EXHIBIT 10.36
EXECUTION
CREDIT AND GUARANTY AGREEMENT
dated as of December 20, 2000
among
EQUINIX OPERATING CO., INC.
and
EQUINIX, INC.,
as Borrowers,
EQUINIX, INC. AND CERTAIN OF ITS SUBSIDIARIES,
as Guarantors,
VARIOUS LENDERS,
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Joint Lead Arranger, Joint Book Runner and Syndication Agent,
XXXXXXX XXXXX BARNEY INC.,
as Joint Lead Arranger and Joint Book Runner,
CITICORP USA, INC.,
as Administrative Agent,
and
CIT LENDING SERVICES CORPORATION
as Collateral Agent,
________________________________________________________
$150,000,000 Senior Secured Credit Facilities
________________________________________________________
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND INTERPRETATION..................................................................................... 2
1.1 Definitions......................................................................................................... 2
1.2 Accounting Terms.................................................................................................... 36
1.3 Interpretation, etc................................................................................................. 36
SECTION 2 LOANS AND LETTERS OF CREDIT.......................................................................................... 36
2.1 Loans............................................................................................................... 36
2.2 Issuance of Letters of Credit and Purchase of Participations Therein................................................ 41
2.3 Pro Rata Shares; Availability of Funds.............................................................................. 45
2.4 Use of Proceeds..................................................................................................... 45
2.5 Evidence of Debt; Register; Lenders' Books and Records; Notes....................................................... 46
2.6 Interest on Loans................................................................................................... 46
2.7 Conversion/Continuation............................................................................................. 48
2.8 Default Interest.................................................................................................... 49
2.9 Fees................................................................................................................ 49
2.10 Scheduled Payments.................................................................................................. 50
2.11 Voluntary Prepayments/Commitment Reductions......................................................................... 51
2.12 Mandatory Prepayments/Commitment Reductions......................................................................... 53
2.13 Application of Prepayments/Reductions............................................................................... 55
2.14 Allocation of Certain Payments and Proceeds......................................................................... 56
2.15 General Provisions Regarding Payments............................................................................... 56
2.16 Ratable Sharing..................................................................................................... 57
2.17 Making or Maintaining Eurodollar Rate Loans......................................................................... 58
2.18 Increased Costs; Capital Adequacy................................................................................... 60
2.19 Taxes; Withholding, etc............................................................................................. 61
2.20 Obligation to Mitigate.............................................................................................. 63
2.21 Defaulting Lenders.................................................................................................. 63
2.22 Removal or Replacement of a Lender.................................................................................. 64
SECTION 3 CONDITIONS PRECEDENT................................................................................................ 65
3.1 Closing Date........................................................................................................ 65
3.2 Conditions to Each Credit Extension................................................................................. 70
SECTION 4 REPRESENTATIONS AND WARRANTIES...................................................................................... 72
4.1 Organization; Requisite Power and Authority; Qualification.......................................................... 72
4.2 Capital Stock and Ownership......................................................................................... 72
4.3 Due Authorization................................................................................................... 72
4.4 No Conflict......................................................................................................... 73
4.5 Governmental Consents............................................................................................... 73
4.6 Binding Obligation.................................................................................................. 73
4.7 Historical Financial Statements..................................................................................... 73
4.8 Projections......................................................................................................... 73
4.9 No Material Adverse Change.......................................................................................... 74
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4.10 No Restricted Junior Payments....................................................................................... 74
4.11 Adverse Proceedings, etc............................................................................................ 74
4.12 Payment of Taxes.................................................................................................... 74
4.13 Properties.......................................................................................................... 74
4.14 Collateral.......................................................................................................... 75
4.15 Environmental Matters............................................................................................... 75
4.16 No Defaults......................................................................................................... 76
4.17 Material Contracts.................................................................................................. 76
4.18 Governmental Regulation............................................................................................. 76
4.19 Margin Stock........................................................................................................ 77
4.20 Employee Matters.................................................................................................... 77
