIT AGREEMENT
dated as of
May 1, 2006
among
0-000-XXXXXXX.XXX, INC.,
The SUBSIDIARY BORROWERS Party Hereto,
The GUARANTORS Party Hereto,
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
------------
$135,000,000
------------
X.X. XXXXXX SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
BANK OF AMERICA, N.A.
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agents
NORTH FORK BANK
and
LASALLE BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents
TABLE OF CONTENTS
Page
ARTICLE I....................................................................1
DEFINITIONS..................................................................1
SECTION 1.01. Defined Terms..................................................1
SECTION 1.02. Terms Generally...............................................22
SECTION 1.03. Accounting Terms; GAAP........................................23
ARTICLE II..................................................................23
THE CREDITS.................................................................23
SECTION 2.01. The Commitments...............................................23
SECTION 2.02. Loans and Borrowings..........................................24
SECTION 2.03. Requests for Borrowings.......................................24
SECTION 2.04. Swingline Loans...............................................25
SECTION 2.05. Letters of Credit.............................................27
SECTION 2.06. Funding of Borrowings.........................................31
SECTION 2.07. Interest Elections............................................32
SECTION 2.08. Termination, Reduction and Increase of the Commitments........33
SECTION 2.09. Repayment of Loans; Evidence of Debt..........................35
SECTION 2.10. Prepayment of Loans...........................................37
SECTION 2.11. Fees..........................................................38
SECTION 2.12. Interest......................................................40
SECTION 2.13. Alternate Rate of Interest....................................40
SECTION 2.14. Increased Costs...............................................41
SECTION 2.15. Break Funding Payments........................................42
SECTION 2.16. Taxes.........................................................43
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...44
SECTION 2.18. Mitigation Obligations; Replacement of Lenders................46
SECTION 2.19. Designation of Subsidiary Borrowers...........................47
ARTICLE III.................................................................48
GUARANTEE...................................................................48
SECTION 3.01. The Guarantee.................................................48
SECTION 3.02. Obligations Unconditional.....................................48
SECTION 3.03. Reinstatement.................................................49
SECTION 3.04. Subrogation...................................................49
SECTION 3.05. Remedies......................................................49
SECTION 3.06. Instrument for the Payment of Money...........................50
SECTION 3.07. Continuing Guarantee..........................................50
SECTION 3.08. Rights of Contribution........................................50
SECTION 3.09. General Limitation on Guarantee Obligations...................51
ARTICLE IV..................................................................51
REPRESENTATIONS AND WARRANTIES..............................................51
SECTION 4.01. Organization; Powers..........................................51
SECTION 4.02. Authorization; Enforceability.................................51
SECTION 4.03. Governmental Approvals; No Conflicts..........................51
SECTION 4.04. Financial Condition; No Material Adverse Change...............52
SECTION 4.05. Properties....................................................52
SECTION 4.06. Litigation and Environmental Matters..........................53
SECTION 4.07. Compliance with Laws and Contractual Obligations..............53
SECTION 4.08. Investment Company Act Status.................................53
SECTION 4.09. Taxes.........................................................53
SECTION 4.10. ERISA.........................................................53
SECTION 4.11. Disclosure....................................................54
SECTION 4.12. Use of Credit.................................................54
SECTION 4.13. Labor Matters.................................................54
SECTION 4.15. Indebtedness..................................................54
SECTION 4.16. Liens.........................................................55
SECTION 4.17. Subsidiaries..................................................55
ARTICLE V...................................................................55
CONDITIONS..................................................................55
SECTION 5.01. Conditions of Initial Credit Extensions.......................55
SECTION 5.02. Each Credit Event.............................................58
ARTICLE VI..................................................................58
AFFIRMATIVE COVENANTS.......................................................58
SECTION 6.01. Financial Statements and Other Information....................59
SECTION 6.02. Notices of Material Events....................................60
SECTION 6.03. Existence; Conduct of Business................................61
SECTION 6.04. Payment of Taxes and Other Obligations........................61
SECTION 6.05. Maintenance of Properties.....................................61
SECTION 6.06. Maintenance of Insurance......................................61
SECTION 6.07. Books and Records.............................................61
SECTION 6.08. Inspection Rights.............................................61
SECTION 6.09. Compliance with Laws and Contractual Obligations..............61
SECTION 6.10. Use of Proceeds and Letters of Credit.........................62
SECTION 6.11. Additional Subsidiary Guarantors; Further Assurances..........62
ARTICLE VII.................................................................62
NEGATIVE COVENANTS..........................................................62
SECTION 7.01. Indebtedness..................................................63
SECTION 7.02. Liens.........................................................64
SECTION 7.03. Mergers, Consolidations, Etc..................................65
SECTION 7.04. Dispositions..................................................65
SECTION 7.05. Lines of Business.............................................66
SECTION 7.06. Investments and Acquisitions..................................66
SECTION 7.07. Restricted Payments...........................................67
SECTION 7.08. Transactions with Affiliates..................................68
SECTION 7.09. Restrictive Agreements........................................68
SECTION 7.10. Swap Agreements...............................................69
SECTION 7.11. Financial Covenants...........................................69
SECTION 7.12. Sale-Leasebacks...............................................69
SECTION 7.13. Modifications of Organizational Documents.....................69
ARTICLE VIII................................................................70
EVENTS OF DEFAULT...........................................................70
ARTICLE IX..................................................................72
THE ADMINISTRATIVE AGENT....................................................72
ARTICLE X...................................................................74
MISCELLANEOUS...............................................................74
SECTION 10.01. Notices......................................................74
SECTION 10.02. Waivers; Amendments..........................................75
SECTION 10.03. Expenses; Indemnity; Damage Waiver...........................76
SECTION 10.04. Successors and Assigns.......................................78
SECTION 10.05. Survival.....................................................81
SECTION 10.06. Counterparts; Integration; Effectiveness.....................81
SECTION 10.07. Severability.................................................81
SECTION 10.08. Right of Setoff..............................................81
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process...82
SECTION 10.10. WAIVER OF JURY TRIAL.........................................82
SECTION 10.11. Headings.....................................................83
SECTION 10.12. Confidentiality..............................................83
SECTION 10.13. USA PATRIOT Act..............................................84
SECTION 10.14. Authorization of Company.....................................84
SCHEDULE 1.01 - Commitments
SCHEDULE 2.05(l) - Existing Letters of Credit
SCHEDULE 4.06(a) - Litigation
SCHEDULE 4.06(b) - Environmental Matters
SCHEDULE 4.17 - Subsidiaries
SCHEDULE 7.01 - Existing Indebtedness
SCHEDULE 7.02 - Existing Liens
SCHEDULE 7.06 - Existing Investments
SCHEDULE 7.09 - Restrictive Agreements
SCHEDULE 10.01 - Addresses for Notices
EXHIBIT A - Form of Assignment and Assumption
EXHIBIT B-1 - Form of Revolving Credit Note
EXHIBIT B-2 - Form of Term Loan Note
EXHIBIT B-3 - Form of Swingline Loan Note
EXHIBIT C - Form of Security Agreement
EXHIBIT D - Form of Subsidiary Joinder Agreement
EXHIBIT E-1 - Form of Subsidiary Borrower Designation Letter
EXHIBIT E-2 - Form of Termination Letter
EXHIBIT F - Form of Opinion of Counsel to the Loan Parties
EXHIBIT G - Form of Opinion of Special New York Counsel to JPMCB
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Credit Agreement
CREDIT AGREEMENT, dated as of May 1, 2006, among 0-000-XXXXXXX.XXX, INC.,
the SUBSIDIARY BORROWERS party hereto, the GUARANTORS party hereto, the LENDERS
party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
The Company (as hereinafter defined) have requested that the Lenders (as so
defined) extend credit to it and certain of its subsidiaries in an aggregate
principal or face amount of up to $135,000,000 for the purposes specified
herein. The Lenders are prepared to extend such credit upon the terms and
conditions hereof, and, accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acquisition" mean the acquisition by the Company or any other Loan Party
of (a) Capital Stock of any other Person if, after giving effect thereto, (i) at
least 80% of the Capital Stock of such other Person is owned by the Company or
any other Loan Party, (ii) such other Person is consolidated with the Company in
accordance with GAAP and (iii) such other Person is a Subsidiary Guarantor, (b)
all or substantially all of the assets of any other Person or (c) assets
constituting one or more business units of any other Person.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMCB, in its capacity as administrative agent
for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 0.50%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means (a) with respect to any Revolving Credit
Lender for purposes of Sections 2.04 or 2.05 or in respect of any indemnity
claim under Section 10.03(c) arising out of an action or omission of the
Swingline Lender or any Issuing Lender under this Agreement, the percentage of
the total Revolving Credit Commitments represented by such Revolving Credit
Lender's Revolving Credit Commitment, and (b) with respect to any Lender in
respect of any indemnity claim under Section 10.03(c) arising out of an action
or omission of the Administrative Agent under this Agreement, the percentage of
the total Commitments or Loans of both Classes hereunder represented by the
aggregate amount of such Lender's Commitments or Loans of both Classes
hereunder. With respect to the Revolving Credit Lenders, if the Revolving Credit
Commitments have terminated or expired, the Applicable Percentages shall be
determined on the basis of the percentage of the total Revolving Credit
Exposures represented by such Revolving Credit Lender's Revolving Credit
Exposure.
"Applicable Rate" means, for any day, with respect to any ABR Loan or
Eurodollar Loan, or with respect to the commitment fees payable hereunder, as
the case may be, the applicable rate per annum set forth below under the caption
"ABR Spread", "Eurodollar Spread" or "Commitment Fee Rate", respectively, based
upon the Consolidated Leverage Ratio as of the most recent determination date;
provided that from the Effective Date until the delivery of the Company's
consolidated financial statements for the fiscal quarter ending on or nearest to
June 30, 2006, the "Applicable Rate" shall be the applicable rate per annum set
forth below in Category 3:
============================ ========== ================ =====================
Consolidated Leverage ABR Eurodollar Commitment
Ratio: Spread Spread Fee Rate
---------------------------- ---------- ---------------- ---------------------
Category 1
0.125% 1.125% 0.25%
Greater than or equal
to 2.50:1.00
---------------------------- ---------- ---------------- ---------------------
Category 2
0% 1.00% 0.225%
Greater than or equal
to 2.00:1.00 but less
than 2.50:1.00
---------------------------- ---------- ---------------- ---------------------
Category 3
0% 0.875% 0.20%
Greater than or equal
to 1.50:1.00 but less
than 2.00:1.00
---------------------------- ---------- ---------------- ---------------------
Category 4
0% 0.75% 0.175%
Greater than or equal
to 1.00:1.00 but less
than 1.50:1.00
---------------------------- ---------- ---------------- ---------------------
Category 5
0% 0.625% 0.15%
Less than 1.00:1.00
============================ ========== ================ =====================
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For purposes of the foregoing, (i) the Consolidated Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Company based upon the
Company's consolidated financial statements delivered pursuant to Section
6.01(a) or (b) (and the related compliance certificate delivered pursuant to
Section 6.01(c)) and (ii) each change in the Applicable Rate resulting from a
change in the Consolidated Leverage Ratio shall be effective during the period
commencing on and including the date three Business Days after delivery to the
Administrative Agent of such consolidated financial statements and compliance
certificate indicating such change and ending on the date immediately preceding
the effective date of the next such change; provided that the Consolidated
Leverage Ratio shall be deemed to be in Category 1 (A) at any time that an Event
of Default has occurred and is continuing or (B) if the Company fails to deliver
the consolidated financial statements (and related compliance certificate)
required to be delivered by it pursuant to Section 6.01(a), (b) and/or (c),
during the period from the expiration of the time for delivery thereof specified
in such sections until such financial statements and compliance certificate are
delivered.
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"Asset Sale" means any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by clauses
(a), (b), (c), (d) and (e) of Section 7.04) which yields gross proceeds to the
Company or any of its Subsidiaries (valued at the initial principal amount
thereof in the case of non-cash proceeds consisting of notes or other debt
securities and valued at fair market value in the case of other non-cash
proceeds) in excess of $500,000.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
-3-
"Assuming Revolving Credit Lender" has the meaning set forth in Section
2.08(c).
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means the Company or any Subsidiary Borrower, as applicable.
"Borrower Guaranteed Obligations" has the meaning set forth in Section
3.01(b).
"Borrower Obligations" means, with respect to any Borrower, all of the
Obligations of such Borrower.
"Borrowing" means (a) all ABR Loans (other than Swingline Loans) of the
same Class made, converted or continued on the same date, (b) all Eurodollar
Loans of the same Class that have the same Interest Period or (c) a Swingline
Loan.
"Borrowing Request" means a request by a Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, for any period, expenditures (including the
aggregate amount of Capital Lease Obligations incurred during such period) made
by the Company or any of its Subsidiaries to acquire or construct fixed assets,
plant and equipment (including renewals, improvements and replacements, but
excluding repairs) during such period computed in accordance with GAAP.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalent" means:
-4-
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Xxxxx'x;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) of this
definition and entered into with a financial institution satisfying the
criteria described in clause (c) of this definition; and
(e) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii)
are rated AAA by S&P and Aaa by Xxxxx'x and (iii) have portfolio assets
of at least $5,000,000,000.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Exchange Act and the rules of the SEC thereunder as in effect on
the date hereof) (other than Xxxxx X. XxXxxx, Xxxxxxxxxxx X. XxXxxx and their
respective descendants and/or trusts for their benefit and any other Person
Controlled by any of the foregoing (collectively, the "XxXxxx Group")), of
shares representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Company; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were neither (i) nominated by the board
of directors of the Company nor (ii) appointed by directors so nominated or (c)
the XxXxxx Group (as defined above) shall cease to own a majority of the
aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Company.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or any Issuing Lender
(or, for purposes of Section 2.14(b), by any lending office of such Lender or by
such Lender's or such Issuing Lender's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Credit Loans,
Term Loans or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Credit Commitment or Term Loan
Commitment.
-5-
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means a Revolving Credit Commitment or a Term Loan Commitment,
or any combination thereof (as the context requires).
"Company" means 0-000-XXXXXXX.XXX, Inc., a Delaware corporation.
"Consolidated EBITDA" means, for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) Consolidated Interest Expense, amortization or writeoff
of debt discount and debt issuance costs and commissions, discounts and other
fees and charges associated with Indebtedness (including the Loans), (c)
depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, non-cash losses on sales of assets
outside of the ordinary course of business), (f) any non-cash stock-based
compensation expense relating to stock options and restricted stock granted to
employees or directors and (g) any non-cash charges resulting from writeoffs or
write-downs of inventory during such period directly or indirectly attributable
to Acquisitions permitted under this Agreement, and minus, (a) to the extent
included in the statement of such Consolidated Net Income for such period, the
sum of (i) any extraordinary, unusual or non-recurring income or gains
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the sales of
assets outside of the ordinary course of business) and (ii) any other non-cash
income and (b) any cash payments made during such period in respect of items
described in clause (e) above subsequent to the fiscal quarter in which the
relevant non-cash expenses or losses were reflected as a charge in the statement
of Consolidated Net Income, all as determined on a consolidated basis. For the
purposes of calculating Consolidated EBITDA for any period of four consecutive
fiscal quarters (each, a "Reference Period") pursuant to any determination of
the Consolidated Leverage Ratio, (x) if at any time during such Reference Period
the Company or any Subsidiary shall have made any Material Disposition, the
Consolidated EBITDA for such Reference Period shall be reduced by an amount
equal to the Consolidated EBITDA (if positive) attributable to the property that
is the subject of such Material Disposition for such Reference Period or
increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such Reference Period and (y) if during such Reference
Period the Company or any Subsidiary shall have made an Acquisition (including
the Xxxxxx May Acquisition), Consolidated EBITDA for such Reference Period shall
be calculated after giving pro forma effect thereto as if such Acquisition
occurred on the first day of such Reference Period. As used in this definition,
"Material Disposition" means any Disposition of property or series of related
Dispositions of property that yields gross proceeds to the Company or any of its
Subsidiaries in excess of $5,000,000.
"Consolidated Fixed Charge Coverage Ratio" means, at any date, the ratio of
(a) Consolidated EBITDA for the period of four consecutive fiscal quarters of
the Company ended on or most recently ended prior to such date, plus, without
duplication and to the extent reflected as a charge in the statement of
-6-
Consolidated Net Income for such period, Consolidated Lease Expenses for such
period, minus Capital Expenditures for such period (other than to the extent
such Capital Expenditures are financed with Indebtedness other than with the
Loans) to (b) the sum of (i) Consolidated Interest Expense for such period plus
(ii) Consolidated Lease Expenses for such period plus (iii) Restricted Payments
made under Section 7.07(c) during such period plus (iv) all regularly scheduled
payments of principal of Indebtedness for such period; provided that for any
such period ending on or prior to December 31, 2006 the amount for purposes of
clause (b)(iv) above shall be deemed to be $8,500,000.
