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CREDIT AGREEMENT
among
UNILAB CORPORATION,
VARIOUS LENDING INSTITUTIONS,
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
and
XXXXXXX XXXXX CAPITAL CORPORATION,
AS SYNDICATION AGENT
____________________________________
Dated as of November 23, 1999
____________________________________
$185,000,000
DEUTSCHE BANK SECURITIES INC. XXXXXXX XXXXX CAPITAL CORPORATION
LEAD ARRANGER
AND CO-ARRANGER
BOOK MANAGER
[LOGO OF DEUTSCHE BANK] [LOGO OF XXXXXXX XXXXX]
TABLE OF CONTENTS
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Page
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SECTION 1. Amount and Terms of Credit............................. 1
1.01 Commitments............................................. 1
1.02 Minimum Borrowing Amounts, etc.......................... 3
1.03 Notice of Borrowing..................................... 3
1.04 Disbursement of Funds................................... 4
1.05 Register................................................ 5
1.06 Conversions............................................. 5
1.07 Pro Rata Borrowings..................................... 5
1.08 Interest................................................ 6
1.09 Interest Periods........................................ 6
1.10 Increased Costs, Illegality, etc........................ 7
1.11 Compensation............................................ 9
1.12 Change of Lending Office................................ 10
1.13 Replacement of Lenders.................................. 10
SECTION 2. Letters of Credit...................................... 11
2.01 Letters of Credit....................................... 11
2.02 Minimum Stated Amount................................... 12
2.03 Letter of Credit Requests; Notices of Issuance.......... 12
2.04 Agreement to Repay Letter of Credit Drawings............ 12
2.05 Letter of Credit Participations......................... 13
2.06 Increased Costs......................................... 15
SECTION 3. Fees; Commitments...................................... 16
3.01 Fees.................................................... 16
3.02 Voluntary Reduction of Commitments...................... 16
3.03 Mandatory Adjustments of Commitments, etc............... 17
SECTION 4. Payments............................................... 17
4.01 Voluntary Prepayments................................... 17
4.02 Mandatory Prepayments................................... 18
4.03 Method and Place of Payment............................. 24
4.04 Net Payments............................................ 24
SECTION 5. Conditions Precedent................................... 26
5.01 Conditions Precedent to Loans on the Initial Borrowing
Date.................................................... 26
5.02 Conditions Precedent to All Credit Events............... 32
(i)
SECTION 6. Representations, Warranties and Agreements............. 32
6.01 Company Status.......................................... 32
6.02 Company Power and Authority............................. 33
6.03 No Violation............................................ 33
6.04 Litigation.............................................. 33
6.05 Use of Proceeds; Margin Regulations..................... 33
6.06 Governmental Approvals.................................. 34
6.07 Investment Company Act.................................. 34
6.08 Public Utility Holding Company Act...................... 34
6.09 True and Complete Disclosure............................ 34
6.10 Financial Condition; Financial Statements............... 35
6.11 Security Interests...................................... 35
6.12 Tax Returns and Payments................................ 36
6.13 Compliance with ERISA................................... 36
6.14 Subsidiaries............................................ 37
6.15 Patents, etc............................................ 37
6.16 Environmental Matters................................... 37
6.17 Properties.............................................. 38
6.18 Labor Relations......................................... 38
6.19 Senior Subordinated Notes............................... 39
6.20 Existing Indebtedness................................... 39
SECTION 7. Affirmative Covenants.................................. 39
7.01 Information Covenants................................... 39
7.02 Books, Records and Inspections.......................... 41
7.03 Insurance............................................... 42
7.04 Payment of Taxes........................................ 42
7.05 Consolidated Corporate Franchises....................... 42
7.06 Compliance with Statutes, etc........................... 42
7.07 ERISA................................................... 42
7.08 Good Repair............................................. 43
7.09 End of Fiscal Years; Fiscal Quarters.................... 43
7.10 Use of Proceeds......................................... 43
7.11 Additional Security; Further Assurances................. 44
7.12 Compliance with Environmental Laws...................... 44
7.13 Interest Rate Agreements................................ 45
7.14 Year 2000 Compliance.................................... 45
SECTION 8. Negative Covenants..................................... 45
8.01 Changes in Business..................................... 45
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc.. 46
8.03 Liens................................................... 47
8.04 Indebtedness............................................ 49
8.05 Capital Expenditures.................................... 50
8.06 Advances, Investments and Loans......................... 50
8.07 Prepayments of Indebtedness, etc........................ 51
8.08 Dividends............................................... 51
(ii)
8.09 Transactions with Affiliates............................ 52
8.10 Interest Coverage Ratio................................. 53
8.11 Total Leverage Ratio.................................... 54
8.12 Issuance of Stock....................................... 54
8.13 Limitation on Certain Restrictions on Subsidiaries...... 55
8.14 Limitation on Creation of Subsidiaries and Permitted
Joint Ventures.......................................... 55
SECTION 9. Events of Default...................................... 55
9.01 Payments................................................ 55
9.02 Representations, etc.................................... 55
9.03 Covenants............................................... 56
9.04 Default Under Other Agreements.......................... 56
9.05 Bankruptcy, etc......................................... 56
9.06 ERISA................................................... 57
9.07 Security Documents...................................... 57
9.08 Guaranty................................................ 57
9.09 Judgments............................................... 57
9.10 Capital Call Agreement.................................. 57
SECTION 10. Definitions........................................... 58
SECTION 11. The Administrative Agent.............................. 83
11.01 Appointment............................................ 83
11.02 Nature of Duties....................................... 83
11.03 Lack of Reliance on the Administrative Agent........... 84
11.04 Certain Rights of the Administrative Agent............. 84
11.05 Reliance............................................... 84
11.06 Indemnification........................................ 84
11.07 The Administrative Agent in its Individual Capacity.... 85
11.08 Holders................................................ 85
11.09 Resignation by the Administrative Agent................ 85
11.10 Syndication Agent...................................... 86
SECTION 12. Miscellaneous......................................... 86
12.01 Payment of Expenses, etc............................... 86
12.02 Right of Setoff........................................ 86
12.03 Notices................................................ 87
12.04 Benefit of Agreement................................... 87
12.05 No Waiver; Remedies Cumulative......................... 89
12.06 Payments Pro Rata...................................... 89
12.07 Calculations; Computations............................. 90
12.08 Governing Law; Submission to Jurisdiction; Venue;
Waiver of Jury Trial.................................. 90
12.09 Counterparts........................................... 91
12.10 Effectiveness.......................................... 91
12.11 Headings Descriptive................................... 91
(iii)
12.12 Amendment or Waiver; etc............................... 91
12.13 Survival............................................... 93
12.14 Domicile of Loans...................................... 93
12.15 Confidentiality........................................ 93
12.16 Register............................................... 93
ANNEX I - Commitments
ANNEX II - Lender Addresses
ANNEX III - Litigation
ANNEX IV - Existing Indebtedness
ANNEX V - Tax Matters
ANNEX VI - Properties
ANNEX VII - Insurance Policies
ANNEX VIII - Existing Liens
ANNEX IX - Affiliate Transactions
EXHIBIT A - Form of Notice of Borrowing
EXHIBIT B-1 - Form of A Term Note
EXHIBIT B-2 - Form of B Term Note
EXHIBIT B-3 - Form of Revolving Note
EXHIBIT B-4 - Form of Swingline Note
EXHIBIT C - Form of Letter of Credit Request
EXHIBIT D - Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1 - Form of Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
EXHIBIT E-2 - Form of Opinion of White & Case LLP
EXHIBIT F - Form of Officers' Certificate
EXHIBIT G - Form of Security Agreement
EXHIBIT H - Form of Capital Call Agreement
EXHIBIT I - Form of Solvency Certificate
EXHIBIT J - Form of Consent Letter
EXHIBIT K - Form of Assignment Agreement
EXHIBIT L - Form of Guaranty
EXHIBIT M - Form of Pledge Agreement
(iv)
CREDIT AGREEMENT, dated as of November 23, 1999, among UNILAB
CORPORATION (the "Borrower"), a Delaware corporation, the lending institutions
listed from time to time on Annex I hereto (each, a "Lender" and, collectively,
the "Lenders"), BANKERS TRUST COMPANY, as Administrative Agent (the
"Administrative Agent") and XXXXXXX XXXXX CAPITAL CORPORATION, as Syndication
Agent (the "Syndication Agent"). Unless otherwise defined herein, all
capitalized terms used herein and defined in Section 10 are used herein as so
defined.
W I T N E S S E T H:
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WHEREAS, the Borrower and the Lenders desire to enter into this
Agreement to provide for the credit facilities described herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
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1.01 Commitments. Subject to and upon the terms and conditions
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herein set forth, each Lender severally agrees to make a loan or loans (each, a
"Loan" and, collectively, the "Loans") to the Borrower, which Loans shall be
drawn, to the extent such Lender has a commitment under such Facility, under the
A Term Facility, the B Term Facility and the Revolving Facility, as set forth
below:
(a) Loans under the A Term Facility (each, an "A Term Loan" and,
collectively, the "A Term Loans") (i) shall be made pursuant to a single
drawing on the Initial Borrowing Date, (ii) may be incurred and maintained
as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided
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that all A Term Loans outstanding as part of the same Borrowing shall
unless specifically provided herein, consist of A Term Loans of the same
Type and (iii) shall not exceed in aggregate principal amount for any A
Term Lender at the time of incurrence thereof the A Term Commitment of such
A Term Lender in effect on such date. Once repaid, A Term Loans borrowed
hereunder may not be reborrowed.
(b) Loans under the B Term Facility (each a "B Term Loan" and,
collectively, the "B Term Loans") (i) shall be made pursuant to a single
drawing on the Initial Borrowing Date, (ii) may be incurred and maintained
as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided
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that all B Term Loans outstanding as part of the same Borrowing shall
unless specifically provided herein, consist of B Term Loans of the same
Type and (iii) shall not exceed in aggregate principal amount for any B
Term Lender at the time of incurrence thereof the B Term Commitment of such
B Term Lender in effect on such date. Once repaid, B Term Loans borrowed
hereunder may not be reborrowed.
(c) Loans under the Revolving Facility (each, a "Revolving Loan"
and, collectively, the "Revolving Loans") (i) shall be made at any time and
from time to time on and after the Initial Borrowing Date and prior to the
Revolving Loan Maturity Date, (ii) except as hereinafter provided, may, at
the option of the Borrower, be incurred and maintained as, and/or converted
into, Base Rate Loans or Eurodollar Loans, provided that all
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Revolving Loans made as part of the same Borrowing shall, unless otherwise
specifically provided herein, consist of Revolving Loans of the same Type,
(iii) may be repaid and reborrowed in accordance with the provisions hereof
and (iv) shall not exceed for any RC Lender at any time outstanding that
aggregate principal amount which, when combined with the aggregate
outstanding principal amount of all other Revolving Loans of such Lender
and such Lender's Adjusted RC Percentage of the sum of (x) the Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (y) the outstanding
principal amount of Swingline Loans (exclusive of Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time, equals (1) if such
RC Lender is a Non-Defaulting Lender, the Adjusted Revolving Commitment of
such RC Lender at such time and (2) if such RC Lender is a Defaulting
Lender, the Revolving Commitment of such RC Lender at such time.
(d) Subject to and upon the terms and conditions herein set forth,
BTCo in its individual capacity agrees to make at any time and from time to
time after the Initial Borrowing Date and prior to the Swingline Expiry
Date, a loan or loans to the Borrower (each, a "Swingline Loan", and,
collectively, the "Swingline Loans"), which Swingline Loans (i) shall be
made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed
in accordance with the provisions hereof, (iii) shall not exceed in
aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans made by Non-Defaulting
Lenders then outstanding and the Letter of Credit Outstandings (exclusive
of Unpaid Drawings relating to the Letters of Credit which are repaid with
the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of such Swingline Loans) at such time, an amount equal to the
Adjusted Total Revolving Commitment then in effect (after giving effect to
any reductions to the Adjusted Total Revolving Commitment on such date) and
(iv) shall not exceed in aggregate principal amount at any time outstanding
the Maximum Swingline Amount. BTCo will not make a Swingline Loan after it
has received written notice from the Borrower or the Required Lenders
stating that a Default or an Event of Default exists until such time as
BTCo shall have received a written notice of (i) rescission of such notice
from the party or parties originally delivering the same or (ii) a waiver
of such Default or Event of Default from the requisite Lenders hereunder.
(e) On any Business Day, BTCo may, in its sole discretion, give
notice to the RC Lenders that its outstanding Swingline Loans shall be
funded with a Borrowing of Revolving Loans (provided that each such notice
shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 9.05 or upon the exercise of
any of the remedies provided in the last paragraph of Section 9), in which
case a Borrowing of Revolving Loans constituting Base Rate Loans (each such
Borrowing, a "Mandatory Borrowing") shall be made on the immediately
succeeding Business Day by all RC Lenders pro rata based on each RC
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Lender's Adjusted RC Percentage, and the proceeds thereof shall be applied
directly to repay BTCo for such outstanding Swingline Loans. Each RC
Lender hereby irrevocably agrees to make Base Rate Loans upon one Business
Day's notice pursuant to each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on
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the date specified in writing by BTCo notwithstanding (i) that the amount
of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount
otherwise required hereunder, (ii) whether any conditions specified in
Section 5.02 are then satisfied, (iii) whether a Default or an Event of
Default has occurred and is continuing, (iv) the date of such Mandatory
Borrowing and (v) any reduction in the Total Revolving Commitment or the
Adjusted Total Revolving Commitment after any such Swingline Loans were
made. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under the Bankruptcy Code
in respect of the Borrower), each RC Lender (other than BTCo) hereby agrees
that it shall forthwith purchase from BTCo (without recourse or warranty)
such assignment of the outstanding Swingline Loans as shall be necessary to
cause the RC Lenders to share in such Swingline Loans ratably based upon
their respective Adjusted RC Percentages, provided that all interest
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payable on the Swingline Loans shall be for the account of BTCo until the
date the respective assignment is purchased and, to the extent attributable
to the purchased assignment, shall be payable to the RC Lender purchasing
same from and after such date of purchase.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount
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of each Borrowing under a Facility shall not be less than the Minimum Borrowing
Amount for such Facility. The aggregate principal amount of each Borrowing of
Swingline Loans shall not be less than $100,000. More than one Borrowing may be
incurred on any day, provided that at no time shall there be outstanding more
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than ten Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to
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incur Loans under any Facility (excluding Borrowings of Swingline Loans and
Mandatory Borrowings), it shall give the Administrative Agent at its Notice
Office, prior to 10:00 A.M. (New York time), at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Eurodollar Loans and at least one Business Day's prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of
Base Rate Loans to be made hereunder. Each such notice (each, a "Notice of
Borrowing") shall be in the form of Exhibit A and shall specify (i) the Facility
pursuant to which such Borrowing is being made, (ii) the aggregate principal
amount of the Loans to be made pursuant to such Borrowing, (iii) the date of
Borrowing (which shall be a Business Day) and (iv) whether the respective
Borrowing shall consist of Base Rate Loans or (to the extent permitted)
Eurodollar Loans and, if Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall promptly give each Lender
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing, of such Lender's proportionate share thereof and of the
other matters covered by the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give BTCo, prior to 10:00 A.M. (New York
time) on the day such Swingline Loan is to be made, written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Loan to be
made hereunder. Each such notice shall specify in each case (x) the date of
such Borrowing (which shall be a Business Day) and (y) the aggregate principal
amount of the Swingline Loan to be made pursuant to such Borrowing.
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(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(e), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section 1.01(e).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent, BTCo (in the case of a Borrowing of Swingline Loans) or
the respective Letter of Credit Issuer (in the case of the issuance of Letters
of Credit), as the case may be, may prior to receipt of written confirmation act
without liability upon the basis of such telephonic notice, believed by the
Administrative Agent, BTCo or such Letter of Credit Issuer in good faith to be
from an Authorized Officer of the Borrower. In each such case, the Borrower
hereby waives the right to dispute the Administrative Agent's, BTCo's or any
Letter of Credit Issuer's record of the terms of such telephonic notice (except
in the case of gross negligence or bad faith).
1.04 Disbursement of Funds. (a) No later than 1:00 P.M. (New York
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time) on the date specified in each Notice of Borrowing or each notice described
in Section 1.03(b)(i) or (ii), each Lender with a Commitment under the
respective Facility will make available its pro rata share of each Borrowing
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requested to be made on such date (or in the case of Swingline Loans, BTCo shall
make available the full amount thereof) in the manner provided below. All such
amounts shall be made available to the Administrative Agent in immediately
available funds at the Payment Office and the Administrative Agent will promptly
make available to the Borrower by depositing to its account at the Payment
Office the aggregate of the amounts so made available in the type of funds
received. Unless the Administrative Agent shall have been notified by any
Lender prior to the date of Borrowing that such Lender does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without any obligation to do so) make available to
the Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent by such Lender and the
Administrative Agent has made available same to the Borrower, the Administrative
Agent shall be entitled to recover such corresponding amount from such Lender.
If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Lender,
the overnight Federal Funds Effective Rate or (y) if paid by the Borrower, the
then applicable rate of interest, calculated in accordance with Section 1.08,
for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
the Borrower may have against any Lender as a result of any default by such
Lender hereunder.
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1.05 Register. (a) The Borrower's obligation to pay the principal
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of, and interest on, the Loans made to it by each Lender shall be set forth in
the Register maintained by the Administrative Agent pursuant to Section 12.16
and, if requested by any Lender, shall be evidenced by a promissory note (each a
"Note" and collectively, the "Notes") (i) if A Term Loans, substantially in the
form of Exhibit B-1 with blanks appropriately completed in conformity herewith,
(ii) if B Term Loans, substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith, (iii) if Revolving Loans,
substantially in the form of Exhibit B-3 with blanks appropriately completed in
conformity herewith and (iv) if Swingline Loans, by a promissory note
substantially in the form of Exhibit B-4, with blanks appropriately completed in
conformity herewith.
(b) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes (if any), endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation, or any error in any such notation, shall not affect the
Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert on
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any Business Day all or a portion at least equal to the applicable Minimum
Borrowing Amount of the outstanding principal amount of the Loans owing (other
than Swingline Loans, which at all times shall be maintained as Base Rate Loans)
pursuant to a single Facility into a Borrowing or Borrowings pursuant to such
Facility of another Type of Loan, provided that (i) except as otherwise provided
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in Section 1.10(b), Eurodollar Loans may be converted into Base Rate Loans only
on the last day of an Interest Period applicable thereto and no partial
conversion of a Borrowing of Eurodollar Loans shall reduce the outstanding
principal amount of the Eurodollar Loans made pursuant to such Borrowing to less
than the Minimum Borrowing Amount applicable thereto, (ii) Base Rate Loans may
only be converted into Eurodollar Loans (x) if no Default or Event of Default is
in existence on the date of the conversion, unless the Required Lenders
otherwise agree and (y) if prior to the Syndication Date, on the first day of a
PSD Interest Period and (iii) Borrowings of Eurodollar Loans resulting from this
Section 1.06 shall be limited in number as provided in Section 1.02. Each such
conversion shall be effected by the Borrower giving the Administrative Agent at
its Notice Office, prior to 10:00 A.M. (New York time), at least three Business
Days' (or two Business Days', in the case of a conversion into Base Rate Loans)
prior written notice (or telephonic notice promptly confirmed in writing) (each,
a "Notice of Conversion") specifying the Loans to be so converted, the Type of
Loans to be converted into and, if to be converted into a Borrowing of
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Loans under this
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Agreement (other than Swingline Loans) shall be made by the Lenders pro rata on
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the basis of their Term Commitments or Revolving Commitments, as the case may
be, except that Mandatory Borrowings of Revolving Loans shall be made by the RC
Lenders on the basis of their Adjusted RC Percentage. It is understood that no
Lender shall be responsible for any default by any other Lender in its
obligation to make Loans hereunder and that each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the failure of
any other Lender to fulfill its commitments hereunder.
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1.08 Interest. (a) The unpaid principal amount of each Base Rate
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Loan shall bear interest from the date of the Borrowing thereof until the
earlier of (i) the maturity (whether by acceleration or otherwise) of such Base
Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan
pursuant to Section 1.06 at a rate per annum which shall at all times be the
Applicable Margin plus the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Eurodollar Loan and (ii)
the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.06, 1.09 or 1.10(b), as applicable, at a rate per annum which shall at all
times be the Applicable Margin plus the relevant Eurodollar Rate.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount (which
other amounts are overdue more than five days) payable hereunder shall bear
interest at a rate per annum equal to the Base Rate in effect from time to time
plus the sum of (i) 2% and (ii) the Applicable Margin, provided that no Loan
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shall bear interest after maturity (whether by acceleration or otherwise) at a
rate per annum less than 2% plus the rate of interest applicable thereto at
maturity. Interest which accrues under this Section 1.08(c) shall be payable on
demand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on the last
Business Day of each March, June, September and December, (ii) in respect of
each Eurodollar Loan, on the last day of each Interest Period applicable thereto
and, in the case of an Interest Period in excess of three months, on each date
occurring at three month intervals after the first day of such Interest Period
and (iii) in respect of each Loan, on any prepayment or conversion (other than
the prepayment or conversion of any Revolving Loan that is a Base Rate Loan) on
the amount prepaid or converted, at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest rate for
any Borrowing of Eurodollar Loans for any Interest Period, shall promptly notify
the Borrower and the Lenders thereof.
1.09 Interest Periods. (a) At the time the Borrower gives a Notice
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of Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 10:00 A.M. (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of the Interest Period applicable to such Borrowing, which Interest
Period shall, at the option of the Borrower, be a one, two, three or six month
period. Notwithstanding anything to the contrary contained above:
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(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(iii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iv) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period would
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otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(v) subject to the foregoing clauses (i) through (iv), inclusive,
only a one month Interest Period shall be available to be selected prior to
the Syndication Date, with all Term Loans constituting Eurodollar Loans
during such period to be outstanding pursuant to a single Borrowing and all
Revolving Loans constituting Eurodollar Loans during such period to be
outstanding pursuant to a single Borrowing, with all such Borrowings to
commence and end on the same day;
(vi) no Interest Period for a Borrowing under a Facility shall
extend beyond the respective Maturity Date for such facility;
(vii) no Interest Period with respect to any Borrowing of A Term
Loans or B Term Loans shall be elected that would extend beyond any date
upon which a Scheduled Repayment is required to be made if, after giving
effect to the selection of such Interest Period, the aggregate principal
amount of such A Term Loans or B Term Loans, as the case may be, maintained
as Eurodollar Loans with Interest Periods ending after such date would
exceed the aggregate principal amount of such A Term Loans or B Term Loans,
as the case may be, permitted to be outstanding after such Scheduled
Repayment; and
(viii) no Interest Period may be elected at any time when a Default
or an Event of Default is then is existence unless the Required Lenders
otherwise agree.
(b) If upon the expiration of any Interest Period, the Borrower
has failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the Borrower shall
be deemed to have elected to convert such Borrowing into a Borrowing of Base
Rate Loans effective as of the expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that (x)
---------------------------------
in the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender
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shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest
Period that, by reason of any changes arising after the date of this
Agreement affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a change
in the rate of taxes, assessments or similar charges) because of (x) any
change since the Effective Date in any applicable law, governmental rule,
regulation, guideline or order (or in the interpretation or administration
thereof and including the introduction of any new law or governmental rule,
regulation, guideline or order) (such as, for example, but not limited to,
a change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate) and/or (y) other circumstances
affecting such Lender, the interbank Eurodollar market or the position of
such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has become unlawful by compliance by such Lender in good faith with
any law, governmental rule, regulation, guideline or order (or would
conflict with any such governmental rule, regulation, guideline or order
not having the force of law but with which such Lender customarily complies
even though the failure to comply therewith would not be unlawful), or has
become impracticable as a result of a contingency occurring after the
Effective Date which materially and adversely affects the interbank
eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) above) shall (x) on such date and (y) within ten Business
Days of the date on which such event no longer exists give notice (by telephone
confirmed in writing) to the Borrower and (except in the case of clause (i)) to
the Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given
by the Borrower with respect to Eurodollar Loans which have not yet been
incurred shall be deemed rescinded by the Borrower, (y) in the case of clause
(ii) above, the Borrower shall pay to such Lender, upon written demand therefor,
such additional amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender in its sole
discretion shall determine) as shall be required to compensate such Lender for
such increased costs or reductions in amounts receivable hereunder (a written
notice as to the additional amounts owed to such Lender, showing the basis for
the calculation thereof, submitted to the Borrower by such Lender shall, absent
manifest error, be final and conclusive and binding upon all parties hereto) and
(z) in the case of clause (iii) above, the Borrower shall take one of the
actions specified in Section 1.10(b) as promptly as possible and, in any event,
within the time period required by law.
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(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii), the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that the Borrower was notified by a Lender pursuant to Section 1.10(a)(ii) or
(iii), or (ii) if the affected Eurodollar Loan is then outstanding, upon at
least three Business Days' notice to the Administrative Agent, require the
affected Lender to convert each such Eurodollar Loan into a Base Rate Loan,
provided that if more than one Lender is affected at any time, then all affected
--------
Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined that after the Effective
Date, the adoption or effectiveness of any applicable law, rule, official
directive or guideline (whether or not having the force of law) or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender or any corporation controlling such Lender
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's or such
corporation's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy), then from time to time, within 15
days after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such corporation for such reduction. Each Lender, upon
determining in good faith that any additional amounts will be payable pursuant
to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall set forth the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish any of the Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(c) upon the subsequent receipt of such notice.
1.11 Compensation. (a) The Borrower shall compensate each Lender,
------------
upon its written request (which request shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund its Eurodollar Loans but excluding in any event the loss of
anticipated profits) which such Lender may sustain: (i) if for any reason
(other than a default by such Lender or the Administrative Agent) a Borrowing of
Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not withdrawn by the Borrower or
deemed withdrawn pursuant to Section 1.10(a)); (ii) if any prepayment, repayment
or conversion of any of its Eurodollar Loans occurs on a date which is not the
last day of an Interest Period applicable thereto; (iii) if any prepayment of
any of its Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay its Eurodollar Loans when required by the terms
of this Agreement or (y) an election made pursuant to Section 1.10(b).
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(b) Notwithstanding anything in this Agreement to the contrary, to
the extent any notice required by Section 1.10(a)(ii) or (iii), 1.10(c), 2.06 or
4.04 is given by any Lender more than 90 days after such Lender obtained, or
reasonably should have obtained, knowledge of the occurrence of the event giving
rise to the additional costs of the type described in such Section, such Lender
shall not be entitled to compensation under Section 1.10, 2.06 or 4.04 for any
amounts incurred or accruing prior to the giving of such notice to the Borrower.
1.12 Change of Lending Office. Each Lender agrees that, upon the
------------------------
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.06 or 4.04 with respect to such Lender, it will, if requested
by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
affected by such event, provided that such designation is made on such terms
--------
that such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 1.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Section 1.10, 2.06 or 4.04.
1.13 Replacement of Lenders. (x) Upon the occurrence of any event
----------------------
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
Section 2.06 or Section 4.04 with respect to any Lender which results in such
Lender charging to the Borrower increased costs in excess of those being
generally charged by the other Lenders, (y) if a Lender becomes a Defaulting
Lender and/or (z) in the case of a refusal by a Lender to consent to a proposed
change, waiver, discharge or termination with respect to this Agreement which
has been approved by the Required Lenders as provided in Section 12.12(b), the
Borrower shall have the right, if no Default or Event of Default then exists (or
in the case of preceding clause (z), no Default or Event of Default will exist
after giving effect to such replacement), to replace such Lender (the "Replaced
Lender") with one or more other Eligible Transferee or Transferees, none of whom
shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "Replacement Lender") reasonably acceptable to the
Administrative Agent, provided that (i) at the time of any replacement pursuant
--------
to this Section 1.13, the Replacement Lender shall enter into one or more
Assignment Agreements pursuant to Section 12.04(b) (and with all fees payable
pursuant to said Section 12.04(b) to be paid by the Replacement Lender) pursuant
to which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of, and in each case participations in Letters of Credit and
Swingline Loans by the Replaced Lender and, in connection therewith, shall pay
to (x) the Replaced Lender in respect thereof an amount equal to the sum of (A)
an amount equal to the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Lender, (B) an amount equal to all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Lender,
together with all then unpaid interest with respect thereto at such time and (C)
an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Lender pursuant to Section 3.01 and (y) the respective Letter of Credit
Issuer an amount equal to such Replaced Lender's RC Percentage of any Unpaid
Drawing (which at such time remains an Unpaid Drawing) to the extent such amount
was not theretofore funded by such Replaced Lender, and (ii) all obligations of
the Borrower owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the respective
Assignment Agreements, the payment of amounts referred to in clauses (i) and
(ii) above, the
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recordation of the assignment in the Register as provided in Section 12.16 and,
if so requested by the Replacement Lender, delivery to the Replacement Lender of
the appropriate Note or Notes executed by the Borrower, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions
applicable to the Replaced Lender under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.01 and 12.06), which shall
survive as to such Replaced Lender.