4.21 Employee Benefit Plans.............................................................................................. 77
4.22 Solvency............................................................................................................ 78
4.23 Compliance with Statutes, etc....................................................................................... 78
4.24 Disclosure.......................................................................................................... 78
SECTION 5 AFFIRMATIVE COVENANTS............................................................................................... 78
5.1 Financial Statements and Other Reports.............................................................................. 78
5.2 Existence........................................................................................................... 82
5.3 Payment of Taxes and Claims......................................................................................... 82
5.4 Maintenance of Properties........................................................................................... 83
5.5 Insurance........................................................................................................... 83
5.6 Books and Records; Inspections; Lenders Meetings.................................................................... 84
5.7 Compliance with Laws................................................................................................ 84
5.8 Environmental....................................................................................................... 84
5.9 Subsidiaries........................................................................................................ 86
5.10 Post Closing Covenants With Respect to Real Estate Assets........................................................... 86
5.11 Interest Rate Protection............................................................................................ 87
5.12 Post Closing Covenants With Respect to Permitted Equipment Financing Collateral..................................... 87
5.13 Further Assurances.................................................................................................. 87
5.14 Maintenance of Certain Cash......................................................................................... 88
5.15 Notice of Default Under Lease....................................................................................... 88
SECTION 6 NEGATIVE COVENANTS.................................................................................................. 88
6.1 Indebtedness........................................................................................................ 88
6.2 Liens............................................................................................................... 90
6.3 No Further Negative Pledges......................................................................................... 91
6.4 Restricted Junior Payments; Restrictions on Investments in Unrestricted Subsidiaries; Restricted Rental and Upkeep
Payments.......................................................................................................... 91
6.5 Investments......................................................................................................... 92
6.6 Stage 1 Financial Covenants......................................................................................... 93
6.7 Stage 2 Financial Covenants......................................................................................... 93
6.8 Maximum Cumulative Consolidated Capital Expenditures................................................................ 94
6.9 Fundamental Changes; Disposition of Assets; Acquisitions............................................................ 94
6.10 Disposal of Subsidiary Interests.................................................................................... 95
6.11 Sales and LeaseBacks................................................................................................ 95
ii
6.12 Sale and Discount of Receivables.................................................................................... 96
6.13 Transactions with Shareholders and Affiliates....................................................................... 96
6.14 Conduct of Business................................................................................................. 96
6.15 Permitted IBX Facilities............................................................................................ 96
6.16 Amendments or Waivers of Certain Documents.......................................................................... 97
6.17 Fiscal Year......................................................................................................... 97
6.18 Unrestricted Subsidiaries........................................................................................... 97
6.19 Acquisition and Ownership of Assets by Company...................................................................... 98
6.20 Company Subsidiaries................................................................................................ 98
6.21 San Xxxx Subsidiary................................................................................................. 98
SECTION 7 GUARANTY............................................................................................................ 99
7.1 Guaranty of the Obligations......................................................................................... 99
7.2 Contribution by Guarantors.......................................................................................... 99
7.3 Payment by Guarantors............................................................................................... 100
7.4 Liability of Guarantors Absolute.................................................................................... 100
7.5 Waivers by Guarantors............................................................................................... 102
7.6 Guarantors' Rights of Subrogation, Contribution, etc................................................................ 103
7.7 Subordination of Other Obligations.................................................................................. 103
7.8 Continuing Guaranty................................................................................................. 103
7.9 Authority of Guarantors or Borrower................................................................................. 104
7.10 Financial Condition of Borrower..................................................................................... 104
7.11 Bankruptcy, etc..................................................................................................... 104
7.12 Notice of Events.................................................................................................... 105
7.13 Discharge of Guaranty Upon Sale of Guarantor........................................................................ 105