"Consolidated Funded Debt" means, at any date, all Indebtedness of the
Company and its Subsidiaries that matures more than one year from the date of
its creation or matures within one year from such date but is renewable or
extendible, at the option of such Person, to a date more than one year from such
date or arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year from
such date, including all current maturities and current sinking fund payments in
respect of such Indebtedness whether or not required to be paid within one year
from the date of its creation and, in the case of the Borrowers, Indebtedness in
respect of the Loans, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Interest Expense" means, for any period, total interest
expense (including that attributable to Capital Lease Obligations) of the
Company and its Subsidiaries for such period with respect to all outstanding
Indebtedness of the Company and its Subsidiaries (including all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Swap Agreements in respect of
interest rates to the extent such net costs are allocable to such period in
accordance with GAAP), minus interest income of the Company and its Subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Lease Expenses" means, for any period, the aggregate amount
of fixed and contingent rentals payable by the Company or any Subsidiary for
such period with respect to operating leases of real and personal property,
minus the aggregate amount of cash rentals received by the Company or any
Subsidiary in respect of subleases of any such property for such period,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio" means, at any date, the ratio of (a) the
aggregate principal amount of all Consolidated Funded Debt on such day to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters of the
Company ended on or most recently ended prior to such date.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or loss) of any Person (other than a Subsidiary of the
Company) in which the Company or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the
Company or such Subsidiary in the form of dividends or similar distributions and
(b) the undistributed earnings of any Subsidiary of the Company (other than a
Loan Party) to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by the
terms of any Contractual Obligation (other than under any Loan Document) or
Requirement of Law applicable to such Subsidiary.
-7-
"Consolidated Net Worth" means, at any date, the sum of (a) all amounts
that would, in conformity with GAAP, be included on a consolidated balance sheet
of the Company and its Subsidiaries under stockholders' equity at such date plus
(b) (without duplication) the liquidation value of all preferred Capital Stock
of the Company (other than such preferred stock that is mandatorily redeemable
on or prior to the date that is six months after the Term Loan Maturity Date).
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings disclosed in
Schedule 4.06(a) and the environmental matters disclosed in Schedule 4.06(b).
"Disposition" means, with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition thereof
(excluding the sale by the Company of its own Capital Stock).
"Dollars" or "$" refers to lawful money of the United States of America.
"Domestic Subsidiary" means any Subsidiary of the Company organized or
incorporated under the laws of any jurisdiction within the United States of
America.
"Effective Date" means the date (which shall be a Business Day not later
than May 30, 2006) on which the conditions specified in Section 5.01 are
satisfied (or waived in accordance with Section 10.02).
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating to pollution
or protection of the environment and public health (to the extent relating to
exposure to Hazardous Material), preservation or reclamation of natural
resources, including those relating to the management, release or threatened
release of any Hazardous Material.
-8-
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary arising under any
Environmental Law and resulting from (a) violation of any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"Equity Issuance" means (a) any issuance or sale by the Company or any of
its Subsidiaries after the date hereof of (i) any of its Capital Stock, (ii) any
warrants or options exercisable in respect of its Capital Stock (other than any
warrants or options issued to directors, officers, employees or consultants of
the Company or any of its Subsidiaries pursuant to benefit plans established in
the ordinary course of business and any Capital Stock of the Company issued upon
the exercise of such warrants or options) or (iii) any other security or
instrument representing an equity interest (or the right to obtain any equity
interest) in the Company or any of its Subsidiaries or (b) the receipt by the
Company or any of its Subsidiaries after the date hereof of any capital
contribution (whether or not evidenced by any equity security issued by the
recipient of such contribution); provided that Equity Issuance shall not include
(x) any such issuance or sale by any Subsidiary of the Company to the Company or
any Subsidiary of the Company or (y) any capital contribution by the Company or
any Subsidiary of the Company to any Subsidiary of the Company.
"Equity Rights" means, with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including any shareholders' or voting trust agreements) for the issuance, sale,
registration or voting of, or securities convertible into, any additional shares
of Capital Stock of any class or type of such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Company or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
-9-
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VIII.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, any Issuing Lender or any other recipient of any payment to be made by
or on account of any obligation of any Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed on any Lender by the United States of America and (c) in
the case of a Non-U.S. Lender (other than an assignee pursuant to a request by
the Company under Section 2.18(b)), any withholding tax that is imposed on
amounts payable to such Non-U.S. Lender at the time such Non-U.S. Lender becomes
a party to this Agreement (or designates a new lending office) or is
attributable to such Non-U.S. Lender's failure to comply with Section 2.16(e),
except to the extent that such Non-U.S. Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the applicable Borrower with respect to such
withholding tax pursuant to Section 2.16(a).
"Existing Credit Facilities" means the Company's bilateral credit lines
with each of JPMCB and Wachovia Bank, National Association, in an aggregate
principal amount of $25,000,000.
"Existing Letters of Credit" has the meaning set forth in Section 2.05(l).
"Xxxxxx May" means Xxxxxx May Confections Brands, Inc. (formerly known as
Alpine Confections, Inc.), a Utah corporation.
"Xxxxxx May Acquisition" means the acquisition of the Capital Stock of
Xxxxxx May pursuant to the Xxxxxx May Acquisition Agreement.
"Xxxxxx May Acquisition Subsidiary" means FMCB Acquisition Co., Inc., a
Delaware corporation.
"Xxxxxx May Acquisition Agreement" means the Stock Purchase Agreement,
dated as of April 5, 2006, among the Company, the Xxxxxx May Acquisition
Subsidiary, Xxxxxx May, certain subsidiaries of Xxxxxx May, certain
securityholders of Xxxxxx May and a representative specified therein of the
sellers thereunder.
-10-
"Xxxxxx May Group" means Xxxxxx May, Xxxxx London Candies, Inc., an Ohio
corporation, and Xxxxxx May Confections, Inc., a Delaware corporation.
"Xxxxxx May Material Adverse Effect" means a material adverse effect on (a)
the business, operations, properties, assets, liabilities, results of
operations, financial condition or prospects of the Xxxxxx May Group, taken as a
whole or (b) the ability of Xxxxxx May or any Stockholder (as defined in the
Xxxxxx May Acquisition Agreement) to consummate the Xxxxxx May Acquisition
contemplated by the Xxxxxx May Acquisition Agreement or any other Transaction
Document (as defined in the Xxxxxx May Acquisition Agreement); provided,
however, that any such effect to the extent primarily attributable to any
change, effect, event or condition (i) generally applicable to financial,
banking or securities markets, (ii) expressly contemplated by the terms of the
Xxxxxx May Acquisition Agreement or any other Transaction Document (as so
defined) or (iii) resulting from the engagement by the United States in
hostilities, whether or not pursuant to the declaration of a national emergency
or war, or resulting from the occurrence of any military or terrorist attack
upon the United States, in any such case, shall not constitute a "Xxxxxx May
Material Adverse Effect."
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Foreign Subsidiary" means any Subsidiary of the Company that is not a
Domestic Subsidiary.
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
-11-
"Guaranteed Obligations" means, collectively, the Borrower Guaranteed
Obligations and the Subsidiary Borrower Guaranteed Obligations.
"Guarantors" means the Company and the Subsidiary Guarantors, in each case
with respect to its respective Guaranteed Obligations.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Increasing Revolving Credit Lender" has the meaning set forth in Section
2.08(c).
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others 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 or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances and
(k) the liquidation value of all preferred Capital Stock of such Person that is
mandatorily redeemable on or prior to the date that is six months after the Term
Loan Maturity Date. 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.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-12-
"Interest Election Request" means a request by a Borrower to convert or
continue a Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan(other than a
Swingline Loan), each Quarterly Date, (b) with respect to any Eurodollar Loan,
the last day of the Interest Period applicable thereto and, in the case of any
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three-months' duration
after the first day of such Interest Period and (c) with respect to any
Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months or
(if agreed to by all the Lenders of the applicable Class of Loans) nine or
twelve months thereafter, as the applicable Borrower may elect; provided that
(i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing, and the date of a Borrowing comprising Loans of
any Class that have been converted or continued shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Investment" means, by any Person, (a) the amount paid or committed to be
paid, or the value of property or services contributed or committed to be
contributed, by such Person for or in connection with the acquisition by such
Person of any stock, bonds, notes, debentures, partnership or other ownership
interests or other securities of any other Person and (b) the amount of any
advance, loan or extension of credit by such Person, to any other Person, or
guaranty or other similar obligation of such Person with respect to any
Indebtedness of such other Person (other than Indebtedness constituting trade
payables in the ordinary course of business), and (without duplication) any
amount committed to be advanced, loans, or extended by such Person to any other
Person, or any amount the payment of which is committed to be assured by a
guaranty or similar obligation by such Person for the benefit of, such other
Person.
"Issuing Lender" means each of JPMCB, Wachovia Bank, National Association
and (solely with respect to the Existing Letters of Credit issued by it or its
predecessor) LaSalle Bank National Association, each in its capacity as the
issuer of Letters of Credit hereunder, and in each case its successors in such
capacity as provided in Section 2.05(j). Each Issuing Lender may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of such Issuing Lender, in which case the term "Issuing Lender" shall include
any such Affiliate with respect to Letters of Credit issued by such Affiliate.
"JPMCB" means JPMorgan Chase Bank, N.A.
-13-
"LC Disbursement" means a payment made by an Issuing Lender pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrowers at such time. The LC Exposure of any Revolving Credit Lender at
any time shall be its Applicable Percentage of the total LC Exposures at such
time.
"Lenders" means the Persons listed on Schedule 1.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption
or an instrument entered into pursuant to Section 2.08(c), other than any such
Person that ceases to be a party hereto pursuant to an Assignment and
Assumption. Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lender.
"Letter of Credit" means any standby or commercial letter of credit issued
pursuant to this Agreement.
"Letter of Credit Documents" means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to such Letter of
Credit or (b) any collateral security for any of such obligations, each as the
same may be modified and supplemented and in effect from time to time.
"Letter of Credit Sublimit Amount" means $20,000,000.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
-14-
"Loan Documents" means, collectively, this Agreement, the
Letter of Credit Documents, the promissory notes (if any) executed and delivered
pursuant to Section 2.09(g) and the Security Documents.
"Loan Parties" means the Borrowers and the Guarantors.
"Loans" means the loans made by the Lenders to any or all the
Borrowers pursuant to this Agreement.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"Material Adverse Effect" means a material adverse effect on
(a) the business, property, operation or condition (financial or otherwise) of
the Company and its Subsidiaries taken as a whole, (b) the ability of the Loan
Parties to perform their respective obligations hereunder and under the other
Loan Documents and (c) the validity or enforceability of this Agreement or any
other Loan Document or the rights or remedies of the Administrative Agent and
the Lenders hereunder or thereunder.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Swap
Agreements, of any one or more of the Company and its Subsidiaries in an
aggregate outstanding principal amount exceeding $7,500,000. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations of
the Company or any Subsidiary in respect of any Swap Agreement at any time shall
be the maximum aggregate amount (giving effect to any netting agreements) that
the Company or any Subsidiary would be required to pay if such Swap Agreement
were terminated at such time.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means (a) in connection with any Asset
Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or the sale or disposition of any non-cash consideration
or otherwise, but only as and when received and excluding the portion of such
deferred payment constituting interest) of such Asset Sale or Recovery Event,
net of attorneys' fees, accountants' fees, investment banking fees, amounts
required to be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset which is the subject of such Asset
Sale or Recovery Event (other than any Lien pursuant to a Security Document) and
other customary costs, fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and net of amounts deposited in
escrow in connection therewith or reasonably expected to be paid as a result of
any purchase price adjustment, indemnities or reserves related thereto (such
amounts shall be Net Cash Proceeds to the extent and at the time released or not
required to be so used) and (b) in connection with any issuance or sale of
equity securities or debt securities or instruments or the incurrence of loans
or capital contribution, the cash proceeds received from such issuance,
incurrence or capital contribution, net of attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection therewith.
-15-
"Non-U.S. Lender" means any Lender that is organized under the
laws of a jurisdiction other than the United States of America, any State
thereof or the District of Columbia.
"Obligations" means, collectively, (a) all of the
Indebtedness, liabilities and obligations of any Loan Party to the
Administrative Agent, the Lenders, the Swingline Lender and/or the Issuing
Lenders arising under the Loan Documents (including all reimbursement
obligations in respect of Letters of Credit), in each case whether fixed,
contingent (including without limitation those Obligations incurred as a
Guarantor pursuant to Article III), now existing or hereafter arising, created,
assumed, incurred or acquired, and whether before or after the occurrence of any
Event of Default under clause (h) or (i) of Article VIII and including any
obligation or liability in respect of any breach of any representation or
warranty and all post-petition interest and funding losses, whether or not
allowed as a claim in any proceeding arising in connection with such an event,
(b) all obligations of any Loan Party owing to any Lender or any Affiliate of
any Lender under any treasury management services agreement, any service terms
or any service agreements, including electronic payments service terms and/or
automated clearing house agreements, and all overdrafts on any account which any
Loan Party maintains with any Lender or any Affiliate of any Lender and (c) all
obligations of any Loan Party owing to any Lender or any Affiliate of any Lender
under (i) interest rate swap agreements (whether from fixed to floating or from
floating to fixed), interest rate cap agreements and interest rate collar
agreements, (ii) other agreements or arrangements designed to manage interest
rates or interest rate risk and (iii) other agreements or arrangements designed
to protect such Person against fluctuations in currency exchange rates or
commodity prices.. The term `Obligations" shall include Borrower Obligations and
Subsidiary Borrower Obligations.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under this Agreement or any other Loan
Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
"Participant" has the meaning set forth in Section 10.04(c).
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Liens" means:
-16-
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 6.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VIII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Company or any
Subsidiary;
provided that the term "Permitted Liens" shall not include any Lien securing
Indebtedness.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMCB as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Principal Payment Dates" means (a) the Quarterly Dates of
each year, commencing with the Quarterly Date falling on or nearest to September
30, 2006 and (b) the Term Loan Maturity Date.
"Pro Forma Financial Statements" has the meaning set forth in
Section 5.01(h).
-17-
"Quarterly Dates" means the last Business Day of September,
December, March and June in each year, the first of which shall be the first
such day after the date hereof.
"Recovery Event" means any settlement of or payment in respect
of any property or casualty insurance claim (but not to the extent such claim
compensates for any loss of revenues or interruption of business or operations
caused thereby) or any condemnation proceeding relating to any asset of the
Company or any of its Subsidiaries with a value in excess of $500,000.
"Register" has the meaning set forth in Section 10.04.
"Reinvestment Deferred Amount" means, with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Company or
any of its Subsidiaries in connection therewith which are not applied to prepay
the Term Loans pursuant to Section 2.10(b)(iii) as a result of the delivery of a
Reinvestment Notice.
"Reinvestment Event" means any Asset Sale or Recovery Event in
respect of which the Company has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a
Responsible Officer stating that no Default has occurred and is continuing and
that the Company or any Subsidiary intends and expects to use all or a specified
portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire
assets useful in its business.
"Reinvestment Prepayment Amount" means, with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Company's or any Subsidiary's business.
"Reinvestment Prepayment Date" means, with respect to any
Reinvestment Event, the earlier of (a) the date occurring twelve months after
such Reinvestment Event (or in the case of any Reinvestment Event arising out of
a casualty insurance claim where the Company or any of its Subsidiaries is
rebuilding or restoring the property subject to such casualty, the date
occurring twelve months after such Reinvestment Event) and (b) the date on which
the Company shall have determined not to, or shall have otherwise ceased to,
acquire assets useful in the Company's or any Subsidiary's business with all or
any portion of the relevant Reinvestment Deferred Amount.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures, outstanding Term Loans and unused Commitments
representing more than 50% of the sum of the total Revolving Credit Exposures,
outstanding Term Loans and unused Revolving Credit Commitments at such time. The
"Required Lenders" of a particular Class of Loans means Lenders having Revolving
Credit Exposures, outstanding Term Loans and/or unused Commitments of such
Class, as applicable, representing more than 50% of the total Revolving Credit
Exposures, outstanding Term Loans and/or unused Commitments of such Class, as
applicable, at such time.
-18-
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer" means the chief executive officer,
president or chief financial officer of the Company, but in any event, with
respect to financial matters, the chief financial officer of the Company.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Capital
Stock of the Company or any of its Subsidiaries, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Capital Stock of the Company or any
option, warrant or other right to acquire any such Capital Stock of the Company.
"Revolving Credit", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans constituting such
Borrowing, are made pursuant to Section 2.01(a).
"Revolving Credit Availability Period" means the period from
and including the Effective Date to but excluding the earlier of the Revolving
Credit Commitment Termination Date and the date of termination of the Revolving
Credit Commitments.
"Revolving Credit Commitment" means, with respect to each
Lender, the commitment, if any, of such Lender to make Revolving Credit Loans
and to acquire participations in Letters of Credit and Swingline Loans
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender's Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced or increased from time to time pursuant to Section 2.08 and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 10.04. The initial amount of each Lender's Revolving Credit
Commitment is set forth on Schedule 1.01 under the caption "Revolving Credit
Commitment", or in the Assignment and Acceptance or other instrument pursuant to
which such Lender shall have assumed its Revolving Credit Commitment, as
applicable. The initial aggregate amount of the Revolving Credit Commitments is
$50,000,000.
"Revolving Credit Commitment Increase" has the meaning set
forth in Section 2.08(c).
"Revolving Credit Commitment Increase Date" has the meaning
set forth in Section 2.08(c).
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"Revolving Credit Commitment Termination Date" means
April 29, 2011.
"Revolving Credit Exposure" means, with respect to any
Revolving Credit Lender at any time, the sum of (a) the outstanding principal
amount of such Lender's Revolving Credit Loans, (b) the LC Exposure of such
Lender and (c) the Swingline Exposure of such Lender at such time.
"Revolving Credit Lender" means a Lender with a Revolving
Credit Commitment or, if the Revolving Credit Commitments have terminated or
expired, a Lender with Revolving Credit Exposure.