SECTION 2. Letters of Credit.
-----------------
2.01 Letters of Credit. (a) Subject to and upon the terms and
-----------------
conditions herein set forth, the Borrower may request that a Letter of Credit
Issuer at any time and from time to time on or after the Initial Borrowing Date
and prior to the date which is thirty Business Days prior to the Revolving Loan
Maturity Date issue, for the account of the Borrower and in support of (i) trade
obligations of the Borrower and/or its Subsidiaries, if any (each such letter of
credit a "Trade Letter of Credit" and, collectively, the "Trade Letters of
Credit") and/or (ii) workers' compensation, insurance programs or such other
obligations of the Borrower that are reasonably acceptable to the Administrative
Agent (each such letter of credit, a "Standby Letter of Credit" and,
collectively, the "Standby Letters of Credit" and together with the Trade
Letters of Credit the "Letters of Credit") and, subject to and upon the terms
and conditions herein set forth, such Letter of Credit Issuer agrees to issue
from time to time, irrevocable letters of credit issued on a sight basis, in
such form as may be approved by such Letter of Credit Issuer and the
Administrative Agent. All Letters of Credit shall be denominated in U.S.
dollars.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued, the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $5,000,000 or (y) when added to the aggregate principal amount
of all Revolving Loans made by Non-Defaulting Lenders and all Swingline Loans
then outstanding, the Adjusted Total Revolving Commitment at such time and (ii)
(x) each Standby Letter of Credit shall have an expiry date occurring not later
than one year after such Letter of Credit's date of issuance, provided that any
--------
such Letter of Credit may be extendible for successive periods of up to 12
months on terms acceptable to the Letter of Credit Issuer and in no event shall
any Standby Letter of Credit have an expiry date occurring later than five
Business Days prior to the Revolving Loan Maturity Date and (y) each Trade
Letter of Credit shall have an expiry date occurring no later than the earlier
of (a) 180 days after the issuance thereof or (b) 30 days prior to the Revolving
Loan Maturity Date.
(c) Notwithstanding the foregoing, in the event a Lender Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless such Letter of Credit Issuer has entered into arrangements
satisfactory to it, the Administrative Agent and the Borrower to eliminate such
Letter of Credit Issuer's risk with respect to the participation in Letters of
Credit of the Defaulting Lender or Lenders, including by cash collateralizing
such Defaulting Lender's or Lenders' Revolving Percentage of the Letter of
Credit Outstandings.
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2.02 Minimum Stated Amount. The initial Stated Amount of each Letter
---------------------
of Credit shall be not less than $100,000 or such lesser amount acceptable to
the respective Letter of Credit Issuer.
2.03 Letter of Credit Requests; Notices of Issuance. (a) Whenever
----------------------------------------------
it desires that a Letter of Credit be issued, the Borrower shall give the
Administrative Agent and Letter of Credit Issuer written notice (including by
way of facsimile transmission) in the form of Exhibit C hereto prior to 1:00
P.M. (New York time) at least three Business Days (or such shorter period as may
be acceptable to the Letter of Credit Issuer) prior to the proposed date of
issuance (which shall be a Business Day) (each, a "Letter of Credit Request"),
which Letter of Credit Request shall include any documents that such Letter of
Credit Issuer customarily requires in connection therewith.
(b) Each Letter of Credit Issuer shall, promptly after each issuance
of or amendment to a Standby Letter of Credit by it, give the Administrative
Agent, each RC Lender and the Borrower written notice of the issuance of or
amendment to each Standby Letter of Credit, accompanied by a copy to the
Administrative Agent of such issuance or amendment. If any RC Lender so
requests, the Administrative Agent will provide such RC Lender with copies of
any Standby Letter of Credit or amendments thereto.
(c) In the event that the Letter of Credit Issuer is other than the
Administrative Agent, such Letter of Credit Issuer will send by facsimile
transmission to the Administrative Agent, promptly on the first Business Day of
each week, its daily maximum amount available to be drawn under the Trade
Letters of Credit issued by such Letter of Credit Issuer for the previous week.
The Administrative Agent shall deliver to each Lender upon each calendar month
end, and upon each Trade Letter of Credit fee payment, a report setting forth
the daily maximum amount available to be drawn for all Letter of Credit Issuers
during such period.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
--------------------------------------------
hereby agrees to reimburse the respective Letter of Credit Issuer, by making
payment to the Administrative Agent at the Payment Office, for any payment or
disbursement made by such Letter of Credit Issuer under any Letter of Credit
(each such amount so paid or disbursed until reimbursed, an "Unpaid Drawing")
immediately after, and in any event on the date on which the Borrower is
notified by such Letter of Credit Issuer of such payment or disbursement with
interest on the amount so paid or disbursed by such Letter of Credit Issuer, to
the extent not reimbursed prior to 1:00 P.M. (New York time) on the date of such
payment or disbursement, from and including the date paid or disbursed to but
not including the date such Letter of Credit Issuer is reimbursed therefor at a
rate per annum which shall be the Applicable Margin for Revolving Loans
maintained as Base Rate Loans plus the Base Rate as in effect from time to time
(plus an additional 2% per annum if not reimbursed by the third Business Day
after the date of such notice of payment or disbursement), such interest also to
be payable on demand.
(b) The Borrower's obligation under this Section 2.04 to reimburse
each Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against such Letter of Credit Issuer,
the Administrative Agent or any Lender, including, without limitation,
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any defense based upon the failure of any drawing under a Letter of Credit to
conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such drawing; provided,
--------
however, that the Borrower shall not be obligated to reimburse such Letter of
-------
Credit Issuer for any wrongful payment made by such Letter of Credit Issuer
under a Letter of Credit as a result of acts or omissions which are judicially
determined by a court of competent jurisdiction to constitute willful misconduct
or gross negligence on the part of such Letter of Credit Issuer.
2.05 Letter of Credit Participations. (a) Immediately upon the
-------------------------------
issuance by any Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other RC
Lender, and each such RC Lender (each, a "Participant") shall be deemed
irrevocably and unconditionally to have purchased and received from such Letter
of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Adjusted RC Percentage, in
such Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the Borrower under this Agreement with respect
thereto (although the Letter of Credit Fee shall be payable directly to the
Administrative Agent for the account of the RC Lenders as provided in Section
3.01(b) and the Participants shall have no right to receive any portion of any
Facing Fees) and any security therefor or guaranty pertaining thereto. Upon any
change in the Revolving Commitments or Adjusted RC Percentages of the RC Lenders
pursuant to Sections 1.13 or 12.04(b) or upon a Lender Default, it is hereby
agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participations pursuant
to this Section 2.05 to reflect the new Adjusted RC Percentages of the assigning
and assignee RC Lender or of all RC Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the
respective Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Letter of Credit Issuer under or in
connection with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct, as determined by a court of competent
jurisdiction, shall not create for such Letter of Credit Issuer any resulting
liability.
(c) In the event that any Letter of Credit Issuer makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to such Letter of Credit Issuer pursuant to Section 2.04(a), such
Letter of Credit Issuer shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Participant of such failure, and
each Participant shall promptly and unconditionally pay to the Administrative
Agent for the account of such Letter of Credit Issuer, the amount of such
Participant's Adjusted RC Percentage of such payment in U.S. dollars and in same
day funds; provided, however, that no Participant shall be obligated to pay to
-------- -------
the Administrative Agent its Adjusted RC Percentage of such unreimbursed amount
for any wrongful payment made by such Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions judicially determined by a court of
competent jurisdiction to constitute willful misconduct or gross negligence on
the part of such Letter of Credit Issuer. If the Administrative Agent so
notifies any Participant required to fund an Unpaid Drawing under a Letter of
Credit prior to 11:00 A.M. (New York time) on any
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Business Day, such Participant shall make available to the Administrative Agent
for the account of the respective Letter of Credit Issuer such Participant's
Adjusted RC Percentage of the amount of such payment on such Business Day in
same day funds. If and to the extent such Participant shall not have so made its
Adjusted RC Percentage of the amount of such Unpaid Drawing available to the
Administrative Agent for the account of such Letter of Credit Issuer, such
Participant agrees to pay to the Administrative Agent for the account of such
Letter of Credit Issuer, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to the
Administrative Agent for the account of any Letter of Credit Issuer at the
overnight Federal Funds Effective Rate. The failure of any Participant to make
available to the Administrative Agent for the account of any Letter of Credit
Issuer its Adjusted RC Percentage of any Unpaid Drawing under any Letter of
Credit shall not relieve any other Participant of its obligation hereunder to
make available to the Administrative Agent for the account of such Letter of
Credit Issuer its Adjusted RC Percentage of any payment under any Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to the
Administrative Agent for the account of such Letter of Credit Issuer such other
Participant's Adjusted RC Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its Adjusted RC Percentage thereof, in U.S. dollars
and in same day funds, an amount equal to such Participant's Adjusted RC
Percentage of the principal amount thereof and interest thereon accruing at the
overnight Federal Funds Effective Rate after the purchase of the respective
participations.
(e) The obligations of the Participants to make payments to the
Administrative Agent for the account of the respective Letter of Credit Issuer
with respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever (provided that no Participant shall be required to make payments
--------
resulting from the Administrative Agent's gross negligence or willful misconduct
as judicially determined by a court of competent jurisdiction) and shall be made
in accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which the Borrower or any of its Subsidiaries, if any, may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Letter of Credit Issuer, any Lender
or other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower and the
beneficiary named in any such Letter of Credit);
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(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
(f) To the extent any Letter of Credit Issuer is not indemnified by
the Borrower, the Participants will reimburse and indemnify the Letter of Credit
Issuer, in proportion to their respective "percentages" of the Total Revolving
Commitment, for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by such Letter of Credit Issuer in performing its respective duties in
any way relating to or arising out of its issuance of Letters of Credit;
provided that no Participants shall be liable for any portion of such
--------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Letter of Credit Issuer's
gross negligence or willful misconduct, as judicially determined by a court of
competent jurisdiction.
2.06 Increased Costs. If at any time after the Effective Date, the
---------------
adoption or effectiveness of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Letter of Credit
Issuer or any Participant with any request or directive (whether or not having
the force of law) by any such authority, central bank or comparable agency shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by such Letter
of Credit Issuer or such Participant's participation therein, or (ii) shall
impose on such Letter of Credit Issuer or any Participant any other conditions
affecting this Agreement, any Letter of Credit or such Participant's
participation therein; and the result of any of the foregoing is to increase the
cost to such Letter of Credit Issuer or such Participant of issuing, maintaining
or participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Letter of Credit Issuer or such Participant
hereunder (other than any increased cost or reduction in the amount received or
receivable resulting from the imposition of or a change in the rate of taxes or
similar charges), then, upon demand to the Borrower by such Letter of Credit
Issuer or such Participant (a copy of which notice shall be sent by the Letter
of Credit Issuer or such Participant to the Administrative Agent), the Borrower
shall pay to such Letter of Credit Issuer or such Participant such additional
amount or amounts as will compensate the Letter of Credit Issuer or such
Participant for such increased cost or reduction. A certificate submitted to
the Borrower by such Letter of Credit Issuer or such Participant, as the case
may be (a copy of which certificate shall be sent by such Letter of Credit
Issuer or such Participant to the Administrative Agent), setting forth the basis
for the determination of such additional amount or amounts necessary to
compensate such Letter of Credit Issuer or such Participant as aforesaid shall
be conclusive and binding on the Borrower absent manifest error, although the
failure to deliver any such certificate shall not release or diminish any of the
Borrower's obligations to pay additional amounts pursuant to this Section 2.06
upon the subsequent receipt thereof.
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SECTION 3. Fees; Commitments.
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3.01 Fees. (a) The Borrower agrees to pay to the Administrative
----
Agent a commitment commission ("Commitment Commission") for the account of each
Non-Defaulting Lender with a Revolving Commitment for the period from and
including the Initial Borrowing Date to, but not including, the date the Total
Revolving Commitment has been terminated, computed at a rate per annum for each
day equal to Applicable Margin on the daily average of such Lender's Unutilized
Revolving Commitment. Such Commitment Commission shall be due and payable in
arrears on each Quarterly Payment Date and on the date upon which the Total
Revolving Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Non-Defaulting Lender with a Revolving Commitment pro rata on
--- ----
the basis of its respective Adjusted RC Percentage, a fee in respect of each
Letter of Credit (the "Letter of Credit Fee") computed at a rate per annum for
each day equal to the Applicable Margin for Revolving Loans maintained as
Eurodollar Loans on the daily Stated Amount of such Letter of Credit. Accrued
Letter of Credit Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the date after the Total Revolving Commitment is
terminated on which no Letters of Credit remain outstanding.
(c) The Borrower agrees to pay to each Letter of Credit Issuer a fee
in respect of each Letter of Credit issued by it (the "Facing Fee") computed at
the rate of 0.25% per annum on the daily Stated Amount of such Letter of Credit,
provided that in no event shall the annual Facing Fee be less than $500 per year
--------
per Letter of Credit. Accrued Facing Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on the date after the Total Revolving
Commitment is terminated on which no Letters of Credit remain outstanding.
(d) The Borrower agrees to pay directly to the Letter of Credit
Issuer upon each issuance of, payment under, and/or amendment of, a Letter of
Credit issued by such Letter of Credit Issuer such amount as shall at the time
of such issuance, payment or amendment be the administrative charge which such
Letter of Credit Issuer is customarily charging for issuances of, payments under
or amendments of, letters of credit issued by it.
(e) The Borrower shall pay (or cause to be paid) to each Agent, for
its own account and/or for distribution to the Lenders such fees as may be
agreed to from time to time between the Borrower and such Agent, when and as
due.
(f) All computations of Fees shall be made in accordance with Section
12.07(b).
3.02 Voluntary Reduction of Commitments. (a) Upon at least two
----------------------------------
Business Days' prior written notice (or telephonic notice confirmed in writing)
to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, without premium or penalty, to terminate or
partially reduce the Total Unutilized Revolving Commitment, provided that (x)
--------
any such termination shall apply to proportionately and permanently reduce the
Revolving Commitment of each Lender, (y) no such reduction shall reduce any Non-
Defaulting Lender's Revolving Commitment to an amount that is less than the sum
of (A) the outstanding Revolving Loans of
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such Lender plus (B) such Lender's Adjusted RC Percentage of (i) outstanding
Swingline Loans and (ii) Letter of Credit Outstandings and (z) any partial
reduction pursuant to this Section 3.02 shall be in the amount of at least
$1,000,000.
(b) In the event of a refusal by a Lender to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 12.12(b), the Borrower may, subject to its
compliance with the requirements of Section 12.12(b), upon five Business Days'
prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
terminate the entire Revolving Commitment of such Lender, so long as (A) all
Loans, together with accrued and unpaid interest, Fees and all other amounts,
owing to such Lender are repaid concurrently with the effectiveness of such
termination pursuant to Section 3 (at which time Annex I shall be deemed
modified to reflect such changed amounts), and (B) the consents required under
Section 12.12(b) in connection therewith shall be obtained at such time, such
Lender shall no longer constitute a "Lender" for purposes of this Agreement,
except with respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.01 and 12.06), which shall
survive as to such repaid Lender.
3.03 Mandatory Adjustments of Commitments, etc. (a) The Total
------------------------------------------
Commitment shall terminate on November 30, 1999 if the Initial Borrowing Date
has not yet occurred.
(b) The Total A Term Loan Commitment and Total B Term Loan Commitment
shall terminate in its entirety on the Initial Borrowing Date (after giving
effect to the making of A Term Loans and B Term Loans on such date).
(c) The Total Revolving Commitment (and the Revolving Commitment of
each RC Lender) shall terminate in its entirety on the earlier of (i) the
Revolving Loan Maturity Date and (ii) unless the Required Lenders otherwise
agree, the date on which any Change of Control occurs.
(d) The Total Revolving Commitment shall be reduced at the time of
any mandatory repayment of Term Loans pursuant to Section 4.02(A)(d), (e), (f),
(g), (h) or (i) if Term Loans were then outstanding, in an amount, if any, by
which the amount of such repayment (determined as if an unlimited amount of Term
Loans were then outstanding) exceeds the aggregate amount of Term Loans then
outstanding.
(e) Each reduction of the Total A Term Loan Commitment, Total B Term
Loan Commitment or the Total Revolving Commitment pursuant to this Section 3.03
(or pursuant to Section 4.02) shall apply proportionately to the A Term
Commitment, B Term Commitment or the Revolving Commitment, as the case may be,
of each Lender with such a Commitment.
SECTION 4. Payments.
--------
4.01 Voluntary Prepayments. (a) The Borrower shall have the right
---------------------
to prepay Loans in whole or in part, without premium or penalty, from time to
time on the following terms and conditions: (i) the Borrower shall give the
Administrative Agent at the Payment Office written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay the
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Loans, whether such Loans are A Term Loans, B Term Loans, Revolving Loans or
Swingline Loans, the amount of such prepayment and (in the case of Eurodollar
Loans) the specific Borrowing or Borrowings pursuant to which made, which notice
shall be given by the Borrower at least one Business Day prior to the date of
such prepayment with respect to Base Rate Loans (other than Swingline Loans,
with respect to which notice shall be given by the Borrower on the day of
prepayment) and at least two Business Days prior to the date of such prepayment
with respect to Eurodollar Loans, which notice shall promptly be transmitted by
the Administrative Agent to each of the Lenders; (ii) (x) each partial
prepayment of any Borrowing (other than a Borrowing of Swingline Loans) shall be
in an aggregate principal amount of at least $1,000,000 and (y) each partial
prepayment of any Borrowing of Swingline Loans shall be in an aggregate
principal amount of at least $50,000, provided that no partial prepayment of
--------
Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Loans outstanding pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount applicable thereto; (iii) at the
time of any prepayment of Eurodollar Loans pursuant to this Section 4.01 on any
date other than the last day of the Interest Period applicable thereto, the
Borrower shall pay the amounts required pursuant to Section 1.11; (iv) each
prepayment in respect of any Loans made pursuant to a Borrowing shall be applied
(except as provided in clause (b) below) pro rata among the Lenders which made
--- ----
such Loans, provided, that at the Borrower's election in connection with any
--------
prepayment of Revolving Loans pursuant to this Section 4.01(a), such prepayment
shall not be applied to any Revolving Loans of a Defaulting Lender; and (v) each
prepayment of Term Loans pursuant to this Section 4.01(a) shall reduce the
remaining Scheduled Repayments on a pro rata basis (based upon the then
--- ----
remaining principal amount of each such Scheduled Repayment) or, at the
Borrower's election, all or any portion of such prepayment shall reduce, in
direct order of maturity, up to the first four consecutive Scheduled Repayments
due on or after the date of such prepayment.
(b) In the event of a refusal by a Lender to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Lenders as (and to the
extent) provided in Section 12.12(b), the Borrower may, upon five Business Days'
prior written notice to the Administrative Agent at the Notice Office (which
notice the Administrative Agent shall promptly transmit to each of the Lenders)
repay all Loans of, together with accrued and unpaid interest, Fees and other
amounts owing to, such Lender in accordance with, and subject to the
requirements of, said Section 12.12(b) so long as (A) the entire Revolving
Commitment, if any, of such Lender is terminated concurrently with such
repayment pursuant to Section 3.02(b) (at which time Annex I shall be deemed
modified to reflect the changed Revolving Commitments) and (B) the consents
required under Section 12.12(b) in connection therewith have been obtained.
4.02 Mandatory Prepayments.
---------------------
(A) Requirements:
------------
(a) (i) If on any date the sum of the aggregate outstanding principal
amount of Revolving Loans made by Non-Defaulting Lenders, Swingline Loans and
the Letter of Credit Outstandings, exceeds the Adjusted Total Revolving
Commitment as then in effect, the Borrower shall repay on such date the
principal of Swingline Loans, and if no Swingline Loans are or remain
outstanding, Revolving Loans of Non-Defaulting Lenders, in an aggregate amount
equal
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to such excess. If, after giving effect to the repayment of all outstanding
Swingline Loans and Revolving Loans of Non-Defaulting Lenders, the aggregate
amount of Letter of Credit Outstandings exceeds the Adjusted Total Revolving
Commitment then in effect, the Borrower shall pay to the Administrative Agent an
amount in cash and/or Cash Equivalents equal to such excess (up to the aggregate
amount of the Letter of Credit Outstandings at such time) and the Administrative
Agent shall hold such payment as security for the obligations of the Borrower
hereunder pursuant to a cash collateral agreement to be entered into in form and
substance reasonably satisfactory to the Administrative Agent (which shall
permit certain investments for the benefit of the Borrower in Cash Equivalents
reasonably satisfactory to the Administrative Agent).
(ii) If on any date the aggregate outstanding principal amount of the
Revolving Loans made by a Defaulting Lender exceeds the Revolving Commitment of
such Defaulting Lender, the Borrower shall repay principal of Revolving Loans of
such Defaulting Lender in an amount equal to such excess.
(b) On each date set forth below, the Borrower shall be required to
repay the principal amount of A Term Loans in a principal amount set forth
opposite such date (each such repayment, as the same may be reduced as provided
in Sections 4.01 and 4.02(B), a "Scheduled A Repayment"):
Principal Amount
----------------
Scheduled A Repayment Date of A Term Loans
-------------------------- ---------------
December 31, 2000 $1,250,000
March 31, 2001 $1,250,000
June 30, 2001 $1,250,000
September 30, 2001 $1,250,000
December 31, 2001 $1,875,000
March 31, 2002 $1,875,000
June 30, 2002 $1,875,000
September 30, 2002 $1,875,000
December 31, 2002 $2,500,000
March 31, 2003 $2,500,000
June 30, 2003 $2,500,000
September 30, 2003 $2,500,000
December 31, 2003 $3,125,000
March 31, 2004 $3,125,000
June 30, 2004 $3,125,000
September 30, 2004 $3,125,000
December 31, 2004 $3,750,000
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Principal Amount
----------------
Scheduled A Repayment Date of A Term Loans
-------------------------- ---------------
March 31, 2005 $3,750,000
June 30, 2005 $3,750,000
A Maturity Date $3,750,000
(c) On each date set forth below, the Borrower shall be required to
repay the principal amount of B Term Loans in a principal amount set forth
opposite such date (each such repayment, as the same may be reduced as provided
in Sections 4.01 and 4.02(B), a "Scheduled B Repayment"):
Principal Amount of
-------------------
Scheduled B Repayment Date B Term Loans
-------------------------- ------------
December 31, 1999 $275,000
March 31, 2000 $275,000
June 30, 2000 $275,000
September 30, 2000 $275,000
December 31, 2000 $275,000
March 31, 2001 $275,000
June 30, 2001 $275,000
September 30, 2001 $275,000
December 31, 2001 $275,000
March 31, 2002 $275,000
June 30, 2002 $275,000
September 30, 2002 $275,000
December 31, 2002 $275,000
March 31, 2003 $275,000
June 30, 2003 $275,000
September 30, 2003 $275,000
December 31, 2003 $275,000
March 31, 2004 $275,000
June 30, 2004 $275,000
September 30, 2004 $275,000
December 31, 2004 $275,000
March 31, 2005 $275,000
June 30, 2005 $275,000
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Principal Amount of
-------------------
Scheduled B Repayment Date B Term Loans
-------------------------- ------------
September 30, 2005 $ 275,000
December 31, 2005 $25,850,000
March 31, 2006 $25,850,000
June 30, 2006 $25,850,000
B Maturity Date $25,850,000
(d) On the Business Day following the date of receipt thereof by the
Borrower and/or any of its Subsidiaries, if any, of the Cash Proceeds from any
Asset Sale, an amount equal to 100% of the Net Cash Proceeds from such Asset
Sale shall be applied as a mandatory repayment of principal of the then
outstanding Term Loans on a pro rata basis to the A Term Facility and the B Term
--- ----
Facility and to reduce future scheduled amortization payments for each Term
Facility on a pro rata basis (and to the extent in excess thereof, to reduce the
--- ----
Revolving Commitment), provided that (i) up to an aggregate of $1,000,000 of Net
--------
Cash Proceeds from Asset Sales shall not be required to be used to so repay Term
Loans to the extent the Borrower elects, as hereinafter provided, to cause such
Net Cash Proceeds to be reinvested in Reinvestment Assets (a "Reinvestment
Election"), and provided further, that (1) if all or any portion of such Net
-------- -------
Cash Proceeds not so applied to the repayment of the then outstanding Term Loans
are not so used (or contractually committed to be used to purchase assets)
within 360 days, such remaining portion shall be applied on the last day of such
period as a mandatory repayment of principal of outstanding Term Loans as
provided above in this Section 4.02(A)(d) and (2) if all or any portion of such
Net Cash Proceeds are not required to be applied on the 360th day referred to in
clause (1) above because such amount is contractually committed to be used and
subsequent to such date such contract is terminated or expires without such
portion being so used, then such remaining portion shall be applied on the date
of such termination or expiration as a mandatory repayment of principal of
outstanding Term Loans as provided above in this Section 4.02(A)(d). The
Borrower may exercise its Reinvestment Election (within the parameters specified
in the preceding sentence) with respect to an Asset Sale if (x) no Default or
Event of Default then exists and (y) the Borrower delivers a Reinvestment Notice
to the Administrative Agent on the Business Day following the date of the
consummation of the respective Asset Sale, with such Reinvestment Election being
effective with respect to the Net Cash Proceeds of such Asset Sale equal to the
Anticipated Reinvestment Amount specified in such Reinvestment Notice.
(e) On the Business Day after the date of the receipt thereof by the
Borrower and/or any of its Subsidiaries, if any, an amount equal to 100% of the
proceeds (net of underwriting discounts and commissions and other reasonable
costs associated therewith) of the incurrence of Indebtedness by the Borrower
and/or any of its Subsidiaries, if any, (other than Indebtedness permitted by
Section 8.04), shall be applied as a mandatory repayment of principal of the
then outstanding Term Loans on a pro rata basis to the A Term Facility and the B
--- ----
Term Facility and to reduce future scheduled amortization payments for each Term
Facility on a pro rata basis (and to the extent in excess thereof, to reduce the
--- ----
Revolving Commitment).
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(f) On the Business Day after the date of the receipt thereof by the
Borrower or any of its Subsidiaries, if any, an amount equal to 100% of the cash
proceeds (net of underwriting discounts and commissions and other reasonable
costs associated therewith) from any capital contribution or any sale or
issuance of its equity (other than cash proceeds received (i) as part of the
Equity Financing, (ii) from equity issued to management and other employees of
the Borrower and its Subsidiaries, if any, as provided for in Section 8.08(iii)
or (iii) from additional equity issued to any Initial Shareholder) an amount
equal to 100% of any amount of cash received by the Borrower in connection with
such capital contribution or sale or issuance of equity shall be applied as a
mandatory repayment of principal of the then outstanding Term Loans on a pro
---
rata basis to the A Term Facility and the B Term Facility and to reduce future
----
scheduled amortization payments for each Term Facility on a pro rata basis (and
--- ----
to the extent in excess thereof, to reduce the Revolving Commitment).
Notwithstanding anything to the contrary contained above in this Section
4.02(f), 100% of any Capital Call Amount paid to the Borrower pursuant to the
Capital Call Agreement shall be immediately applied as a mandatory repayment of
principal of the then outstanding Term Loans on a pro rata basis to the A Term
--- ----
Facility and the B Term Facility and to reduce future scheduled amortization
payments for each Term Facility on a pro rata basis (and to the extent in excess
--- ----
thereof, to reduce the Revolving Commitment) or, at the Borrower's election, all
or any portion of such prepayment shall reduce, in direct order of maturity, up
to the first eight consecutive Scheduled Repayments due on or after the date of
such prepayment.