SECTION 8 EVENTS OF DEFAULT................................................................................................... 105
8.1 Events of Default................................................................................................... 105
SECTION 9 AGENTS.............................................................................................................. 108
9.1 Appointment of Agents............................................................................................... 108
9.2 Powers and Duties................................................................................................... 109
9.3 General Immunity.................................................................................................... 109
9.4 Agents Entitled to Act as Lender.................................................................................... 110
9.5 Lenders' Representations, Warranties and Acknowledgment............................................................. 110
9.6 Right to Indemnity.................................................................................................. 110
9.7 Successor Administrative Agent and Collateral Agent................................................................. 111
9.8 Collateral Documents and Guaranty................................................................................... 112
SECTION 10 MISCELLANEOUS...................................................................................................... 112
10.1 Notices............................................................................................................ 112
10.2 Expenses........................................................................................................... 113
10.3 Indemnity.......................................................................................................... 113
10.4 SetOff............................................................................................................. 114
10.5 Amendments and Waivers............................................................................................. 114
10.6 Successors and Assigns; Participations............................................................................. 116
10.7 Independence of Covenants.......................................................................................... 119
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10.8 Survival of Representations, Warranties and Agreements............................................................. 119
10.9 No Waiver; Remedies Cumulative..................................................................................... 120
10.10 Marshalling; Payments Set Aside.................................................................................... 120
10.11 Severability....................................................................................................... 120
10.12 Entire Agreement................................................................................................... 120
10.13 Obligations Several; Independent Nature of Lenders' Rights......................................................... 120
10.14 Headings........................................................................................................... 121
10.15 APPLICABLE LAW..................................................................................................... 121
10.16 CONSENT TO JURISDICTION............................................................................................ 121
10.17 WAIVER OF JURY TRIAL............................................................................................... 121
10.18 Confidentiality.................................................................................................... 122
10.19 Usury Savings Clause............................................................................................... 123
10.20 Counterparts....................................................................................................... 123
10.21 Effectiveness...................................................................................................... 123
APPENDICES: A1 Term Loan Commitments
A2 Delayed Draw Term Loan Commitments
A3 Revolving Loan Commitments
B Notice Addresses
SCHEDULES: 1.1(a) Permitted IBX Facilities
1.1(b) Closing Date Unrestricted Subsidiaries
3.1(f) Closing Date Mortgaged Properties
3.1(g)(ii) Outstanding UCC Searches
3.2(a)(x) Transferred Assets
3.2(b) Conditions to Funding
4.1 Jurisdictions of Organization and Qualification
4.2 Capital Stock and Ownership
4.5 Governmental Approvals
4.13 Real Estate Assets
4.17(a) Material Contracts
4.17(b) Intellectual Property
4.24 Disclosure
5.5 Insurance
6.1 Certain Indebtedness
6.2 Certain Liens
6.4(b)(i) Restricted Foreign Lease Payments
6.5(i) Employee Loans
6.6(a) Stage 1 Minimum Annualized Consolidated Revenues
6.6(b) Stage 1 Maximum Cumulative Consolidated EBITDA
Losses
6.7(a) Stage 2 Senior Secured Debt to Annualized
Consolidated EBITDA
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6.7(b) Stage 2 Total Debt to Annualized Consolidated
EBITDA
6.7(c) Stage 2 Minimum Annualized Consolidated
EBITDA/Interest Expense Ratio
6.7(d) Stage 2 Pro Forma Debt Service Coverage Ratio
6.8 Stage 1 and 2 Maximum Cumulative Consolidated
Capital Expenditures
6.13 Certain Affiliate Transactions
6.15 Restricted Domestic Lease Payments
EXHIBITS: A1 Funding Notice
A2 Conversion/Continuation Notice
A3 Issuance Notice
B1 Term Loan Note
B2 Delayed Draw Term Loan Note
B3 Revolving Loan Note
B4 New Term Loan Note
C Compliance Certificate
D Opinions of Counsel
E Assignment Agreement
F Certificate Re Nonbank Status
G1 Closing Date Certificate
G2 Solvency Certificate
H Counterpart Agreement
I-A Master Pledge and Security Agreement
I-B Company Pledge and Security Agreement
J Mortgage
K Landlord Agreement
L Joinder Agreement
M Borrowing Base Certificate
N Form of Confirmation of Grant
O Form of Release
v
CREDIT AND GUARANTY AGREEMENT
This CREDIT AND GUARANTY AGREEMENT, dated as of December 20, 2000, is
entered into by and among EQUINIX OPERATING CO., INC., a Delaware corporation,
as a Borrower ("OpCo"), EQUINIX, INC., a Delaware corporation, as a Borrower and
as a Guarantor ("Company"), and CERTAIN SUBSIDIARIES OF THE COMPANY, as
Guarantors, the Lenders party hereto from time to time, XXXXXXX XXXXX CREDIT
PARTNERS L.P. ("GSCP"), as Joint Lead Arranger, Joint Book Runner and
Syndication Agent (in such capacity,"Syndication Agent"), XXXXXXX XXXXX BARNEY
INC., as Joint Lead Arranger (in such capacity, together with GSCP, the "Joint
Lead Arrangers"), and Joint Book Runner (in such capacity, together with GSCP,
the "Joint Book Runners"), CITICORP USA, INC., as Administrative Agent (together
with its permitted successors in such capacity,"Administrative Agent") and CIT
LENDING SERVICES CORPORATION, as Collateral Agent (together with its permitted
successors in such capacity, "Collateral Agent").