"Revolving Credit Loans" means the loans made by the Lenders
to the Borrowers pursuant to Section 2.01(a).
"S&P" means Standard & Poor's Ratings Services.
"SEC" means the Securities and Exchange Commission, or any
regulatory body that succeeds to the functions thereof.
"Security Agreement" means a Security Agreement substantially
in the form of Exhibit C between the Loan Parties and the Administrative Agent.
"Security Documents" means, collectively, the Security
Agreement, each Subsidiary Joinder Agreement, any security or similar agreement
entered into pursuant to Section 6.11 in favor of the Administrative Agent, and
all Uniform Commercial Code financing statements required by the terms of any
such agreement to be filed with respect to the security interests created
pursuant thereto.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise specified, "Subsidiary" means a Subsidiary of the Company. For the
avoidance of doubt, Teleway, Inc., a New York Corporation, shall not be deemed
to be a Subsidiary of the Company for purposes of the Loan Documents.
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"Subsidiary Borrower" means (a) each Domestic Subsidiary of
the Company (if any) that is listed under the caption "Subsidiary Borrowers" on
the signature pages hereof and (b) each other Domestic Subsidiary of the Company
that shall become a Subsidiary Borrower pursuant to Section 2.19, in each case
so long as such Subsidiary shall remain a Subsidiary Borrower hereunder.
"Subsidiary Borrower Designation Letter" means the Subsidiary
Borrower Designation Letter entered into by the Company and a wholly-owned
Domestic Subsidiary of the Company pursuant to Section 2.19, pursuant to which
such Subsidiary shall (subject to the terms and conditions of Section 2.19(b))
be designated as a Subsidiary Borrower, substantially in the form of Exhibit E-1
or any other form approved by the Administrative Agent.
"Subsidiary Borrower Guaranteed Obligations" has the meaning
set forth in Section 3.01.
"Subsidiary Borrower Obligations" means, with respect to any
Subsidiary Borrower, all of the Obligations of such Subsidiary Borrower.
"Subsidiary Guarantors" means (a) each Subsidiary of the
Company that is listed under the caption "Subsidiary Guarantors" on the
signature pages hereof and (b) each other Subsidiary of the Company that shall
become a Subsidiary Guarantor pursuant to Section 6.11.
"Subsidiary Joinder Agreement" means a Subsidiary Joinder
Assumption Agreement substantially in the form of Exhibit D executed and
delivered by a Domestic Subsidiary that, pursuant to Section 6.11(a), is
required to become a "Subsidiary Guarantor" hereunder and a "Securing Party"
under the Security Agreement in favor of the Administrative Agent.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; provided that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Company or any Subsidiary shall be a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
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"Swingline Lender" means JPMCB, in its capacity as lender of
Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are made
pursuant to Section 2.01(b).
"Term Loans" means the loans made by the Lenders to the
Company pursuant to Section 2.01(b).
"Term Loan Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder on the
Effective Date in the amount of such Lender's Term Loan Commitment as set forth
on Schedule 1.01 under the caption "Term Loan Commitment", or in the Assignment
and Acceptance pursuant to which such Lender shall have assumed its Term Loan
Commitment, as applicable. The aggregate amount of the Lenders' Term Loan
Commitments is $85,000,000 as of the Effective Date.
"Term Loan Lender" means a Lender with a Term Loan Commitment
or, following the Effective Date, an outstanding Term Loan.
"Term Loan Maturity Date" means May 1, 2012.
"Termination Letter" has the meaning set forth in Section
2.19(c).
"Transactions" means the execution, delivery and performance
by each Loan Party of this Agreement and the other Loan Documents to which such
Loan Party is intended to be a party, the borrowing of Loans hereunder and the
use of proceeds thereof, and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
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word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith. To enable the ready
and consistent determination of compliance with the covenants set forth in
Article VII, the Company will not permit the fiscal year of the Company to end
on a day other than December 31 or any other day within one week of December 31.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.
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(a) Revolving Credit Loans. Subject to the terms and
conditions set forth herein, each Revolving Credit Lender agrees to make
Revolving Credit Loans to any of the Borrowers from time to time during the
Revolving Credit Availability Period in an aggregate principal amount that will
not result in (i) such Lender's Revolving Credit Exposure exceeding such
Lender's Revolving Credit Commitment or (ii) the total Revolving Credit
Exposures exceeding the total Revolving Credit Commitments. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrowers
may borrow, prepay and reborrow Revolving Credit Loans.
(b) Term Loans. Subject to the terms and conditions set forth
herein, each Term Loan Lender agrees to make a Term Loan to the Company on the
Effective Date in a principal amount equal to its Term Loan Commitment. Amounts
prepaid or repaid in respect of Term Loans may not be reborrowed.
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SECTION 2.02. Loans and Borrowings.
--------------------
(a) Obligations of Lenders. Each Loan shall be made as part of
a Borrowing by any Borrower consisting of Loans of the same Class and Type made
to such Borrower by the Lenders ratably in accordance with their respective
Commitments of the applicable Class. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Type of Loans. Subject to Section 2.13, each Borrowing by
any Borrower shall be comprised entirely of ABR Loans or of Eurodollar Loans as
such Borrower may request in accordance herewith. Each Swingline Loan shall be
an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing
any domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
applicable Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. Each
Eurodollar Borrowing shall be in an aggregate amount of $3,000,000 or a larger
multiple of $500,000. Each ABR Borrowing shall be in an aggregate amount equal
to $1,000,000 or a larger multiple of $100,000; provided that an ABR Borrowing
may be in an aggregate amount that is equal to the entire unused amount of the
total Revolving Credit Commitment or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(f). Each
Swingline Loan shall be in an amount that is a multiple of $100,000 and not less
than $100,000. Borrowings of more than one Type may be outstanding at the same
time; provided that there shall not at any time be more than a total of six
Eurodollar Borrowings outstanding.
(d) Limitations on Interest Periods. Notwithstanding any other
provision of this Agreement, no Borrower shall be entitled to request (or to
elect to convert to or continue as a Eurodollar Borrowing) (i) any Revolving
Credit Eurodollar Borrowing if the Interest Period requested therefor would end
after the Revolving Credit Commitment Termination Date; (ii) any Term Eurodollar
Borrowing if the Interest Period requested therefor would end after the Term
Loan Maturity Date; or (iii) any Term Eurodollar Borrowing if the Interest
Period requested therefor would commence before and end after any Principal
Payment Date unless, after giving effect thereto, the aggregate principal amount
of the Term Loans having Interest Periods that end after such Principal Payment
Date shall be equal to or less than the aggregate principal amount of the Term
Loans permitted to be outstanding after giving effect to the payments of
principal required to be made on such Principal Payment Date.
SECTION 2.03. Requests for Borrowings.
-----------------------
(a) Notice by the Borrowers. To request a Borrowing, a
Borrower shall notify the Administrative Agent of such request by
telephone (i) in the case of a Eurodollar Borrowing, not later than
12:00 noon, New York City time, three Business Days before the date of
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the proposed Borrowing or (ii) in the case of an ABR Borrowing, not
later than 12:00 noon, New York City time, one Business Day before the
date of the proposed Borrowing; provided that any such notice of an ABR
Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(f) may be given not later than 12:00 noon,
New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by such Borrower.
(b) Content of Borrowing Requests. Each telephonic and written
Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Credit Borrowing or Term Borrowing;
(i) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period" and permitted under Section 2.02(d); and
(vi) the location and number of the applicable Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
(c) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the
details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
(d) Failure to Elect. If no election as to the Type of a
Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Borrowing, the requested Borrowing shall be made
instead as an ABR Borrowing.
SECTION 2.04. Swingline Loans.
---------------
(a) Agreement to Make Swingline Loans. Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Company from time to time during the Revolving Credit Availability
Period, in an aggregate principal amount at any time outstanding that will not
result in (i) the aggregate principal amount of outstanding Swingline Loans
exceeding $5,000,000 or (ii) the total Revolving Credit Exposures exceeding the
total Revolving Credit Commitments; provided that the Swingline Lender shall not
be required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Company may borrow, prepay and reborrow Swingline Loans.
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(b) Notice of Swingline Loans by Company. To request a
Swingline Loan, the Company shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New
York City time, on the day of a proposed Swingline Loan. Each such notice shall
be irrevocable and shall specify the requested date (which shall be a Business
Day) and amount of the requested Swingline Loan. The Administrative Agent will
promptly advise the Swingline Lender of any such notice received from the
Company. The Swingline Lender shall make each Swingline Loan available to the
Company by means of a credit to an account of the Company with the Swingline
Lender (or, in the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(f), by remittance to the
applicable Issuing Lender) by 3:00 p.m., New York City time, on the requested
date of such Swingline Loan.
(c) Participations by Lenders in Swingline Loans. The
Swingline Lender may by written notice given to the Administrative Agent not
later than 10:00 a.m., New York City time, on any Business Day require the
Revolving Credit Lenders to acquire participations on such Business Day in all
or a portion of the Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Revolving Credit Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Revolving Credit Lender, specifying in such notice
such Revolving Credit Lender's Applicable Percentage of such Swingline Loan or
Loans. Each Revolving Credit Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Revolving Credit Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Revolving Credit
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Revolving Credit Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.06 with respect to Loans made by
such Revolving Credit Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the Revolving Credit Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Revolving Credit Lenders. The Administrative Agent shall notify the
Company of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Company (or other party on behalf of
the Company) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Credit Lenders that shall have made their payments pursuant to
this paragraph and to the Swingline Lender, as their interests may appear;
provided that any such payment so remitted shall be repaid to the Swingline
Lender or to the Administrative Agent, as applicable, if and to the extent such
payment is required to be refunded to the Company for any reason. The purchase
of participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Company of any default in the payment thereof.
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SECTION 2.05. Letters of Credit.
-----------------
(a) General. Subject to the terms and conditions set forth
herein, in addition to the Loans provided for in Section 2.01, any Borrower may
request an Issuing Lender to issue, at any time and from time to time during the
Revolving Credit Availability Period, Letters of Credit denominated in Dollars
for such Borrower's account in such form as is acceptable to such Issuing Lender
in its reasonable determination. Letters of Credit issued hereunder shall
constitute utilization of the Commitments.
(b) Notice of Issuance, Amendment, Renewal or Extension. To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), a Borrower shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the applicable Issuing Lender and the Administrative
Agent) to such Issuing Lender and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (d) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If requested
by an Issuing Lender, such Borrower also shall submit a letter of credit
application on such Issuing Lender's standard form in connection with any
request for a Letter of Credit. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by such Borrower
to, or entered into by such Borrower with, the applicable Issuing Lender
relating to any Letter of Credit, the terms and conditions of this Agreement
shall control.
(c) Limitations on Amounts. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the applicable Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the total LC Exposures shall not exceed the
Letter of Credit Sublimit Amount and (ii) the total Revolving Credit Exposures
shall not exceed the total Revolving Credit Commitments.
(d) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Credit Commitment Termination
Date.
(e) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) by an Issuing
Lender, and without any further action on the part of such Issuing Lender or the
Revolving Credit Lenders, such Issuing Lender hereby grants to each Revolving
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Credit Lender, and each Revolving Credit Lender hereby acquires from such
Issuing Lender, a participation in such Letter of Credit equal to such Revolving
Credit Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. Each Revolving Credit Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Commitments.
In consideration and in furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for account of each Issuing Lender, such Revolving
Credit Lender's Applicable Percentage of each LC Disbursement made by such
Issuing Lender promptly upon the request of such Issuing Lender at any time from
the time of such LC Disbursement until such LC Disbursement is reimbursed by the
applicable Borrower or at any time after any reimbursement payment is required
to be refunded to such Borrower for any reason. Such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each such
payment shall be made in the same manner as provided in Section 2.06 with
respect to Revolving Credit Loans made by such Revolving Credit Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the
Revolving Credit Lenders), and the Administrative Agent shall promptly pay to
the applicable Issuing Lender the amounts so received by it from the Revolving
Credit Lenders. Promptly following receipt by the Administrative Agent of any
payment from a Borrower pursuant to paragraph (f) of this Section, the
Administrative Agent shall distribute such payment to the applicable Issuing
Lender or, to the extent that the Revolving Credit Lenders have made payments
pursuant to this paragraph to reimburse such Issuing Lender, then to such
Revolving Credit Lenders and such Issuing Lender as their interests may appear.
Any payment made by a Revolving Credit Lender pursuant to this paragraph to
reimburse any Issuing Lender for any LC Disbursement (other than the funding of
ABR Revolving Credit Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve such Borrower of its obligation to
reimburse such LC Disbursement.
(f) Reimbursement. If any Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the applicable Borrower shall
reimburse such Issuing Lender in respect of such LC Disbursement by paying to
the Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on (i) the Business Day that such Borrower
receives notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., New York City time, or (ii) the Business Day immediately following
the day that such Borrower receives such notice, if such notice is not received
prior to such time; provided that, if such LC Disbursement is not less than
$100,000, such Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 that such payment be financed
with an ABR Revolving Credit Borrowing or (in the case of the Company) a
Swingline Loan in an equivalent amount and, to the extent so financed, such
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Credit Borrowing or (in the case of the Company)
Swingline Loan.
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If a Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Credit Lender of the applicable
LC Disbursement, the payment then due from such Borrower in respect thereof and
such Revolving Credit Lender's Applicable Percentage thereof.
(g) Obligations Absolute. Each Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (f) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by any Issuing Lender under a Letter of
Credit against presentation of a draft or other document that does not comply
strictly with the terms of such Letter of Credit, and (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, such Borrower's obligations
hereunder. Neither the Administrative Agent, the Revolving Credit Lenders nor
any Issuing Lender, nor any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of such Issuing Lender; provided that the foregoing
shall not be construed to excuse such Issuing Lender from liability to the
applicable Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by such
Borrower to the extent permitted by applicable law) suffered by such Borrower
that are caused by such Issuing Lender's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of any
Issuing Lender (as finally determined by a court of competent jurisdiction),
such Issuing Lender shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, any Issuing Lender may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(h) Disbursement Procedures. Each Issuing Lender shall, within
a reasonable time following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit. Each
Issuing Lender shall promptly after such examination notify the Administrative
Agent and the applicable Borrower by telephone (confirmed by telecopy) of such
demand for payment and whether such Issuing Lender has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve such Borrower of its obligation to reimburse such
Issuing Lender and the Revolving Credit Lenders with respect to any such LC
Disbursement.
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(i) Interim Interest. If any Issuing Lender shall make any LC
Disbursement, then, unless the applicable Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid amount
thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that such Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Credit Loans; provided that, if such Borrower fails to reimburse such LC
Disbursement when due pursuant to paragraph (f) of this Section, then Section
2.12(c) shall apply. Interest accrued pursuant to this paragraph shall be for
account of the applicable Issuing Lender, except that interest accrued on and
after the date of payment by any Revolving Credit Lender pursuant to paragraph
(f) of this Section to reimburse such Issuing Lender shall be for account of
such Revolving Credit Lender to the extent of such payment.
(j) Replacement of Issuing Lender. Any Issuing Lender may be
replaced at any time by written agreement among the Company, the Administrative
Agent, the replaced Issuing Lender and the successor Issuing Lender thereto. The
Administrative Agent shall notify the Revolving Credit Lenders of any such
replacement of an Issuing Lender. At the time any such replacement shall become
effective, the Company shall pay all unpaid fees accrued for account of the
replaced Issuing Lender pursuant to Section 2.11(b). From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the replaced Issuing Lender under this
Agreement with respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Lender" shall be deemed to refer to such
successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the replacement of
an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Lender under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.
(k) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Company receives notice
from the Administrative Agent or the Required Revolving Credit Lenders (or, if
the maturity of the Revolving Credit Loans has been accelerated, Revolving
Credit Lenders representing greater than 50% of the total LC Exposures)
demanding the deposit of cash collateral pursuant to this paragraph, the Company
shall deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash equal
to 105% of the total LC Exposures as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to any Loan Party described in clause (h)
or (i) of Article VIII. Such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the Loan
Parties under this Agreement and the other Loan Documents. The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Company's risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on
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such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse each Issuing Lender for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrowers for the LC Exposure at such time or, if the maturity of the
Revolving Credit Loans has been accelerated (but subject to the consent of
Revolving Credit Lenders representing greater than 50% of the total LC
Exposures), be applied to satisfy other obligations of the Loan Parties under
this Agreement and the other Loan Documents. If the Company is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Company within three Business Days after all Events of
Default have been cured or waived.
(l) Existing Letters of Credit. On the Effective Date, subject
to the satisfaction of the conditions under Section 5.01, each letter of credit
listed on Schedule 2.05(l) that is issued by any Person which is an Issuing
Lender and outstanding on such date (the "Existing Letters of Credit") shall
automatically, and without any action on the part of any Person, be continued as
and become a Letter of Credit hereunder and shall be governed by the terms of
this Agreement. Notwithstanding anything herein to the contrary, LaSalle Bank
National Association ("LaSalle") shall be an "Issuing Lender" for all purposes
of this Agreement with respect to each Existing Letter of Credit issued by
LaSalle (or any of its predecessors) (each such Existing Letter of Credit, a
"LaSalle Letter of Credit") and LaSalle shall have all of the rights and
obligations of "an Issuing Lender" hereunder with respect to each LaSalle Letter
of Credit; provided that no new Letter of Credit shall be issued hereunder by
LaSalle.
SECTION 2.06. Funding of Borrowings.