(g) Within 30 days following each date on which the Borrower or any
of its Subsidiaries, if any, receives any proceeds from any Recovery Event, an
amount equal to 100% of the proceeds of such Recovery Event (net of reasonable
costs and taxes incurred in connection with such Recovery Event) shall be
applied as a mandatory repayment of principal of the Term Loans, provided that
--------
so long as no Default or Event of Default then exists, such proceeds shall not
be required to be so applied on such date to the extent that (x) the Borrower
has delivered a certificate to the Administrative Agent on or prior to such date
stating that such proceeds shall be used to replace or restore any properties or
assets in respect of which such proceeds were paid within 360 days following the
date of the receipt of such proceeds (which certificate shall set forth the
estimates of the proceeds to be so expended) and (y) the aggregate amount of
proceeds received from Recovery Events in respect of which the Borrower has
delivered a certificate to the Administrative Agent pursuant to the preceding
clause (x) does not exceed $5,000,000, and provided further, that (i) if all or
-------- -------
any portion of such proceeds not required to be applied to the repayment of Term
Loans pursuant to the preceding proviso are not so used (or contractually
committed to be used) within 360 days after the date of the receipt of such
proceeds, such remaining portion shall be applied on the last day of such period
as a mandatory repayment of principal of the Term Loans as provided above in
this Section 4.02(A)(g) and (ii) if all or any portion of such proceeds are not
required to be applied on the 360th day referred to in clause (i) above because
such amount is contractually committed to be used and subsequent to such date
such contract is terminated or expires without such portion being so used, then
such remaining portion shall be applied on the date of such termination or
expiration as a mandatory repayment of principal of outstanding Term Loans as
provided in this Section 4.02(A)(g).
(h) On each date which is 90 days after the last day of each fiscal
year of the Borrower (commencing with the fiscal year ending on December 31,
2000), (i) 75% of Excess Cash Flow, if the Total Leverage Ratio is greater than
or equal to 4.00:1, (ii) 50% of Excess Cash
-22-
Flow, if the Total Leverage Ratio is greater than or equal to 3.00:1 but less
than 4.00:1, or (iii) zero, if the Total Leverage Ratio is less than 3.00:1
(such amount, the "ECF Prepayment Amount") of the Borrower and its Subsidiaries,
if any, for the fiscal year then last ended shall be applied as a mandatory
repayment of principal of the then outstanding Term Loans on a pro rata basis to
--- ----
the A Term Facility and the B Term Facility and to reduce future scheduled
amortization payments for each Term Facility on a pro rata basis (and to the
--- ----
extent in excess thereof, to reduce the Revolving Commitment) or, at the
Borrower's election, all or any portion of such mandatory payment shall reduce,
in direct order of maturity, up to the first four consecutive Scheduled
Repayments due on or after the date of such repayment.
(i) On the Reinvestment Prepayment Date with respect to a
Reinvestment Election, an amount equal to the Reinvestment Prepayment Amount, if
any, for such Reinvestment Election shall be applied as a repayment of the
principal amount of the then outstanding Term Loans on a pro rata basis to the A
--- ----
Term Facility and the B Term Facility and to reduce future scheduled
amortization payments for each Term Facility on a pro rata basis (and to the
--- ----
extent in excess thereof, to reduce the Revolving Commitment).
(j) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full
on the Swingline Expiry Date and (ii) all other then outstanding Loans shall be
repaid in full on the Maturity Date for such Facility.
(k) On the date on which any Change of Control occurs, the
outstanding principal amount of the Loans, if any, shall become due and payable
in full, unless the Required Lenders otherwise agree.
(B) Application:
-----------
With respect to each prepayment of Loans required by Section 4.02, the
Borrower may designate the Types of Loans which are to be prepaid and the
specific Borrowing(s) under the affected Facility pursuant to which made,
provided that (i) Eurodollar Loans may so be designated for prepayment pursuant
--------
to this Section 4.02 only on the last day of an Interest Period applicable
thereto unless all Eurodollar Loans made pursuant to such Facility with Interest
Periods ending on such date of required prepayment and all Base Rate Loans made
pursuant to such Facility have been paid in full; (ii) if any prepayment of
Eurodollar Loans made pursuant to a single Borrowing shall reduce the
outstanding Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount for such Borrowing, such Borrowing shall be immediately
converted into Base Rate Loans; (iii) each prepayment of any Revolving Loans
made by Non-Defaulting Lenders pursuant to a Borrowing shall be applied pro rata
--- ----
among the Lenders which made such Revolving Loans; and (iv) each prepayment of
any Revolving Loans made by Defaulting Lenders pursuant to a Borrowing shall be
applied pro rata among the Defaulting Lenders which made such Revolving Loans.
--- ----
In the absence of a designation by the Borrower as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designation in its sole discretion with a view, but no obligation, to minimize
breakage costs owing under Section 1.11.
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4.03 Method and Place of Payment. Except as otherwise specifically
---------------------------
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable (based on its pro rata share) account of
--- ----
the Lenders entitled thereto, not later than 12 noon (New York time) on the date
when due and shall be made in immediately available funds and in lawful money of
the United States of America at the Payment Office, it being understood that
written notice by the Borrower to the Administrative Agent to make a payment
from the funds in the Borrower's account at the Payment Office shall constitute
the making of such payment to the extent of such funds held in such account.
Any payments under this Agreement which are made later than 12 noon (New York
time) shall be deemed to have been made on the next succeeding Business Day.
Whenever any payment to be made hereunder shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder,
------------
or by any Guarantor on behalf of any Borrower, under any Note or any other
Credit Document, will be made without setoff, counterclaim or other defense.
Except as provided for in Section 4.04(b), all such payments will be made free
and clear of, and without deduction or withholding for, any present or future
taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein (but excluding, except as
provided in the second succeeding sentence, any tax imposed on or measured by
the net income (or any franchise tax that is measured by net income) of a Lender
pursuant to the laws of the jurisdiction in which the principal office or
applicable lending office of such Lender is located or under the laws of any
political subdivision or taxing authority of any such jurisdiction in which the
principal office or applicable lending office of such Lender is located) and all
interest, penalties or similar liabilities with respect thereto (collectively,
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to pay the
full amount of such Taxes and such additional amounts as may be necessary so
that every payment of all amounts due hereunder, under any Note or under any
other Credit Document, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein or in such Note or
in such other Credit Document. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, then the Borrower shall also reimburse each
Lender, upon the written request of such Lender, for taxes imposed on or
measured by the net income of such Lender pursuant to the laws of the
jurisdiction in which such Lender is organized or in which the principal office
or applicable lending office of such Lender is located or of any political
subdivision or taxing authority of any such jurisdiction and for any Taxes as
such Lender shall determine are payable by, or withheld from, such Lender in
respect of amounts paid to or on behalf of such Lender pursuant to this or the
preceding sentence. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes, or any withholding or
deduction on account thereof, is due pursuant to applicable law certified copies
of tax receipts evidencing such payment by the Borrower or Guarantor. The
Borrower agrees to indemnify and hold harmless each Lender lending to such
Borrower, and reimburse such Lender upon its written request, for the amount of
any Taxes so levied or imposed and paid by such Lender. In addition, the
Borrower agrees to pay any present and future stamp, documentary taxes or any
other excise, property, transfer or similar taxes, and any charges relating
thereto, arising from any payment made hereunder or from the execution, delivery
enforcement or registration of, or otherwise in connection with, this Agreement.
-24-
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
agrees to deliver to the Borrower and the Administrative Agent on or prior to
the Initial Borrowing Date, or in the case of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 12.04, on the
date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete exemption under an income tax treaty) (or
successor forms) certifying to such Lender's entitlement as of such date to a
complete exemption from United States withholding tax with respect to payments
to be made under this Agreement and under any Note, or (ii) if the Lender is not
a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect
to a complete exemption under an income tax treaty) pursuant to clause (i)
above, (x) a certificate substantially in the form of Exhibit D (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN (with
respect to the portfolio interest exemption) (or successor form) certifying to
such Lender's entitlement as of such date to a complete exemption from United
States withholding tax with respect to payments of interest to be made under
this Agreement and under any Note. In addition, each Lender agrees that (a)
from time to time after the Initial Borrowing Date, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits
of any income tax treaty), Form W-8BEN (with respect to the portfolio interest
exemption) and a Section 4.04(b)(ii) Certificate, or any successor form, as the
case may be, and such other forms as may be required in order to confirm or
establish the entitlement as of such date of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or it shall immediately notify the
Borrower and the Administrative Agent of its inability to deliver any such form
or certificate in which case such Lender shall not be required to deliver any
such form or certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
12.04(b) and the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, fees or other
amounts payable hereunder for the account of any Lender which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
federal income tax purposes to the extent that such Lender has not provided to
the Borrower U.S. Internal Revenue Service forms that establish a complete
exemption from such deduction or withholding and (y) the Borrower shall not be
obligated pursuant to Section 4.04(a) hereof to gross-up payments to be made to
such Lender, or to indemnify and hold harmless or reimburse such Lender, in
respect of income or similar taxes imposed by the United States if (I) such
Lender has not provided to the Borrower the Internal Revenue Service forms
required to be provided to the Borrower pursuant to this Section 4.04(b) or (II)
in the case of a payment, other than interest, to a Lender described in clause
(ii) above, to the extent that such forms do not establish a complete exemption
from withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.04 and except
as set forth in Section 12.04(b), the Borrower agrees to pay additional amounts
and to indemnify each Lender in the manner set forth in Section 4.04(a)
-25-
(without regard to the identity of the jurisdiction requiring the deduction or
withholding) in respect of any Taxes deducted or withheld by it as described in
the immediately preceding sentence as a result of any changes that are effective
after the Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of such Taxes.
(c) If the Borrower pays any additional amount under this Section
4.04 to a Lender and such Lender determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid (a "Tax Benefit"), such
Lender shall pay to the Borrower an amount that the Lender shall, in its sole
discretion, determine is equal to the net benefit, after tax, which was obtained
by the Lender in such year as a consequence of such Tax Benefit; provided,
--------
however, that (i) any Lender may determine, in its sole discretion consistent
-------
with the policies of such Lender, whether to seek a Tax Benefit; (ii) any Taxes
that are imposed on a Lender as a result of a disallowance or reduction
(including through the expiration of any tax credit carryover or carryback of
such Lender that otherwise would not have expired) of any Tax Benefit with
respect to which such Lender has made a payment to the Borrower pursuant to this
Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated to
indemnify such Lender pursuant to this Section 4.04 without any exclusions or
defenses; and (iii) nothing in this Section 4.04(c) shall require the Lender to
disclose any confidential information to the Borrower (including, without
limitation, its tax returns).
SECTION 5. Conditions Precedent.
--------------------
5.01 Conditions Precedent to Loans on the Initial Borrowing Date.
-----------------------------------------------------------
The obligation of the Lenders to make Loans, and of Letter of Credit Issuers to
issue Letters of Credit, on the Initial Borrowing Date is subject to the
satisfaction of the following conditions at such time:
(a) Effectiveness. The Effective Date shall have occurred.
-------------
(b) Opinions of Counsel. The Administrative Agent shall have
-------------------
received opinions, addressed to the Administrative Agent, and each of the
Lenders and dated the Initial Borrowing Date, from (i) Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel to Xxxxx and the Borrower, which opinion shall cover
the matters contained in Exhibit E-1 hereto, (ii) White & Case LLP, special
counsel to the Administrative Agent, which opinion shall cover the matters
contained in Exhibit E-2 hereto and (iii) from such local counsel, if any,
satisfactory to the Administrative Agent as the Administrative Agent may
request, which opinions shall cover the perfection of the security interests
granted pursuant to the Security Documents and such other matters incident to
the transactions contemplated herein as the Administrative Agent may reasonably
request and shall be in form and substance satisfactory to the Administrative
Agent.
(c) Corporate Proceedings. (i) The Administrative Agent shall have
---------------------
received from the Borrower a certificate, dated the Initial Borrowing Date,
signed by the President or any Executive Vice-President of the Borrower in the
form of Exhibit F with appropriate insertions and deletions, together with (x)
copies of the certificate of incorporation, the by-laws, or other organizational
documents of the Borrower and (y) the resolutions, or such other administrative
-26-
approval, of the Borrower referred to in such certificate and all of the
foregoing (including the certificate of incorporation and by-laws) shall be
satisfactory to the Administrative Agent and (iii) a statement that all of the
applicable conditions set forth in this Xxxxxxx 0.00 (x), (x), (x), (x), (x) and
(k) and 5.02 exist as of such date.
(ii) On the Initial Borrowing Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Documents shall be
satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received all information and copies of all
certificates, documents and papers, including good standing certificates and any
other records of corporate proceedings and governmental approvals, if any, which
the Administrative Agent may have requested in connection therewith, such
documents and papers, where appropriate, to be certified by proper corporate or
governmental authorities.
(d) Adverse Change, etc. From December 31, 1998, nothing shall have
--------------------
occurred (and neither the Lenders nor any Agent shall have become aware of any
facts or conditions not previously known) which any Agent or the Required
Lenders shall determine (i) has had, or is reasonably likely to have, a material
adverse effect on the rights or remedies of the Lenders or the Agents hereunder
or under any other Credit Document, or on the ability of the Credit Parties
taken as a whole to perform their obligations to them, or (ii) has had, or is
reasonably likely to have, a Material Adverse Effect.
(e) Litigation. There shall be no actions, suits or proceedings
----------
pending or, to the knowledge of the Borrower, threatened in writing (i) with
respect to this Agreement or any other Credit Document or (ii) which any Agent
or the Required Lenders shall determine has had, or is reasonably likely to have
(except as and to the extent described in Annex III), (x) a Material Adverse
Effect or (y) a material adverse effect on the rights or remedies of the Lenders
or the Agents hereunder or under any other Credit Document or on the ability of
the Borrower to perform its obligations under the Credit Documents.
(f) Approvals. All material necessary governmental and third party
---------
approvals in connection with the Transaction, the transactions contemplated by
the Documents and/or the Credit Documents shall have been obtained and remain in
effect (other than any such approvals with respect to the Recapitalization which
the Borrower reasonably believes both individually and in the aggregate are not
material to the operations of the Borrower), and all applicable waiting periods
shall have expired or shall have been terminated or waived without any action
being taken by any competent authority which restrains or prevents such
transactions or imposes, in the reasonable judgment of any Agent, materially
adverse conditions upon the consummation of the Transaction. Additionally,
there shall not exist any judgment, order, injunction or other restraint issued
or filed or a hearing seeking injunctive relief or other restraint pending or
notified prohibiting or imposing materially adverse conditions upon the
consummation of the Transaction or the making of Loans or the issuance of the
Letters of Credit.
(g) Security Documents. The Borrower shall have duly authorized,
------------------
executed and delivered a Security Agreement substantially in the form of Exhibit
G (as modified, supplemented or amended from time to time in accordance with the
terms thereof and hereof, the
-27-
"Security Agreement") covering all of the Borrower's present and future Security
Agreement Collateral, together with:
(I) executed copies of Financing Statements (Form UCC-1) in
appropriate form for filing under the UCC of each jurisdiction as may be
necessary to perfect the security interests purported to be created by the
Security Agreement;
(II) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of recent date listing all effective
financing statements that name the Borrower, Acquisition Sub or Unilab Finance
as debtor and that are filed in the jurisdictions referred to in clause (I),
together with copies of such financing statements (none of which shall cover the
Collateral except (x) those with respect to which appropriate termination
statements executed by the secured lender thereunder have been filed or
delivered to the Collateral Agent and (y) to the extent evidencing Permitted
Liens);
(III) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created by the Security Agreement or acceptable
arrangements to effect such recordings and filings have been taken; and
(IV) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect and protect the security
interests purported to be created by the Security Agreement have been taken or
acceptable arrangements to effect such actions have been taken;
and the Security Agreement shall be in full force and effect.
(h) Capital Call Agreement. On or prior to the Initial Borrowing
----------------------
Date, Xxxxx shall have duly authorized, executed and delivered the Capital Call
Agreement in the form of Exhibit H (as amended, modified or supplemented from
time to time, the "Capital Call Agreement") and Xxxxx'x obligations in respect
thereof shall have been assigned to the Collateral Agent for the benefit of the
Lenders in a manner satisfactory to the Collateral Agent.
(i) Solvency. The Borrower shall have delivered, or shall cause to
--------
be delivered to the Administrative Agent, a solvency letter in the form of
Exhibit I hereto dated the Initial Borrowing Date from Xxxxxx, Xxxxxx & Co.
(j) Consummation of the Recapitalization; Equity Financing, etc. (i)
-----------------------------------------------------------
On the Initial Borrowing Date, the Recapitalization shall have been consummated,
(x) pursuant to which Acquisition Sub shall have merged with and into the
Borrower, with the Borrower as the surviving corporation of such merger (the
"Merger") and (y) as a result of which (immediately after giving effect thereto)
(A) Xxxxx and its Affiliates and the other Initial Shareholders shall own
approximately 93.0% of the issued and outstanding shares of Common Stock,
provided that Xxxxx and its Affiliates shall own at least 75% of the issued and
--------
outstanding shares of Common Stock, (B) the Management Investors shall retain
shares of Common Stock with an aggregate value of at least $1,000,000, and (C)
holders of Common Stock (other than the Management Investors and Xxxxx) shall
retain such Common Stock with an aggregate value of at least $10,500,000.
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(ii) On the Initial Borrowing Date, the Borrower shall have (before
giving effect to the financing transactions pursuant to this Agreement and
described herein) at least $18,000,000 of cash on hand, all of which cash on
hand shall be utilized to make payments owing in connection with the Transaction
prior to the utilization of any proceeds of Loans for such purpose.
(iii) On the Initial Borrowing Date, Acquisition Sub shall have
received cash proceeds in an aggregate amount equal to at least $139,500,000
from the issuance of common stock of Acquisition Sub to Xxxxx and its Affiliates
and the other Initial Shareholders as described in (i) of this Section 5.01(j)
and the full amount of such cash proceeds shall have been utilized to make
payments owing in connection with the Transaction prior to the utilization of
any proceeds of Loans for such purpose; provided that the aggregate amount of
--------
such cash proceeds may be reduced by an amount equal to the extent (if any) the
aggregate value of the shares of Common Stock retained by the Management
Investors pursuant to Section 5.01(j)(i)(B) exceeds $1,000,000.
(iv) On or prior to the Initial Borrowing Date, Unilab Finance shall
have received the entire net cash proceeds from the issuance of the Senior
Subordinated Notes in the aggregate amount of at least $150,000,000 free and
clear of any liens (and the escrow agreement in respect thereof, except for the
Sections entitled Indemnity and Concerning the Escrow Agent contained therein,
shall have terminated) and the Borrower shall have assumed the obligations of
Unilab Finance under the Senior Subordinated Notes and shall have utilized the
full amount of such cash proceeds to make payments owing in connection with the
Transaction prior to utilizing any proceeds of Loans for such purpose.
(v) On the Initial Borrowing Date, the Administrative Agent shall
have received true and correct copies of all Documents certified as such by an
appropriate officer of the Borrower, and the foregoing Documents, and all terms
and conditions thereof (including, without limitation, in the case of the Senior
Subordinated Notes Documents, amortization, maturities, interest rates,
limitation on cash interest payable, covenants, defaults, remedies, conversion
features and subordination provisions), as well as the structure of the
Transaction and the ownership interests in Acquisition Sub and the Borrower
prior to and after giving effect to the Transaction, shall be in form and
substance satisfactory to the Agents and the Required Lenders. All conditions
precedent to the consummation of the transaction as set forth in the Documents
entered into on or prior to such date in connection with the Transaction shall
have been satisfied, and not waived unless consented to by the Agents and the
Required Lenders, to the reasonable satisfaction of the Agents and the Required
Lenders. Each of the Recapitalization, the Equity Financing and the issuance of
the Senior Subordinated Notes shall have been consummated in accordance with the
terms and conditions of the applicable Documents and all applicable law.
(k) Refinancing, etc. (i) On the Initial Borrowing Date (after
----------------
having given effect to the Recapitalization) and concurrently with the
incurrence of Loans on such date, approximately $145,000,000 of Indebtedness of
the Borrower as previously identified to the Lenders shall have been repaid in
full, together with all fees and other amounts owing thereon (the "Refinanced
Indebtedness").
-29-
(ii) On the Initial Borrowing Date and concurrently with the
incurrence of Loans on such date, all security interests in respect of, and
Liens securing, the Refinanced Indebtedness shall have been terminated and
released, and the Administrative Agent shall have received all such releases as
may have been requested by the Administrative Agent, which releases shall be in
form and substance satisfactory to the Agents and the Required Lenders. Without
limiting the foregoing, there shall have been delivered to the Administrative
Agent (x) proper termination statements (Form UCC-3 or the appropriate
equivalent) for filing under the UCC of each jurisdiction where a financing
statement (Form UCC-1 or the appropriate equivalent) was filed with respect to
the Borrower or any of its Subsidiaries in connection with the security
interests created with respect to the Refinanced Indebtedness and the
documentation related thereto and (y) terminations or reassignments of any
security interest in, or Lien on, any patents, trademarks, copyrights, or
similar interests of the Borrower or any of its Subsidiaries on which filings
have been made.
(iii) On the Initial Borrowing Date and after giving effect to the
Transaction, the Borrower shall have no Indebtedness outstanding other than (x)
the Loans, (y) the Senior Subordinated Notes, and (z) certain other indebtedness
existing on the Initial Borrowing Date as listed on Annex IV (with the
Indebtedness described in this sub-clause (z) being herein called the "Existing
Indebtedness"). On and as of the Initial Borrowing Date, all of the Existing
Indebtedness and the terms and documentation evidencing such Existing
Indebtedness (including Existing Indebtedness in respect of assumed Capital
Lease Obligations in an aggregate outstanding principal amount not to exceed
$4,500,000, the "Existing Indebtedness Agreements") shall be satisfactory to the
Administrative Agent and shall remain outstanding after giving effect to the
Transaction and the other transactions contemplated hereby without any material
default or event of default existing thereunder or arising as a result of the
Transaction and the other transactions contemplated hereby (except to the extent
amended or waived by the parties thereto on terms and conditions satisfactory to
the Agents and the Required Lenders), and there shall not be any amendments or
modifications to the Existing Indebtedness Agreements other than as requested or
approved by the Agents or the Required Lenders.
(iv) The Administrative Agent shall have received evidence in form,
scope and substance reasonably satisfactory to the Agent and the Required
Lenders that the matters set forth in this Section 5.01(k) have been satisfied
on the Initial Borrowing Date.
(l) Insurance Policies. The Collateral Agent shall have received
------------------
evidence of insurance complying with the requirements of Section 7.03 for the
business and properties of the Borrower in form and substance satisfactory to
the Agent and, with respect to all casualty insurance, naming the Collateral
Agent as an additional insured and loss payee.
(m) Fees. On the Initial Borrowing Date, the Borrower shall have
----
paid to the Agents and the Lenders all Fees and expenses agreed upon by such
parties to be paid on or prior to such date.
(n) Consent Letter. On the Initial Borrowing Date, the
--------------
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, substantially
in the form of Exhibit J, indicating its
-30-
consent to its appointment by the Borrower or the Borrower's agent to receive
service of process as specified in Section 12.08.
(o) Employee Benefit Plans; Shareholders' Agreements; Management
------------------------------------------------------------
Agreements; Employment Agreements; Collective Bargaining Agreements; Material
-----------------------------------------------------------------------------
Contracts; Tax Allocation Agreements. On or prior to the Initial Borrowing
------------------------------------
Date, there shall have been delivered to the Administrative Agent true and
correct copies, certified as true and complete by an appropriate officer of the
Borrower of the following documents, in each case as same will be in effect on
the Initial Borrowing Date after the consummation of the Transaction:
(i) all Plans (and for each Plan that is required to file an annual
report on Internal Revenue Service Form 5500-series, a copy of the most
recent such report (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information), and for each Plan
that is a "single-employer plan," as defined in Section 4001(a)(15) of
ERISA, the most recently prepared actuarial valuation therefor) and any
other "employee benefit plans," as defined in Section 3(3) of ERISA, and
any other material agreements, plans or arrangements, with or for the
benefit of current or former employees of the Borrower or any ERISA
Affiliate (provided that the foregoing shall apply in the case of any
--------
Multiemployer Plan, only to the extent that any document described therein
is in the possession of the Borrower or any ERISA Affiliate) (collectively,
the "Employee Benefit Plans");
(ii) all agreements (including, without limitation, shareholders'
agreements, subscription agreements and registration rights agreements)
entered into by the Borrower governing the terms and relative rights of its
capital stock and any agreements entered into by shareholders relating to
any such entity with respect to its capital stock (collectively, the
"Shareholders' Agreements");
(iii) all material agreements with members of, or with respect to,
the management of the Borrower after giving effect to the Transaction
(collectively, the "Management Agreements");
(iv) any material employment agreements entered into by the Borrower
after giving effect to the Transaction (collectively, the "Employment
Agreements");
(v) all collective bargaining agreements applying or relating to
any employee of the Borrower after giving effect to the Transaction
(collectively, the "Collective Bargaining Agreements");
(vi) all other material contracts and licenses (other than
certificates of need) of the Borrower after giving effect to the
Transaction (collectively the "Material Contracts"); and
(vii) any tax sharing or tax allocation agreements entered into by
the Borrower (collectively, the "Tax Allocation Agreements");
-31-
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Collective Bargaining Agreements, Material
Contracts and Tax Allocation Agreements shall be in form and substance
reasonably satisfactory to the Agents and the Required Lenders and shall be in
full force and effect on the Initial Borrowing Date.
5.02 Conditions Precedent to All Credit Events. The obligation of
-----------------------------------------
each Lender to make Loans (including Loans made on the Initial Borrowing Date)
and the obligation of a Letter of Credit Issuer to issue any Letter of Credit is
subject, at the time of each such Credit Event, to the satisfaction of the
following conditions:
(a) Notice of Borrowing; Letter of Credit Request. The
---------------------------------------------
Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03 with respect to the incurrence of Loans or a Letter
of Credit Request meeting the requirements of Section 2.03 with respect to the
issuance of a Letter of Credit.
(b) No Default; Representations and Warranties. At the time of each
------------------------------------------
Credit Event and also after giving effect thereto, (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties made by
any Credit Party contained herein or in the other Credit Documents shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Credit Event, except to the extent that such representations and warranties
expressly relate to an earlier date, in which case all such representations and
warranties shall be true and correct in all material respects as of such earlier
date.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to the Agents and each of the
Lenders that all of the applicable conditions specified in Section 5.01 (in the
case of the Credit Events occurring on the Effective Date) and/or 5.02, as the
case may be, exist as of that time. All of the certificates, legal opinions and
other documents and papers referred to in Section 5.01, unless otherwise
specified, shall be delivered to the Administrative Agent at its Notice Office
for the account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be satisfactory in form
and substance to the Agents.
SECTION 6. Representations, Warranties and Agreements. In order to
------------------------------------------
induce the Lenders to enter into this Agreement and to make the Loans and issue
and/or participate in Letters of Credit provided for herein, the Borrower makes
the following representations and warranties to, and agreements with, the
Lenders, all of which shall survive the execution and delivery of this Agreement
and the making of the Loans (with the making of each Credit Event thereafter
being deemed to constitute a representation and warranty that the matters
specified in this Section 6 are true and correct in all material respects on and
as of the date of each such Credit Event unless such representation and warranty
expressly indicates that it is being made as of any specific earlier date unless
stated to relate to a specific earlier date, in which case all representations
and warranties specifically relating to an earlier date shall be true and
correct in all material respects as of such earlier date):
6.01 Company Status. Each of the Borrower and its Subsidiaries, if
--------------
any, (i) is a duly organized and validly existing Company in good standing under
the laws of the jurisdiction
-32-
of its organization and has the Company power and authority to own its property
and assets and to transact the business in which it is engaged and presently
proposes to engage and (ii) has duly qualified and is authorized to do business
and is in good standing in all jurisdictions where it is required to be so
qualified and where the failure to be so qualified would have a Material Adverse
Effect.
6.02 Company Power and Authority. Each Credit Party has the Company
---------------------------
power and authority to execute, deliver and carry out the terms and provisions
of the Credit Documents to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Credit Documents to which it is a party. Each Credit Party has duly executed and
delivered each Credit Document to which it is a party and each such Document
constitutes the legal, valid and binding obligation of such Person enforceable
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
6.03 No Violation. Neither the execution, delivery and performance
------------
by any Credit Party of the Credit Documents to which it is a party nor
compliance with the terms and provisions thereof, nor the consummation of the
transactions contemplated therein (i) will contravene any applicable provision
of any law, statute, rule, regulation, order, writ, injunction or decree of any
court or governmental instrumentality, (ii) will materially conflict with or be
inconsistent with or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or (other than
pursuant to the Security Documents) result in the creation or imposition of (or
the obligation to create or impose) any Lien upon any of the property or assets
of the Borrower or any of its Subsidiaries, if any, pursuant to the terms of any
indenture, mortgage, deed of trust, agreement or other instrument to which the
Borrower or any of its Subsidiaries, if any, is a party or by which it or any of
its property or assets are bound or to which it may be subject or (iii) will
violate any provision of the certificate of incorporation, by-laws, certificate
of partnership, partnership agreement, certificate of limited liability company,
limited liability company agreement or equivalent organizational document, as
the case may be, of the Borrower or any of its Subsidiaries.
6.04 Litigation. Except as set forth on Annex III, there are no
----------
actions, suits or proceedings pending or threatened with respect to the Borrower
or any of its Subsidiaries, if any, (i) that are likely to have a Material
Adverse Effect or (ii) that could reasonably be expected to have a material
adverse effect on the rights or remedies of the Lenders or on the ability of any
Credit Party to perform its obligations to them hereunder and under the other
Credit Documents to which it is a party. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon the occurrence of any Credit Event.
6.05 Use of Proceeds; Margin Regulations. (a) The proceeds of all A
-----------------------------------
Term Loans and B Term Loans shall be utilized on the Initial Borrowing Date (i)
to finance a portion of the Refinancing of certain existing Indebtedness of the
Borrower in an aggregate amount not to exceed $145,000,000 and (ii) to finance a
portion of the Recapitalization and to pay certain fees and expenses relating
thereto in an aggregate amount not to exceed $48,400,000.
-33-
(b) The proceeds of all Revolving Loans shall be used for the general
corporate and working capital purposes of the Borrower and its Subsidiaries, if
any; provided, however, that proceeds of Revolving Loans in an aggregate amount
-------- -------
not to exceed $3,000,000 may be utilized by the Borrower for the purposes
described in Section 6.05(a) above.
(c) The proceeds of all Swingline Loans shall be utilized for the
general corporate and working capital purposes of the Borrower and its
Subsidiaries, if any.
(d) Neither the making of any Loan hereunder, nor the use of the
proceeds thereof, will violate or be inconsistent with the provisions of
Regulation T, U or X of the Board of Governors of the Federal Reserve System and
no part of the proceeds of any Loan will be used to purchase or carry any Margin
Stock in violation of Regulation U or to extend credit for the purpose of
purchasing or carrying any Margin Stock.
6.06 Governmental Approvals. Except for filings and recordings in
----------------------
connection with the Security Documents and SEC filings no order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any foreign or domestic governmental or
public body or authority, or any subdivision thereof, is required to authorize
or is required in connection with (i) the execution, delivery and performance of
any Credit Document or (ii) the legality, validity, binding effect or
enforceability of any Credit Document.
6.07 Investment Company Act. Neither the Borrower nor any of its
----------------------
Subsidiaries, if any, is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
6.08 Public Utility Holding Company Act. Neither the Borrower nor any
----------------------------------
of its Subsidiaries, if any, is a "holding company", or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
6.09 True and Complete Disclosure. All factual information (taken as
----------------------------
a whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower or any of its Subsidiaries, if any, or Acquisition Sub in writing to
any Agent or any Lender for purposes of or in connection with this Agreement or
any transaction contemplated herein is, and all other such factual information
(taken as a whole) hereafter furnished by or on behalf of any such Person in
writing to any Lender will be, true and accurate in all material respects on the
date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information (taken as
a whole) not misleading at such time in light of the circumstances under which
such information was provided. The projections and pro forma financial
--- -----
information contained in such materials are based on good faith estimates and
assumptions believed by such Persons to be reasonable at the time made, it being
recognized by the Lenders that such projections as to future events are not to
be viewed as facts and that actual results during the period or periods covered
by any such projections may differ from the projected results. There is no fact
known to the Borrower which would have a Material Adverse Effect, which has not
been disclosed herein or in such other documents, certificates and
-34-
statements furnished to the Lenders for use in connection with the transactions
contemplated hereby.
6.10 Financial Condition; Financial Statements. (a) On and as of the
-----------------------------------------
Initial Borrowing Date, on a pro forma basis after giving effect to the
--- -----
Transaction and to all Indebtedness incurred, and to be incurred, and Liens
created, and to be created, by each Credit Party in connection herewith, (x) the
sum of the assets, at a fair valuation, of the Borrower and its Subsidiaries, if
any, taken as a whole will exceed its debts, (y) the Borrower and its
Subsidiaries, if any, taken as a whole will not have incurred or intended to, or
believe that they will, incur debts beyond their ability to pay such debts as
such debts mature and (z) the Borrower and its Subsidiaries, if any, taken as a
whole will not have unreasonably small capital with which to conduct its
business. For purposes of this Section 6.10, "debt" means any liability on a
claim, and "claim" means (i) right to payment whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured; or (ii)
right to an equitable remedy for breach of performance if such breach gives rise
to a payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b) (i) The consolidated balance sheet of the Borrower at
December 31, 1998 and June 30, 1999 and the related statements of operations and
cash flows of the Borrower for the fiscal year or the six-month period, as the
case may be, ended as of said dates, which, in the case of the December 31, 1998
statements, have been examined by Xxxxxx Xxxxxxxx & Co. independent certified
public accountants, who delivered an unqualified opinion in respect therewith,
and (ii) the pro forma balance sheet of the Borrower as of June 30, 1999, copies
--- -----
of which have heretofore been furnished to each Lender, present fairly the
financial position of such entities at the dates of said statements and the
results for the periods covered thereby (or, in the case of the pro forma
--- -----
balance sheet, presents a good faith estimate of the pro forma financial
--- -----
condition of the Borrower at the date thereof) in accordance with GAAP, except
to the extent provided in the notes to said financial statements and, in the
case of the June 30, 1999 statements, subject to normal and recurring year-end
audit adjustment. All such financial statements (other than the aforesaid pro
---
forma balance sheets) have been prepared in accordance with generally accepted
-----
accounting principles and practices consistently applied except to the extent
provided in the notes to said financial statements. Nothing has occurred since
December 31, 1998 that has had or could reasonably be expected to have a
Material Adverse Effect.
(c) Except as fully reflected in the financial statements and the
notes thereto described in Section 6.10(b), the Indebtedness incurred under this
Agreement and the Senior Subordinated Notes, there were as of the Initial
Borrowing Date no liabilities or obligations with respect to the Borrower or any
of its Subsidiaries, if any, of a nature (whether absolute, accrued, contingent
or otherwise and whether or not due) which, either individually or in aggregate,
would be material to the Borrower and its Subsidiaries, if any, taken as a
whole, except as incurred in the ordinary course of business consistent with
past practices subsequent to December 31, 1998.
6.11 Security Interests. On and after the Initial Borrowing Date,
------------------
each of the Security Documents creates (or after the execution and delivery
thereof will create), as security for the Obligations purported to be secured
thereby, a valid and enforceable perfected security interest in and Lien on all
of the Collateral subject thereto, superior to and prior to the rights of
-35-
all third Persons and subject to no other Liens (except that the Security
Agreement Collateral may be subject to the security interests evidenced by
Permitted Liens relating thereto), in favor of the Collateral Agent for the
benefit of the Lenders. No filings or recordings are required in order to
perfect the security interests created under any Security Document except for
filings or recordings required in connection with any such Security Document
(other than the Pledge Agreement which may be executed and delivered after the
Initial Borrowing Date) which shall have been made upon or prior to (or are the
subject of arrangements, satisfactory to the Administrative Agent, for filing on
or promptly after the date of) the execution and delivery thereof.
6.12 Tax Returns and Payments. Except as set forth on Annex V, the
------------------------
Borrower and each of its Subsidiaries, if any, has filed all federal income tax
returns and all other material tax returns, domestic and foreign, required to be
filed by it and has paid all material taxes and assessments payable by it which
have become due, other than those not yet delinquent and except for those
contested in good faith which are adequately disclosed and fully provided for on
the financial statements of the Borrower and its Subsidiaries, if any, in
accordance with GAAP. The Borrower and each of its Subsidiaries, if any, have
paid, or have provided adequate reserves (in the good faith judgment of the
management of the Borrower) for the payment of, all federal, state and foreign
income taxes applicable for all prior fiscal years and for the current fiscal
year to the date hereof. As of the Initial Borrowing Date there is no material
action, suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of the Borrower or any of its Subsidiaries, if any, threatened by any
authority regarding any taxes relating to the Borrower or any of its
Subsidiaries, if any. Neither the Borrower nor any of its Subsidiaries, if any,
has entered into an agreement or waiver or been requested to enter into an
agreement or waiver extending any statute of limitations relating to the payment
or collection of taxes of the Borrower or any of its Subsidiaries, if any, or is
aware of any circumstances that would cause the taxable years or other taxable
periods of the Borrower or any of its Subsidiaries, if any, not to be subject to
the normally applicable statute of limitations.
6.13 Compliance with ERISA. Each Plan is in substantial compliance
---------------------
with ERISA and the Code; no Reportable Event has occurred with respect to a
Plan; no Plan is insolvent or in reorganization; no Plan has an Unfunded Current
Liability; no Plan has an accumulated or waived funding deficiency, has
permitted decreases in its funding standard account or has applied for an
extension of any amortization period within the meaning of Section 412 of the
Code; neither the Borrower, nor any Subsidiary, if any, nor any ERISA Affiliate
has incurred any material liability to or on account of a Plan pursuant to
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code or expects to incur
any liability (including any indirect, contingent or secondary liability) under
any of the foregoing Sections with respect to any Plan; no proceedings have been
instituted to terminate or appoint a trustee to administer any Plan; no
condition exists which presents a material risk to the Borrower or any
Subsidiary, if any, or any ERISA Affiliate of incurring a liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the Code;
using actuarial assumptions and computation methods consistent with Part 1 of
subtitle E of Title IV of ERISA, the aggregate liabilities of the Borrower and
its Subsidiaries, if any, and its ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the date of the most recent Credit Event,
-36-
would not exceed $5,000,000; no lien imposed under the Code or ERISA on the
assets of the Borrower or any Subsidiary, if any, or any ERISA Affiliate exists
or is likely to arise on account of any Plan; and the Borrower and its
Subsidiaries, if any, do not maintain or contribute to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) which provides benefits to
retired employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA), except to
the extent that all events described in the preceding clauses of this Section
6.13 and then in existence would not, in the aggregate, have or be likely to
have a Material Adverse Effect. With respect to Plans that are multiemployer
plans (within the meaning of Section 4001(a)(3) of ERISA) the representations
and warranties in this Section 6.13 are made to the best knowledge of the
Borrower.
6.14 Subsidiaries. (a) The Borrower has no Subsidiaries on the
------------
Initial Borrowing Date.
(b) Prior to the consummation of the Transaction, Acquisition Sub had
no Subsidiaries.
(c) On and after the Initial Borrowing Date, there are no
restrictions on the Borrower or any of its Subsidiaries, if any, which prohibit
or otherwise restrict the transfer of cash or other assets from any Subsidiary,
if any, of the Borrower to the Borrower, other than prohibitions or restrictions
existing under or by reason of (i) this Agreement, the other Credit Documents or
the Senior Subordinated Note Documents, (ii) applicable law, (iii) customary
non-assignment provisions entered into in the ordinary course of business and
consistent with past practices, (iv) any restriction or encumbrance with respect
to a Subsidiary, if any, of the Borrower imposed pursuant to an agreement which
has been entered into for the sale or disposition of all or substantially all of
the capital stock or assets of such Subsidiary, so long as such sale or
disposition is permitted under this Agreement, and (v) any documents or
instruments governing the terms of any Indebtedness or other obligations secured
by Liens permitted by Section 8.03, provided that such prohibitions or
--------
restrictions apply only to the assets subject to such Liens.
6.15 Patents, etc. The Borrower and each of its Subsidiaries, if
-------------
any, have obtained all material patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the operation of their businesses taken as a whole as
presently conducted and as proposed to be conducted.
6.16 Environmental Matters. (a) Each of the Borrower and its
---------------------
Subsidiaries, if any, is in compliance with all applicable Environmental Laws
governing its business for which failure to comply is likely to have a Material
Adverse Effect, and neither the Borrower nor any of its Subsidiaries, if any, is
liable for any material penalties, fines or forfeitures for failure to comply
with any of the foregoing in the manner set forth above. All licenses, permits,
registrations or approvals required for the business of the Borrower and each of
its Subsidiaries, if any, as conducted as of the Initial Borrowing Date, under
any Environmental Law have been secured and the Borrower and each of its
Subsidiaries, if any, is in substantial compliance therewith, except such
licenses, permits, registrations or approvals the failure to secure or to comply
therewith is not likely to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries, if any, is in any respect in noncompliance with,
breach of or default under any
-37-
applicable writ, order, judgment, injunction, or decree to which the Borrower or
such Subsidiary is a party or which would affect the ability of the Borrower or
such Subsidiary to operate any real property and no event has occurred and is
continuing which, with the passage of time or the giving of notice or both,
would constitute noncompliance, breach of or default thereunder, except in each
such case, such noncompliance, breaches or defaults as are not likely to, in the
aggregate, have a Material Adverse Effect. There are as of the Initial
Borrowing Date no Environmental Claims pending or, to the best knowledge of the
Borrower, threatened, which (a) question the validity, term or entitlement of
the Borrower or any of its Subsidiaries, if any, for any permit, license, order
or registration required for the operation of any facility which the Borrower or
any of its Subsidiaries, if any, currently operates and (b) wherein an
unfavorable decision, ruling or finding would be reasonably likely to have a
Material Adverse Effect. There are no facts, circumstances, conditions or
occurrences on any Real Property or, to the knowledge of the Borrower, on any
property adjacent to any such Real Property that could reasonably be expected
(i) to form the basis of an Environmental Claim against the Borrower, any of its
Subsidiaries, if any, or any Real Property of the Borrower or any of its
Subsidiaries, if any, or (ii) to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such Real
Property under any Environmental Law, except in each such case, such
Environmental Claims or restrictions that individually, or in the aggregate, are
not reasonably likely to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i) generated,
used, treated or stored on, or transported to or from, any Real Property of the
Borrower or any of its Subsidiaries, if any, or (ii) released on any Real
Property, in each case where such occurrence or event individually or in the
aggregate is reasonably likely to have a Material Adverse Effect.
(c) Notwithstanding anything to the contrary in this Section 6.16,
the representations made in this Section 6.16 shall only be untrue if the
aggregate effect of all conditions, failures, noncompliance and Environmental
Claims, in each case of the types described above, would reasonably be expected
to have a Material Adverse Effect.
6.17 Properties. The Borrower and each of its Subsidiaries, if any,
----------
have good and marketable title to all properties owned by them other than as
otherwise permitted by Section 8.03. Annex VI contains a true and complete list
of each Real Property owned or leased by the Borrower or any of its
Subsidiaries, if any, on the Initial Borrowing Date and the type of interest
therein held by the Borrower or the respective Subsidiary, if any.
6.18 Labor Relations. No Credit Party is engaged in any unfair labor
---------------
practice that could reasonably be expected to have a Material Adverse Effect.
There is (i) no unfair labor practice complaint pending against any Credit Party
or threatened against any of them, before the National Labor Relations Board,
and no grievance or arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against any Credit Party or
threatened against any of them, (ii) no strike, labor dispute, slowdown or
stoppage pending against any Credit Party or threatened against any Credit Party
and (iii) no union representation question existing with respect to the
employees of any Credit Party and no union organizing activities are taking
place, except with respect to any matter specified in clause (i), (ii) or (iii)
above, either individually or in the aggregate, such as is not reasonably likely
to have a Material Adverse Effect.
-38-
6.19 Senior Subordinated Notes. On and after the issuance thereof,
-------------------------
the subordination provisions contained in the Senior Subordinated Notes are
enforceable by the Lenders against the Borrower and the holders of such Senior
Subordinated Notes, and all Obligations of the Borrower are or will be within
the definition of "Senior Indebtedness" included in such provisions of the
Senior Subordinated Note Documents.
6.20 Existing Indebtedness. Annex IV sets forth a true and complete
---------------------
list of all Existing Indebtedness, in each case showing the aggregate principal
amount thereof and the name of the respective borrower (or issuer) and any other
entity which directly or indirectly guaranteed such debt.
SECTION 7. Affirmative Covenants. The Borrower covenants and agrees
---------------------
that on the Initial Borrowing Date and thereafter for so long as this Agreement
is in effect and until the Commitments have terminated, no Letters of Credit
(other than Letters of Credit, together with all Fees that have accrued and will
accrue thereon through the stated termination date of such Letters of Credit,
which have either been (a) cash collateralized in a manner satisfactory to the
respective Letter of Credit Issuer or (b) backstopped by a letter of credit or
other security acceptable to the respective Letter of Credit Issuer) or Notes
are outstanding and the Loans and Unpaid Drawings, together with interest, Fees
and all other Obligations (other than any indemnities described in Section 12.13
which are not then due and payable).
7.01 Information Covenants. The Borrower will furnish to each
---------------------
Lender:
(a) Annual Financial Statements. Within 90 days after the close of
---------------------------
each fiscal year of the Borrower, the consolidated balance sheet of the Borrower
and its Subsidiaries, if any, as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and of cash flows for
such fiscal year, in each case setting forth comparative consolidated figures
for the preceding fiscal year, and examined by independent certified public
accountants of recognized national standing whose opinion shall not be qualified
as to the scope of audit and as to the status of the Borrower or any of its
Subsidiaries, if any, as a going concern, together with a certificate of such
accounting firm stating that in the course of its regular audit of the business
of the Borrower, which audit was conducted in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge of any
Default or Event of Default which has occurred and is continuing or, if in the
opinion of such accounting firm such a Default or Event of Default has occurred
and is continuing, a statement as to the nature thereof.
(b) Quarterly Financial Statements. As soon as available and in any
------------------------------
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year, the consolidated balance sheet of the
Borrower and its Subsidiaries, if any, as at the end of such quarterly period
and the related consolidated statements of income and retained earnings and of
cash flows for such quarterly period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, and in each case setting
forth comparative consolidated figures for the related periods in the prior
fiscal year, all of which shall be certified by the chief financial officer or
controller or other Authorized Officer of the Borrower, subject to changes
resulting from audit and normal year-end audit adjustments.
-39-
(c) Monthly Reports. As soon as practicable, and in any event within
---------------
30 days, after the end of each monthly accounting period of each fiscal year
(other than the last monthly accounting period in such fiscal year) the
consolidated balance sheet of the Borrower and its Subsidiaries, if any, as at
the end of such period, and the related consolidated statements of income and
retained earnings for such period, setting forth comparative figures for the
corresponding period of the previous year to the extent available, all of which
shall be certified by the chief financial officer or controller or other
Authorized Officer of the Borrower subject to changes resulting from audit and
normal year-end audit adjustments.
(d) Budgets; etc. Not more than 60 days after the commencement of
------------
each fiscal year of the Borrower, a budget of the Borrower and its Subsidiaries,
if any, in reasonable detail for each of the twelve months of such fiscal year.
Together with each delivery of consolidated financial statements pursuant to
Section 7.01(a), (b) and (c), a comparison of the current year-to-date financial
results against the budgets required to be submitted pursuant to this clause (d)
shall be presented.
(e) Officer's Certificates. At the time of the delivery of the
----------------------
financial statements provided for in Section 7.01(a), (b) and (c), a certificate
of the chief financial officer, controller or other Authorized Officer of the
Borrower to the effect that no Default or Event of Default exists or, if any
Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate, in the case of the certificate delivered pursuant to
Section 7.01(a) and (b), shall set forth the calculations required to establish
(I) the Total Leverage Ratio for the Relevant Test Period ending on the last day
of such fiscal year or period and (II) whether the Borrower and its
Subsidiaries, if any, were in compliance with the provisions of Sections 8.05,
8.07, 8.08(a) (but only to the extent the Borrower has made payments of the type
described in clause (ii) thereof in such period or year), 8.10 and 8.11 as at
the end of such fiscal period or year, as the case may be.
(f) Notice of Default or Litigation. Promptly, and in any event
-------------------------------
within three Business Days (or 10 Business Days in the case of clause (y) below)
after the Borrower obtains knowledge thereof, notice of (x) the occurrence of
any event which constitutes a Default or Event of Default which notice shall
specify the nature thereof, the period of existence thereof and what action the
Borrower proposes to take with respect thereto and (y) the commencement of or
any significant development in any litigation or governmental proceeding pending
against the Borrower or any of its Subsidiaries, if any, which is reasonably
likely to have a Material Adverse Effect or is likely to have a material adverse
effect on the ability of the Borrower or any Credit Party to perform its
obligations hereunder or under any other Credit Document.
(g) Auditors' Reports. Promptly upon receipt thereof, a copy of each
-----------------
other final report or "management letter" submitted to the Borrower by its
independent accountants in connection with any annual, interim or special audit
made by it of the books of the Borrower.
(h) Environmental Matters. Promptly after obtaining knowledge of any
---------------------
of the following (but only to the extent that any of the following could
reasonably be expected to have a Material Adverse Effect, either individually or
in the aggregate) written notice of:
-40-
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries, if any, or any Real Property owned or
operated by the Borrower or any of its Subsidiaries, if any;
(ii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries, if any, that (x)
results in noncompliance by the Borrower or any of its Subsidiaries, if
any, with any applicable Environmental Law or (y) could reasonably be
anticipated to form the basis of an Environmental Claim against the
Borrower or any of its Subsidiaries, if any, or any such Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries, if any, that could
reasonably be anticipated to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability by the
Borrower or its Subsidiary, if any, as the case may be, of its interest in
such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real Property
owned or operated by the Borrower or any of its Subsidiaries, if any.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower's response or proposed response thereto. In addition, the Borrower
agrees to provide the Lenders with copies of all material communications by the
Borrower or any of its Subsidiaries, if any, with any Person, government or
governmental agency relating to any of the matters set forth in clauses (i)-(iv)
above, and such detailed reports relating to any of the matters set forth in
clauses (i)-(iv) above as may reasonably be requested by the Administrative
Agent or the Required Lenders.
(i) Other Information. Promptly upon transmission thereof, (i)
-----------------
copies of any filings and registrations with, and reports to, the Securities and
Exchange Commission or any successor thereto (the "SEC") by the Borrower or any
of its Subsidiaries, if any (ii) copies of any material complaints or
correspondence received from the Federal Trade Commission and/or the postal
service (x) regarding compliance with the Federal Trade Commission Act, as
amended (15 U.S.C. Subsection 45) or (y) in connection with advertising
materials distributed by the Borrower, and (iii) with reasonable promptness,
such other information or documents (financial or otherwise) as the
Administrative Agent or the Required Lenders may reasonably request from time to
time.
7.02 Books, Records and Inspections. The Borrower will, and will
------------------------------
cause its Subsidiaries, if any, to, permit, upon reasonable notice to the chief
financial officer, controller or any other Authorized Officer of the Borrower
(except when a Default or Event of Default has occurred and is continuing, in
which case, no notice shall be required) (x) officers and designated
representatives of any Agent or the Required Lenders to visit and inspect any of
the properties or assets of the Borrower and any of its Subsidiaries, if any, in
whomsoever's possession, and to examine the books of account of the Borrower and
any of its Subsidiaries, if any, and discuss the affairs, finances and accounts
of the Borrower and of any of its Subsidiaries, if any, with, and be advised as
to the same by, its and their officers and independent accountants, all at such
reason-
-41-
able times and intervals and to such reasonable extent as any Agent or the
Required Lenders may desire and (y) if an Event of Default has occurred and is
continuing, any Agent, or a third party designated by such Agent, to conduct, at
the Borrower's expense, an audit of the accounts receivable and inventories of
the Borrower and its Subsidiaries, if any, at such times as such Agent shall
reasonably require.
7.03 Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries, if any, to, at all times maintain in full force and effect
insurance in such amounts, covering such risks and liabilities and with such
deductibles or self-insured retentions as are in accordance with normal industry
practice. At any time that insurance at the levels described in Annex VII is
not being maintained by the Borrower and its Subsidiaries, if any, the Borrower
will notify the Lenders in writing thereof and, if thereafter notified by any
Agent to do so, the Borrower will, and will cause its Subsidiaries, if any, to,
obtain insurance at such levels at least equal to those set forth in Annex VII
to the extent then generally available or otherwise as are acceptable to such
Agent. The Borrower will, and will cause each of its Subsidiaries, if any, to,
furnish on the Initial Borrowing Date and annually thereafter to the
Administrative Agent a summary of the insurance carried together with
certificates of insurance and other evidence of such insurance, if any, naming
the Collateral Agent as an additional insured and/or loss payee.
7.04 Payment of Taxes. The Borrower will pay and discharge, and will
----------------
cause each of its Subsidiaries, if any, to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge upon any properties of the Borrower or any of its
Subsidiaries, if any, provided that neither the Borrower nor any Subsidiary, if
--------
any, shall be required to pay any such tax, assessment, charge, levy or claim
which is being contested in good faith and by proper proceedings if it has
maintained adequate reserves (in the good faith judgment of the management of
the Borrower) with respect thereto in accordance with GAAP.
7.05 Consolidated Corporate Franchises. The Borrower will do, and
---------------------------------
will cause each Subsidiary, if any, to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence, material
rights and authority except to the extent any such action or omission would not
be reasonably likely to have a Material Adverse Effect, provided that any
--------
transaction permitted by Section 8.02 will not constitute a breach of this
Section 7.05.
7.06 Compliance with Statutes, etc. The Borrower will, and will
------------------------------
cause each Subsidiary to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property other than those the non-compliance with which would not have a
Material Adverse Effect or would not have a material adverse effect on the
ability of any Credit Party to perform its obligations under any Credit Document
to which it is party.
7.07 ERISA. As soon as possible and, in any event, within 10 days
-----
after the Borrower or any of its Subsidiaries, if any, knows or has reason to
know of the occurrence of any of the following, the Borrower will deliver to
each of the Lenders a certificate of the chief financial officer of the Borrower
setting forth details as to such occurrence and such action, if
-42-
any, which the Borrower, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC,
a Plan participant (other than notices relating to an individual participant's
benefits) or the Plan administrator with respect thereto: that a Reportable
Event has occurred; that an accumulated funding deficiency has been incurred or
an application is reasonably likely to be or has been made to the Secretary of
the Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that a
Plan which has an Unfunded Current Liability has been or may be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA; that a
Plan has an Unfunded Current Liability and there is a failure to make a required
contribution, which gives rise to a lien under ERISA or the Code; that
proceedings are reasonably likely to be or have been instituted to terminate a
Plan which has an Unfunded Current Liability; that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent contribution
to a Plan; that the Borrower, any Subsidiary, if any, or any ERISA Affiliate
will or is reasonably likely to incur any liability (including any contingent or
secondary liability) to or on account of the termination of or withdrawal from a
Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409, 502(i) or 502(l) of ERISA or that the Borrower or any Subsidiary,
if any, may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan (as defined in Section 3(2) of ERISA) and, in any such
case, such an event would not be reasonably likely to have a Material Adverse
Effect. Upon request of a Lender, the Borrower will deliver to such Lender a
complete copy of the annual report (Form 5500) of each Plan required to be filed
with the Internal Revenue Service. In addition to any certificates or notices
delivered to the Lenders pursuant to the first sentence hereof, copies of any
annual reports and any other material notices received by the Borrower or any
Subsidiary, if any, with respect to a Plan shall be delivered to the Lenders no
later than 10 days after the later of the date such notice has been filed with
the Internal Revenue Service or the PBGC, given to Plan participants (other than
notices relating to an individual participant's benefits) or received by the
Borrower or such Subsidiary.
7.08 Good Repair. The Borrower will, and will cause each of its
-----------
Subsidiaries, if any, to, ensure that its properties and equipment used or
useful in its business in whomsoever's possession they may be, are kept in good
repair, working order and condition, normal wear and tear excepted, and, subject
to Section 8.05, that from time to time there are made in such properties and
equipment all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner
useful or customary for companies in similar businesses.
7.09 End of Fiscal Years; Fiscal Quarters. The Borrower will, for
------------------------------------
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', if any, fiscal years to end on December 31 of each year and (ii)
each of its, and each of its Subsidiaries', if any, fiscal quarters to end on
March 31, June 30, September 30 and December 31 of each year.
7.10 Use of Proceeds. All proceeds of the Loans shall be used as
---------------
provided in Section 6.05.