---------------------
(a) Funding by Lenders. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
applicable Borrower by promptly crediting the amounts so received, in like
funds, to an account of such Borrower designated by such Borrower in the
applicable Borrowing Request; provided that ABR Revolving Credit Borrowings made
to finance the reimbursement of an LC Disbursement as provided in Section
2.05(f) shall be remitted by the Administrative Agent to the applicable Issuing
Lender.
(b) Presumption by the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and
such Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but
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excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of such Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections.
------------------
(a) Elections by the Borrowers. The Loans constituting each
Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the applicable Borrower may elect to convert such Borrowing
to a Borrowing of a different Type or to continue such Borrowing as a
Borrowing of the same Type and, in the case of a Eurodollar Borrowing,
may elect Interest Periods, all as provided in this Section. The
applicable Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
of the respective Class constituting such Borrowing, and the Loans of
such Class constituting each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline
Borrowings, which may not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this
Section, the applicable Borrower shall notify the Administrative Agent
of such election by telephone by the time that a Borrowing Request
would be required under Section 2.03 if such Borrower were requesting a
Borrowing of the Type resulting from such election to be made on the
effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and
signed by such Borrower.
(c) Content of Interest Election Requests. Each telephonic and
written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period" and permitted under Section 2.02(d); provided
that with respect to the conversion of the initial Borrowing from an
ABR Borrowing to a Eurodollar Borrowing effective on May 2, 2006, the
Interest Period for such Eurodollar Borrowing shall end on June 30,
2006.
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If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Notice by the Administrative Agent to the Lenders.
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If a Borrower fails
to deliver a timely Interest Election Request with respect to a Eurodollar
Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding
any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders,
so notifies the Company, then, so long as an Event of Default is continuing (i)
no outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08. Termination, Reduction and Increase of the
Commitments.
-----------------------------------------------
(a) Scheduled Termination. Unless previously terminated, (i)
the Term Loan Commitments shall terminate at 5:00 p.m., New York City time, on
the Effective Date and (ii) the Revolving Credit Commitments shall terminate on
the Revolving Credit Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Company may at any
time terminate, or from time to time reduce, the Revolving Credit Commitments;
provided that (i) each reduction of the Revolving Credit Commitment pursuant to
this Section shall be in an amount that is $1,000,000 or a larger multiple of
$1,000,000 and (ii) the Company shall not terminate or reduce the Revolving
Credit Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.10, the total Revolving Credit Exposures
would exceed the total Revolving Credit Commitments. The Company shall notify
the Administrative Agent of any election to terminate or reduce the Revolving
Credit Commitments under this paragraph (b) at least three Business Days prior
to the effective date of such termination or reduction, specifying such election
and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Company pursuant to this Section shall be irrevocable;
provided that a notice of such termination may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Company (by notice to the Administrative Agent
on or prior to the specified effective date) if such condition is not satisfied.
Any termination or reduction of the Revolving Credit Commitments shall be
permanent.
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(c) Increase of Revolving Credit Commitment.
(i) Requests for Increase. The Company may propose at any time
that the Revolving Credit Commitments hereunder be increased (each such proposed
increase being a "Revolving Credit Commitment Increase") by having an existing
Revolving Credit Lender agree to increase its then existing Revolving Credit
Commitment (each an "Increasing Revolving Credit Lender") and/or by adding as a
new Revolving Credit Lender hereunder any Person which shall agree to provide a
Revolving Credit Commitment hereunder (each an "Assuming Revolving Credit
Lender"), in each case with the consent of the Administrative Agent, each
Issuing Lender and the Swingline Lender (such consent in each case not to be
unreasonably withheld), by notice to the Administrative Agent specifying the
amount of the relevant Revolving Credit Commitment Increase, the Revolving
Credit Lender(s) providing for such Revolving Credit Commitment Increase and the
date on which such increase is to be effective (the "Revolving Credit Commitment
Increase Date"), which shall be a Business Day at least three Business Days
after delivery of such notice and 30 days prior to the Revolving Credit
Commitment Termination Date; provided that:
(A) the minimum amount of each Revolving Credit
Commitment Increase shall be $5,000,000 or a larger multiple
of $1,000,000;
(B) the aggregate amount of all Revolving Credit
Commitment Increases hereunder shall not exceed $25,000,000;
(C) both at the time of any such request and upon the
effectiveness of any Revolving Credit Commitment Increases, no
Default shall have occurred and be continuing or would result
from such proposed Revolving Credit Commitment Increase; and
(D) the representations and warranties set forth in
Article IV and in the other Loan Documents shall be true and
correct on and as of the Revolving Credit Commitment Increase
Date as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date).
Each notice by the Company under this paragraph shall be deemed to constitute a
representation and warranty by the Company Parties as to the matters specified
in clauses (C) and (D) above. Notwithstanding anything herein to the contrary,
no Revolving Credit Lender shall have any obligation hereunder to become an
Increasing Revolving Credit Lender and any election to do so shall be in the
sole discretion of each Revolving Credit Lender.
(ii) Effectiveness of Increase. Each Revolving Credit
Commitment Increase (and the increase of the Revolving Credit Commitment of each
Increasing Revolving Credit Lender and/or the new Revolving Credit Commitment of
each Assuming Revolving Credit Lender, as applicable, resulting therefrom) shall
become effective as of the relevant Revolving Credit Commitment Increase Date
upon receipt by the Administrative Agent, on or prior to 9:00 a.m., New York
City time, on such Revolving Credit Commitment Increase Date, of (A) a
certificate of a duly authorized officer of the Company stating that the
conditions with respect to such Revolving Credit Commitment Increase under this
paragraph (c) have been satisfied, (B) an agreement, in form and substance
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satisfactory to the Company and the Administrative Agent, pursuant to which,
effective as of such Revolving Credit Commitment Increase Date, as applicable,
the Revolving Credit Commitment of each such Increasing Revolving Credit Lender
shall be increased or each such Assuming Lender shall undertake a Revolving
Credit Commitment, in each case duly executed by such Increasing Revolving
Credit Lender or Assuming Revolving Credit Lender, as the case may be, and the
Company and acknowledged by the Administrative Agent and (C) such certificates
or other documents from the Borrowers reasonably requested by the Administrative
Agent in connection with such Revolving Credit Commitment Increase. Upon the
Administrative Agent's receipt of a fully executed agreement from each
Increasing Revolving Credit Lender and/or Assuming Revolving Credit Lender
referred to in clause (B) above, together with the certificate and other
documents referred to in clauses (A) and (C) above, the Administrative Agent
shall record the information contained in each such agreement in the Register
and give prompt notice of the relevant Revolving Credit Commitment Increase to
the Company and the Lenders (including, if applicable, each Assuming Revolving
Credit Lender). On each Revolving Credit Commitment Increase Date the Borrowers
shall simultaneously (i) prepay in full the outstanding Revolving Credit Loans
(if any) held by the Revolving Credit Lenders immediately prior to giving effect
to the relevant Revolving Credit Commitment Increase, (ii) if any Borrower shall
have so requested in accordance with this Agreement, borrow new Revolving Credit
Loans from all Revolving Credit Lenders (including, if applicable, any Assuming
Revolving Credit Lender) such that, after giving effect thereto, the Revolving
Credit Loans are held ratably by the Revolving Credit Lenders in accordance with
their respective Revolving Credit Commitments (after giving effect to such
Revolving Credit Commitment Increase) and (iii) pay to the Revolving Credit
Lenders the amounts, if any, payable under Section 2.15. Upon each such
Revolving Credit Commitment Increase, the participation interests of the
Revolving Credit Lenders in the then outstanding Letters of Credit and Swingline
Loans shall automatically be adjusted to reflect, and each Revolving Credit
Lender (including, if applicable, each Assuming Revolving Credit Lender) shall
have a participation in each such Letter of Credit and Swingline Loan equal to,
the Revolving Credit Lenders' respective Applicable Percentage of the aggregate
amount available to be drawn under such Letter of Credit or such Swingline Loan,
as applicable, after giving effect to such increase.
SECTION 2.09. Repayment of Loans; Evidence of Debt.
------------------------------------
(a) Repayment.
(i) Each Borrower hereby unconditionally promises to pay to
the Administrative Agent for account of each Revolving Credit Lender
the full outstanding principal amount of such Revolving Credit Lender's
Revolving Credit Loans made to such Borrower, and each such Revolving
Credit Loan shall mature, on the Revolving Credit Commitment
Termination Date.
(ii) The Company hereby unconditionally promises to pay to the
Swingline Lender the then unpaid principal amount of each Swingline
Loan on the earlier of the Revolving Credit Commitment Termination Date
and the first date after such Swingline Loan is made that is the 15th
or last day of a calendar month and is at least two Business Days after
such Swingline Loan is made (provided that on each date that a
Revolving Credit Borrowing is made, the Company shall repay all
Swingline Loans then outstanding); and
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(iii) The Company hereby unconditionally promises to pay to
the Administrative Agent for account of each Term Loan Lender the
principal amount of the Term Loan held by such Term Loan Lender in 24
consecutive quarterly installments payable on the Principal Payment
Dates, the aggregate principal amount to be paid on each Principal
Payment Date in respect of all Term Loans held by the Term Loan Lenders
to be in the amount specified below (with the final such installment
being in the aggregate principal amount of the Term Loans then
outstanding):
Principal Payment Date Aggregate Amount
Falling on or Nearest to: of Payment
--------------------------- ----------------
September 30, 2006 $2,125,000
December 31, 2006 $2,125,000
March 31, 2007 $2,125,000
June 30, 2007 $2,125,000
September 30, 2007 $2,125,000
December 31, 2007 $2,125,000
March 31, 2008 $2,125,000
June 30, 2008 $2,125,000
September 30, 2008 $3,187,500
December 31, 2008 $3,187,500
March 31, 2009 $3,187,500
June 30, 2009 $3,187,500
September 30, 2009 $3,187,500
December 31, 2009 $3,187,500
March 31, 2010 $3,187,500
June 30, 2010 $3,187,500
September 30, 2010 $4,250,000
December 31, 2010 $4,250,000
March 31, 2011 $4,250,000
June 30, 2011 $4,250,000
September 30, 2011 $6,375,000
December 31, 2011 $6,375,000
March 31, 2012 $6,375,000
Term Loan Maturity Date $6,375,000
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(b) Adjustment of Term Loan Amortization Schedule. Any
prepayment of a Term Loan under Section 2.10 shall be applied ratably to reduce
the then remaining principal installments of the Term Loan.
(c) Maintenance of Records by Lenders. Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of each Borrower to such Lender resulting from each Loan made
by such Lender, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(d) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Class and Type thereof and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder
for account of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the accounts
maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the applicable Borrower to repay the Loans made to it in accordance with the
terms of this Agreement.
(g) Promissory Notes. Any Lender may request that Loans made
by it to any Borrower be evidenced by a promissory note of such Borrower. In
such event, such Borrower, at its own expense, shall prepare, execute and
deliver to such Lender a promissory note(s) payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
substantially in the form of Exhibit X-0, X-0 or B-3, as appropriate, and such
note(s) shall be evidence of such Loans (and all amounts payable in respect
thereof). Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section
10.04) be represented by one or more promissory notes in such form payable to
the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
SECTION 2.10. Prepayment of Loans.
-------------------
(a) Optional Prepayments. The Borrowers shall have the right
at any time and from time to time to prepay any Borrowing in whole or in part,
subject to the requirements of paragraph (c) of this Section.
(b) Mandatory Prepayments. The Company will prepay the Term
Loans as follows:
(i) If after the date hereof any Indebtedness is incurred by
the Company or any of its Subsidiaries (excluding any Indebtedness incurred in
accordance with Section 7.01), an amount equal to 100% of the Net Cash Proceeds
thereof shall be applied on the date of such incurrence toward the prepayment of
the Term Loans as set forth in Section 2.10(b)(iv).
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(ii) So long as at the time of the prepayment the Consolidated
Leverage Ratio is greater than 2.50 to 1.00, upon any Equity Issuance by the
Company or any of its Subsidiaries, an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied on the date of such issuance toward the
prepayment of the Term Loans as set forth in Section 2.10(b)(iv); provided that,
in such case, such application shall only be made to the extent required to
reduce the Consolidated Leverage Ratio to 2.50 to 1.00 or below (calculated on a
pro forma basis after giving effect to such application).
(iii) If after the date hereof the Company or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event then, unless a Reinvestment Notice shall be delivered to the
Administrative Agent in respect thereof within five Business Days after such
Asset Sale or Recovery Event, an amount equal to 100% of such Net Cash Proceeds
shall be applied on such fifth Business Day toward the prepayment of the Term
Loans as set forth in Section 2.10(b)(iv); provided that, notwithstanding the
foregoing, on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward the prepayment of the Term Loans as set forth in Section
2.10(b)(iv).
(iv) Each such prepayment of the Term Loans shall be applied
ratably to the then remaining principal installments thereof.
(c) Notices, Etc. The applicable Borrower shall notify the
Administrative Agent (and, in the case of prepayment of a Swingline Loan, the
Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later
than 12:00 noon, New York City time, three Business Days before the date of
prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than
12:00 noon, New York City time, one Business Day before the date of prepayment
or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00
noon, New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Revolving Credit Commitments as
contemplated by Section 2.08, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.08. Promptly
following receipt of any such notice relating to a Borrowing of any Class, the
Administrative Agent shall advise the applicable Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of a Borrowing of the same Type as provided in
Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing of any Class shall be
applied ratably to the Loans of such Class included in such Borrowing and
(unless the Company shall otherwise direct) shall be made, first, to ABR Loans
and, second, to Eurodollar Loans. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12 and prepayments of Term Loans
shall be applied in the manner specified in Section 2.09(b).
SECTION 2.11. Fees.
----
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(a) Commitment Fee. The Company agrees to pay to the
Administrative Agent for account of each Revolving Credit Lender a commitment
fee, which shall accrue at the Applicable Rate on the average daily unused
amount of such Lender's Revolving Credit Commitment during the period from and
including the Effective Date to but excluding the earlier of the date the
Revolving Credit Commitments terminate and the Revolving Credit Commitment
Termination Date. Accrued commitment fees shall be payable on each Quarterly
Date and on the earlier of the date the Revolving Credit Commitments terminate
and the Revolving Credit Commitment Termination Date, commencing on the first
such date to occur after the date hereof. All commitment fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees, the Revolving Credit Commitment of a Revolving
Credit Lender shall be deemed to be used to the extent of the outstanding
Revolving Credit Loans and LC Exposure of such Revolving Credit Lender (and the
Swingline Exposure of such Revolving Credit Lender shall be disregarded for such
purpose).
(b) Letter of Credit Fees. The Company agrees to pay (i) to
the Administrative Agent for account of each Revolving Credit Lender a
participation fee with respect to its participations in Letters of Credit, which
shall accrue at the same Applicable Rate used to determine the interest rate on
Eurodollar Revolving Credit Loans on the average daily amount of such Revolving
Credit Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date the Revolving Credit
Commitments terminate and the date on which there ceases to be any LC Exposure,
and (ii) to the applicable Issuing Lender a fronting fee, which shall accrue at
the rate of 0.125% per annum on the average daily amount of the total LC
Exposures in respect of Letters of Credit issued by such Issuing Lender
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date the Revolving Credit Commitments terminate and the date on
which there ceases to be any LC Exposure in respect of Letters of Credit issued
by such Issuing Lender, as well as such Issuing Lender's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of each of March, June, September and
December shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Revolving Credit
Commitments terminate and any such fees accruing after the date on which the
Revolving Credit Commitments terminate shall be payable on demand. Any other
fees payable to the Issuing Lenders pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(c) Administrative Agent Fees. The Company agrees to pay to
the Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Company and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid
on the dates due, in immediately available funds, to the Administrative Agent
(or to the applicable Issuing Lender, in the case of fees payable to it) for
distribution, in the case of commitment fees and participation fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
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SECTION 2.12. Interest.
--------
(a) ABR Loans. The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) Eurodollar Loans. The Loans comprising each Eurodollar
Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Rate.
(c) Default Interest. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by the
Borrowers hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case of any
other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph
(a) of this Section.
(d) Payment of Interest. Accrued interest on each Loan shall
be payable in arrears on each Interest Payment Date for such Loan and, in the
case of the Revolving Credit Loans, upon termination of the Revolving Credit
Commitments; provided that (i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Revolving Credit Loan
prior to the end of the Revolving Credit Availability Period), accrued interest
on the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) Computation. All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate or Adjusted LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
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(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their respective Loans included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or the
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and such Borrowing (unless prepaid) shall be continued as, or converted to, an
ABR Borrowing and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs.
---------------
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing
Lender; or
(ii) impose on any Lender or any Issuing Lender or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or such
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or such
Issuing Lender hereunder (whether of principal, interest or otherwise), then the
applicable Borrower will pay to such Lender or such Issuing Lender, as the case
may be, such additional amount or amounts as will compensate such Lender or such
Issuing Lender, as the case may be, for such additional costs incurred or
reduction suffered.
(b) Capital Requirements. If any Lender or any Issuing Lender
determines that any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's or such Issuing
Lender's capital or on the capital of such Lender's or such Issuing Lender's
holding company, if any, as a consequence of this Agreement or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by such Issuing Lender, to a level below that which such Lender
or such Issuing Lender or such Lender's or such Issuing Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's or such Issuing Lender's policies and the policies of such Lender's or
such Issuing Lender's holding company with respect to capital adequacy), then
from time to time the Borrowers will pay to such Lender or such Issuing Lender,
as the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Lender or such Lender's or such Issuing Lender's holding
company for any such reduction suffered.