-43-
7.11 Additional Security; Further Assurances. (a) The Borrower
---------------------------------------
will, and will cause its Domestic Subsidiaries, if any, to, grant to the
Collateral Agent security interests and mortgages (each, an "Additional
Mortgage") in such owned Real Property of the Borrower and its Subsidiaries as
may be requested from time to time by the Administrative Agent. All such
security interests and mortgages shall be granted pursuant to documentation
reasonably satisfactory in form and substance to the Administrative Agent and
shall constitute valid and enforceable Liens superior to and prior to the rights
of all third Persons and subject to no other Liens except as are permitted by
Section 8.03. The Additional Mortgages or instruments related thereto shall
have been duly recorded or filed in such manner and in such places as are
required by law to establish, perfect, preserve and protect the Liens in favor
of the Collateral Agent required to be granted pursuant to the Additional
Mortgages and all taxes, fees and other charges payable in connection therewith
shall have been paid in full.
(b) The Borrower will, and will cause its Domestic Subsidiaries, if
any, to, at the expense of the Borrower, make, execute, endorse, acknowledge,
file and/or deliver to the Collateral Agent from time to time such vouchers,
invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, the
Borrower shall cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be requested by the
Collateral Agent to assure themselves that this Section 7.11 has been complied
with.
(c) The Borrower agrees that each action required above by this
Section 7.11 shall be completed as soon as possible, but in no event later than
60 days after such action is requested to be taken by the Collateral Agent or
the Required Lenders, provided that in no event shall the Borrower be required
--------
to take any action, other than using its reasonable commercial efforts without
any material expenditure, to obtain consents from third parties with respect to
its compliance with this Section 7.11.
7.12 Compliance with Environmental Laws. (a) (i) The Borrower will
----------------------------------
comply, and will cause each of its Subsidiaries, if any, to comply, with all
Environmental Laws applicable to the ownership, lease or use of all Real
Property now or hereafter owned, leased or operated by the Borrower or any
Subsidiary, if any, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (ii) neither the Borrower nor any of its Subsidiaries
will generate, use, treat, store, release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of Hazardous Materials
on any Real Property now or hereafter owned, leased or operated by the Borrower
or any of its Subsidiaries, or transport or permit the transportation of
Hazardous Materials to or from any such Real Property, except in compliance with
all Environmental Laws and except to the extent that the failure to comply with
the requirements specified in clause (i) or (ii) above, either individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
-44-
(b) At the written request of the Administrative Agent, the Borrower
or any of its Subsidiaries will provide, at their sole cost and expense, an
environmental site assessment report concerning any of their Real Properties,
prepared by an environmental consulting firm approved by the Administrative
Agent, which approval shall not be unreasonably withheld, indicating the
presence or absence of Hazardous Materials and the potential cost of any removal
or remedial action in connection with any Hazardous Materials on such Real
Property, provided that such request shall be made only if either (i) there
--------
exists an Event of Default under Section 9.02 or 9.03 or (ii) the Lenders
receive notice under Section 6.16 or this Section 7.12. If the Borrower or its
Subsidiaries fails to provide such environmental site assessment report within
90 days after such request was made, the Administrative Agent may order the
same, and the Borrower and its Subsidiaries shall grant and hereby grant to the
Administrative Agent and the Lenders and their agents access to such Property
and specifically grants the Administrative Agent and the Lenders an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such an
assessment, all at the Borrower's expense.
7.13 Interest Rate Agreements. The Borrower will, no later than the
------------------------
date occurring 90 days after the Initial Borrowing Date, enter into Interest
Rate Agreements which cover, together with any Indebtedness on which interest
accrues at a fixed rate, for the period from the date thereof to at least three
years from the Initial Borrowing Date, 50% or more of the aggregate outstanding
principal amount of Term Loans and Senior Subordinated Notes, in each case on
terms reasonably satisfactory to the Administrative Agent and the Borrower.
7.14 Year 2000 Compliance. The Borrower will ensure that its
--------------------
Information Systems and Equipment are at all times after November 30, 1999 Year
2000 Compliant in all material respects, and shall notify the Administrative
Agent and each Lender promptly upon detecting any material failure of the
Information Systems and Equipment to be Year 2000 Compliant. In addition, the
Borrower shall provide the Administrative Agent and each Lender with such
information about its year 2000 computer readiness (including, without
limitation, information as to contingency plans, budgets and testing results) as
the Administrative Agent or such Lender shall reasonably request.
SECTION 8. Negative Covenants. The Borrower hereby covenants and
------------------
agrees that as of the Initial Borrowing Date and thereafter for so long as this
Agreement is in effect and until the Commitments have terminated, no Letters of
Credit (other than Letters of Credit, together with all fees that have and will
accrue thereon through the stated termination date of such Letter of Credit,
which have either been (a) cash collateralized in a manner satisfactory to the
respective Letter of Credit Issuer or (b) backstopped by a Letter of Credit or
other security acceptable to the respective Letter of Credit) or Notes are
outstanding and the Loans and Unpaid Drawings, together with interest, Fees and
all other Obligations incurred hereunder, are paid in full:
8.01 Changes in Business. The Borrower will not, and will not permit
-------------------
any of its Subsidiaries, if any, to, materially alter the character of the
business of the Borrower and its Subsidiaries from that conducted at the Initial
Borrowing Date, provided that this Section 8.01 shall not restrict the making of
--------
any investment expressly permitted by Section 8.06.
-45-
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc. The
-------------------------------------------------------
Borrower will not, and will not permit any Subsidiary to, wind up, liquidate or
dissolve its affairs, or enter into any transaction of merger or consolidation,
sell or otherwise dispose of all or any part of its property or assets (other
than inventory or obsolete equipment or excess equipment no longer needed in the
conduct of the business in the ordinary course of business) or purchase, lease
or otherwise acquire all or any part of the property or assets of any Person
(other than purchases or other acquisitions of inventory, leases, materials and
equipment in the ordinary course of business) or agree to do any of the
foregoing at any future time (unless such agreement is expressed to be subject
to the consent of the requisite Lenders hereunder or provides for or
contemplates a contemporaneous repayment of the Obligations), except that the
following shall be permitted:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into, or be liquidated into, the Borrower or a Guarantor (so long
as the Borrower or such Guarantor is the surviving corporation), or all or
any part of its business, properties and assets may be conveyed, leased,
sold or transferred to the Borrower or any Guarantor (or any other
Subsidiary), provided that neither the Borrower nor any Guarantor may be a
--------
party to any merger, consolidation or liquidation otherwise permitted
by this clause (a) involving a Subsidiary that is not a Wholly-Owned
Subsidiary;
(b) capital expenditures to the extent within the limitations set
forth in Section 8.05 hereof;
(c) the investments, acquisitions and transfers or dispositions of
properties permitted pursuant to Section 8.06;
(d) each of the Borrower and the Guarantors may lease (as lessee)
real or personal property in the ordinary course of business (so long as
such lease does not create a Capitalized Lease Obligation not otherwise
permitted by Section 8.04(d));
(e) licenses or sublicenses by the Borrower and its Guarantors of
software, customer lists, trademarks and other intellectual property in the
ordinary course of business, provided, that such licenses or sublicenses
--------
shall not interfere with the business of the Borrower or any Guarantor;
(f) other sales or dispositions of assets in the ordinary course of
business, provided that (w) the aggregate Net Cash Proceeds received from
--------
all such sales and dispositions shall not exceed $500,000 in any fiscal
year of the Borrower, (x) each such sale shall be in an amount at least
equal to the fair market value thereof (as determined by the Board of
Directors of the Borrower in the case of sales in excess of $100,000) and
for proceeds consisting solely of not less than (A) 80% cash and (B) seller
indebtedness evidenced by promissory notes which notes shall be pledged and
delivered to the Collateral Agent pursuant to the Pledge Agreement, which
if not previously executed and delivered prior to the date of such Asset
Sale shall be then executed and delivered at the time thereof, and (y) the
Net Cash Proceeds of any such sale are applied to repay the Loans to the
extent required by Section 4.02(A)(d), and provided further, that the sale
----------------
or disposition of the capital stock of any Subsidiary of the Borrower shall
be prohibited
-46-
unless it is for all of the outstanding capital stock of such
Subsidiary owned by the Borrower or any Guarantor;
(g) other sales or dispositions of assets in each case to the extent
the Required Lenders have consented in writing thereto and subject to such
conditions as may be set forth in such consent;
(h) any Subsidiary may be liquidated into the Borrower or a
Guarantor;
(i) acquisitions and dispositions of Permitted Joint Ventures in
accordance with Section 8.06(g);
(j) the Borrower or any Guarantor may make any (x) acquisition
(including by merger or consolidation) by a Credit Party of 100% of the
capital stock and other equity or ownership interests in a Person or (y)
acquisition of all or substantially all of the property and activities of a
Person or a business with the Person whose stock, other interest or
property are acquired or the business whose property and activities are
acquired to be engaged in the United States (each a "Permitted
Acquisition") to the extent that: (A) no Default or Event of Default
exists at the time of such acquisition or would result therefrom, (B) the
Borrower shall be in compliance at the time of such acquisition with
Sections 8.10 and 8.11 determined on a Pro Forma Basis as if such
--- -----
acquisition, and the incurrence of any Indebtedness to finance same, were
effected on the first day of the last Test Period then ended, (C) the
aggregate consideration paid in connection therewith (including the
principal amount of Indebtedness assumed in connection therewith or the
fair market value of capital stock or assets) of all such Permitted
Acquisitions shall not exceed $15,000,000 per annum in cash plus (I) the
----
fair market value of any capital stock of the Borrower issued as
consideration for any such Permitted Acquisition and (II) the cash proceeds
of any capital stock of the Borrower issued in connection with any such
Permitted Acquisition and (D) the chief financial officer of the Borrower
shall have provided to the Administrative Agent prior to consummation of
any such acquisition a detailed certificate setting forth compliance with
the foregoing clauses (A) through (D); and
(k) the consummation of the Merger and the Recapitalization.
8.03 Liens. The Borrower will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any such Subsidiary whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to the
Borrower or any of its Subsidiaries) or assign any right to receive income, or
file or permit the filing of any financing statement under the UCC or any other
similar notice of Lien under any similar recording or notice statute, except:
(a) Liens for taxes not yet due or Liens for taxes being contested
in good faith and by appropriate proceedings for which adequate reserves
(in the good faith judgment of the management of the Borrower) have been
established;
-47-
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business, such as carriers', warehousemen's and mechanics' Liens,
statutory landlord's Liens, and other similar Liens arising in the ordinary
course of business, and (x) which do not in the aggregate materially
detract from the value of such property or assets or materially impair the
use thereof in the operation of the business of the Borrower or any
Subsidiary or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement or the other
Credit Documents;
(d) Liens on assets of the Borrower and each Subsidiary, if any,
existing on the Initial Borrowing Date and listed on Annex VIII hereto,
without giving effect to any subsequent extensions or renewals thereof;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09;
(f) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations incurred in the
ordinary course of business (exclusive of obligations in respect of the
payment for borrowed money);
(g) leases or subleases granted to others not interfering in any
material respect with the business of the Borrower or any of its
Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(i) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(j) purchase money Liens securing payables arising from the purchase
by the Borrower or any Guarantor of any equipment or goods in the normal
course of business, provided that such payables shall not constitute
--------
Indebtedness;
(k) any interest or title of a lessor under any lease permitted by
this Agreement;
(l) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price of assets
acquired by the Borrower or any Guarantor, provided that any such Liens
--------
attach only to the assets so acquired and
-48-
that all Indebtedness secured by Liens created pursuant to this clause (l)
shall not exceed $2,500,000 at any time outstanding;
(m) Liens created pursuant to Capital Leases permitted pursuant to
Section 8.04(d); and
(n) Liens securing Indebtedness not in excess of $4,000,000 at any
time outstanding.
8.04 Indebtedness. The Borrower will not, and will not permit any of
------------
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Indebtedness owing by (i) any Guarantor to another Guarantor or
the Borrower, (ii) any other Subsidiary to another Subsidiary that is not a
Guarantor and (iii) the Borrower to any Guarantor;
(c) Indebtedness of the Borrower incurred under the Senior
Subordinated Notes and the other Senior Subordinated Note Documents
delivered in connection therewith shall not exceed $155,000,000 at any
time;
(d) Capitalized Lease Obligations of the Borrower and each
Guarantor, provided that the aggregate Capitalized Lease Obligations under
--------
all Capital Leases entered into after the Initial Borrowing Date shall not
exceed $10,000,000;
(e) Existing Indebtedness, without giving effect to any subsequent
extension, renewal or refinancing thereof;
(f) Indebtedness under Interest Rate Agreements relating to the
Loans on terms and conditions satisfactory to the Agents to the extent
determined, in good faith by the Borrower, to be non-speculative in nature;
(g) Indebtedness of the Borrower represented by the obligations of
the Borrower (which are subordinated to the Obligations) to make payments
with respect to the cancellation or repurchase of certain stock of
officers, employees and directors (or their estates) of the Borrower and
its Subsidiaries, if any, to the extent permitted by Section 8.08;
(h) Indebtedness incurred pursuant to purchase money mortgages
permitted by Section 8.03(l); and
(i) additional Indebtedness of the Borrower and the Guarantors not
to exceed an aggregate outstanding principal amount of $20,000,000 at any
time.
-49-
8.05 Capital Expenditures. (a) The Borrower will not, and will not
--------------------
permit any of its Subsidiaries to, incur Consolidated Capital Expenditures,
provided that the Borrower and the Guarantors may make Consolidated Capital
--------
Expenditures of up to $7,000,000 in any fiscal year.
(b) In the event that the maximum amount which is permitted to be
expended in respect of Consolidated Capital Expenditures during any fiscal year
pursuant to Section 8.05(a) (without giving effect to this clause (b)) is not
fully expended during such fiscal year, the maximum amount which may be expended
during the immediately succeeding fiscal year pursuant to Section 8.05(a) shall
be increased by such unutilized amount, provided that such increase shall not
--------
exceed $3,000,000 in any fiscal year.
(c) In addition to the foregoing, the Borrower may make Consolidated
Capital Expenditures in amounts in excess of those permitted under Sections
8.05(a) and (b), (i) constituting Reinvestment Assets acquired pursuant to
Section 4.02(A)(d) or resulting from Recovery Events acquired pursuant to
Section 4.02(A)(g) or (ii) in an amount not to exceed the Available Excess Cash
Flow Amount at the time of such additional Consolidated Capital Expenditure
(determined before giving effect to the making of such additional Consolidated
Capital Expenditure).
8.06 Advances, Investments and Loans. The Borrower will not, and
-------------------------------
will not permit any of its Subsidiaries to, lend money or credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to any
Person, except:
(a) the Borrower or any Subsidiary may invest in cash and Cash
Equivalents;
(b) the Borrower and any Subsidiary may acquire and hold receivables
owing to them, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms
(including the dating of receivables and extensions of payment in the
ordinary course of business consistent with past practices) of the
Borrower;
(c) the intercompany Indebtedness described in Section 8.04(b) shall
be permitted;
(d) loans and advances to employees in the ordinary course of
business in an aggregate principal amount not to exceed $1,000,000 at any
time outstanding shall be permitted;
(e) the Borrower and each Guarantor, if any, may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement
of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(f) Interest Rate Agreements permitted by Section 8.04(f) shall be
permitted;
(g) the Borrower or any Guarantor, if any, may make investments in
Permitted Joint Ventures not to exceed $2,500,000 (plus amounts returned to
the Borrower as a
-50-
result of sales of such investment or pursuant to a dividend payment
thereunder), in the aggregate plus the Available Excess Cash Flow Amount at
----
the time of the making thereof (before giving effect thereto);
(h) the Borrower may make contributions to an employee stock
ownership plan, provided such contributions are in Common Stock;
(i) the Borrower may hold the promissory notes acquired in
accordance with Section 8.02(f);
(j) the Borrower may make investments constituting Permitted
Acquisitions;
(k) the Borrower may consummate the Recapitalization; and
(l) the Borrower or any of its Subsidiaries may make additional
loans, advances and investments not covered by clauses (a) through (k) of
this Section 8.06 not to exceed an aggregate amount of $5,000,000 at any
time.
8.07 Prepayments of Indebtedness, etc. The Borrower will not, and
---------------------------------
will not permit any of its Subsidiaries, if any, to:
(a) other than with respect to the Refinanced Indebtedness, make (or
give any notice in respect thereof) any voluntary or optional payment or
prepayment or redemption or acquisition for value of (including, without
limitation, by way of depositing with the trustee with respect thereto
money or securities before due for the purpose of paying when due) or
exchange of the Senior Subordinated Notes or any Existing Indebtedness
(other than in connection with the exchange offer as contemplated by the
Senior Subordinated Notes Documents);
(b) amend or modify, or permit the amendment or modification of, any
provisions of the Senior Subordinated Note Documents;
(c) amend or modify, or permit the amendment or modification of, any
provisions of any of the Documents (other than the Senior Subordinated Note
Documents) entered into in connection with the Transaction if such
amendment or modification would have a Material Adverse Effect or a
Material Adverse Effect on the rights or remedies of the Lenders or the
Agents hereunder or under any other Credit Document, or on the ability of
the Credit Parties taken as a whole to perform their obligations to them;
and/or
(d) amend, modify or change in any manner materially adverse to the
interests of the Lenders the certificate of incorporation (including,
without limitation, by the filing of any certificate of designation) or by-
laws of the Borrower or any agreement entered into by the Borrower with
respect to its capital stock or enter into any new agreement in any manner
materially adverse to the interests of the Lenders with respect to the
capital stock of the Borrower.
8.08 Dividends. The Borrower will not, and will not permit any of
---------
its Subsidiaries, if any, to, declare or pay any dividends (other than dividends
payable solely in
-51-
Qualified Stock of such Person) or return any capital to, its stockholders or
authorize or make any other distribution, payment or delivery of property or
cash to its stockholders as such, or redeem, retire, purchase or otherwise
acquire, directly or indirectly, for a consideration, any shares of any class of
its capital stock now or hereafter outstanding (or any warrants for or options
or stock appreciation rights in respect of any of such shares), or set aside any
funds for any of the foregoing purposes, or permit any of its Subsidiaries to
purchase or otherwise acquire for consideration (other than consideration
payable solely in Qualified Stock) any shares of any class of the capital stock
of the Borrower or any other Subsidiary, as the case may be, now or hereafter
outstanding (or any options or warrants or stock appreciation rights issued by
such Person with respect to its capital stock) (all of the foregoing
"Dividends"), except that:
(i) any Subsidiary of the Borrower may pay dividends to the
Borrower or to a Guarantor;
(ii) any Subsidiary of the Borrower that is a Permitted Joint
Venture may pay cash Dividends to its shareholders or partners generally,
so long as the Borrower or its respective Subsidiary which owns the equity
interest or interests in the Subsidiary paying such Dividends receives at
least its proportionate share thereof (based upon its relative holdings of
equity interest in the Subsidiary paying such Dividends and taking into
account the relative preferences, if any, of the various classes of equity
interests in such Subsidiary or the terms of any agreements applicable
thereto); and
(iii) the Borrower may redeem or repurchase Common Stock (or
options to purchase such Common Stock) from (1) officers, employees and
directors (or their estates) upon the death, permanent disability,
retirement or termination of employment of any such Person or otherwise in
accordance with any stock option plan or any employee stock ownership plan,
or (2) other stockholders of the Borrower, so long as the purpose of such
purchase is to acquire Common Stock for reissuance to new officers,
employees and directors (or their estates) of the Borrower to the extent so
reissued within 12 months of any such purchase, provided that in all such
--------
cases (A) no Default or Event of Default is then in existence or would
arise therefrom and (B) the aggregate amount of all cash paid in respect of
all such shares so redeemed or repurchased in any calendar year does not
exceed $2,000,000 and, to the extent such maximum amount of cash permitted
to be expended in respect of any such redemption or repurchase during any
fiscal year is not fully expended during such fiscal year, the maximum
aggregate amount of cash which may be expended during the immediately
succeeding fiscal year shall be increased by such unutilized amount plus
----
(I) proceeds of key-man life insurance used for the purposes set forth in
subclause (2) and (II) the Available Excess Cash Flow Amount at the time of
any such redemption and repurchase (before giving effect thereto) and,
provided further, that in the event that the Borrower subsequently resells
-------- -------
to any member of its, or any Guarantors', management any shares
redeemed or repurchased pursuant to this clause (ii), the amount of
repurchases the Borrower may make from Management Investors pursuant to
this clause (ii) shall be increased by an amount equal to any cash received
by the Borrower upon the resale of such shares.
8.09 Transactions with Affiliates. The Borrower will not, and will
----------------------------
not permit any Subsidiary to, enter into any transaction or series of
transactions after the Initial Borrowing Date
-52-
whether or not in the ordinary course of business, with any Affiliate other than
on terms and conditions substantially as favorable to the Borrower or such
Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time
in a comparable arm's-length transaction with a Person other than an Affiliate,
provided that the foregoing restrictions shall not apply to (i) transactions
--------
with its Affiliates set forth in Annex IX hereto, (ii) employment arrangements
entered into in the ordinary course of business with officers of the Borrower
and its Subsidiaries, if any, (iii) customary fees paid to members of the Board
of Directors of the Borrower and of its Subsidiaries, if any, and (iv) dividends
permitted pursuant to Section 8.08.
8.10 Interest Coverage Ratio. The Borrower will not permit the
-----------------------
Interest Coverage Ratio for any Test Period ending on the date set forth below
to be less than the ratio set forth opposite such date:
Fiscal Quarter Ended Ratio
-------------------- -----
December 31, 1999 1.40:1.0
March 31, 2000 1.40:1.0
June 30, 2000 1.40:1.0
September 30, 2000 1.45:1.0
December 31, 2000 1.50:1.0
March 31, 2001 1.50:1.0
June 30, 2001 1.50:1.0
September 30, 2001 1.50:1.0
December 31, 2001 1.60:1.0
March 31, 2002 1.60:1.0
June 30, 2002 1.60:1.0
September 30, 2002 1.60:1.0
December 31, 2002 1.75:1.0
March 31, 2003 1.75:1.0
June 30, 2003 1.75:1.0
September 30, 2003 1.75:1.0
December 31, 2003 2.00:1.0
March 31, 2004 2.00:1.0
June 30, 2004 2.00:1.0
September 30, 2004 2.00:1.0
December 31, 2004 2.25:1.0
March 31, 2005 2.25:1.0
June 30, 2005 2.25:1.0
September 30, 2005 2.25:1.0
December 31, 2005 and thereafter 2.50:1.0
-53-
8.11 Total Leverage Ratio. The Borrower will not permit the Total
--------------------
Leverage Ratio for any Test Period ending on the date set forth below to be more
than the ratio set forth opposite such date:
Fiscal Quarter Ended Ratio
-------------------- -----
December 31, 1999 5.75:1.0
March 31, 2000 5.75:1.0
June 30, 2000 5.75:1.0
September 30, 2000 5.75:1.0
December 31, 2000 5.50:1.0
March 31, 2001 5.50:1.0
June 30, 2001 5.50:1.0
September 30, 2001 5.50:1.0
December 31, 2001 5.00:1.0
March 31, 2002 5.00:1.0
June 30, 2002 5.00:1.0
September 30, 2002 5.00:1.0
December 31, 2002 4.50:1.0
March 31, 2003 4.50:1.0
June 30, 2003 4.50:1.0
September 30, 2003 4.50:1.0
December 31, 2003 4.00:1.0
March 31, 2004 4.00:1.0
June 30, 2004 4.00:1.0
September 30, 2004 4.00:1.0
December 31, 2004 3.50:1.0
March 31, 2005 3.50:1.0
June 30, 2005 3.50:1.0
September 30, 2005 3.50:1.0
December 31, 2005 and thereafter 3.00:1.0
8.12 Issuance of Stock. The Borrower will not permit any of its
-----------------
Subsidiaries, directly or indirectly, to issue, sell, assign, pledge or
otherwise encumber or dispose of any shares of its capital stock or other
securities (or warrants, rights or options to acquire shares or other equity
securities) of such Subsidiary, except, to the extent permitted by Section 8.06,
to the Borrower or to qualify directors if required by applicable law. The
Borrower will not, directly or indirectly, issue or sell, any share of capital
stock, other than Common Stock or Permitted Preferred Stock.
-54-
8.13 Limitation on Certain Restrictions on Subsidiaries. The
--------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock of any other
interest or participation in its profits owned by the Borrower, any Subsidiary
of the Borrower or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (b) make loans or advances to the Borrower or any of the
Borrower's Subsidiaries or (c) transfer any of its properties or assets to the
Borrower or any of its Subsidiaries except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) this Agreement and the
other Credit Documents, (iii) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Borrower, or a
Subsidiary of the Borrower, (iv) customary provisions restricting assignment of
any licensing agreement entered into by the Borrower or a Subsidiary of the
Borrower in the ordinary course of business; (v) the Senior Subordinated Note
Documents and (vi) customary provisions restricting the transfer of assets
subject to Liens permitted under Section 8.03(l) and (m).
8.14 Limitation on Creation of Subsidiaries and Permitted Joint
----------------------------------------------------------
Ventures. Notwithstanding anything to the contrary contained in this Agreement,
--------
the Borrower will not, and will not permit any of its Subsidiaries to,
establish, create or acquire after the Initial Borrowing Date any Subsidiary
(other than Permitted Joint Ventures permitted to be established in accordance
with the requirements of 8.06(g)); provided that the Borrower and its Wholly-
--------
Owned Subsidiaries shall be permitted to establish, create or, to the extent
permitted by this Agreement, acquire Wholly-Owned Subsidiaries so long as (i)
the capital stock or other equity interests of each such new Wholly-Owned
Subsidiary is pledged pursuant to, and to the extent required by, the Pledge
Agreement, which if not previously executed and delivered prior to the date of
such acquisition shall then be executed and delivered at the time thereof, and
the certificates representing such stock or other equity interests, together
with stock or other powers duly executed in blank, are delivered to the
Collateral Agent for the benefit of the Secured Creditors, (ii) each such new
Wholly-Owned Subsidiary executes and delivers to the Administrative Agent a
counterpart of the Guaranty, the Pledge Agreement and the Security Agreement and
(iii) each such new Wholly-Owned Subsidiary takes all actions required pursuant
to Section 7.11. In addition, each new Wholly-Owned Subsidiary shall execute
and deliver, or cause to be executed and delivered, to the Administrative Agent
all other relevant documentation of the type described in Section 5.01(b), (c)
and (g) as such new Wholly-Owned Subsidiary would have had to deliver if such
new Wholly-Owned Subsidiary were a Credit Party on the Effective Date.
SECTION 9. Events of Default. Upon the occurrence of any of the
-----------------
following specified events (each, an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment when
--------
due of any principal of the Loans or (ii) default, and such default shall
continue for five or more days, in the payment when due of any Unpaid Drawing,
any interest on the Loans or any Fees or any other amounts owing hereunder or
under any other Credit Document; or
9.02 Representations, etc. Any representation, warranty or statement
---------------------
made by any Credit Party herein or in any other Credit Document or in any
statement or certificate
-55-
delivered or required to be delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed made;
or
9.03 Covenants. Any Credit Party shall (a) default in the due
---------
performance or observance by it of any term, covenant or agreement contained in
Section 7.11 or 8, or (b) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in Section 9.01,
9.02 or clause (a) of this Section 9.03) contained in this Agreement and such
default shall continue unremedied for a period of at least 30 days after notice
to the defaulting party by the Administrative Agent or the Required Lenders; or
9.04 Default Under Other Agreements. (a) The Borrower or any of its
------------------------------
Subsidiaries, if any, shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
applicable thereto or (ii) default in the observance or performance of any
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause any such Indebtedness to become due prior to its stated maturity; or (b)
any such Indebtedness of the Borrower or any of its Subsidiaries, if any, shall
be declared to be due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof,
provided that it shall not constitute an Event of Default pursuant to this
--------
Section 9.04 unless the principal amount of any one issue of such Indebtedness,
or the aggregate amount of all Indebtedness referred to in clauses (a) and (b)
above exceeds $7,500,000 at any one time; or
9.05 Bankruptcy, etc. The Borrower or any of its Material
----------------
Subsidiaries, if any, shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy", as now or hereafter in
effect, or any successor thereto (the "Bankruptcy Code"); or an involuntary case
is commenced against the Borrower or any of its Material Subsidiaries, if any,
and the petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of the Borrower or any of its Material Subsidiaries, if any; or
the Borrower or any of its Material Subsidiaries, if any, commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or any
of its Material Subsidiaries, if any; or there is commenced against the Borrower
or any of its Material Subsidiaries, if any, any such proceeding which remains
undismissed for a period of 60 days; or the Borrower or any of its Material
Subsidiaries, if any, is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; the
Borrower or any of its Material Subsidiaries, if any, suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or the Borrower or
any of its Material Subsidiaries, if any, makes a general assignment for the
benefit of creditors; or any corporate action is taken by the Borrower or any of
its Material Subsidiaries, if any, for the purpose of effecting any of the
foregoing; or
-56-
9.06 ERISA. (a) A single-employer plan (as defined in Section 4001
-----
of ERISA) established by the Borrower, any of its Subsidiaries, if any, or any
ERISA Affiliate shall fail to maintain the minimum funding standard required by
Section 412 of the Code for any plan year or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code or shall provide security to induce the issuance of such waiver or
extension, (b) any Plan is or shall have been or is likely to be terminated or
the subject of termination proceedings under ERISA or an event has occurred
entitling the PBGC to terminate a Plan under Section 4042(a) of ERISA, (c) any
Plan shall have an Unfunded Current Liability or (d) the Borrower or a
Subsidiary or any ERISA Affiliate has incurred or is likely to incur a material
liability to or on account of a termination of or a withdrawal from a Plan under
Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA; and there shall result
from any such event or events described in the preceding clauses of this Section
9.06 the imposition of a Lien upon the assets of the Borrower or any Subsidiary,
the granting of a security interest, or a liability or a material risk of
incurring a liability to the PBGC or a Plan or a trustee appointed under ERISA
or a penalty under Section 4971 of the Code, in each case which would be
reasonably like to have, in the opinion of the Required Lenders, a Material
Adverse Effect; or
9.07 Security Documents. Except in each case to the extent resulting
------------------
from the failure of the Collateral Agent to retain possession of the applicable
Pledged Securities, any Security Document shall cease to be in full force and
effect, or shall cease to give the Collateral Agent any Lien encumbering assets
with an aggregate fair market value in excess of $100,000 (and, if encumbering
assets with a fair market value of less than $100,000, for a period greater than
thirty or more days), or any material rights, powers and privileges purported to
be created thereby in favor of the Collateral Agent or any Credit Party shall
default in any material respect in the due performance or observance of any
term, covenant or agreement on its part to be performed or observed pursuant to
any such Security Document; or
9.08 Guaranty. After the execution and delivery thereof, the
--------
Guaranty or any provision thereof shall cease to be in full force or effect, or
any Guarantor or any Person acting by or on behalf of any such Guarantor shall
deny or disaffirm such guarantor's obligations under such Guaranty or any such
Guarantor shall default in the due performance or observance of any material
term, covenant or agreement on its part to be performed or observed by it
pursuant to the Guaranty; or
9.09 Judgments. One or more judgments or decrees shall be entered
---------
against the Borrower or any of its Subsidiaries, if any, involving a liability
(to the extent not paid or not fully covered by insurance) of $7,500,000 or more
for all such judgments and decrees and all such judgments or decrees shall not
have been vacated, discharged or stayed or bonded pending appeal within 60 days
from the entry thereof; or
9.10 Capital Call Agreement. (a) The Capital Call Agreement or any
----------------------
provision thereof shall cease to be in full force and effect except in
accordance with the terms thereof, or Xxxxx or any Person acting by or on behalf
of Xxxxx shall deny or disaffirm its obligations under the Capital Call
Agreement or Xxxxx or any Person acting on or behalf of Xxxxx shall default in
the due performance or observance of any term, covenant or agreement on its part
to be performed or observed pursuant to the Capital Call Agreement or a Capital
Call Event of Default under, and as defined in, the Capital Call Agreement shall
occur; or
-57-
(b) Any representation, warranty or statement made (or deemed made)
by Xxxxx in the Capital Call Agreement shall prove to be untrue in any material
respect on the date as of which made or deemed made;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Lenders, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against the Borrower,
except as otherwise specifically provided for in this Agreement (provided that,
--------
if an Event of Default specified in Section 9.05 shall occur with respect to the
Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Lender shall forthwith
terminate immediately and any Commitment Commission shall forthwith become due
and payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of all Loans and all obligations owing
hereunder (including Unpaid Drawings) and thereunder to be, whereupon the same
shall become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower; (iii)
enforce, as Collateral Agent (or direct the Collateral Agent to enforce), any or
all of the Liens and security interests created pursuant to the Security
Documents; (iv) terminate any Letter of Credit which may be terminated in
accordance with its terms; (v) direct the Borrower to pay (and the Borrower
hereby agrees upon receipt of such notice, or upon the occurrence of any Event
of Default specified in Section 9.05 in respect of the Borrower, it will pay) to
the Collateral Agent at the Payment Office such additional amounts of cash, to
be held as security for the Borrower's reimbursement obligations in respect of
Letters of Credit then outstanding equal to the aggregate Stated Amount of all
Letters of Credit then outstanding and (vi) apply any cash collateral delivered
pursuant to this Agreement to the payment of outstanding Obligations.
SECTION 10. Definitions. As used herein, the following terms shall
-----------
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"A Maturity Date" shall mean the sixth anniversary of the Initial
Borrowing Date.
"A Term Commitment" shall mean, with respect to each Lender, the
amount, if any, set forth opposite such Lender's name on Annex I hereto directly
below the column entitled "A Term Commitment" as the same may be reduced or
terminated pursuant to Section 3.03 and/or 9.
"A Term Facility" shall mean the Facility evidenced by the Total A
Term Commitment.
"A Term Lender" shall mean at any time each Lender with an A Term
Commitment (or if the Total A Term Commitment has been terminated, outstanding A
Term Loans at such time).
"A Term Loan" shall have the meaning provided in Section 1.01(a).
-58-
"Acquisition Sub" shall mean UC Acquisition Sub, Inc., a wholly-owned
subsidiary of Xxxxx.
"Additional Mortgages" shall have the meaning provided in Section
7.11.
"Adjusted Cash Flow" for any fiscal year shall mean Consolidated Net
Income for such fiscal year (after provision for taxes) plus the amount of all
----
net non-cash charges (including, without limitation, depreciation, deferred tax
expense, non-cash interest expense, amortization of deferred customer
acquisition costs, write-downs of inventory and other non-cash charges) that
were deducted in arriving at Consolidated Net Income for such fiscal year, minus
-----
the amount of all non-cash gains and gains from sales of assets (other than
sales of inventory and equipment in the normal course of business) that were
added in arriving at Consolidated Net Income for such fiscal year.
"Adjusted RC Percentage" shall mean (x) at a time when no Lender
Default exists, for each RC Lender such RC Lender's Revolving Percentage and (y)
at a time when a Lender Default exists (i) for each RC Lender that is a
Defaulting Lender, zero and (ii) for each RC Lender that is a Non-Defaulting
Lender, the percentage determined by dividing such RC Lender's Revolving
Commitment at such time by the Adjusted Total Revolving Commitment at such time,
it being understood that all references herein to Revolving Commitments and the
Adjusted Total Revolving Commitment at a time when the Total Revolving
Commitment or Adjusted Total Revolving Commitment, as the case may be, has been
terminated shall be references to the Revolving Loan Commitments or Adjusted
Total Revolving Commitment, as the case may be, in effect immediately prior to
such termination, provided that (A) no RC Lender's Adjusted RC Percentage shall
--------
change upon the occurrence of a Lender Default from that in effect immediately
prior to such Lender Default if, after giving effect to such Lender Default and
any repayment of Revolving Loans and Swingline Loans at such time pursuant to
Section 4.02(A)(a) or otherwise, the sum of (i) the aggregate outstanding
principal amount of Revolving Loans of all Non-Defaulting Lenders plus (ii) the
aggregate outstanding principal amount of Swingline Loans plus (iii) the Letter
of Credit Outstandings, exceeds the Adjusted Total Revolving Loan Commitment;
(B) the changes to the Adjusted RC Percentage that would have become effective
upon the occurrence of a Lender Default but that did not become effective as a
result of the preceding clause (A) shall become effective on the first date
after the occurrence of the relevant Lender Default on which the sum of (i) the
aggregate outstanding principal amount of the Revolving Loans of all Non-
Defaulting Lenders plus (ii) the aggregate outstanding principal amount of the
Swingline Loans plus (iii) the Letter of Credit Outstandings is equal to or less
than the Adjusted Total Revolving Commitment; and (C) if (I) a Non-Defaulting
Lender's Adjusted RC Percentage is changed pursuant to the preceding clause (B)
and (ii) any repayment of such Lender's Revolving Loans, or of Unpaid Drawings
with respect to Letters of Credit or of Swingline Loans, that were made during
the period commencing after the date of the relevant Lender Default and ending
on the date of such change to its Adjusted RC Percentage must be returned to any
Borrower as a preferential or similar payment in any bankruptcy or similar
proceeding of such Borrower, then the change to such Non-Defaulting Lender's
Adjusted RC Percentage effected pursuant to said clause (B) shall be reduced to
that positive change, if any, as would have been made to its Adjusted RC
Percentage if (x) such repayments had not been made and (y) the maximum change
to its Adjusted RC Percentage would have resulted in the sum of the outstanding
principal of Revolving Loans made by such Lender plus such Lender's new
-59-
Adjusted RC Percentage of the outstanding principal amount of Swingline Loans
and of Letter of Credit Outstandings equaling such Lender's Revolving Commitment
at such time.
"Adjusted Revolving Commitment" for each RC Lender that is a Non-
Defaulting Lender shall mean at any time the product of such RC Lender's
Adjusted RC Percentage and the Adjusted Total Revolving Commitment.
"Adjusted Total Revolving Commitment" shall mean at any time the Total
Revolving Commitment less the aggregate Revolving Commitments of all Defaulting
Lenders.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agents" shall mean the Administrative Agent, the Collateral Agent and
the Syndication Agent.
"Agreement" shall mean this Credit Agreement, as the same may be from
time to time modified, amended and/or supplemented.
"Anticipated Reinvestment Amount" shall mean, with respect to any
Reinvestment Election, the amount specified in the Reinvestment Notice delivered
by the Borrower in connection therewith as the amount of the Net Cash Proceeds
from the related Asset Sale that the Borrower intends to use to purchase,
construct or otherwise acquire Reinvestment Assets.
"Applicable Margin" initially shall mean a percentage per annum equal
to (i) in the case of A Term Loans and Revolving Loans maintained as (x) Base
Rate Loans, 2.125% and (y) Eurodollar Loans, 3.125%, (ii) in the case of B Term
Loans maintained as (x) Base Rate Loans, 2.875% and (y) Eurodollar Loans,
3.875%, and (iii) in the case of the Commitment Commission, 0.50%. From and
after each day of delivery of any certificate delivered in accordance with the
first sentence of the following paragraph indicating a different margin than
that described in the immediately preceding sentence (each, a "Start Date") to
and including the applicable End Date described below, the Applicable Margin
shall (subject to any adjustment pursuant to the immediately succeeding
paragraph) be that set forth below opposite the Total Leverage Ratio indicated
to have been achieved in any certificate delivered in accordance with the
following sentence:
-60-
-----------------------------------------------------------------------------------------------------------------
Revolving A Term A Term B Term B Term
Total Loan Revolving Loan Loan Loan Loan
Leverage Eurodollar Loan Base Eurodollar Base Rate Eurodollar Base Rate Commitment
Ratio Margin Rate Margin Margin Margin Margin Margin Commission
-----------------------------------------------------------------------------------------------------------------
Equal to or 3.375% 2.375% 3.375% 2.375% 3.875% 2.875% 0.50%
greater
than 5.25:1
-----------------------------------------------------------------------------------------------------------------
Equal to or 3.125% 2.125% 3.125% 2.125% 3.875% 2.875% 0.50%
greater
than
4.75:1 but
less than
5.25:1
-----------------------------------------------------------------------------------------------------------------
Equal to or 2.875% 1.875% 2.875% 1.875% 3.875% 2.875% 0.50%
greater
than
4.25:1 but
less than
4.75:1
-----------------------------------------------------------------------------------------------------------------
Equal to or 2.50% 1.50% 2.50% 1.50% 3.50% 2.50% 0.375%
greater
than
3.75:1 but
less than
4.25:1
-----------------------------------------------------------------------------------------------------------------
Equal to or 2.25% 1.25% 2.25% 1.25% 3.50% 2.50% 0.375%
greater
than
3.25:1 but
less than
3.75:1
-----------------------------------------------------------------------------------------------------------------
Less than 2.00% 1.00% 2.00% 1.00% 3.50% 2.50% 0.25%
3.25:1
-----------------------------------------------------------------------------------------------------------------
The Total Leverage Ratio shall be determined based on the delivery of
a certificate of the Borrower by an Authorized Officer of the Borrower to the
Administrative Agent (with a copy to be sent by the Administrative Agent to each
Lender), within 45 days of the last day of any fiscal quarter of the Borrower,
which certificate shall set forth the calculation of the Total Leverage Ratio as
at the last day of the Test Period ended immediately prior to the relevant Start
Date (but determined on a pro forma basis to give effect to any Permitted
Acquisition effected on or prior to the date of the delivery of such
certificate) and the Applicable Margins which shall be thereafter applicable.
The Applicable Margins so determined shall apply, except as set forth in the
succeeding sentence, from the relevant Start Date to the earliest of (x) the
date on which the next certificate is delivered to the Administrative Agent or
(y) the date which is 45 days following the last day of the Test Period in which
the previous Start Date occurred (such earliest date, the "End Date"), at which
time, if no certificate has been delivered to the Administrative Agent
indicating an entitlement to new Applicable Margins (and thus commencing a new
Start Date), the Applicable Margins shall be those set forth in the table above
determined as if the Total Leverage Ratio were greater than 5.25:1.0 (such
Applicable Margins as so determined, the "Highest Applicable Margins").
Notwithstanding anything to the contrary contained above in this definition, (x)
the Applicable Margins shall be the Highest Applicable
-61-
Margins at all times during which there shall exist any Event of Default and (y)
prior to the date of delivery of the financial statements pursuant to Section
7.01(b) for the fiscal year ended March 31, 2000, in no event shall the
Applicable Margins be less than those described in the first sentence of this
definition.
"Asset Sale" shall mean the sale, transfer or other disposition by the
Borrower or any Subsidiary to any Person other than the Borrower or any
Guarantor of any asset of the Borrower or such Subsidiary (other than sales,
transfers or other dispositions in the ordinary course of business of inventory
and/or obsolete or excess equipment).
"Assignment Agreement" shall mean an Assignment Agreement
substantially in the form of Exhibit K (appropriately completed).
"Authorized Officer" shall mean any senior officer of the Borrower
designated as such in writing to the Administrative Agent by the Borrower in
each case to the extent acceptable to the Administrative Agent.
"Available Excess Cash Flow Amount" shall mean at any time, an amount
equal to (A) (i) 25% of Excess Cash Flow, if the Total Leverage Ratio is greater
than or equal to 4.00:1, (ii) 50% of Excess Cash Flow, if the Total Leverage
Ratio is greater than or equal to 3.00:1 but less than 4.00:1, or (iii) 100% of
Excess Cash Flow, if the Total Leverage Ratio is less than 3.00:1, determined
for each fiscal year of the Borrower (commencing with the fiscal year ending on
December 31, 2000) then ended less (B) the sum of (w) the aggregate amount of
----
the Available Excess Cash Flow Amount with which the Borrower has theretofore
made investments in Permitted Joint Ventures in accordance with Section 8.06(g),
(x) the aggregate amount of Consolidated Capital Expenditures theretofore made
pursuant to Section 8.05(c)(ii) hereof and (y) the aggregate amount of
redemptions and repurchases of the Borrower's Common Stock theretofore made
pursuant to Section 8.08(iii)(B)(II).
"B Maturity Date" shall mean the seventh anniversary of the Initial
Borrowing Date.
"B Term Commitment" shall mean, with respect to each Lender, the
amount, if any, set forth opposite such Lender's name on Annex I hereto directly
below the column entitled "B Term Commitment" as the same may be reduced or
terminated pursuant to Section 3.03 and/or 9.
"B Term Facility" shall mean the Facility evidenced by the Total B
Term Commitment.
"B Term Lender" shall mean at any time each Lender with a B Term
Commitment (or if the Total B Term Commitment has been terminated, outstanding B
Term Loans) at such time.
"B Term Loan" shall have the meaning provided in Section 1.01(b).
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
-62-
"Base Rate" at any time shall mean the higher of, (i) the rate which
is 1/2 of 1% in excess of the Federal Funds Effective Rate and (ii) the Prime
Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Bear Xxxxxxx" shall mean BSCLAB Acquisition Corp., a Delaware
corporation.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean the incurrence of (i) Swingline Loans by the
Borrower from BTCo on a given date or (ii) one Type of Loan pursuant to a single
Facility by the Borrower from all of the Lenders having Commitments with respect
to such Facility on a given date (or resulting from conversions or the
commencement of new Interest Periods on a given date), having in the case of
Eurodollar Loans the same Interest Period; provided that Base Rate Loans
--------
incurred pursuant to Section 1.10(b) shall be considered part of any related
Borrowing of Eurodollar Loans.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close and
(ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also a day for trading by and
between banks in U.S. dollar deposits in the interbank Eurodollar market.
"Capital Call Agreement" shall have the meaning provided in Section
5.01(h).
"Capital Call Amount" shall have the meaning provided in the Capital
Call Agreement.
"Capital Lease" as applied to any Person shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries, if any, in each case
taken at the amount thereof accounted for as liabilities in accordance with
GAAP.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers' acceptances of (x) any Lender,
(y) any domestic commercial bank of recognized standing having capital and
surplus in
-63-
excess of $500,000,000 or (z) any bank (or the parent company of such bank)
whose short-term commercial paper rating from Standard & Poor's Ratings
Services, a division of XxXxxx-Xxxx, Inc. ("S&P") is at least A-1 or the
equivalent thereof or from Xxxxx'x Investors Service, Inc. ("Xxxxx'x") is at
least P-1 or the equivalent thereof (any such bank, an "Approved Lender"), in
each case with maturities of not more than six months from the date of
acquisition, (iii) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (ii)
above, (iv) commercial paper issued by any bank or Approved Lender or by the
parent company of any bank or Approved Lender and commercial paper issued by, or
guaranteed by, any industrial or financial company with a short-term commercial
paper rating of at least A-1 or the equivalent thereof by S&P or at least P-1 or
the equivalent thereof by Moody's (any such company, an "Approved Company"), or
guaranteed by any industrial company with a long term unsecured debt rating of
at least A or A2, or the equivalent of each thereof, from S&P or Moody's, as the
case may be, and in each case maturing within six months after the date of
acquisition and (v) investments in money market funds substantially all of whose
assets are comprised of securities of the type described in clauses (i) through
(iv) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection with such Asset Sale, other
than the portion of such deferred payment constituting interest, but only as and
when so received) received by the Borrower and/or any Subsidiary, if any, from
such Asset Sale.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. (S) 9601 et seq.
-- ----
"Change of Control" shall mean (i) prior to the date of an initial
registered public offering by the Borrower of its common stock, the Permitted
Holders shall cease to own on a fully diluted basis in the aggregate at least a
majority of the economic and voting interest in the Borrower's capital stock,
(ii) on or after the date of an initial registered public offering by the
Borrower of its common stock, (a) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act), other than one or more
Permitted Holders, is or becomes the "beneficial owner" (as defined below),
directly or indirectly, of more than 30% of the total voting power of the Voting
Stock of the Borrower unless the Permitted Holders "beneficially own" (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act as currently
in effect, it being agreed that for purposes of this clause (a) and clause (b)
below, the Permitted Holders shall be deemed to beneficially own any Voting
Stock of a corporation (the "specified corporation") held by any other
corporation (the "parent corporation") so long as the Permitted Holders
beneficially own (as so defined), directly or indirectly, in the aggregate a
majority of the voting power of the Voting Stock of the parent corporation),
directly or indirectly, in the aggregate a greater percentage of the total
voting power of the Voting Stock of the Borrower than such other person or (b)
occupation of a majority of the seats of the Board of Directors of the Borrower
by Persons whose nomination for election by the stockholders of the Borrower was
not approved by either (x) a majority of the Permitted Holders or (y) a majority
of the directors of the Borrower whose election or nomination for election was
previously so approved or (iii) the occurrence of any "change of control" or
similar event under the Senior Subordinate Note Documents.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the Effective
Date and any subsequent provisions of the Code, amendatory thereof, supplemental
thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting as
Collateral Agent for the Lenders.
"Collective Bargaining Agreements" shall have the meaning provided in
Section 5.01(o).
"Commitment" shall mean, with respect to each Lender, such Lender's A
Term Commitment, B Term Commitment and Revolving Commitment.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Common Stock" shall mean the common stock of the Borrower.
"Company" shall mean any corporation, limited liability company,
partnership or other business entity (or the adjectival form thereof, where
appropriate).
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as liabilities
and including in all events all amounts expended or capitalized under Capital
Leases but excluding any amount representing capitalized interest) by the
Borrower and its Subsidiaries, if any, during that period that, in conformity
with GAAP, are or are required to be included in the property, plant or
equipment reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries.
"Consolidated Cash Interest Expense" shall mean, for any period,
Consolidated Interest Expense, but excluding, however, interest expense not
payable in cash and amortization of discount and deferred issuance and financing
costs.
"Consolidated Current Assets" shall mean, as to any Person at any
time, the current assets (other than cash and Cash Equivalents) of such Person
and its Subsidiaries, if any, determined on a consolidated basis.
"Consolidated Current Liabilities" shall mean, as to any Person at any
time, the current liabilities of such Person and its Subsidiaries, if any,
determined on a consolidated basis, but excluding all short-term Indebtedness
for borrowed money and the current portion of any long-term Indebtedness of such
Person or its Subsidiaries, in each case to the extent otherwise included
therein.
"Consolidated Debt" shall mean, at any time, the sum of (without
duplication) (i) all Indebtedness of the Borrower and its Subsidiaries, if any,
as would be required to be reflected on the liability side of a balance sheet of
such Person in accordance with GAAP as determined
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on a consolidated basis, (ii) all Indebtedness of the Borrower and its
Subsidiaries, if any, of the type described in clause (vii) of the definition of
Indebtedness, (iii) unreimbursed drawings on all letters of credit issued for
the account of the Borrower or any of its Subsidiaries, if any, and (iv) all
Contingent Obligations of the Borrower and its Subsidiaries, if any, in respect
of Indebtedness of other Persons (i.e., Persons other than the Borrower or any
----
of its Subsidiaries, if any) of the type referred to in preceding clauses (i),
(ii) and (iii) of this definition; provided that for purposes of this
--------
definition, the amount available to be drawn under letters of credit issued for
the account of the Borrower or any of its Subsidiaries, if any, (other than
unreimbursed drawings) shall be excluded in making any determination of
"Consolidated Debt".
"Consolidated EBIT" shall mean, for any period, (A) the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) provisions for
taxes based on income, (iii) Consolidated Interest Expense, (iv) amortization or
write-off of deferred financing costs to the extent deducted in determining
Consolidated Net Income, (v) losses on sales of assets (excluding sales in the
ordinary course of business) and other extraordinary losses, (vi) extraordinary,
unusual or non-recurring gains, losses, income or expense, and the related tax
effects and (vii) any customary and reasonable transaction expenses incurred in
connection with Permitted Acquisitions less (B) the amount for such period of
----
gains on sales of assets (excluding sales in the ordinary course of business)
and other extraordinary gains, all as determined on a consolidated basis in
accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, the sum of the
amounts for such period of (i) Consolidated EBIT, (ii) depreciation expense,
(iii) amortization expense, all as determined on a consolidated basis in
accordance with GAAP and (iv) other non-cash charges to the extent deducted in
arriving at Consolidated EBIT; provided that, for purposes of determining
--------
compliance with Section 8.11, Consolidated EBITDA for the fiscal quarter ending
on (x) March 31, 1999 shall be $15,300,000, (y) June 30, 1999 shall be
$17,100,000 and (z) September 30, 1999 shall be $14,800,000.
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including that attributable to Capital Leases in accordance
with GAAP) of the Borrower and its Subsidiaries, if any, on a consolidated basis
with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries, including, without limitation, all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Agreements.
"Consolidated Net Income" shall mean for any period, the net income
(or loss) of the Borrower and its Subsidiaries, if any, on a consolidated basis
for such period taken as a single accounting period determined in conformity
with GAAP; provided that there shall be excluded (i) the income (or loss) of any
--------
Person (other than Subsidiaries, if any, of the Borrower) in which any other
Person (other than the Borrower or any of its Subsidiaries, if any) has a joint
interest, except to the extent of the amount of dividends or other distributions
actually paid to the Borrower or any of its Subsidiaries, if any, by such Person
during such period, (ii) other than any calculation on a Pro Forma Basis, the
--- -----
income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary, if any, of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, if any, or that Person's assets are
acquired by the Borrower or any of its Subsidiaries, if any, (iii) the income of
any Subsidiary, if any, of the Borrower to the
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extent that the declaration or payment of dividends or similar distributions by
that Subsidiary, if any, of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary, (iv) Transaction Expenses and (v) non-cash compensation expense and
compensation expense resulting from the repurchase of any capital stock, options
and rights.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intending to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof; provided, however, that
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the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Notes, the Security
Documents, the Capital Call Agreement and, after the execution and delivery
thereof, the Guaranty.
"Credit Event" shall mean and include the making of a Loan or the
issuance of a Letter of Credit.
"Credit Party" shall mean the Borrower and each Guarantor, if any.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Designated Affiliate" shall mean any Affiliate of Xxxxx other than
any corporation or other Person (except for any corporation or other Person
engaged in a business similar, complementary or related to the nature or type of
the business of the Borrower and its Subsidiaries, if any) controlled by, or any
investment fund (other than Xxxxx Investment Associates VI, L.P. or any
investment fund that is not solely comprised of current and former professionals
of Xxxxx) managed by, Xxxxx.
"Dividends" shall have the meaning provided in Section 8.08.
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"Documents" shall mean and include (i) the Credit Documents, (ii) the
Senior Subordinated Note Documents, (iii) the Equity Financing Documents, (iv)
the Recapitalization Documents and (v) all other documents, agreements and
instruments executed in connection with the Transaction.
"Domestic Subsidiary" shall mean each Subsidiary, if any, of the
Borrower incorporated or organized in the United States or any state or
territory thereof.
"Effective Date" shall have the meaning provided in Section 12.10.
"Eligible Transferee" shall mean and include a commercial bank, mutual
fund, financial institution, a "qualified institutional buyer" (as defined in
Rule 144A of the Securities Act), any fund that invests in bank loans or any
other "accredited investor" (as defined in Regulation D of the Securities Act)
(other than an individual).
"Employee Benefit Plans" shall have the meaning provided in Section
5.01(o).
"Employment Agreements" shall have the meaning provided in Section
5.01(o).
"End Date" shall have the meaning provided in the definition of
Applicable Margin.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports prepared
by the Borrower or any of its Subsidiaries, if any, solely in the ordinary
course of such Person's business and not in response to any third party action
or request of any kind) or proceedings relating in any way to any Environmental
Law or any permit issued, or any approval given, under any such Environmental
Law (hereafter, "Claims"), including, without limitation, (a) any and all Claims
by governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged injury
or threat of injury to health, safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, guide, policy and rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or Hazardous Materials, including, without limitation, CERCLA;
RCRA; the Federal Water Pollution Control Act, as amended, 33 U.S.C. (S) 1251 et
--
seq.; the Toxic Substances Control Act, 15 U.S.C. (S) 7401 et seq.; the Clean
---- -- ----
Air Act, 42 U.S.C. (S) 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. (S)
-- ----
3808 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. (S) 2701 et seq. and any
-- ---- -- ----
applicable state and local or foreign counterparts or equivalents.
"EOS" shall mean EOS Partners L.P., a Delaware limited partnership.
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"Equity Financing" shall mean a cash equity contribution to
Acquisition Sub by the Investors pursuant to the Equity Financing Documents.