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(c) Certificates from Lenders. A certificate of a Lender or an
Issuing Lender setting forth the amount or amounts, necessary to compensate such
Lender or such Issuing Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the
applicable Borrower and the Company and shall be conclusive absent manifest
error. The applicable Borrower shall pay such Lender or such Issuing Lender, as
the case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any
Lender or any Issuing Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender's or such Issuing Lender's right to
demand such compensation; provided that the Borrowers shall not be required to
compensate a Lender or an Issuing Lender pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date that
such Lender or such Issuing Lender, as the case may be, notifies the Company of
the Change in Law giving rise to such increased costs or reductions and of such
Lender's or such Issuing Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.12(b) and is revoked in accordance therewith) or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Company pursuant to
Section 2.19, then, in any such event, the applicable Borrower shall compensate
each Lender for the loss (other than any loss of anticipated profits), cost and
expense attributable to such event. In the case of a Eurodollar Loan, such loss
(other than any loss of anticipated profits), cost or expense to any Lender
shall be deemed to include an amount reasonably determined by such Lender to be
the excess, if any, of (i) the amount of interest which would have accrued on
the principal amount of such Loan had such event not occurred, at the Adjusted
LIBO Rate that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay such Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.
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SECTION 2.16. Taxes.
-----
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrowers hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if a Borrower shall be required
to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Lender (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrowers. In addition, each
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) Indemnification by the Borrowers. Each Borrower shall
indemnify the Administrative Agent, each Lender and each Issuing Lender, within
10 days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent, such Lender or such
Issuing Lender, as the case may be, on or with respect to any payment by or on
account of any obligation of such Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to a Borrower by a Lender or an Issuing Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender or an Issuing
Lender, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by a Borrower to a Governmental
Authority, such Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Non-U.S. Lenders. Any Non-U.S. Lender that is entitled to
an exemption from or reduction of withholding tax under the law of the
jurisdiction in which a Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to such Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by such
Borrower as will permit such payments to be made without withholding or at a
reduced rate.
(f) Refunds. If the Administrative Agent, a Lender or an
Issuing Lender determines, in its sole discretion, that it has received a refund
of any Taxes or Other Taxes as to which it has been indemnified by a Borrower or
with respect to which a Borrower has paid additional amounts pursuant to this
Section, it shall pay over such refund to such Borrower (but only to the extent
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of indemnity payments made, or additional amounts paid, by such Borrower under
this Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided that such
Borrower, upon the request of the Administrative Agent or such Lender, agrees to
repay the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require the Administrative Agent, any
Lender or any Issuing Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Company,
any of its Subsidiaries or any other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.
-----------------------------------------------
(a) Payments by the Borrowers. Each Borrower shall make each
payment required to be made by it hereunder (whether of principal, interest,
fees or reimbursement of LC Disbursements, or of amounts payable under Section
2.14, 2.15 or 2.16, or otherwise) or under any other Loan Document (except as
otherwise expressly provided therein) prior to 12:00 noon, New York City time,
on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at an account maintained
with the Administrative Agent as notified to the Company and the Lenders, except
as otherwise expressly provided in the relevant Loan Document and except
payments to be made directly to the Issuing Lenders or the Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 10.03, which shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder and under any other Loan Document shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise
provided herein: (i) each Borrowing of a particular Class shall be made from the
applicable Lenders, pro rata according to the amounts of the respective
Commitments of such Class and shall be allocated pro rata among the applicable
Lenders according to the amounts of their respective Commitments of such Class
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(in the case of the making of Loans) or their respective Loans of such Class
that are to be included in such Borrowing (in the case of conversions and
continuations of Loans), (ii) each payment of commitment fees under Section 2.11
shall be made for account of the Revolving Credit Lenders, and each termination
or reduction of the amount of the Revolving Credit Commitments under Section
2.08 shall be applied to the Revolving Credit Commitments, pro rata according to
the respective Revolving Credit Commitments of the Revolving Credit Lenders;
(iii) each payment or prepayment of principal of Loans of any Class by any
Borrower shall be made for account of the applicable Lenders pro rata according
to the respective unpaid principal amounts of the Loans of such Class held by
such Lenders; and (iv) each payment of interest on Loans of any Class by any
Borrower shall be made for account of the applicable Lenders pro rata according
to the amounts of interest on such Loans of such Class then due and payable to
such Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or participations in
LC Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Loans and participations
in LC Disbursements and Swingline Loans, as applicable, and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans and participations in LC Disbursements and Swingline
Loans, as applicable, of other applicable Lenders to the extent necessary so
that the benefit of all such payments shall be shared by the applicable Lenders
ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans and participations in LC Disbursements and
Swingline Loans, as applicable; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrowers pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Company or
any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against such Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Borrower
in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent
shall have received notice from any Borrower prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders or the
Issuing Lenders hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Lenders, as the case may be, the amount
due. In such event, if such Borrower has not in fact made such payment, then
each of the applicable Lenders or the applicable Issuing Lender, as the case may
be, severally agrees to repay to the Administrative Agent forthwith on demand
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the amount so distributed to such Lender or such Issuing Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(f) Certain Deductions by the Administrative Agent. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(e), 2.06(b) or 2.17(e), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
----------------------------------------------
(a) Designation of a Different Lending Office. If any Lender
requests compensation under Section 2.14, or if a Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.16, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Company hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If any Lender requests
compensation under Section 2.14, or if a Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.16, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Company may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Company shall have received the prior written
consent of the Administrative Agent (unless a Term Loan is being assigned to an
existing Term Loan Lender or an Affiliate or Approved Fund thereof and (if a
Revolving Credit Commitment is being assigned) each Issuing Lender and the
Swingline Lender, which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the applicable Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Company to require such assignment
and delegation cease to apply.
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SECTION 2.19. Designation of Subsidiary Borrowers.
-----------------------------------
(a) Designation. Subject to the terms and conditions of this
Section (including paragraph (b) of this Section), the Company may, at any time
or from time to time upon not less than five Business Days' notice to the
Administrative Agent (or such other period which is acceptable to the
Administrative Agent), request that a wholly-owned Domestic Subsidiary specified
in such notice become a party to this Agreement as a Subsidiary Borrower;
provided that each such designation shall be subject to the prior approval of
the Administrative Agent (which approval in each case shall not be unreasonably
withheld). The Administrative Agent shall upon receipt of such notice from the
Company promptly notify each Revolving Credit Lender and the Issuing Lenders of
the Company's designation. Upon such approval and the satisfaction of the
conditions specified in paragraph (b) of this Section, the Administrative Agent
shall accept the relevant Subsidiary Borrower Designation Letter whereupon the
applicable Subsidiary shall become a party to this Agreement as a Subsidiary
Borrower and entitled to borrow Revolving Credit Loans and to have Letters of
Credit issued for its own account hereunder.
(b) Conditions Precedent to Effectiveness of Designation. The
effectiveness of a designation by the Company of any Subsidiary as a Borrower
hereunder shall be subject to the receipt by the Administrative Agent of each of
the following documents (each of which shall be in satisfactory to the
Administrative Agent in form and substance): (i) a Subsidiary Borrower
Designation Letter, duly completed and executed by the Company and the
applicable Subsidiary, delivered to the Administrative Agent at least five
Business Days before the date on which such Subsidiary is proposed to become a
Borrower; and (ii) such opinions, documents and certificates as the
Administrative Agent may reasonably request (including certified copies of the
organizational documents of such Subsidiary and of resolutions of its board of
directors authorizing such Subsidiary becoming a Borrower hereunder, and of all
documents evidencing all other necessary corporate or other action required with
respect to such Subsidiary becoming party to this Agreement) that are consistent
with conditions for the Loan Parties set forth in Section 5.01.
(c) Termination of Subsidiary Borrower. The Company may, at
any time at which no Revolving Credit Loans or any other amounts hereunder or
under any other Loan Documents shall be outstanding to, nor any Letters of
Credit shall be outstanding for the account of, any Subsidiary Borrower,
terminate such Subsidiary Borrower as a Borrower hereunder by delivering an
executed notice thereof (each a "Termination Letter"), substantially in the form
of Exhibit E-2, to the Administrative Agent. Any Termination Letter furnished
hereunder shall be effective upon receipt thereof by the Administrative Agent
(which shall promptly so notify the Revolving Credit Lenders and the Issuing
Lenders), whereupon all commitments of the Revolving Credit Lenders to make
Revolving Credit Loans to, and all obligations of the Issuing Lenders to issue
Letters of Credit for the account of, such Subsidiary Borrower and all of rights
of such Subsidiary Borrower hereunder shall terminate and such Subsidiary
Borrower shall cease to be a Borrower hereunder. Notwithstanding the foregoing,
the delivery of a Termination Letter with respect to any Subsidiary Borrower
shall not terminate (i) any obligation of such Subsidiary Borrower that remains
unpaid at the time of such delivery or (ii) the obligations of the Company under
Article III with respect to any such unpaid obligations.
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ARTICLE III
GUARANTEE
SECTION 3.01. The Guarantee. (a) The Company hereby guarantees
to each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of the Subsidiary Borrower Obligations, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "Subsidiary Borrower Guaranteed Obligations"). The
Company hereby further agrees that if any Subsidiary Borrower shall fail to pay
in full when due (whether at stated maturity, by acceleration or otherwise) any
of such Subsidiary Borrower Guaranteed Obligations, the Company will promptly
pay the same, without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of such Subsidiary Borrower
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal.
(b) Each Subsidiary Guarantor hereby jointly and severally
guarantees to each Lender and the Administrative Agent and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the Borrower Obligations (other than
such obligations, if any, of such Subsidiary Guarantor), in each case strictly
in accordance with the terms thereof (such obligations being herein collectively
called the "Borrower Guaranteed Obligations"). The Subsidiary Guarantors hereby
further jointly and severally agree that if any such Borrower shall fail to pay
in full when due (whether at stated maturity, by acceleration or otherwise) any
of such Borrower Guaranteed Obligations, the Subsidiary Guarantors will promptly
pay the same, without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of such Borrower Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
SECTION 3.02. Obligations Unconditional. The obligations of
the Guarantors under Section 3.01 are absolute and unconditional, and (in the
case of the Subsidiary Guarantors) joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of the obligations of the
other Loan Parties under this Agreement or any other agreement or instrument
referred to herein, or any substitution, release or exchange of any other
guarantee of or security for any of their respective Guaranteed Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of
this Section that the obligations of the Guarantors hereunder shall be absolute
and unconditional under any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not alter or impair the liability of the Guarantors
hereunder, which shall remain absolute and unconditional as described above:
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(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of
their respective Guaranteed Obligations shall be extended, or such
performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Agreement or any other agreement or instrument referred to herein
shall be done or omitted;
(iii) the maturity of any of their respective Guaranteed
Obligations shall be accelerated, or any of the Guaranteed Obligations
shall be modified, supplemented or amended in any respect, or any right
under this Agreement or any other agreement or instrument referred to
herein shall be waived or any other guarantee of any of their
respective Guaranteed Obligations or any security therefor shall be
released or exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Administrative Agent or any Lender or Lenders as security for any
of the Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against the
Company under this Agreement or any other agreement or instrument referred to
herein, or against any other Person under any other guarantee of, or security
for, any of their respective Guaranteed Obligations.
SECTION 3.03. Reinstatement. The obligations of each Guarantor
under this Article shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the other Borrowers in respect of
the relevant Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of such Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and each Guarantor
agrees that it will indemnify the Administrative Agent and each Lender on demand
for all reasonable costs and expenses (including fees of counsel) incurred by
the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
SECTION 3.04. Subrogation. Each Guarantor hereby agrees that,
until the payment and satisfaction in full of all Guaranteed Obligations and the
expiration and termination of the Commitments of the Lenders under this
Agreement, it shall not exercise any right or remedy arising by reason of any
performance by it of its guarantee in Section 3.01, whether by subrogation or
otherwise, against the Company or any other guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed Obligations.
SECTION 3.05. Remedies. Each Guarantor agrees that, as between
such Guarantor and the Lenders, the obligations of the Borrowers under this
Agreement may be declared to be forthwith due and payable as provided in Article
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VIII (and shall be deemed to have become automatically due and payable in the
circumstances provided in Article VIII) for purposes of Section 3.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against any Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by any Borrower) shall forthwith
become due and payable by such Guarantor for purposes of Section 3.01.
SECTION 3.06. Instrument for the Payment of Money. Each
Guarantor hereby acknowledges that the guarantee in this Article constitutes an
instrument for the payment of money, and consents and agrees that any Lender or
the Administrative Agent, at its sole option, in the event of a dispute by such
Guarantor in the payment of any moneys due hereunder, shall have the right to
proceed by motion for summary judgment in lieu of complaint pursuant to N.Y.
Civ. Prac. L&R ss. 3213.
SECTION 3.07. Continuing Guarantee. The guarantee in this
Article is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
SECTION 3.08. Rights of Contribution. The Subsidiary
Guarantors hereby agree, as between themselves, that if any Subsidiary Guarantor
shall become an Excess Funding Guarantor (as defined below) by reason of the
payment by such Subsidiary Guarantor of any Guaranteed Obligations, then each
other Subsidiary Guarantor shall, on demand of such Excess Funding Guarantor
(but subject to the next sentence), pay to such Excess Funding Guarantor an
amount equal to such Subsidiary Guarantor's Pro Rata Share (as defined below and
determined, for this purpose, without reference to the properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Guarantor under this Section 3.08
shall be subordinate and subject in right of payment to the prior payment in
full of the obligations of such Subsidiary Guarantor under the other provisions
of this Article III and such Excess Funding Guarantor shall not exercise any
right or remedy with respect to such excess until payment and satisfaction in
full of all of such obligations.
For purposes of this Section 3.08, (i) "Excess Funding
Guarantor" means, in respect of any Guaranteed Obligations, a Subsidiary
Guarantor that has paid an amount in excess of its Pro Rata Share of such
Guaranteed Obligations, (ii) "Excess Payment" means, in respect of any
Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess
of its Pro Rata Share of such Guaranteed Obligations and (iii) "Pro Rata Share"
means, for any Subsidiary Guarantor, the ratio (expressed as a percentage) of
(x) the amount by which the aggregate fair saleable value of all properties of
such Subsidiary Guarantor (excluding any shares of stock or other equity
interest of any other Subsidiary Guarantor) exceeds the amount of all the debts
and liabilities of such Subsidiary Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Subsidiary Guarantor hereunder and any obligations of any
other Subsidiary Guarantor that have been Guaranteed by such Subsidiary
Guarantor) to (y) the amount by which the aggregate fair saleable value of all
properties of the Company and all of the Subsidiary Guarantors exceeds the
amount of all the debts and liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities, but excluding the obligations of the
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Obligors hereunder and under the other Loan Documents) of all of the Subsidiary
Guarantors, determined (A) with respect to any Subsidiary Guarantor that is a
party hereto on the Effective Date, as of the Effective Date, and (B) with
respect to any other Subsidiary Guarantor, as of the date such Subsidiary
Guarantor becomes a Subsidiary Guarantor hereunder.
SECTION 3.09. General Limitation on Guarantee Obligations. In
any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Subsidiary Guarantor under
Section 3.01 would otherwise be held or determined to be void, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under Section 3.01, then, notwithstanding any
other provision hereof to the contrary, the amount of such liability shall,
without any further action by such Subsidiary Guarantor, any Lender, the
Administrative Agent or any other Person, be automatically limited and reduced
to the highest amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or proceeding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Company and the Subsidiary Borrowers represents
and warrants (as to itself and each of its Subsidiaries) to the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Company and
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 4.02. Authorization; Enforceability. The Transactions
are within each Borrower's and each other Loan Party's corporate powers and have
been duly authorized by all necessary corporate and, if required, by all
necessary shareholder action. This Agreement and each of the other Loan
Documents have been duly executed and delivered by each Loan Party party thereto
and constitutes, or when executed and delivered by such Loan Party will
constitute, a legal, valid and binding obligation of such Loan Party,
enforceable against each Loan Party in accordance with its terms, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 4.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except for (i)
such as have been obtained or made and are in full force and effect and (ii)
filings and recordings in respect of the Liens created pursuant to the Security
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Documents, (b) will not violate any Requirement of Law, (c) will not violate or
result in a default under any Contractual Obligation upon the Company and its
Subsidiaries or its or their respective assets, or give rise to a right
thereunder to require any payment to be made by the Company or any of its
Subsidiaries, and (d) except for the Liens created pursuant to the Security
Documents, will not result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change.
-----------------------------------------------
(a) Financial Condition. The Company has heretofore furnished
to the Lenders its consolidated balance sheet and statements of income,
stockholders' equity and cash flows as of and for the fiscal years ended June
27, 2004 and July 3, 2005, in each case reported on by Ernst & Young LLP. Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Company and its
Subsidiaries as of such dates and for such periods in accordance with GAAP.
There are no liabilities of the Company or any of its Subsidiaries, fixed or
contingent, which are material in relation to the consolidated financial
condition of the Company that are not reflected in the most recent consolidated
financial statements of the Company delivered pursuant to this Section or
Section 6.01(a) or (b) or in the notes thereto, other than liabilities arising
in the ordinary course of business since the date of such financial statements.