"Equity Financing Documents" shall mean Agreement and Plan of Merger,
dated May 24, 1999, between the Borrower and Acquisition Sub, as amended, the
Capital Call Agreement, the Equity Commitment Letter, dated May 24, 1999, from
Xxxxx to Acquisition Sub and the Borrower, the Stock Subscription Agreements
between certain investors and Acquisition Sub and the Rollover Retention Letter,
each dated August 30, 1999 from Acquisition Sub to each of EOS and Pequot.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect as of
the Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower, a Subsidiary, if any, or a Credit
Party would be deemed to be a "single employer" within the meaning of Sections
414(b), (c), (m) and (o) of the Code.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each day during each
Interest Period for a Eurodollar Loan, (i) the offered rate for deposits in U.S.
dollars in the London interbank market for the relevant Interest Period which is
published by the British Bankers' Association and currently appears on Telerate
page 3750 as of 11:00 A.M. (London time) on the day which is two Business Days
prior to the first day of such Interest Period for a term comparable to such
Interest Period, provided that if, for any reason, such a rate is not published
--------
by the British Bankers' Association, the Eurodollar Rate shall be equal to a
rate per annum equal to the average rate (rounded upwards, if necessary, to the
nearest 1/100 of 1%) at which the Administrative Agent determines that U.S.
dollars in an amount comparable to the amount of the applicable Loans are being
offered to prime banks at approximately 11:00 A.M. (London time) on the day
which is two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period for settlement in immediately available
funds by leading banks in the London interbank market selected by the
Administrative Agent divided (and rounded upward to the next whole multiple of
1/16 of 1%) by (ii) a percentage equal to 100% minus the then stated maximum
rate of all reserve requirements (including without limitation any marginal,
emergency, supplemental, special or other reserves) applicable to any member
bank of the Federal Reserve System in respect of Eurocurrency liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any fiscal year, the remainder of
(i) the sum of (x) Adjusted Cash Flow for such fiscal year and (y)(I) the
decrease, if any, in Working Capital less (II) the decrease, if any, in the
principal amount of Revolving Loans, in each case from the
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first day to the last day of such fiscal year, plus (ii) to the extent not
included in (i) above, any amounts received by the Borrower and its
Subsidiaries, if any, in settlement of, or in payment of any judgments resulting
from, actions, suits or proceedings with respect to the Borrower and/or its
Subsidiaries, if any, from the first day to the last day of such fiscal year,
plus (iii) to the extent not included in (i) above, any amounts received by the
Borrower and/or its Subsidiaries, if any, in connection with the repayment or
redemption of any long-term promissory notes of other Persons held by them,
minus (iv) the sum of (x) the amount of Consolidated Capital Expenditures and
expenditures made in connection with Permitted Acquisitions (except to the
extent financed through the incurrence of Indebtedness) made during such fiscal
year and (y)(I) the increase, if any, in Working Capital less (II) the increase,
if any, in the principal amount of Revolving Loans, in each case from the first
day to the last day of such fiscal year and (z)(I) any repayments or prepayments
of the principal amount of A Term Loans, or B Term Loans, except prepayments of
the principal amount of A Term Loans, or B Term Loans made pursuant to Sections
4.02(A), (d), (e), (f), (g), (h) and/or (i), (II) any repayments or prepayments
of the principal amounts of any other Indebtedness of the Borrower or any
Subsidiary, if any (but in the case of a voluntary prepayment of revolving
loans, only to the extent accompanied by a voluntary reduction to the commitment
related thereto) and (III) any redemption or repurchase of capital stock by the
Borrower or any Subsidiary, if any.
"Existing Indebtedness" shall have the meaning provided in Section
5.01(k).
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.01(k).
"Facility" shall mean any of the credit facilities established under
this Agreement, i.e., the A Term Facility, the B Term Facility or the Revolving
----
Facility.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Effective Rate" shall mean for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 8, including defined terms as used therein, are subject (to the
extent provided therein) to Section 12.07(a).
"Guarantors" shall mean (i) each Domestic Subsidiary of the Borrower
on the Initial Borrowing Date, if any, and (ii) each Person that becomes a
Guarantor as required by Section 8.14.
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"Guaranty" shall mean a Guaranty substantially in the form of Exhibit
L (appropriately completed), as same may be amended, modified or supplemented
from time to time.
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that
contained, electric fluid containing levels of polychlorinated biphenyls, and
radon gas and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances", "hazardous waste", "hazardous
materials", "extremely hazardous waste", "restricted hazardous waste", "toxic
substances", "toxic pollutants", "contaminants", or "pollutants", or words of
similar import, under any applicable Environmental Law.
"Indebtedness" of any Person shall mean, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (iii) the face amount of all
letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such indebtedness has been assumed, (v) all Capitalized Lease Obligations
of such Person, (vi) all obligations of such Person to pay a specified purchase
price for goods or services whether or not delivered or accepted, i.e., take-or-
----
pay and similar obligations, (vii) all net obligations of such Person under
Interest Rate Agreements and (viii) all Contingent Obligations of such Person,
(other than Contingent Obligations arising from the guaranty by such Person of
the obligations of the Borrower and/or its Subsidiaries to the extent such
guaranteed obligations do not constitute Indebtedness and are otherwise
permitted hereunder), provided that Indebtedness shall not include trade
--------
payables and accrued expenses, in each case arising in the ordinary course of
business.
"Information Systems and Equipment" shall mean all computer hardware,
firmware and software, as well as other information processing systems, or any
equipment containing embedded microchips, whether directly owned, licensed,
leased, operated or otherwise controlled by the Borrower or any of its
Subsidiaries, if any, including through third-party service providers, and
which, in whole or in part, are used, operated, relied upon, or integral to, the
Borrower's or any of its Subsidiaries', if any, conduct of their respective
businesses.
"Initial Borrowing Date" shall mean the first date on which Loans are
made hereunder.
"Initial Shareholders" mean Xxxxx, the Xxxxx Designees, the Designated
Affiliates, EOS, Pequot, Bear Xxxxxxx and Xxxxx.
"Interest Coverage Ratio" shall mean, for any Test Period, the ratio
of Consolidated EBITDA to Consolidated Cash Interest Expense for such Test
Period. All calculations of the Interest Coverage Ratio shall be made on a Pro
Forma Basis. In addition to the foregoing, for purposes of determining
compliance with Section 8.10 for the Test Period
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ending on December 31, 2000, the Interest Coverage Ratio for the fiscal quarter
of the Borrower ending on December 31, 2000 shall be calculated after giving
effect to any capital contributions made to the Borrower pursuant to the Capital
Call Agreement.
"Interest Period" with respect to any Loan shall mean the interest
period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap agreement,
any interest rate cap agreement, any interest rate collar agreement or other
similar agreement or arrangement designed to hedge the risks of the Borrower or
any Subsidiary in respect of interest rates.
"Investors" shall mean Xxxxx and any other Persons acceptable to the
Administrative Agent.
"Xxxxx" shall mean Xxxxx & Company, L.P., a Delaware limited
partnership doing business as Xxxxx & Company.
"Xxxxx Designees" means C.I. LLC, Xxxxxxx X. Xxxxxxxx, Xxxxxx
Xxxxxxxxx, Xxxx X. XxXxxxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx, the Xxxxx
and Xxxxxxxx Xxxxx Trust, Xxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, U. Xxxxxxx Xxxxx, Xx.
and Cardinal Court Investors LLC.
"Leasehold" of any Person means all of the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Lender" shall have the meaning provided in the first paragraph of
this Agreement.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any incurrence of Loans
or to fund its portion of any unreimbursed payment under Section 2.05(c) or (ii)
a Lender having notified the Administrative Agent and/or the Borrower that it
does not intend to comply with the obligations under Section 1.01 or under
Section 2.05(c).
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean BTCo (or any Affiliate of BTCo,
including, without limitation Deutsche Bank AG) or any Lender which at the
request of the Borrower and with the consent of the Administrative Agent agrees,
in such Lender's sole discretion, to become a Letter of Credit Issuer for
purposes of issuing Letters of Credit pursuant to Section 2.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.03(a).
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"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"Loan" shall have the meaning provided in Section 1.01.
"Xxxxx" shall mean Xx. Xxxxx X. Xxxxx.
"Majority Lenders" shall mean, with respect to any Tranche, those Non-
Defaulting Lenders which would constitute the Required Lenders under, and as
defined in, this Agreement if all outstanding Obligations of the other Tranches
under this Agreement were repaid in full and all Commitments, if any, with
respect thereto were terminated.
"Management Agreements" shall have the meaning provided in Section
5.01(o).
"Management Investor" shall mean certain members of management of the
Borrower previously identified and satisfactory to the Administrative Agent.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(e).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on the
business, property, assets, liabilities, operations, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
"Material Contracts" shall have the meaning provided in Section
5.01(o).
"Material Subsidiary" shall mean, at any time, any Subsidiary, if any,
of the Borrower that (x) has assets at such time comprising 5% or more of the
consolidated assets of the Borrower and its Subsidiaries, if any, or (y) had net
income in the most recently ended fiscal year of the Borrower comprising 5% or
more of the consolidated net income of the Borrower and its Subsidiaries, if
any, for such fiscal year.
"Maturity Date", with respect to any Loan, shall mean the A Maturity
Date, the B Maturity Date, the Revolving Loan Maturity Date or the Swingline
Expiry Date, as the case may be.
"Maximum Swingline Amount" shall mean $5,000,000.
"Merger" shall have the meaning provided in Section 5.01(j)(i).
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans
maintained as Base Rate Loans, $500,000, (ii) for Term Loans maintained as Base
Rate Loans, $1,000,000, (iii) for Revolving Loans maintained as Eurodollar
Loans, $500,000 and (iv) for Term Loans maintained as Eurodollar Loans,
$1,000,000.
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"Multiemployer Plan" shall mean any multiemployer plan as defined in
Section 4001(a)(3) of ERISA, which is maintained or contributed to by (or to
which there is an obligation to contribute of) the Borrower, a Subsidiary of the
Borrower or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest due on which the Borrower, a Subsidiary of the
Borrower or an ERISA Affiliate maintained, contributed to or had an obligation
to contribute to such plan.
"Net Cash Proceeds" shall mean, with respect to any Asset Sale, the
Cash Proceeds resulting therefrom net of expenses of sale (including payment of
principal, premium and interest of Indebtedness secured by the assets the
subject of the Asset Sale and required to be, and which is, repaid under the
terms thereof as a result of such Asset Sale), and incremental taxes paid or
payable as a result thereof.
"Non-Defaulting Lender" shall mean each Lender other than a Defaulting
Lender.
"Note" shall have the meaning provided in Section 1.05.
"Notice of Borrowing" shall have the meaning provided in Section 1.03.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the
Administrative Agent may designate to the Borrower from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
the Administrative Agent, the Collateral Agent, the Syndication Agent or any
Lender pursuant to the terms of this Agreement or any other Credit Document.
"Participant" shall have the meaning provided in Section 2.05(a).
"Payment Office" shall mean the office of the Administrative Agent at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other office as the
Administrative Agent may designate to the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Pequot" shall mean the Pequot Scout Fund L.P., a Delaware limited
partnership.
"Permitted Acquisition" shall have the meaning provided in Section
8.02(j).
"Permitted Holders" means Xxxxx, the Designated Affiliates, the
Management Investors, any employee stock ownership plan established by the
Borrower for the benefit of the employees of the Borrower or any Subsidiary, if
any, and their Permitted Transferees.
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"Permitted Joint Venture" shall mean any Person (other than a
Subsidiary, if any) in which the Borrower or any Guarantor shall invest for the
purpose of engaging in clinical laboratory testing and services arrangements
other than those currently offered by the Borrower and its Subsidiaries.
"Permitted Liens" shall mean Liens described in clauses (a) to (n) of
Section 8.03.
"Permitted Preferred Stock" shall mean preferred stock of the Borrower
so long as the terms of any such preferred stock (i) do not contain any
mandatory put, redemption, repayment, sinking fund or other similar provision,
(ii) do not require the cash payment of dividends and (iii) are otherwise
reasonably satisfactory to the Administrative Agent.
"Permitted Transferees" means (i) in the case of Xxxxx, (A) any
Designated Affiliate, (B) any managing director, general partner, limited
partner, director, officer or employee of Xxxxx or any Designated Affiliate
(collectively, "Xxxxx Associates"), (C) the heirs, executors, administrators,
testamentary trustees, legatees or beneficiaries of any Xxxxx Associate and (D)
any trust, the beneficiaries of which, or a corporation or partnership, the
stockholders or partners of which, include only a Xxxxx Associate, his or her
spouse, parents, siblings, direct lineal descendants or adopted children, and
(ii) in the case of any Management Investors, (A) his executor, administrator,
testamentary trustee, legatee or beneficiaries, (B) his or her spouse, parents,
siblings, direct lineal descendants or adopted children or (C) a trust, the
beneficiaries of which, or a corporation or partnership, the stockholders or
partners of which, include only the Management Investor, as the case may be, and
his or her spouse, parents, siblings, direct lineal descendants and/or adopted
children.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary, if any, or an ERISA
Affiliate, and each such plan for the five year period immediately following the
latest date on which the Borrower, or a Subsidiary, if any, or an ERISA
Affiliate maintained, contributed to or had an obligation to contribute to such
plan.
"Pledge Agreement" shall mean a Pledge Agreement substantially in the
form of Exhibit M (appropriately completed), as same may be amended, modified or
supplemented from time to time.
"Pledged Securities" shall mean all the Pledged Securities as defined
in the relevant Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. BTCo may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
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"Pro Forma Basis" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (x) the incurrence of any
Indebtedness (other than revolving Indebtedness, except to the extent same is
incurred to refinance other outstanding Indebtedness or to finance Permitted
Acquisitions) after the first day of the relevant Test Period as if such
Indebtedness had been incurred (and the proceeds thereof applied) on the first
day of the relevant Test Period, (y) the permanent repayment of any Indebtedness
(other than revolving Indebtedness) after the first day of the relevant Test
Period as if such Indebtedness had been retired or redeemed on the first day of
the relevant Test Period and (z) the Permitted Acquisition, if any, then being
consummated as well as any other Permitted Acquisition consummated after the
first day of the relevant Test Period and on or prior to the date of the
respective Permitted Acquisition then being effected, with the following rules
to apply in connection therewith:
(i) all Indebtedness (x) (other than revolving Indebtedness, except
to the extent same is incurred to refinance other outstanding Indebtedness
or to finance Permitted Acquisitions) incurred or issued after the first
day of the relevant Test Period (whether incurred to finance a Permitted
Acquisition, to refinance Indebtedness or otherwise) shall be deemed to
have been incurred or issued (and the proceeds thereof applied) on the
first day of the respective Test Period and remain outstanding through the
date of determination and (y) (other than revolving Indebtedness)
permanently retired or redeemed after the first day of the relevant Test
Period shall be deemed to have been retired or redeemed on the first day of
the respective Test Period and remain retired through the date of
determination;
(ii) all Indebtedness assumed to be outstanding pursuant to preceding
clause (i) shall be deemed to have borne interest at (x) the rate
applicable thereto, in the case of fixed rate indebtedness or (y) the rates
which would have been applicable thereto during the respective period when
same was deemed outstanding, in the case of floating rate Indebtedness
(although interest expense with respect to any Indebtedness for periods
while same was actually outstanding during the respective period shall be
calculated using the actual rates applicable thereto while same was
actually outstanding); and
(iii) in making any determination of Consolidated EBITDA, pro forma
effect shall be given to any Permitted Acquisition or any closure or
discontinuation of operations of any facility of the Borrower or its
Subsidiaries for the periods described above, taking into account factually
supportable and identifiable synergies, cost savings and expenses which
have been identified in writing by the chief financial officer of the
Borrower and found reasonable by the Administrative Agent.
"PSD Interest Period" shall mean an Interest Period commenced prior to
the Syndication Date, each of which Interest Periods must satisfy the
requirements of Section 1.09(v).
"Qualified Stock" shall mean Common Stock and Permitted Preferred
Stock.
"Quarterly Payment Date" shall mean the fifteenth Business Day of each
March, June, September and December.
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"RC Lenders" shall mean each Lender with a Revolving Commitment.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. (S) 6901 et seq.
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"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recapitalization" shall mean the Merger and recapitalization of the
Borrower pursuant to, and in accordance with the terms of, the Recapitalization
Documents.
"Recapitalization Agreement" shall mean the Agreement and Plan of
Merger dated as of May 24, 1999, as amended and as in effect on the Initial
Borrowing Date by and between the Borrower and Acquisition Sub.
"Recapitalization Documents" shall mean the Recapitalization Agreement
and all other agreements and documents relating to the Recapitalization.
"Recovery Event" shall mean the receipt by the Borrower or any of its
Subsidiaries, if any, of any insurance or condemnation proceeds payable (i) by
reason of theft, physical destruction or damage or any other similar event with
respect to any properties or assets of the Borrower or any of its Subsidiaries,
(ii) by reason of any condemnation, taking, seizing or similar event with
respect to any properties or assets of the Borrower or any of its Subsidiaries,
if any, and (iii) under any policy of insurance required to be maintained under
Section 7.03.
"Refinanced Indebtedness" shall have the meaning provided in Section
5.01(k).
"Refinancing" shall mean the refinancing transaction described in
Section 6.05(a).
"Register" shall have the meaning provided in Section 12.16.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Reinvestment Assets" shall mean any assets to be employed in the
business of the Borrower and its Subsidiaries, if any, as described in Section
8.01.
"Reinvestment Election" shall have the meaning provided in Section
4.02(A)(d).
"Reinvestment Notice" shall mean a written notice signed by an
Authorized Officer of the Borrower stating that the Borrower, in good faith,
intends and expects to use all or a specified portion of the Net Cash Proceeds
of an Asset Sale to purchase, construct or otherwise acquire Reinvestment
Assets.
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"Reinvestment Prepayment Amount" shall mean, with respect to any
Reinvestment Election, the amount, if any, on the Reinvestment Prepayment Date
relating thereto by which (a) the Anticipated Reinvestment Amount in respect of
such Reinvestment Election exceeds (b) the aggregate amount thereof expended by
the Borrower and its Subsidiaries, if any, to acquire Reinvestment Assets.
"Reinvestment Prepayment Date" shall mean, with respect to any
Reinvestment Election, the earliest of (i) the date, if any, upon which the
Administrative Agent, on behalf of the Required Lenders, shall have delivered a
written termination notice to the Borrower, provided that such notice may only
--------
be given while an Event of Default exists, (ii) the date occurring one year
after such Reinvestment Election and (iii) the date on which the Borrower shall
have determined not to, or shall have otherwise ceased to, proceed with the
purchase, construction or other acquisition of Reinvestment Assets with the
related Anticipated Reinvestment Amount.
"Relevant Test Period" shall mean, at any time, the Test Period ending
on the last day of the then most recently ended fiscal quarter of the Borrower
with respect to which an officer's certificate has been delivered to the Lenders
pursuant to Section 7.01(e).
"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Lenders" shall mean Non-Defaulting Lenders, the sum of whose
outstanding A Term Loans, B Term Loans and Revolving Commitments (or, if after
the Total Revolving Commitment has been terminated, Revolving Loans and Adjusted
RC Percentages of Swingline Loans and Letter of Credit Outstandings) constitute
an amount greater than 50% of the sum of (i) the total outstanding A Term Loans,
and B Term Loans of Non-Defaulting Lenders and (ii) the Adjusted Total Revolving
Commitment (or, if after the Total Revolving Commitment has been terminated, the
aggregate outstanding Revolving Loans, Swingline Loans and Letter of Credit
Outstandings).
"Revolving Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name in Annex I hereto directly below
the column entitled "Revolving Commitment", as the same may be (x) reduced from
time to time pursuant to Section 3.02, 3.03 and/or 9 or (y) adjusted from time
to time as a result of assignments to or from such Lender pursuant to Section
12.04.
"Revolving Facility" shall mean the Facility evidenced by the Total
Revolving Commitment.
"Revolving Loan" shall have the meaning provided in Section 1.01(c).
"Revolving Loan Maturity Date" shall mean the sixth anniversary of the
Initial Borrowing Date.
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"Revolving Percentage" shall mean at any time for each Lender with a
Revolving Commitment, the percentage obtained by dividing such Lender's
Revolving Commitment by the Total Revolving Commitment, provided that if the
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Total Revolving Commitment has been terminated, the Revolving Percentage of each
Lender shall be determined by dividing such Lender's Revolving Commitment
immediately prior to such termination by the Total Revolving Commitment
immediately prior to such termination.
"Scheduled A Repayment" shall have the meaning provided in Section
4.02(A)(b).
"Scheduled B Repayment" shall have the meaning provided in Section
4.02(A)(c).
"Scheduled Repayment" shall mean each Scheduled A Repayment and each
Scheduled B Repayment.
"SEC" shall have the meaning provided in Section 7.01(i).
"SEC Regulation D" shall mean Regulation D as promulgated under the
Securities Act of 1933, as amended, as the same may be in effect from time to
time.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term in the
respective Security Documents.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section
5.01(g).
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the relevant Security Agreement.
"Security Documents" shall mean the Security Agreement, the Pledge
Agreement, if any, each Guaranty, if any, and each Additional Mortgage, if any.
"Senior Subordinated Note Documents" shall mean and include each of
the documents, instruments (including the Senior Subordinated Notes) and other
agreements entered into by Unilab Finance (including, without limitation, the
Senior Subordinated Note Indenture) relating to the issuance by Unilab Finance
of the Senior Subordinated Notes as assumed by the Borrower and in effect on the
Initial Borrowing Date and as the same may be supplemented, amended or modified
from time to time in accordance with the terms hereof and thereof.
"Senior Subordinated Note Indenture" shall mean the Indenture entered
into by and between Unilab Finance and the Senior Subordinated Note Indenture
Trustee, as in effect on the Initial Borrowing Date and as the same may be
modified, amended or supplemented from time to time in accordance with the terms
hereof and thereof.
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"Senior Subordinated Notes" shall mean the 12 3/4% Senior Subordinated
Notes due 2009 issued by Unilab Finance under the Senior Subordinated Note
Indenture and assumed by the Borrower.
"Senior Subordinated Notes Indenture Trustee" shall mean HSBC Bank USA
and any successor thereto.
"Shareholders' Agreements" shall have the meaning provided in Section
5.01(o).
"Standby Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Start Date" shall have the meaning provided in the definition of
Applicable Margin.
"Stated Amount" of each Letter of Credit shall mean the maximum
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, if any, has more than a 50% equity interest at the time. Unless
otherwise expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the sixth anniversary of the Initial Borrowing Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(d).
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Syndication Date" shall mean the earlier of (x) the date which is 90
days after the Initial Borrowing Date and (y) the date upon which the
Administrative Agent determines in its sole discretion (and notifies the
Borrower) that the primary syndication has been completed.
"Tax Allocation Agreements" shall have the meaning provided in Section
5.01(o).
"Tax Forms" shall have the meaning provided in Section 4.04(b).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Term Commitment" shall mean, with respect to each Lender, the sum of
the amount, if any, set forth opposite such Lender's name on Annex I hereto
directly below the
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column entitled "A Term Commitment" and the amount, if any, set forth opposite
such Lender's name on Annex I hereto directly below the column entitled B Term
Commitment.
"Term Facility" shall mean the Facility evidenced by the Total Term
Commitment.
"Term Loan" shall mean each A Term Loan and each B Term Loan.
"Test Period" shall mean for (i) the determination of the Interest
Coverage Ratio for purposes of Section 8.10 for the first three Test Periods,
the periods beginning on December 31, 1999 and ending at first, second and third
fiscal quarters ending thereafter (in each case taken as one accounting period)
and (ii) any other determination, the four consecutive fiscal quarters of the
Borrower then last ended (taken as one accounting period).
"Total A Term Commitment" shall mean the sum of the A Term Commitments
of each of the Lenders.
"Total B Term Commitment" shall mean the sum of the B Term Commitments
of each of the Lenders.
"Total Commitment" shall mean the sum of the Total A Term Commitment,
the Total B Term Commitment and the Total Revolving Commitment.
"Total Leverage Ratio" shall mean, at any date of determination, the
ratio of Consolidated Debt (net of cash and Cash Equivalents) on such date to
Consolidated EBITDA for the Test Period most recently ended (taken as one
accounting period) and ending on such date. All calculations of the Total
Leverage Ratio shall be made on a Pro Forma Basis. In addition to the
foregoing, for purposes of determining compliance with Section 8.11 for the Test
Period ending on December 31, 2000, the Total Leverage Ratio for the fiscal
quarter of the Borrower ending on December 31, 2000 shall be calculated after
giving effect to any capital contributions made to the Borrower pursuant to the
Capital Call Agreement.
"Total Revolving Commitment" shall mean the sum of the Revolving
Commitments of each of the Lenders.
"Total Term Commitment" shall mean the sum of the Total A Term
Commitment and the Total B Term Commitment.
"Total Unutilized Revolving Commitment" shall mean, at any time, (i)
the Total Revolving Commitment at such time less (ii) the sum of the aggregate
principal amount of all Revolving Loans and Swingline Loans at such time plus
the Letter of Credit Outstandings at such time.
"Trade Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Tranche" shall mean the respective facilities and commitments
utilized in making Loans hereunder, with there being three separate Tranches
(i.e., A Term Loans, B Term Loans and Revolving Loans).
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"Transaction" shall mean, collectively, (i) the Recapitalization, (ii)
the Refinancing, (iii) the incurrence of loans on the Initial Borrowing Date,
(iv) the entering into of the Senior Subordinated Note Documents and the
issuance of the Senior Subordinated Notes pursuant thereto, (v) the Equity
Financing and (vi) the payment of fees and expenses in connection with the
Recapitalization.
"Transaction Expenses" shall mean all fees and expenses incurred in
connection with, and payable prior to or substantially concurrently with the
consummation of the Transaction, and including (i) all fees paid to any of the
Lenders, the Administrative Agent, and the Syndication Agent hereunder, (ii) all
fees paid to Xxxxx & Company or its Affiliates, (iii) all attorney's fees,
accountants' fees and consultant fees, paid in connection with the transactions
contemplated by this Agreement, (iv) all accrued interest, (v) severance costs,
and (vi) financial advisory fees. Transaction Expenses shall include the
amortization of any such fees and expenses that are capitalized and not
classified as an expense on the date incurred.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or Eurodollar Loan.
----
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the value of the accumulated plan benefits under the Plan
determined on a plan termination basis in accordance with actuarial assumptions
at such time consistent with those prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
"Unilab Finance" shall mean Unilab Finance Corp., a Wholly-Owned
Subsidiary of Xxxxx.
"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
"Unutilized Revolving Commitment" for any Lender with a Revolving
Commitment at any time shall mean the excess of (i) the Revolving Commitment of
such Lender over (ii) the sum of (x) the aggregate outstanding principal amount
of Revolving Loans made by such Lender plus (y) an amount equal to such Lender's
Adjusted RC Percentage of the Letter of Credit Outstandings at such time.
"Voting Stock" shall mean, with respect to any corporation, the
outstanding stock of all classes (or equivalent interests) which ordinarily, in
the absence of contingencies, entitles holders thereof to vote for the election
of directors (or Persons performing similar functions) of such corporation, even
though the right so to vote has been suspended by the happening of such a
contingency.
"Wholly-Owned Subsidiary" of any Person shall mean any Subsidiary, if
any, of such Person to the extent all of the capital stock or other ownership
interests in such Subsidiary, other than directors' qualifying shares, is owned
directly or indirectly by such Person.
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"Working Capital" shall mean the excess of Consolidated Current Assets
over Consolidated Current Liabilities.
"Year 2000 Compliant" shall mean that all Information Systems and
Equipment accurately process date data (including, but not limited to,
calculating, comparing and sequencing), before, during and after the year 2000,
as well as same and multi-century dates, or between the years 1999 and 2000,
taking into account all leap years, including the fact that the year 2000 is a
leap year, and further, that when used in combination with, or interfacing with,
other Information Systems and Equipment, shall accurately accept, release and
exchange date data, and shall in all material respects continue to function in
the same manner as it performs today and shall not otherwise impair the accuracy
or functionality of Information Systems and Equipment.
"Written" or "in writing" shall mean any form of written communication
or a communication by means of telex, facsimile transmission, telegraph or
cable.
SECTION 11. The Administrative Agent.
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11.01 Appointment. The Lenders hereby designate Bankers Trust
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Company as Administrative Agent (for purposes of this Section 11, the term
"Administrative Agent" shall include BTCo in its capacity as Collateral Agent
pursuant to the Security Documents) to act as specified herein and in the other
Credit Documents. Each Lender hereby irrevocably authorizes, and each holder of
any Note by the acceptance of such Note shall be deemed irrevocably to
authorize, the Administrative Agent to take such action on its behalf under the
provisions of this Agreement, the other Credit Documents and any other
instruments and agreements referred to herein or therein and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder by or through its
respective officers, directors, agents, employees or affiliates.
11.02 Nature of Duties. The Administrative Agent shall not have any
----------------
duties or responsibilities except those expressly set forth in this Agreement
and the Security Documents. Neither the Administrative Agent nor any of its
respective officers, directors, agents, employees or affiliates shall be liable
for any action taken or omitted by it or them hereunder or under any other
Credit Document or in connection herewith or therewith, unless caused by its or
their gross negligence or willful misconduct. The duties of the Administrative
Agent shall be mechanical and administrative in nature; the Administrative Agent
shall not have by reason of this Agreement or any other Credit Document a
fiduciary relationship in respect of any Lender or the holder of any Note; and
nothing in this Agreement or any other Credit Document, expressed or implied, is
intended to or shall be so construed as to impose upon the Administrative Agent
any obligations in respect of this Agreement or any other Credit Document except
as expressly set forth herein or therein.