The Pro Forma Financial Statements, copies of which have heretofore been
furnished to each Lender, have been prepared giving effect (as if such events
had occurred on such date or at the beginning of such period, as the case may
be) to the Xxxxxx May Acquisition and all other transactions that would be
required to be given pro forma effect by Regulation S-X promulgated under the
Exchange Act (including other adjustments, if any, as agreed between the Company
and the Administrative Agent). The Pro Forma Financial Statements have been
prepared in good faith, based on assumptions believed by the Company to be
reasonable as of the date of preparation thereof, and present fairly in all
material respects on a pro forma basis and in accordance with GAAP the estimated
financial position of the Company and its Subsidiaries as at the date thereof
and their estimated results of operations for the periods covered thereby,
assuming that the events specified in the preceding sentence had actually
occurred at such date or at the beginning of the periods covered thereby.
(b) No Material Adverse Change. Since July 3, 2005, there has
not occurred any event, development or circumstance that has had or could
reasonably be expected to have a Material Adverse Effect.
SECTION 4.05. Properties.
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(a) Property Generally. 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, subject only to Liens permitted
by Section 7.02 and 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. The Liens granted by the Security
Documents constitute valid perfected first priority Liens on the properties and
assets covered by the Security Documents, to the extent required by the Security
Documents and subject to no prior or equal Lien except those Liens permitted by
Section 7.02.
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(b) Intellectual Property. 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 Company 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 4.06. Litigation and Environmental Matters.
------------------------------------
(a) Actions, Suits and Proceedings. There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority
pending against or, to the knowledge of the Company, threatened against or
affecting the Company or any of its Subsidiaries that, if adversely determined,
could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters) or that involve this
Agreement or the Transactions.
(b) Environmental Matters. Except for the Disclosed Matters
and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Company nor any of its Subsidiaries (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim
with respect to any Environmental Liability or (iv) knows of any facts that
could reasonably be expected to result in any Environmental Liability.
(c) Disclosed Matters. Since the date of this Agreement, there
has been no change in the status of the Disclosed Matters that, individually or
in the aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 4.07. Compliance with Laws and Contractual
Obligations. Each of the Company and its Subsidiaries is in compliance with all
Requirements of Law applicable to it or its property or all Contractual
Obligations binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 4.08. Investment Company Act Status. Neither the
Company nor its Subsidiaries is an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940.
SECTION 4.09. Taxes. Each of the Company and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 4.10. ERISA. Except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, (a) no ERISA Event has occurred or is reasonably
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expected to occur and (b) each Plan has complied with the applicable provisions
of ERISA and the Code. The present value of all accumulated benefit obligations
under each Plan (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) does not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan by an amount that could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.11. Disclosure. The Loan Parties have disclosed to
the Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the written reports, financial
statements, certificates or other written information (other than projections,
other forward looking information and information of a general economic and/or
industry specific nature) furnished by or on behalf of the Company or any
Subsidiary to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement and the other Loan Documents or delivered
hereunder or thereunder (as modified or supplemented by other information so
furnished) taken as a whole contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not materially
misleading; provided that, with respect to projected financial information, each
Borrower represents only that such information was prepared in good faith based
upon reasonable assumptions believed to be reasonable at the time of preparation
thereof.
SECTION 4.12. Use of Credit. Neither the Company nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose, whether immediate,
incidental or ultimate, of buying or carrying Margin Stock, and no part of the
proceeds of any extension of credit hereunder will be used to buy or carry any
Margin Stock.
SECTION 4.13. Labor Matters. Except with respect to any
Disclosed Matters and except with respect to any matters that, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, (a) no collective bargaining agreement or other labor contract
will expire during the term of this Agreement, (b) to the Company's knowledge,
no union or other labor organization is seeking to organize, or to be recognized
as bargaining representative for, a bargaining unit of employees of the Company
or any of its Subsidiaries, (c) there is no pending or, to the Company's
knowledge, threatened strike, work stoppage, material unfair labor practice
claim or charge, arbitration or other labor dispute against or affecting the
Company or any of its Subsidiaries or their representative employees and (d)
there are no actions, suits, charges, demands, claims, counterclaims or
proceedings pending or, to the best of the Company's knowledge, threatened
against the Company or any of its Subsidiaries, by or on behalf of, or with, its
employees.
SECTION 4.15. Indebtedness. Schedule 7.01 is a complete and
correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or commitment
for any extension of credit) to, or guarantee by, the Company or any of its
Subsidiaries, in each case, outstanding as of the date hereof, and the aggregate
principal or face amount outstanding or that may become outstanding under each
such arrangement is correctly described in Schedule 7.01.
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SECTION 4.16. Liens. Schedule 7.02 is a complete and correct
list of each Lien securing Indebtedness of any Person outstanding as of the date
hereof and covering any property of the Company or any of its Subsidiaries, and
the aggregate Indebtedness secured (or that may be secured) by each such Lien
and the property covered by each such Lien is correctly described in Schedule
7.02.
SECTION 4.17. Subsidiaries. Schedule 4.17 is a complete and
correct list of all of the Subsidiaries of the Company as of the date hereof,
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
and (iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Except as disclosed in Schedule 4.17, (x) each of the Company and its
Subsidiaries owns, free and clear of Liens (other than Liens created pursuant to
the Security Documents), and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Schedule 4.17, (y)
all of the issued and outstanding Capital Stock of each such Person organized as
a corporation is validly issued, fully paid and nonassessable and (z) there are
no outstanding Equity Rights with respect to such Person.
ARTICLE V
CONDITIONS
SECTION 5.01. Conditions of Initial Credit Extensions. The
obligations of the Lenders to make its initial Loans and of the Issuing Lenders
to issue or continue its initial Letters of Credit hereunder shall not become
effective until the date on which the Administrative Agent shall have received
each of the following documents, each of which shall be satisfactory to the
Administrative Agent in form and substance (or such condition shall have been
waived in accordance with Section 10.02):
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Loan Parties. A written opinion
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Loan
Parties, substantially in the form of Exhibit F and of such other
counsel for the Loan Parties satisfactory to the Administrative Agent
in form and substance reasonably satisfactory to the Administrative
Agent (if requested by the Administrative Agent), and covering such
other matters relating to the Loan Parties, this Agreement or the
Transactions as the Administrative Agent shall reasonably request (and
the Company hereby instruct such counsel to deliver such opinion to the
Lenders and the Administrative Agent).
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(c) Opinion of Special New York Counsel to JPMCB. A written
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
special New York counsel to JPMCB, substantially in the form of Exhibit
G (and JPMCB hereby instructs such counsel to deliver such opinion to
the Lenders).
(d) Corporate Documents. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating
to the organization, existence and good standing of each Loan Party,
the authorization of the Transactions and any other legal matters
relating to the Loan Parties, this Agreement or the Transactions, all
in form and substance satisfactory to the Administrative Agent and its
counsel.
(e) Officer's Certificate. A certificate, dated the Effective
Date and signed by a senior executive officer of the Company, to the
effect that (a) the representations and warranties set forth in
Specified Representations (as defined in clause (a) of Section 5.02)
shall be true and correct, (b) immediately after giving effect to the
extensions of credit hereunder on the Effective Date, no Default shall
have occurred and be continuing (but subject to the proviso at the end
of clause (b) of Section 5.02) and (c) each of the representations and
warranties made by Xxxxxx May in the Xxxxxx May Acquisition Agreement
pertaining to the Xxxxxx May Group and its business shall be true and
correct (but only to the extent that the Xxxxxx May Acquisition
Subsidiary has the right to terminate its obligations under the Xxxxxx
May Acquisition Agreement as a result of a breach of any such
representation or warranty).
(f) Security Agreement. The Security Agreement, duly executed
and delivered by the Company and the Administrative Agent, together
with (i) certificates, if any, representing the Pledged Equity
accompanied by undated stock powers executed in blank and instruments
evidencing the Pledged Debt indorsed in blank, and (ii) each document
(including, without limitation, any Uniform Commercial Code financing
statement) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Lenders, a perfected Lien
on the collateral described therein, prior and superior in right to any
other Person (other than with respect to Liens expressly permitted by
Section 7.02), which shall have been delivered to the Administrative
Agent be in proper form for filing, registration or recordation (it
being understood that no account control agreements or landlord waivers
shall be required to be obtained or otherwise delivered by any of the
Loan Parties). In addition, the Administrative Agent shall have
received the results of recent lien searches in each relevant
jurisdiction with respect to the Company and its subsidiaries
(including the Xxxxxx May Group), and such searches shall reveal no
Liens on any of the assets of the Company or its subsidiaries except
for Liens permitted Section 7.02 or Liens to be discharged pursuant to
documentation or arrangements reasonably satisfactory to the
Administrative Agent.
(g) Xxxxxx May Acquisition. (i) A certificate the Effective
Date and signed by a Responsible Officer certifying that since April
30, 2005 (except for the Distribution (as defined in the Xxxxxx May
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Acquisition Agreement)) there is no event, condition, occurrence,
contingency or development, that has had or would reasonably be
expected to have, individually or in the aggregate, a Xxxxxx May
Material Adverse Effect; (ii) a certified copy of the Xxxxxx May
Acquisition Agreement, the provisions of which shall not have been
amended, supplemented or otherwise modified (pursuant to a waiver or
otherwise) in a manner materially adverse to the Lenders without the
prior written consent of the Arranger, duly executed by the parties
thereto, including certification by a Responsible Officer that such
documents are in full force and effect as of the Effective Date; and
(iii) the Xxxxxx May Acquisition shall be consummated in accordance
with the terms of the Xxxxxx May Acquisition Agreement and in
compliance with applicable material laws and regulatory approvals.
(h) Financial Information. (i) The consolidated financial
statements of the Company referred to in the first sentence in Section
4.04(a); (ii) the Audited Combined Financial Statements (as defined in
Section 4.7(a)(iv) of the Xxxxxx May Acquisition Agreement); (iii) the
Interim Combined Financial Statements (as defined in Section 4.7(a)(v)
of the Xxxxxx May Acquisition Agreement); (iv) the financial statements
(if any) delivered by Xxxxxx May to the Xxxxxx May Acquisition
Subsidiary pursuant to Section 6.5 of the Xxxxxx May Acquisition
Agreement; and (v) an estimated pro forma consolidated balance of the
Company and an estimated pro forma consolidated income statement of the
Company, each as of June 30, 2006, giving pro forma effect to the
Xxxxxx May Acquisition (the "Pro Forma Financial Statements").
(i) Insurance. Evidence that all insurance required to be
maintained pursuant to the Loan Documents has been obtained and is in
effect and that the Administrative Agent has been named as loss payee
under each insurance policy with respect to such insurance as to which
the Administrative Agent shall have reasonably requested to be so
named.
(j) Existing Credit Facilities; Xxxxxx May Group Credit
Facilities. Evidence that, simultaneous with the making of the initial
Loans hereunder, (i) the principal of and interest on outstanding
loans, and all accrued fees and all other amounts owing, under the
Existing Credit Facilities shall have been (or shall be simultaneously)
paid in full, (ii) all commitments to extend credit under the Existing
Credit Facilities shall have been terminated, (iii) all Guarantees (if
any) in respect of, and all Liens securing, any Indebtedness and any
other obligations under the Existing Credit Facilities shall have been
released (or arrangements for such release reasonably satisfactory to
the Administrative Agent shall have been made), (iv) all letters of
credit issued under the Existing Credit Facilities and outstanding
immediately prior to the Effective Date shall be continued as Letters
of Credit hereunder pursuant to Section 2.05(l), and all accrued and
unpaid fees in respect of such letters of credit owing prior to the
Effective Date shall have been paid and (v) the Payoff Letter (as
defined in the Xxxxxx May Acquisition Agreement) shall have been
executed and delivered and, after giving effect to such Payoff Letters,
the Xxxxxx May Group shall have no Indebtedness or preferred Capital
Stock outstanding as of the Effective Date other than the Indebtedness
of the Xxxxxx May Group hereunder and Indebtedness (if any) listed on
Schedule 7.01.
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(k) Borrowing Request. A Borrowing Request or notice of
issuance of Letter of Credit, as applicable, relating to the initial
credit extensions hereunder.
(l) Fees and Expenses. All fees and expenses required to be
paid hereunder and invoiced before the Effective Date shall have been
paid in full in cash.
(m) Other Documents. Such other closing certificates as the
Administrative Agent may reasonably request.
SECTION 5.02. Each Credit Event. The obligation of each Lender
to make any Loan, and of the Issuing Lenders to issue, amend, renew or extend
any Letter of Credit, is additionally subject to the satisfaction of the
following conditions:
(a) the representations and warranties of the Borrowers set
forth in Article IV, and of each Loan Party in each of the other Loan
Documents to which it is a party, shall be true and correct on and as
of the date of such Loan or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date); provided that as of the
Effective Date, with respect to the Loans made and/or Letters of Credit
issued or continued on such date, only the representations and
warranties set forth in Sections 4.01, 4.02, 4.08 and 4.12 (the
"Specified Representations") shall be made; and
(b) at the time of and immediately after giving effect to such
Loan or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be
continuing; provided that as of the Effective Date, with respect to the
Loans made and/or Letters of Credit issued or continued on such date,
notwithstanding anything herein to the contrary, (x) the existence or
non-existence of any Default with respect to a breach of
representations and warranties as of the Effective Date shall relate
only to the Specified Representations (as defined in clause (a) above)
and (y) compliance with Section 7.11 as of the Effective Date shall be
based solely upon the consolidated financial statements of the Company
for the fiscal quarter ended April 2, 2006 (after giving pro forma
effect to the Xxxxxx May Acquisition and the financing thereof).
Each Borrowing and each issuance, amendment, renewal or
extension of a Letter of Credit shall be deemed to constitute a representation
and warranty by the Company on the date thereof as to the matters specified in
clauses (a) and (b) of the immediately preceding sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
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all LC Disbursements shall have been reimbursed, each Borrower (on behalf of
itself and each of its Subsidiaries) covenants and agrees with the Lenders that:
SECTION 6.01. Financial Statements and Other Information. The
Company will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Company, the audited consolidated balance sheet and related statements
of income, stockholders' equity and cash flows of the Company and its
Subsidiaries as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on by Ernst & Young LLP or other independent public
accountants of recognized national standing (without a "going concern"
or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the
Company and its Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days after the end of the first three fiscal
quarters of the Company, the consolidated balance sheets and related
consolidated statements of income and cash flows of the Company and its
Subsidiaries as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for (or, in the case of the balance sheet,
as of the end of) the corresponding period or periods of the previous
fiscal year, all certified by a Responsible Officer as presenting
fairly in all material respects the financial condition and results of
operations of the Company and its Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section, a certificate of a Responsible
Officer (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Section
7.11 and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the most recent audited
financial statements of the Company referred to in Section 4.04(a) and,
if any such change has occurred, specifying the effect of such change
on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) of this Section, a certificate of the accounting firm
that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be limited
to the extent required by accounting rules or guidelines);
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(e) promptly upon receipt thereof, copies of all other reports
submitted to the Company by its independent certified public
accountants in connection with any annual or interim audit or review of
the books of the Company made by such accountants;
(f) annually, as soon as available, but in any event within 30
days after the first day of each fiscal year of the Company, an annual
budget of the Company and its Subsidiaries for such fiscal year in the
same form prepared for the Company's board of directors or in such
other form reasonably satisfactory to the Administrative Agent;
(g) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Company or any Subsidiary with the SEC, or any
Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or
distributed by the Company to its shareholders generally, as the case
may be; and
(h) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Company or any Subsidiary, or compliance with the
terms of this Agreement and the other Loan Documents, as the
Administrative Agent or any Lender may reasonably request.
Documents required to be delivered pursuant to Sections 6.01(a), (b) or (g) (to
the extent any such documents are included in materials otherwise filed with the
SEC) shall be deemed to have been delivered on the date (i) on which the Company
posts such documents or provides a link thereto on the Company's website or (ii)
on which such documents are posted on the Company's behalf on
Intralinks/IntraAgency or another relevant website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that the
Company shall notify the Administrative Agent (by telecopier or electronic mail)
of the posting of any such documents and provide the Administrative Agent with
electronic mail versions of such documents.
SECTION 6.02. Notices of Material Events. The Company will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Company or any of its Affiliates, other than
disputes in the ordinary course of business or, whether or not in the
ordinary of business, disputes involving amounts exceeding $7,500,000;
(c) the occurrence of any ERISA Event that, individually or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
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Each notice delivered under this Section shall be accompanied by a statement of
a Responsible Officer setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 6.03. Existence; Conduct of Business. The Company
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.03.
SECTION 6.04. Payment of Taxes and Other Obligations. The
Company will, and will cause each of its Subsidiaries to, pay its obligations,
including Tax liabilities, that, if not paid, could result in a Material Adverse
Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Company or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties. The Company will, and
will cause each of its Subsidiaries to, keep and maintain all property material
to the conduct of its business in good working order and condition, ordinary
wear and tear excepted.
SECTION 6.06. Maintenance of Insurance. The Company will, and
will cause each of its Subsidiaries to, maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations; provided that the Company
may maintain self-insurance reasonable and customary for similarly situated
Persons.
SECTION 6.07. Books and Records. The Company will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries are made of all dealings and transactions
in relation to its business and activities.
SECTION 6.08. Inspection Rights. The Company will, and will
cause each of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers and
independent accountants, all at the expense of the Company and at such
reasonable times and as often as reasonably requested; provided that any such
request and visit by any Lender shall be coordinated through the Administrative
Agent.
SECTION 6.09. Compliance with Laws and Contractual
Obligations. The Company will, and will cause each of its Subsidiaries to,
comply with all Requirements of Law (including any Environmental Laws)
applicable to it or its property, and all Contractual Obligations 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.