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11.03 Lack of Reliance on the Administrative Agent. Independently
--------------------------------------------
and without reliance upon the Administrative Agent, each Lender and the holder
of each Note, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Borrower and its Subsidiaries, if any, in connection with the
making and the continuance of the Loans and the taking or not taking of any
action in connection herewith and (ii) its own appraisal of the creditworthiness
of the Borrower and its Subsidiaries, if any, and, except as expressly provided
in this Agreement, the Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
or the holder of any Note with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter. The Administrative Agent shall not be responsible
to any Lender or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of the Borrower and its Subsidiaries, if
any, or be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any other Credit Document, or the financial condition of the Borrower and its
Subsidiaries, if any, or the existence or possible existence of any Default or
Event of Default.
11.04 Certain Rights of the Administrative Agent. If the
------------------------------------------
Administrative Agent shall request instructions from the Required Lenders with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Administrative Agent shall be
entitled to refrain from such act or taking such action unless and until the
Administrative Agent shall have received instructions from the Required Lenders;
and the Administrative Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, neither any Lender nor the
holder of any Note shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Lenders.
11.05 Reliance. The Administrative Agent shall be entitled to rely,
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and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, telex, teletype or telecopier message,
cablegram, radiogram, order or other document or telephone message signed, sent
or made by any Person that the Administrative Agent believed to be the proper
Person, and, with respect to all legal matters pertaining to this Agreement and
any other Credit Document and its duties hereunder and thereunder, upon advice
of counsel selected by the Administrative Agent (which may be counsel for the
Borrower).
11.06 Indemnification. To the extent the Administrative Agent is not
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reimbursed and indemnified by the Borrower, the Lenders will reimburse and
indemnify the Administrative Agent, in proportion to their respective
"percentages" as used in determining the Required Lenders, for and against any
and all liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent in
performing its respective duties hereunder or under any other Credit Document,
in any way relating to or arising out of this Agreement or any other Credit
Document; provided that no Lender shall be liable for any portion
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of such liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct.
11.07 The Administrative Agent in its Individual Capacity. With
---------------------------------------------------
respect to its obligation to make Loans under this Agreement, the Administrative
Agent shall have the rights and powers specified herein for a "Lender" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Lenders", "Required Lenders", "holders of Notes"
or any similar terms shall, unless the context clearly otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent and the Syndication Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with any Credit
Party or any Affiliate of any Credit Party as if it were not performing the
duties specified herein, and may accept fees and other consideration from the
Borrower or any other Credit Party for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
11.08 Holders. The Administrative Agent may deem and treat the payee
-------
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
11.09 Resignation by the Administrative Agent. (a) The
---------------------------------------
Administrative Agent may resign from the performance of all its functions and
duties hereunder and/or under the other Credit Documents at any time by giving
15 Business Days' prior written notice to the Borrower and the Lenders. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Lenders shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrower, shall then appoint a successor Administrative Agent who
shall serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Required Lenders appoint a successor Administrative Agent as
provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 20th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Lenders shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.
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11.10 Syndication Agent. The Syndication Agent shall have no duties
-----------------
or liabilities under the Credit Documents in such capacity.
SECTION 12. Miscellaneous.
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12.01 Payment of Expenses, etc. The Borrower agrees to: (i) whether
-------------------------
or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agents in connection with the
negotiation, preparation, execution and delivery of the Credit Documents and the
documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and
disbursements of White & Case LLP), (ii) pay all reasonable out-of-pocket costs
and expenses of each Agent and each of the Lenders in connection with the
enforcement of the Credit Documents and the documents and instruments referred
to therein and, after an Event of Default shall have occurred and be continuing,
the protection of the rights of each of the Agents and each of the Lenders
thereunder (including, without limitation, the reasonable fees and disbursements
of counsel for the Agents and the Lenders), provided that the Borrower shall be
--------
obligated to pay the fees and disbursements of only one counsel to the Agents
and the Lenders pursuant to this clause (ii) unless an Agent or Lender notifies
the Borrower that it reasonably believes that its legal position differs from
the other Agents or Lenders or that it may be subject to different claims or
defenses than the other Agents and Lenders, in which case the Company will also
pay the reasonable fees and disbursements of counsel of such Agent or Lender;
(iii) pay and hold each of the Lenders harmless from and against any and all
present and future stamp and other similar taxes with respect to the foregoing
matters and save each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Lender) to pay such taxes; and (iv) indemnify
each Lender (including in its capacity as the Administrative Agent, the
Syndication Agent or a Letter of Credit Issuer), its officers, directors,
employees, representatives and administrative agents from and hold each of them
harmless against any and all losses, liabilities, claims, damages or expenses
incurred by any of them as a result of, or arising out of, or in any way related
to, or by reason of, (a) any investigation, litigation or other proceeding
(whether or not the Administrative Agent, the Syndication Agent or any Lender is
a party thereto and whether or not any such investigation, litigation or other
proceeding is between or among the Administrative Agent, the Syndication Agent,
any Lender, any Credit Party or any third Person or otherwise) related to the
entering into and/or performance of any Document or the use of the proceeds of
any Loans hereunder or the consummation of any transactions contemplated in any
Credit Document, and (b) any such investigation, litigation or other proceeding
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries, if any, or any Real Property owned or operated by them, or the
actual or alleged presence or release of Hazardous Materials on, under or from
any Real Property at any time owned or operated by Holdings or any of its
Subsidiaries, if any, and in each case including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
12.02 Right of Setoff. In addition to any rights now or hereafter
---------------
granted under applicable law or otherwise, and not by way of limitation of any
such rights, if an Event of
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Default then exists, each Lender is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to any
Credit Party or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by such Lender
(including, without limitation, by branches and agencies of such Lender wherever
located) to or for the credit or the account of any Credit Party against and on
account of the Obligations and liabilities of such Credit Party to such Lender
under this Agreement or under any of the other Credit Documents, including,
without limitation, all interests in Obligations of such Credit Party purchased
by such Lender pursuant to Section 12.06(b), and all other claims of any nature
or description arising out of or connected with this Agreement or any other
Credit Document, irrespective of whether or not such Lender shall have made any
demand hereunder and although said Obligations, liabilities or claims, or any of
them, shall be contingent or unmatured.
12.03 Notices. Except as otherwise expressly provided herein, all
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notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to a Credit Party, at
the address specified opposite its signature below or in the other relevant
Credit Documents, as the case may be; if to any Lender, at its address specified
for such Lender on Annex II hereto; or, at such other address as shall be
designated by any party in a written notice to the other parties hereto. All
such notices and communications shall be mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, and shall be effective when
received.
12.04 Benefit of Agreement. (a) This Agreement shall be binding
--------------------
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto, provided that the Borrower may not assign or
--------
transfer any of its rights or obligations hereunder without the prior written
consent of the Lenders. Each Lender may at any time grant participations in any
of its rights hereunder or under any of the Notes to another financial
institution, provided that in the case of any such participation, the
--------
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant's rights against such Lender in respect of
such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation, except that the participant shall be entitled to the benefits of
Sections 1.10, 1.11, 2.06 and 4.04 of this Agreement to the extent that such
Lender would be entitled to such benefits if the participation had not been
entered into or sold, and, provided further, that no Lender shall transfer,
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grant or assign any participation under which the participant shall have rights
to approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend the
final scheduled maturity of any Loan or Letter of Credit (unless such Letter of
Credit is not extended beyond the Revolving Loan Maturity Date) in which such
participant is participating (it being understood that any waiver of the
application of any prepayment or the method of any application of any prepayment
to, the amortization of the Term Loans shall not constitute an extension of the
final maturity date), or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating interest
in any Commitment over the amount
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thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment, or a
mandatory prepayment, shall not constitute a change in the terms of any
Commitment), (ii) release all or substantially all of the Guarantors from their
obligations under the Guaranty except in accordance with the terms thereof,
(iii) release all or substantially all of the Collateral except in accordance
with the terms of the Credit Documents or (iv) consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement.
(b) Notwithstanding the foregoing, (x) any Lender may assign all or a
portion of its outstanding A Term Loans, B Term Loans and/or Revolving
Commitment (and related outstanding Obligations) and its rights and obligations
hereunder to (i) its parent company and/or affiliates of such Lender which is at
least 50% owned by such Lender or its parent company or (ii) in the case of a
Lender that is a fund that invests in loans, any other fund that invests in
loans and is managed or advised by the same fund manager or investment adviser
of such Lender or an Affiliate of such fund manager or investment adviser of
such Lender, and (y) with the consent of the Administrative Agent and, so long
as no Event of Default is then in existence, the Borrower (which consents shall
not be unreasonably withheld or delayed), any Lender may assign all or a portion
of its outstanding A Term Loans, B Term Loans and/or Revolving Commitment and
its rights and obligations hereunder to one or more commercial lenders or other
financial institutions (including one or more Lenders). No assignment pursuant
to the immediately preceding sentence shall to the extent such assignment
represents an assignment to an institution other than one or more Lenders
hereunder, be in an aggregate amount less than $5,000,000 unless the entire
outstanding Loans and Commitment of the assigning Lender is so assigned. If any
Lender so sells or assigns all or a part of its rights hereunder or under the
Notes, any reference in this Agreement or the Notes to such assigning Lender
shall thereafter refer to such Lender and to the respective assignee to the
extent of their respective interests and the respective assignee shall have, to
the extent of such assignment (unless otherwise provided therein), the same
rights and benefits as it would if it were such assigning Lender. Each
assignment pursuant to this Section 12.04(b) shall be effected by the assigning
Lender and the assignee Lender executing an Assignment Agreement. At the time
of any such assignment, (i) either the assigning or the assignee Lender shall
pay to the Administrative Agent a nonrefundable assignment fee of $3,500, (ii)
Annex I shall be deemed to be amended to reflect the Commitment of the
respective assignee (which shall result in a direct reduction to the Commitment
of the assigning Lender) and of the other Lenders, and (iii) upon the request of
the assignee and/or assigning Lender, the Borrower will issue Notes to the
respective assignee and/or to the assigning Lender in conformity with the
requirements of Section 1.05. Each Lender and the Borrower agree to execute such
documents (including without limitation amendments to this Agreement and the
other Credit Documents) as shall be necessary to effect the foregoing. Nothing
in this clause (b) shall prevent or prohibit any Lender from pledging its Notes
or Loans to a Federal Reserve Bank in support of borrowings made by such Lender
from such Federal Reserve Bank. Notwithstanding anything to the contrary
contained in this clause (b), any Lender that is a fund that invests in bank
loans may (without the consent of the Borrower or the Administrative Agent)
pledge all or any portion of its rights in connection with this Agreement to the
trustee for, or other representative of, holders of obligations owed, or
securities issued, by such fund as security for such obligations or securities;
provided that any foreclosure or other exercise of remedies by such trustee
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shall be subject to the provisions of this Agreement and the other Credit
Documents in all respects. No pledge
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described in the immediately preceding sentence shall release such Lender from
its obligations hereunder.
(c) Notwithstanding any other provisions of this Section 12.04, no
transfer or assignment of the interests or obligations of any Lender hereunder
or any grant of participation therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration statement
with the SEC or to qualify the Loans under the "Blue Sky" laws of any State.
(d) Each Lender initially party to this Agreement hereby represents,
and each Person that became a Lender pursuant to an assignment permitted by this
Section 12 will, upon its becoming party to this Agreement, represent that it is
a commercial lender, other financial institution or other "accredited" investor
(as defined in SEC Regulation D) which makes loans in the ordinary course of its
business and that it will make or acquire Loans for its own account in the
ordinary course of such business, provided that subject to the preceding clauses
--------
(a) and (b), the disposition of any promissory notes or other evidences of or
interests in Indebtedness held by such Lender shall at all times be within its
exclusive control.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the
------------------------------
part of the Administrative Agent or any Lender in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between any Credit Party and the Administrative Agent or any Lender shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Lender would otherwise have. No notice to or demand
on any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent or the Lenders to any other or
further action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees that
-----------------
promptly after its receipt of each payment from or on behalf of any Credit Party
in respect of any Obligations of such Credit Party hereunder, it shall
distribute such payment to the Lenders (other than any Lender that has expressly
waived its right to receive its pro rata share thereof) pro rata based upon
--- ---- --- ----
their respective shares, if any, of the Obligations with respect to which such
payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or Lender's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such
Obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for cash
without recourse or warranty from the other Lenders an interest in the
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Obligations of the respective Credit Party to such Lenders in such amount as
shall result in a proportional participation by all of the Lenders in such
amount, provided that if all or any portion of such excess amount is thereafter
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recovered from such Lender, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 12.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
12.07 Calculations; Computations. (a) The financial statements to
--------------------------
be furnished to the Lenders pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Lenders), provided that (x) except as otherwise
--------
specifically provided herein, all computations determining compliance with
Section 8, including definitions used therein, shall utilize accounting
principles and policies in effect at the time of the preparation of, and in
conformity with those used to prepare, the December 31, 1998 historical
financial statements of the Borrower delivered to the Lenders pursuant to
Section 6.10(b) and (y) that if at any time the computations determining
compliance with Section 8 utilize accounting principles different from those
utilized in the financial statements furnished to the Lenders, such financial
statements shall be accompanied by reconciliation work-sheets.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
12.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of
-----------------------------------------------------------
Jury Trial. (a) This Agreement and the other Credit Documents and the rights
----------
and obligations of the parties hereunder and thereunder shall be construed in
accordance with and be governed by the law of the state of New York. Any legal
action or proceeding with respect to this Agreement or any other Credit Document
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Agreement, each Credit Party hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Credit Party further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to each Credit Party located outside New York City and by hand
delivery to each Credit Party located within New York City, at its address for
notices pursuant to Section 12.03, such service to become effective 30 days
after such mailing. Each Credit Party hereby irrevocably designates appoints
and empowers CT Corporation System, with offices on the date hereof located at
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent for service of process
in respect of any such action or proceeding. Nothing herein shall affect the
right of any Agent, any Lender or the holder of any Note to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against any Credit Party in any other jurisdiction.
(b) Each Credit Party hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out
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of or in connection with this Agreement or any other Credit Document brought in
the courts referred to in clause (a) above and hereby further irrevocably waives
and agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
(c) Each of the parties to this agreement hereby irrevocably waives
all right to a trial by jury in any action, proceeding or counterclaim arising
out of or relating to this agreement, the other credit documents or the
transactions contemplated hereby or thereby.
12.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective on the
-------------
date (the "Effective Date") on which the Borrower, the Administrative Agent, the
Syndication Agent and each of the Lenders shall have signed a copy hereof
(whether the same or different copies) and shall have delivered the same to the
Administrative Agent at the Notice Office of the Administrative Agent or, in the
case of the Lenders, shall have given to the Administrative Agent telephonic
(confirmed in writing), written, telex or facsimile transmission notice
(actually received) at such office that the same has been signed and mailed to
it. The Administrative Agent will give the Borrower and each Lender prompt
written notice of the occurrence of the Effective Date.
12.11 Headings Descriptive. The headings of the several sections and
--------------------
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
-------------------------
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, provided that no such change, waiver, discharge or termination
--------
shall, without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected in the case of following clause (i)), (i)
extend the final scheduled maturity of any Loan or Note or extend the stated
expiration date of any Letter of Credit beyond the Revolving Loan Maturity Date,
or reduce the rate or extend the time of payment of interest or Fees thereon, or
reduce the principal amount thereof (except to the extent repaid in cash), (ii)
release all or substantially all of the Collateral (except as expressly provided
in the Credit Documents) under all the Security Documents or release all or
substantially all of the Guarantors from their obligations under the Guaranty
except in accordance with its terms, (iii) amend, modify or waive any provision
of this Section 12.12 (it being understood that, with the consent of the
Required Lenders, additional extensions of credit pursuant to this Agreement may
afford the holders thereof and/or the then existing Lenders additional rights of
consent), (iv) reduce the percentage specified in the definition of Required
Lenders (it being understood that, with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Lenders on substantially the same basis as the
extensions of Revolving Commitments
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are included on the Effective Date) or (v) consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Agreement;
provided further, that no such change, waiver, discharge or termination shall
----------------
(u) without the consent of the Majority Lenders of each Tranche which is being
allocated a lesser prepayment, repayment or commitment reduction as a result of
the actions described below (or without the consent of the Majority Lenders of
each Tranche in the case of an amendment to the definition of Majority Lenders),
amend the definition of Majority Lenders or alter the required application of
any prepayments or repayments (or commitment reductions), as between the various
Tranches, pursuant to Section 4.01 or 4.02 (excluding Section 4.02(b)) (although
the Required Lenders may (1) waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the application, as amongst the
various Tranches, of any such prepayment, repayment or commitment reduction
which is still required to be made is not altered and (2) agree to additional
extensions of credit made after the Initial Borrowing Date (and not pursuant to
the Commitments as in effect on the Initial Borrowing Date) on substantially the
same basis as the other extensions of credit made pursuant to this Agreement),
(v) increase the Commitments of any Lender over the amount thereof then in
effect without the consent of such Lender (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Commitment shall not constitute an
increase of the Commitment of any Lender, and that an increase in the available
portion of the Commitment of any Lender shall not constitute an increase of the
Commitment of any Lender, and that an increase in the available portion of any
Commitment of any Lender shall not constitute an increase in the Commitment of
such Lender), (w) without the consent of each Letter of Credit Issuer, amend,
modify or waive any provision of Section 2 or alter its rights or obligations
with respect to Letters of Credit, (x) without the consent of BTCo, alter its
rights or obligations with respect to Swingline Loans, (y) without the consent
of the Administrative Agent, amend, modify or waive any provision of Section 11
or any other provision as same relates to the rights or obligations of the
Administrative Agent or (z) without the consent of the Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of the
Collateral Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 12.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clauses (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders with
one or more Replacement Lenders pursuant to Section 1.13 so long as at the time
of such replacement, each such Replacement Lender consents to the proposed
change, waiver, discharge or termination or (B) terminate such non-consenting
Lender's Revolving Commitment and repay outstanding Loans of such Lender in
accordance with Sections 3.02(b) and/or 4.01(b), provided that, unless the
--------
Commitments which are terminated, and Loans which are repaid pursuant to
preceding clause (B) are immediately replaced in full at such time through the
addition of new Lenders or the increase of the Commitments and/or outstanding
Loans of existing Lenders (who in each case must specifically consent thereto),
then in the case of any action pursuant to preceding clause (B) each Lender
(determined after giving effect to the proposed action) shall specifically
consent thereto, provided further, that in any event the Borrower shall not have
-------- -------
the right to replace a Lender, terminate its
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Commitment or repay its Loans solely as a result of the exercise of such
Lender's rights (and the withholding of any required consent by such Lender)
pursuant to the second proviso to Section 12.12(a).
12.13 Survival. All indemnities set forth herein including, without
--------
limitation, in Section 1.10, 1.11, 2.06, 4.04, 11.07 or 12.01 shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
12.14 Domicile of Loans. Each Lender may transfer and carry its
-----------------
Loans at, to or for the account of any branch office, subsidiary or affiliate of
such Lender, provided that the Borrower shall not be responsible for costs
--------
arising under Section 1.10 or 4.04 resulting from any such transfer (other than
a transfer pursuant to Section 1.12) to the extent not otherwise applicable to
such Lender prior to such transfer.
12.15 Confidentiality. Subject to Section 12.04, the Lenders shall
---------------
hold all non- public information obtained pursuant to the requirements of this
Agreement which has been identified as such by the Borrower in accordance with
its customary procedure for handling confidential information of this nature and
in accordance with safe and sound banking practices and in any event may make
disclosure (i) reasonably required by (x) any actual or prospective bona fide
---- ----
transferee or participant in connection with the contemplated transfer of any
Loans or participation therein or (y) any direct or indirect contractual
counterparty of any Lender in swap agreements or such contractual counterparty's
professional advisor (so long as such transferee, participant, counterparty or
professional advisor agrees to be bound by the provisions of this Section
12.15), (ii) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about a Lender's investment portfolio in connection with
ratings issued with respect to such Lender or (iii) as required or requested by
any governmental agency or representative thereof or pursuant to legal process,
provided that, unless specifically prohibited by applicable law or court order,
--------
each Lender shall notify the Borrower of any request by any governmental agency
or representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information, and provided further, that in no event shall any Lender be
----------------
obligated or required to return any materials furnished by the Borrower or any
Subsidiary.
12.16 Register. The Borrower hereby designates the Administrative
--------
Agent to serve as its agent, solely for purposes of this Section 12.16, to
maintain a register (the "Register") on which it will record the Commitments
from time to time of each of the Lenders, the Loans made by each of the Lenders
and each repayment in respect of the principal amount of the Loans of each
Lender. Failure to make any such recordation, or any error in such recordation,
shall not affect the Borrower's obligations in respect of such Loans. With
respect to any Lender, the transfer of any A Term Loan, B Term Loan or the
Revolving Commitment of such Lender and the rights to the principal of, and
interest on, any Loan made pursuant to such Revolving Commitment shall not be
effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Commitment and/or Loans
and prior to such recordation all amounts owing to the transferor with respect
to such Commitment and/or Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitment and/or
Loans shall be recorded by the Administrative Agent on the
-93-
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment Agreement pursuant to Section 12.04(b). The
Borrower agrees to indemnify the Administrative Agent from and against any and
all losses, claims, damages and liabilities of whatsoever nature which may be
imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 12.16.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
UNILAB CORPORATION,
00000 Xxxxxx Xxxxxx xx Xxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000 By /s/ Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000 ---------------------------------------
Title: Chief Executive Officer
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By /s/ Xxxx Xxx Xxxxx
---------------------------------------
Title: Managing Director
XXXXXXX XXXXX CAPITAL CORPORATION,
Individually and as Syndication Agent
By /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Senior Vice President
XXXXXX FINANCIAL, INC.
By /s/ Xxxxxx X. Xxxx
---------------------------------------
Title: Assistant Vice President
THE XXXXX AND XXXXXXXXXX MASTER
RETIREMENT TRUST
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By /s/ Xxxxxx X. Nisi
---------------------------------------
Title: General Counsel
EA/Cayman Unit Trust - EA/Mackay High Yield
Cayman Unit Trust
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By /s/ Xxxxxx X. Nisi
---------------------------------------
Title: General Counsel
Mellon Bank N.A., solely in its capacity as
Trustee (or Custodian) for the Employees
Retirement Fund of the City of Forth Worth
as directed by XxxXxx-Xxxxxxx Financial
Corporation, and not in its individual
capacity.
By /s/ Xxxxxx X. Nisi
---------------------------------------
Title: General Counsel
POLICEMEN'S AND FIREFIGHTERS' RETIREMENT FUND
OF LEXINGTON-FAYETTE URBAN COUNTY
GOVERNMENT
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By /s/ Xxxxxx X. Nisi
---------------------------------------
Title: General Counsel
TEACHER'S RETIREMENT SYSTEM OF
LOUISIANA
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By /s/ Xxxxxx X. Nisi
---------------------------------------
Title: General Counsel
THE 1199 HEALTH CARE EMPLOYEES PENSION FUND
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By /s/ Xxxxxx X. Nisi
---------------------------------------
Title: General Counsel
POLICE OFFICERS PENSION SYSTEM OF THE CITY OF
HOUSTON
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By /s/ Xxxxxx X. Nisi
---------------------------------------
Title: General Counsel
THE CITY OF MEMPHIS RETIREMENT SYSTEM
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By /s/ Xxxxxx X. Nisi
---------------------------------------
Title: General Counsel
MAINSTAY VP SERIES FUND, INC., ON BEHALF OF
ITS HIGH YIELD CORPORATE BOND PORTFOLIO
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By /s/ Xxxxxx X. Nisi
---------------------------------------
Title: General Counsel
THE MAINSTAY FUNDS, ON BEHALF OF ITS HIGH
YIELD CORPORATE BOND FUND SERIES
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By /s/ Xxxxxx X. Nisi
---------------------------------------
Title: General Counsel
XXXXXX XXXXXXX XXXX XXXXXX PRIME INCOME TRUST
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President
KZH STERLING LLC
By /s/ Xxxxxxxx Xxxxxx
---------------------------------------
Title: Authorized Agent
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Title: Vice President
XXX XXXXXX PRIME RATE INCOME
TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
ANNEX I
-------
COMMITMENTS
-----------
A Term B Term Revolving
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
Bankers Trust Company $25,000,000.00 $ 26,000,000.00 $12,500,000.00
Xxxxxxx Xxxxx Capital $15,000,000.00 $ 1,500,000.00 $ 7,500,000.00
Corporation
First Union National Bank $ 0 $ 10,000,000.00 $ 0
Xxxxxx Financial, Inc. $ 0 $ 10,000,000.00 $ 0
KZH Sterling LLC $ 0 $ 5,000,000.00 $ 0
The Xxxxx and Xxxxxxxxxx $ 0 485,000.00 $ 0
Master Retirement Fund
EA/Cayman Unit Trust - $ 0 $ 2,130,000.00 $ 0
EA/MacKay High Yield Cayman
Unit Trust
Mellon Bank, N.A. $ 0 $ 260,000.00 $ 0
Policemen's and Firefighters' $ 0 $ 195,000.00 $ 0
Retirement Fund of
Lexington-Fayette Urban
County Government
Teacher's Retirement System $ 0 $ 1,040,000.00 $ 0
of Louisiana
The 1199 Health Care $ 0 $ 1,195,000.00 $ 0
Employees Pension Fund
Police Officers Pension $ 0 $ 845,000.00 $ 0
System of the City of Houston
The City of Memphis $ 0 $ 680,000.00 $ 0
Retirement System
Annex I
Page 2
A Term B Term Revolving
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
Mainstay VP Series Fund, $ 0 $ 1,975,000.00 $ 0
Inc., on behalf of its High
Yield Corporate Bond
Portfolio
The Mainstay Funds, on behalf $ 0 $ 11,195,000.00 $ 0
of its High Yield Corporate
Bond Fund Series
Xxxxxx Xxxxxxx Xxxx Xxxxxx $ 0 $ 17,500,000.00 $ 0
Prime Income Trust
Union Bank of California, N.A. $10,000,000.00 $ 5,000,000.00 $ 5,000,000.00
Xxx Xxxxxx Prime Rate Income $ 0 $ 10,000,000.00 $ 0
Trust
Xxx Xxxxxx Senior Floating $ 0 $ 5,000,000.00 $ 0
Rate Fund
Total: $50,000,000.00 $110,000,000.00 $25,000,000.00
============== =============== ==============
ANNEX II
--------
LENDER ADDRESSES
----------------
Bankers Trust Company 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
The Xxxxx and Xxxxxxxxxx Master 0 Xxxx 00xx Xxxxxx, 37th Floor
Retirement Fund Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
The City of Memphis Retirement System 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
EA/Cayman Unit Trust - EA/MacKay High 9 West 57th Street, 37th Floor
Yield Cayman Unit Trust New York, NY 10019
Attention: Xxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
The 1199 Health Care Employees Pension 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxxx Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
First Union National Bank 000 Xxxxx Xxxxxxx Xx.
XX-0
Xxxxxxxxx, XX 000000-0000
Attention: Xxxxxxx Xxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Annex II
Page 2
Xxxxxx Financial, Inc. 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
KZH Sterling LLC 00 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
The Mainstay Funds, on behalf of its High 9 West 57th Street, 37th Floor
Yield Corporate Bond Fund Series Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Mainstay VP Series Fund, Inc., on behalf 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
of its High Yield Corporate Bond Portfolio Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Mellon Bank, N.A. 1 Mellon Bank Center 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx Attention: Xxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000 Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
Xxxxxxx Xxxxx Capital Corporation World Financial Center
000 Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Xxxxxx Xxxxxxx Xxxx Xxxxxx Two World Trade Center
72nd Floor
New York, NY 10048
Attention: Xxxxx Xxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Annex II
Page 3
Policemen's and Firefighters' 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Retirement Fund of Lexington- Xxx Xxxx, XX 00000
Fayette Urban County Government Attention: Xxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Police Officers Pension System of the 0 Xxxx 00xx Xxxxxx, 37th Floor
City of Houston Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Teacher's Retirement System of Louisiana 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Union Bank of California, N.A. 000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Xxx Xxxxxx Prime Rate Income Trust Xxx XxxxXxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Xxx Xxxxxx Senior Floating Rate Fund Xxx XxxxXxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