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SECTION 6.10. Use of Proceeds and Letters of Credit. The
proceeds of the Term Loans will be used to finance the Xxxxxx May Acquisition
and to pay related fees and expenses. The proceeds of the Revolving Credit
Loans, and the Letters of Credit issued hereunder, will be used for general
corporate purposes of the Company and its Subsidiaries. No part of the proceeds
of any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations U and X.
SECTION 6.11. Additional Subsidiary Guarantors; Further
Assurances.
-----------------------------------------------
(a) Subsidiary Guarantors. The Company will take such action,
and will cause each of its Domestic Subsidiaries to take such action,
from time to time as shall be necessary to ensure that all such
Domestic Subsidiaries of the Company are "Subsidiary Guarantors"
hereunder. Without limiting the generality of the foregoing, in the
event that the Company or any of its Subsidiaries shall form or acquire
any new Domestic Subsidiary that shall constitute a Subsidiary
hereunder, the Company and its Subsidiaries will cause such new
Subsidiary to:
(i) become a "Subsidiary Guarantor" hereunder, and a "Securing
Party" under the Security Agreement pursuant to a Subsidiary Joinder
Agreement;
(ii) cause such Domestic Subsidiary to take such action
(including delivering such shares of stock, executing and delivering
such Uniform Commercial Code financing statements) as shall be
necessary to create and perfect valid and enforceable first priority
Liens on substantially all of the personal property of such new
Subsidiary as collateral security for the obligations of such new
Subsidiary hereunder to the extent required pursuant to the Security
Agreement; and
(iii) deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as is consistent with
those delivered by the Loan Parties pursuant to Section 5.01 on the
Effective Date as the Administrative Agent shall reasonably request.
(b) Further Assurances. The Company will, and will cause each
of its Subsidiaries to, take such action from time to time as shall
reasonably be requested by the Administrative Agent to effectuate the
purposes and objectives of this Agreement. Without limiting the
foregoing, in the event that any additional Capital Stock shall be
issued by any Subsidiary, the Loan Party agrees forthwith to deliver to
the Administrative Agent pursuant to the Security Agreement the
certificates evidencing such shares of stock, accompanied by undated
stock powers executed in blank and to take such other action as the
Administrative Agent shall request to perfect the security interest
created therein pursuant to the Security Agreement.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, each Borrower (on behalf of itself and
each of its Subsidiaries) covenants and agrees with the Lenders that:
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SECTION 7.01. Indebtedness. The Company will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder and the other Loan
Documents;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 7.01;
(c) (i) Indebtedness of the Company to any Loan Party, (ii)
Indebtedness of any Loan Party (other than the Company) to the Company
or any other Loan Party and (iii) Indebtedness of the Company or any
Subsidiary to any Subsidiary that is not a Loan Party; provided that
the aggregate principal amount of Indebtedness incurred by the Loan
Parties to any Subsidiary that is not a Loan Party after the date
hereof, together with the aggregate amount of Investments by the Loan
Parties in such Subsidiaries made under Section 7.06(c)(ii) after the
date hereof, shall not exceed $5,000,000 at any time outstanding;
(d) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to, at
the time of or within 90 days after such acquisition or the completion
of such construction or improvement and (ii) the sum of (x) the
aggregate principal amount of Indebtedness permitted by this clause (d)
and clause (e) of this Section plus (y) the aggregate sales price in
respect of Sale/Leaseback Transactions incurred after the date hereof
shall not exceed $10,000,000 at any time outstanding;
(e) Indebtedness of any Person that becomes a Subsidiary after
the date hereof; provided that (i) such Indebtedness exists at the time
such Person becomes a Subsidiary and is not created in contemplation of
or in connection with such Person becoming a Subsidiary and (ii) the
sum of (x) the aggregate principal amount of Indebtedness permitted by
this clause (e) and clause (d) of this Section plus (y) the aggregate
sales price in respect of Sale/Leaseback Transactions incurred after
the date hereof under Section 7.12 shall not exceed $10,000,000 at any
time outstanding;
(f) Indebtedness incurred after the date hereof by the Company
or any Subsidiary not exceeding an aggregate principal amount of
$15,000,000 at any time outstanding for the purpose of financing the
expansion of the facilities of Xxxxxx & Co.(R) (i) by or through the
State of Ohio Economic Development Authority or (ii) from any other
financing source; provided that, in the case of clause (ii) only, any
such Indebtedness shall (x) mature at least six months after the Term
Loan Maturity Date, (y) have a weighted average life to maturity not
shorter than the Term Loans and (z) not contain any covenants or events
of default more onerous than those set forth in this Agreement.
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(g) other Indebtedness in an aggregate principal amount not
exceeding $25,000,000 at any time outstanding.
SECTION 7.02. Liens. The Company will not, and will not permit
any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Liens created pursuant to the Loan Documents;
(b) Permitted Liens;
(c) any Lien on any property or asset of the Company or any of
its Subsidiaries existing on the date hereof and set forth on Schedule
7.02 (excluding, however, following the making of the initial Loans
hereunder as of the Effective Date, Liens securing Indebtedness to be
repaid with the proceeds of such Loans, as indicated on Schedule 7.02);
provided that (i) no such Lien shall extend to any other property or
asset of the Company or any of its Subsidiaries and (ii) any such Lien
shall secure only those obligations which it secures on the date hereof
and extensions, renewals, replacements and combinations thereof that do
not increase the outstanding principal amount thereof or commitment
therefor, in each case, as in effect on the date hereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary; provided that (i) such
security interests secure (x) Indebtedness permitted by Section
7.01(d), (y) Indebtedness permitted by Section 7.01(f) and/or (z)
Indebtedness permitted by Section 7.01(g) so long as such Indebtedness
permitted by Section 7.01(g) does not exceed an aggregate principal
amount of $10,000,000 at any time outstanding, (ii) such security
interests and the Indebtedness secured thereby are incurred prior to,
at the time of or within 90 days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness
secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such
security interests shall not apply to any other property or assets of
the Company or any Subsidiary;
(e) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such security interests secure Indebtedness permitted
by Section 7.01(e), (ii) such Lien is not created in contemplation of
or in connection with such acquisition or such Person becoming a
Subsidiary, as the case may be, (iii) such Lien shall not apply to any
other property or assets of the Company or any Subsidiary and (iv) such
Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as
the case may be and extensions, renewals and replacements thereof that
do not increase the original outstanding principal amount thereof; and
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(f) Liens on deposit accounts required to be established in
connection with, and securing, the financing permitted by Section
7.01(f)(i) and monies on deposit in such accounts.
SECTION 7.03. Mergers, Consolidations, Etc. The Company will
not, and will not permit any of its Subsidiaries to, enter into any transaction
of merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), except that:
(a) any Subsidiary may be merged or consolidated with or into
any Borrower , so long as (i) if the Company is a party to such
transaction, the Company is the surviving entity or (ii) otherwise, any
Subsidiary which is a Loan Party is the surviving entity;
(b) any Subsidiary may be merged or consolidated with or into
any other Subsidiary, so long as if any Subsidiary party to such
transaction is a Loan Party, the surviving entity thereof is a Loan
Party; and
(c) any Subsidiary may be dissolved or liquidated if the
Company determines in good faith such liquidation or dissolution is in
the best interests of the Company and not materially disadvantageous to
the Lenders.
SECTION 7.04. Dispositions. The Company will not, and will not
permit any of its Subsidiaries to, convey, sell, lease, transfer or otherwise
dispose of, in one transaction or a series of transactions, any part of its
business or property, whether now owned or hereafter acquired (including
receivables and leasehold interests), except:
(a) obsolete or worn-out property, tools or equipment no
longer used or useful in its business;
(b) any inventory or other property sold or disposed of in
the ordinary course of business and for fair
consideration;
(c) the sale, conversion or other disposition of any stores or
"flower fulfillment centers" operated by the Company or
any Subsidiary to franchisees for fair consideration;
(d) any Subsidiary of the Company may sell, lease, transfer or
otherwise dispose of any or all of its property to the
Company or any wholly owned Subsidiary of the Company;
(e) the Capital Stock of any Subsidiary may be sold,
transferred or otherwise disposed of to the Company or
any wholly owned Subsidiary of the Company; and
(f) Dispositions of property by the Company or any Subsidiary
having an aggregate fair market value not exceeding
$10,000,000.
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SECTION 7.05. Lines of Business. The Company will not, and
will not permit any of its Subsidiaries to, engage to any material extent in any
business other than businesses of the type conducted by the Company and its
Subsidiaries on the date hereof and businesses reasonably related or incidental
or ancillary thereto.
SECTION 7.06. Investments and Acquisitions. The Company will
not, and will not permit any of its Subsidiaries to, make or suffer to exist any
Investment in any Person or purchase or otherwise acquire (in one transaction or
a series of transactions) any assets of any other Person constituting a business
unit, except:
(a) Cash Equivalents;
(b) Investments (other than Investments permitted under
clauses (a) and (c) of this Section) existing on the date hereof and
set forth on Schedule 7.06;
(c) (i) Investments by any Loan Party in any other Loan Party;
and (ii) Investments by the Company or any Subsidiary in any Subsidiary
that is not a Loan Party; provided that that the aggregate amount of
Investments by the Loan Parties in any Subsidiary that is not a Loan
Party after the date hereof, together with the aggregate principal
amount of Indebtedness owing by any Loan Party to such Subsidiaries
incurred under Section 7.01(c)(iii) after the date hereof, shall not
exceed $5,000,000;
(d) Indebtedness permitted by Section 7.01;
(e) purchases of inventory and other property to be sold or
used in the ordinary course of business;
(f) the Xxxxxx May Acquisition;
(g) Acquisitions after the date hereof by the Company or any
other Loan Party; provided that (i) the aggregate consideration
(including assumed Indebtedness, but excluding consideration in the
form of Capital Stock of the Company) for all such Acquisitions shall
not exceed $50,000,000, (ii) if such Acquisition is an acquisition of
Capital Stock of a Person, such Acquisition shall not be opposed by the
board of directors (or similar governing body) of such Person, (iii) no
Default shall have then occurred and be continuing or would result
therefrom, (iv) after giving effect to such Acquisition on a pro forma
basis as if such Acquisition had occurred on the first day of the most
recent period of four consecutive fiscal quarters, the Consolidated
Leverage Ratio on the last day of such period would not have been
greater than 2.50 to 1.0; provided that the Company shall be permitted
to consummate Acquisitions having aggregate consideration (including
assumed Indebtedness, but excluding consideration in the form of
Capital Stock of the Company) not exceeding $15,000,000 without
complying with the requirements of this clause (iv); and (v) prior to
the consummation of any such Acquisition, the Administrative Agent
shall have received a certificate of a Responsible Officer setting
forth the calculations required to determine compliance with clause
(iv) above (if applicable) and certifying that the conditions set forth
in this clause (g) with respect to such Acquisition have been
satisfied.
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(h) Investments (including debt obligations) received by the
Company and its Subsidiaries in connection with the bankruptcy or
reorganization of suppliers and/or customers and in good faith
settlement of delinquent obligations of, and other disputes with,
customers and/or suppliers arising in the ordinary course of business;
(i) Investments under Swap Agreements permitted by Section
7.10;
(j) bona fide advances to employees and officers of the
Company and its Subsidiaries for the purpose of paying payroll, travel
and related expenses incurred for proper business purposes of the
Company or such Subsidiary;
(k) Investments received by the Company and its Subsidiaries
in connection with any Disposition permitted by Section 7.04;
(l) Investments held by any Person that becomes a Subsidiary
after the date hereof; provided that (i) such Investments exist at the
time such Person becomes a Subsidiary and are not created in
contemplation of or in connection with such Person becoming a
Subsidiary and (ii) such Investments shall not be increased after such
time unless such increase is permitted by another clause of this
Section;
(m) Investments by the Company or any Subsidiary in the
Capital Stock of any other Person organized or incorporated under the
laws of any jurisdiction within the United States of America (other
than any Acquisition) in an aggregate amount (valued at cost) not
exceeding $10,000,000; and
(n) other Investments in an aggregate amount (valued at cost)
not exceeding $10,000,000.
SECTION 7.07. Restricted Payments. The Company will not, and
will not permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except that:
(a) the Company may declare and pay dividends with respect to
its Capital Stock payable solely in additional shares of its Capital
Stock;
(b) the Company may make Restricted Payments after the date
hereof in an aggregate amount not exceeding $40,000,000; provided that,
at the time of such Restricted Payment and immediately after giving
effect thereto, (i) no Default shall have occurred and be continuing
and (ii) (other than in respect of purchases of Capital Stock of the
Company not exceeding an aggregate amount of $10,000,000 after the date
hereof), the Consolidated Leverage Ratio shall not be greater than 2.50
to 1.0; and
(c) the Company may pay cash dividends in respect of preferred
Capital Stock of the Company not exceeding an aggregate amount of
$5,000,000 in any fiscal year; provided that, at the time of such
dividend and immediately after giving effect thereto, (i) no Default
shall have occurred and be continuing and (ii) the Consolidated
Leverage Ratio shall not be greater than 2.50 to 1.0;
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provided that nothing herein shall be deemed to prohibit (x) the payment of
dividends by any Subsidiary of the Company to the Company or any other
Subsidiary of the Company or, if applicable, any minority shareholder of such
Subsidiary (in accordance with the percentage of the Capital Stock of such
Subsidiary owned by such minority shareholder) and (y) repurchases of Capital
Stock deemed to occur as a result of the surrender of such Capital Stock for
cancellation in connection with the exercise of stock options or warrants.
SECTION 7.08. Transactions with Affiliates. The Company will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except:
(a) transactions in the ordinary course of business at prices
and on terms and conditions not less favorable to the Company or such
Subsidiary than could be obtained on an arm's-length basis from a
Person that is not an Affiliate;
(b) transactions between or among the Company and its
wholly-owned Subsidiaries not involving any other Affiliate;
(c) any Investment permitted by Section 7.06;
(d) any Restricted Payment permitted by Section 7.07; and
(e) any Affiliate who is a natural person may serve as an
employee or director of any Borrower and receive reasonable
compensation for his services in such capacity.
SECTION 7.09. Restrictive Agreements. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Company or any Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets, or (b) the ability of any Subsidiary to pay dividends
or other distributions with respect to any shares of its Capital Stock or to
make or repay loans or advances to the Company or any other Subsidiary or to
Guarantee Indebtedness of the Company or any other Subsidiary; except:
(i) restrictions and conditions imposed by law or by this
Agreement;
(ii) restrictions and conditions existing on the date hereof
set forth on Schedule 7.09 (but shall apply to any extension or renewal
of, or any amendment or modification expanding the scope of, any such
restriction or condition);
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(iii) customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale;
provided that such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder;
(iv) (with respect to clause (a) above) (x) restrictions or
conditions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement if such restrictions or conditions apply
only to the property or assets securing such Indebtedness and (y)
customary provisions in leases and other contracts restricting the
assignment thereof; and
(v) (with respect to clause (a) above) provisions in any lease
or lease agreement, or any restrictions or conditions imposed by any
landlord, prohibiting or restricting the granting, creation or
incurrence of any liens on any premises leased by the Company or any of
its Subsidiaries.
SECTION 7.10. Swap Agreements. The Company will not, and will
not permit any of its Subsidiaries to, enter into any Swap Agreement, other than
Swap Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Company or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 7.11. Financial Covenants.
-------------------
(a) Consolidated Leverage Ratio. The Company will not at any
time permit the Consolidated Leverage Ratio to exceed 3.00 to 1.0.
(b) Consolidated Fixed Charges Ratio. The Company will not at
any time permit the Consolidated Fixed Charge Coverage Ratio to be less than (i)
prior to the last day of the fiscal quarter ending on or nearest to June 30,
2009, 1.25 to 1.0 and (ii) from and after such last day, 1.75 to 1.00.
(c) Consolidated Net Worth. The Company will not at any time
permit the Consolidated Net Worth to be less than the sum of (i) $150,000,000,
(ii) 50% of consolidated net income of the Company and its Subsidiaries for each
fiscal year of the Company (beginning with the fiscal year ending on or nearest
to June 30, 2006) for which such consolidated net income is positive and (iii)
50% of the Net Proceeds of any Equity Issuance.
SECTION 7.12. Sale-Leasebacks. The Company will not, and will
not permit any of its Subsidiaries to, enter into any arrangement with any
Person providing for the leasing by the Company or any Subsidiary of real or
personal property which has been or is to be sold or transferred by the Company
or such Subsidiary to such Person or to any other Person to whom funds have been
or are to be advanced by such Person on the security of such property or rental
obligations of the Company or such Subsidiary (a "Sale/Leaseback Transaction"),
except for Sale/Leaseback Transactions by the Company and its Subsidiaries with
an aggregate sales price not exceeding, taken together with sum of the aggregate
principal amount of Indebtedness permitted clauses (d) and (e) of Section 7.01,
$10,000,000.
SECTION 7.13. Modifications of Organizational Documents. The
Company will not, and will not permit any of its Subsidiaries to, consent to any
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modification, supplement or waiver of any of the provisions of the charter,
by-laws or other organizational documents of the Company or any of its
Subsidiaries that could reasonably be expected to be materially adverse to the
interests of the Lenders, in each case, without the prior consent of the
Required Lenders (or the Administrative Agent, with the approval of the Required
Lenders); provided that the foregoing shall not apply to any modification of the
charter, by-laws or other organizational documents of any Subsidiary effected
solely in connection with the liquidation or dissolution thereof permitted by
Section 7.03.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur:
(a) any Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or under any other
Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of three or more
Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of the Company or any of its Subsidiaries in or in connection
with this Agreement or any other Loan Document or any amendment or
modification hereof or thereof or waiver hereunder or thereunder, or in
any report, certificate, financial statement or other document
furnished pursuant to or in connection with this Agreement or any other
Loan Document or any such amendment, modification or waiver, shall
prove to have been incorrect when made or deemed made in any material
respect;
(d) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in Section 6.02, 6.03 (with
respect to the existence of any Borrower) or 6.09 or in Article VII or
any of its respective obligations contained in Section 4.01 or 4.02 of
the Security Agreement;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other
than those specified in clause (a), (b) or (d) of this Article) or any
other Loan Document and such failure shall continue unremedied for a
period of 30 days after notice thereof from the Administrative Agent to
the Company (given at the request of any Lender);
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(f) the Company or any of its Subsidiaries shall fail to make
any payment (whether of principal or interest and regardless of amount)
in respect of any Material Indebtedness, when and as the same shall
become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or any
Subsidiary or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company or any Subsidiary or for a substantial part of
its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Company or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Company or any Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they
become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $7,500,000 (not covered by insurance
where the carrier has accepted responsibility) shall be rendered
against the Company or any Subsidiary or any combination thereof and
the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to attach or levy upon
any assets of the Company or any Subsidiary to enforce any such
judgment;
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(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) a Change in Control shall occur; or
(n) the Liens created by the Security Documents shall at any
time not constitute a valid and perfected Lien on the collateral
intended to be covered thereby (to the extent perfection by filing,
registration, recordation or possession is required herein or therein)
in favor of the Administrative Agent, free and clear of all other Liens
(other than Liens permitted under Section 7.02 or under the respective
Security Documents), or, except for expiration in accordance with its
terms, any of the Security Documents shall for whatever reason be
terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Loan Party;
then, and in every such event (other than any event with respect to any Loan
Party described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Company, take
either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers; and in case of any event with respect to any Loan Party described
in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lenders hereby irrevocably
appoints the Administrative Agent as its agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person 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
other Affiliate thereof as if it were not the Administrative Agent hereunder.
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The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise in writing as directed by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances provided in Section 10.02), and (c) except as
expressly set forth herein and in the other Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Company or any of its
Subsidiaries that is communicated to or obtained by the Person serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances
provided in Section 10.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Company or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article V or
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for a Borrower), independent accountants
and other experts selected by it, and shall not be liable for any action taken
or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
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Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the right,
in consultation with the Company, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Lenders, appoint a successor Administrative Agent which
shall be a Lender with an office in New York, New York or an Affiliate of a
Lender. Upon the acceptance of its appointment as Administrative Agent hereunder
by a successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 10.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Notwithstanding anything herein to the contrary the Sole
Bookrunner and the Sole Lead Arranger, the Syndication Agent and the
Co-Documentation Agents named on the cover page of this Agreement shall not have
any duties or liabilities under this Agreement, except in their capacity, if
any, as Lenders.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices.
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(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) of this Section), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy,
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(i) if to the Company, any Subsidiary Borrower, the Administrative Agent, any
Issuing Lender or the Swingline Lender, as set forth in Schedule 10.01; and (ii)
if to any other Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire.
(b) Electronic Communications. Notices and other
communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices pursuant to
Article II unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent or a Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
(c) Change of Address, Etc. Any party hereto may change its
address or telecopy number for notices and other communications hereunder by
notice to the other parties hereto. All notices and other communications given
to any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
-------------------
(a) No Deemed Waivers; Remedies Cumulative. No failure or
delay by the Administrative Agent, any Issuing Lender or any Lender in
exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Lenders and the Lenders hereunder are
cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by a Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting
the generality of the foregoing, the making of a Loan or issuance of a
Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent, any Lender or any
Issuing Lender may have had notice or knowledge of such Default at the
time.
(b) Amendments. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Loan Parties and
the Required Lenders (or, in the case of any such waiver, amendment or
modification relating to Letters of Credit or Swingline Loans, the
Required Revolving Credit Lenders) or by the Loan Parties and the
Administrative Agent with the consent of the Required Lenders (or the
Required Revolving Credit Lenders, as applicable); provided that no
such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of each Lender directly adversely affected thereby;
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(ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender directly
adversely affected thereby;
(iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender directly
adversely affected thereby;
(iv) change Section 2.17(b), (c) or (d) in a manner that would
alter the pro rata sharing of payments required thereby, without the
written consent of each Lender affected thereby;
(v) change any of the provisions of this Section or the
definition of the term "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to waive, amend
or modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender affected
thereby; or
(vi) release all or substantially all of the Guarantors from
their guarantee obligations under Article III or all or substantially
all of the collateral, in each case without the written consent of each
Lender;
and provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, any Issuing Lender or
the Swingline Lender hereunder without the prior written consent of the
Administrative Agent, such Issuing Lender or the Swingline Lender, as the case
may be.
Except as otherwise provided in this Section with respect to
this Agreement, the Administrative Agent may, with the prior consent of the
Required Lenders (but not otherwise), consent to any modification, supplement or
waiver under any of the Security Documents; provided that, without the prior
consent of each Lender, the Administrative Agent shall not (except as provided
herein or in the Security Documents) release all or substantially all of the
collateral or otherwise terminate all or substantially all of the Liens under
any Security Document providing for collateral security, except that no such
consent shall be required, and the Administrative Agent is hereby authorized, to
release any Lien covering property (and to release any such guarantor) that is
the subject of either a disposition of property permitted hereunder or a
disposition to which the Required Lenders have consented.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
----------------------------------
(a) Costs and Expenses. The Company shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable
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out-of-pocket expenses incurred by any Issuing Lender in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder, (iii) all out-of-pocket expenses incurred by the
Administrative Agent, any Issuing Lender or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Issuing Lender or any Lender, in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect thereof
and (iv) and all reasonable costs, expenses, taxes, assessments and other
charges incurred in connection with any filing, registration, recording or
perfection of any security interest contemplated by any Security Document or any
other document referred to therein.
(b) Indemnification by the Company. The Company shall
indemnify the Administrative Agent, each Issuing Lender and each Lender, and
each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by any Issuing Lender to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any Environmental Liability related in any way to the
Company or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Company
fails to pay any amount required to be paid by it to the Administrative Agent ,
any Issuing Lender or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, each
Issuing Lender or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, any Issuing Lender or the Swingline Lender in
its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent
permitted by applicable law, no Borrower shall assert, and each Borrower hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.
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(e) Payments. All amounts due under this Section shall be
payable promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
----------------------
(a) Assignments Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
any Issuing Lender that issues any Letter of Credit), except that (i) no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of any Issuing Lender that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Lenders and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth
in paragraph (b)(ii) below, any Lender may assign to one or more assignees all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld) of:
(A) the Company; provided that no consent of the
Company shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of
Default has occurred and is continuing, any other assignee;
(B) the Administrative Agent; provided that no
consent of the Company shall be required for an assignment of
a Term Loan to an existing Term Loan Lender or an Affiliate or
Approved Fund thereof; and
(C) (in the case of assignments of the Revolving
Credit Commitment and Revolving Credit Loans) each Issuing
Lender and the Swingline Lender.
(ii) Certain Conditions to Assignments. Assignments shall be
subject to the following additional conditions:
(A) except in the case of an assignment to a Lender
or an Affiliate of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment or
Loans, the amount of the Commitment or Loans of the assigning
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Lender subject to each such assignment (determined as of the
date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 or, in the case of an assignment of a
Term Loan, $1,000,000, unless each of the Company and the
Administrative Agent otherwise consent; provided that no such
consent of the Company shall be required if an Event of
Default has occurred and is continuing;
(B) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement; provided
that this clause shall not be construed to prohibit the
assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of
Commitments or Loans;
(C) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of
$3,500; and
(D) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative
Questionnaire in which the assignee designates one or more
credit contacts to whom all syndicate-level information (which
may contain material non-public information about the Company
and its Related Parties or their respective securities) will
be made available and who may receive such information in
accordance with the assignee's compliance procedures and
applicable laws, including Federal and state securities laws.
(iii) Effectiveness of Assignments. Subject to acceptance and
recording thereof pursuant to paragraph (b)(iv) of this Section, from and after
the effective date specified in each Assignment and Assumption, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 10.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this Section shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) Maintenance of Register. The Administrative Agent, acting
for this purpose as an agent of the Borrowers, shall maintain at one of its
offices a copy of each Assignment and Assumption delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent, the Issuing Lenders and the Lenders may treat each Person
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whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrowers, any
Issuing Lender and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Acceptance of Assignments by Administrative Agent. Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(c) Participations.
(i) Participations Generally. Any Lender may, without the
consent of the Borrowers, the Administrative Agent, any Issuing Lender or the
Swingline Lender, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations under
this Agreement and the other Loan Documents (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement and the other Loan Documents shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrowers, the
Administrative Agent, the Issuing Lenders and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan Documents. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and the other Loan Documents and to approve any amendment,
modification or waiver of any provision of this Agreement or any other Loan
Document; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 10.02(b) that
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.08 as though it were a Lender; provided that such
Participant agrees to be subject to Section 2.17(c) as though it were a Lender.
(ii) Limitations on Rights of Participants. A Participant
shall not be entitled to receive any greater payment under Section 2.14 or 2.16
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Company's prior written consent. A
Participant that would be a Non-U.S. Lender if it were a Lender shall not be
entitled to the benefits of Section 2.16 unless Company is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrowers, to comply with Section 2.16(e) as though it were a
Lender.
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(d) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including without limitation any
pledge or assignment to secure obligations to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, any Issuing Lender or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.14, 2.15, 2.16, 3.03 and
10.03 and Article IX shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
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permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of any Borrower against any of and all the obligations of any Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service
of Process.
-----------------------------------------------
(a) Governing Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in Nassau County and of the United States District Court of the Eastern District
of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, any Issuing Lender or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement against any Borrower
or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Service of Process. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 10.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
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THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative
Agent, the Issuing Lenders and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or under any other
Loan Document or any suit, action or proceeding relating to this Agreement or
any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Company and its
Subsidiaries and their respective obligations, (g) with the consent of the
Company or (h) to the extent such Information (A) becomes publicly available
other than as a result of a breach of this Section or (iii) becomes available to
the Administrative Agent, any Issuing Lender or any Lender on a nonconfidential
basis from a source other than a Borrower. For the purposes of this Section,
"Information" means all information received from any Loan Party relating to the
Company and its Subsidiaries and their business, other than any such information
that is available to the Administrative Agent, any Issuing Lender or any Lender
on a nonconfidential basis prior to disclosure by a Borrower; provided that, in
the case of information received from any Loan Party after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
EACH LENDER ACKNOWLEDGES THAT INFORMATION (AS DEFINED IN THIS
SECTION) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL
NON-PUBLIC INFORMATION CONCERNING THE BORROWERS AND THEIR RELATED PARTIES OR
THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL
HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES
AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
-83-
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND
AMENDMENTS, FURNISHED BY THE BORROWERS OR THE ADMINISTRATIVE AGENT PURSUANT TO,
OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL
INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE
BORROWERS AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY,
EACH LENDER REPRESENTS TO THE BORROWERS AND THE ADMINISTRATIVE AGENT THAT IT HAS
IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE
INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH
ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.
SECTION 10.13. USA PATRIOT Act. Each Lender hereby notifies
the Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)), such Lender may be
required to obtain, verify and record information that identifies the Borrowers,
which information includes the name and address of each Borrower and other
information that will allow such Lender to identify the Borrowers in accordance
with said Act.
SECTION 10.14. Authorization of Company. Each Subsidiary
Borrower hereby authorizes the Company to give on behalf of such Subsidiary
Borrower all notices, consents and other communications that may be given by
such Subsidiary Borrower under or in connection with this Agreement or any other
Loan Document, and to receive on behalf of such Subsidiary Borrower all notices,
consents and other communications that may be given to such Subsidiary Borrower
under or in connection with this Agreement or any other Loan Document (in each
case, irrespective of whether or not such notice, consent or other communication
is expressly provided elsewhere in this Agreement to be given or received by the
Company on behalf of such Subsidiary Borrower). Such notices, consents and other
communications may include Borrowing Requests, notices as to continuations,
conversions and prepayments of Loans, notices and demands in connection with
Defaults, and notices and demands in connection with the exercise by the
Administrative Agent or any Lender of remedies. Such notices, consents and other
communications may be given by or to the Company in its own name or in the name
of the applicable Subsidiary Borrower. The authority given by each Subsidiary
Borrower in this Section is coupled with an interest and is irrevocable until
all the Revolving Credit Commitments and all Letters of Credit have expired or
been terminated and all the obligations of such Subsidiary Borrower under this
Agreement and the other Loan Documents have been paid in full.
[Signature pages follow]
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CREDIT AGREEMENT
LENDERS
JPMORGAN CHASE BANK, N.A.
/s/ JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent
BANK OF AMERICA, N.A.
/s/ BANK OF AMERICA, N.A.
WACHOVIA BANK, NATIONAL ASSOCIATION
/s/ WACHOVIA BANK, NATIONAL ASSOCIATION
NORTH FORK BANK
/s/ NORTH FORK BANK
LASALLE BANK NATIONAL ASSOCIATION
/s/ LASALLE BANK NATIONAL ASSOCIATION
FIFTH THIRD BANK
/s/ FIFTH THIRD BANK
KEYBANK NATIONAL ASSOCIATION
/s/ KEYBANK NATIONAL ASSOCIATION
HSBC USA, NATIONAL ASSOCIATION
/s/ HSBC USA, NATIONAL ASSOCIATION
CREDIT AGREEMENT
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.
0-000-XXXXXXX.XXX, INC.
/s/ 0-000-XXXXXXX.XXX, INC.
U.S. Federal Tax Identification
No.: 00-0000000
SUBSIDIARY BORROWERS:
BLOOMNET EXCHANGE, INC.
/s/ BLOOMNET EXCHANGE, INC.
U.S. Federal Tax Identification
No.: 00-0000000
THE CHILDREN'S GROUP, INC.
/s/ THE CHILDREN'S GROUP, INC.
U.S. Federal Tax Identification
No.: 00-0000000
THE POPCORN FACTORY, INC.
/s/ THE POPCORN FACTORY, INC.
U.S. Federal Tax Identification
No.: 00-0000000
800-FLOWERS, INC.
/s/ 800-FLOWERS, INC.
U.S. Federal Tax Identification
No.: 00-0000000
000-XXXXXXX.XXX, INC.
/s/ 000-XXXXXXX.XXX, INC.
U.S. Federal Tax Identification
No.: 00-0000000
XXXXXX & CO.
/s/ XXXXXX & CO.
U.S. Federal Tax Identification
No.: 00-0000000
THE PLOW & HEARTH, INC.
/s/ THE PLOW & HEARTH, INC.
U.S. Federal Tax Identification
No.: 00-0000000
XXXXXX MAY CONFECTIONS BRANDS, INC.
/s/ XXXXXX MAY CONFECTIONS BRANDS, INC.
U.S. Federal Tax Identification
No.: 00-0000000
XXXXXX MAY CONFECTIONS, INC.
/s/ XXXXXX MAY CONFECTIONS, INC.
U.S. Federal Tax Identification
No.: 00-0000000
XXXXX LONDON CANDIES, INC.
/s/ XXXXX LONDON CANDIES, INC.
U.S. Federal Tax Identification
No.: 00-0000000
For each of the foregoing entities:
Xxxxxx X. Xxxxxxxxx
/s/Xxxxxx X. Xxxxxxxxx
Title: Secretary
SUBSIDIARY GUARANTORS:
FMCB ACQUISITION CO., INC.
BLOOMNET EXCHANGE, INC.
THE CHILDREN'S GROUP, INC.
THE POPCORN FACTORY, INC.
800-FLOWERS, INC.
000-XXXXXXX.XXX, INC.
XXXXXX & CO.
THE PLOW & HEARTH, INC.
XXXXXX MAY CONFECTIONS BRANDS, INC.
XXXXXX MAY CONFECTIONS, INC.
XXXXX LONDON CANDIES, INC.
1-800-FLOWERS RETAIL INC.
AMALGAMATED CONSOLIDATED ENTERPRISES, INC.
XXXXXX'X, INC.
1-800-FLOWERS TEAM SERVICES, INC.
FRESH INTELLECTUAL PROPERTIES, INC.
BLOOMLINK SYSTEMS, INC.
1-800-FLOWERS ACQUISITION CORP.
WESTBURY INVESTING CORP.
XXXXXXX.XXX, INC.
GT&X.XXX, INC.
THE CHILDREN'S GROUP REALTY, CO.
0-000-XXXXXXX.XXX FRANCHISE CO., INC.
1-800-FLOWERS SEASONAL TEAM, INC.
THE WINETASTING NETWORK
WIND & WEATHER
For each of the foregoing entities:
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
Title: Secretary
P&H, L.P.
/s/ P&H, L.P.
The Plow & Hearth, Inc.
/s/ The Plow & Hearth, Inc.,
as it General Partner
GUARDED REALTY HOLDINGS, LLC.
By: 0-000-Xxxxxxx.xxx, Inc., as its sole
Member
Xxxxxx X. Xxxxxxxxx
/s/Xxxxxx X. Xxxxxxxxx
Title: Secretary
WTN SERVICES, LLC.
By: The Winetasting Network, as its sole
Member
Xxxxxx X. Xxxxxxxxx
/s/Xxxxxx X. Xxxxxxxxx
Title: Secretary