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the respective
meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, Lenders have agreed to extend certain credit facilities to
Borrowers, in an aggregate amount not to exceed $150,000,000, consisting of
$50,000,000 aggregate principal amount of Term Loans to be drawn on January 2,
2001 (the "Funding Date"), up to $75,000,000 aggregate principal amount of
Delayed Draw Term Loans, and up to $25,000,000 aggregate principal amount of
Revolving Loans, the proceeds of which will be used to (i) to pay Transaction
Costs, (ii) to provide financing for the cost of design, development,
acquisition, construction, installation, improvement, transportation, and/or
integration of equipment, inventory or facility assets and of leasing and
acquiring of real property and (iii) for the working capital and other general
corporate purposes of the Company and its Restricted Subsidiaries, including
Permitted Acquisitions, as well as for certain limited purposes of its
Unrestricted Subsidiaries;
WHEREAS, the Company has agreed to secure all of its obligations hereunder
by granting to Collateral Agent, for the benefit of Secured Parties, a First
Priority Lien on substantially all of its assets, including a pledge of all of
the Capital Stock of each of its Restricted Subsidiaries; provided, that, any
-------- ----
Purchase Money Loans made to the Company shall be secured solely by the assets
purchased with the proceeds of such Loans;
WHEREAS, OpCo has agreed to secure all of its obligations hereunder by
granting to Collateral Agent, for the benefit of Secured Parties, a First
Priority Lien on substantially all of its assets, including a pledge of all of
the Capital Stock of each of its Restricted Subsidiaries and 65% of all the
Capital Stock of each of its firsttier Foreign Subsidiaries; and
WHEREAS, Guarantors have agreed to guarantee the obligations of OpCo (and,
to the extent not prohibited under the Senior Notes, the Company) hereunder and
to secure their respective obligations hereunder by granting to Collateral
Agent, for the benefit of Secured
Parties, a First Priority Lien on substantially all of their respective assets,
including a pledge of all of the Capital Stock of each of their respective
Domestic Subsidiaries and 65% of all the Capital Stock of each of their
respective Foreign Subsidiaries.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. The following terms used herein, including in the
preamble, recitals, exhibits and schedules hereto, shall have the following
meanings:
"Adjusted Eurodollar Rate" means, for any Interest Rate Determination
Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (and rounding upward to the next whole multiple of
1/16 of 1%) (i) (a) the rate per annum (rounded to the nearest 1/100 of 1%)
equal to the rate determined by Administrative Agent to be the offered rate
which appears on the page of the Telerate Screen which displays an average
British Bankers Association Interest Settlement Rate (such page currently being
page number 3740 or 3750, as applicable) for deposits (for delivery on the first
day of such period) with a term equivalent to such period in Dollars, determined
as of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (b) in the event the rate referenced in the preceding
clause (a) does not appear on such page or service or if such page or service
shall cease to be available, the rate per annum (rounded to the nearest 1/100 of
1%) equal to the rate determined by Administrative Agent to be the offered rate
on such other page or other service which displays an average British Bankers
Association Interest Settlement Rate for deposits (for delivery on the first day
of such period) with a term equivalent to such period in Dollars, determined as
of approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, or (c) in the event the rates referenced in the preceding
clauses (a) and (b) are not available, the rate per annum (rounded to the
nearest 1/100 of 1%) equal to the offered quotation rate to first class banks in
the London interbank market by Administrative Agent for deposits (for delivery
on the first day of the relevant period) in Dollars of amounts in same day funds
comparable to the principal amount of the applicable Loan of Administrative
Agent, in its capacity as a Lender, for which the Adjusted Eurodollar Rate is
then being determined with maturities comparable to such period as of
approximately 11:00 a.m. (London, England time) on such Interest Rate
Determination Date, by (ii) an amount equal to (a) one minus (b) the Applicable
-----
Reserve Requirement.
"Administrative Agent" as defined in the preamble hereto.
"Adverse Proceeding" means any action, suit, proceeding (whether
administrative, judicial or otherwise), governmental investigation or
arbitration (whether or not purportedly on behalf of Company or any of its
Restricted Subsidiaries) at law or in equity, or before or by any Governmental
Authority, domestic or foreign (including any Environmental Claims), whether
pending or, to the knowledge of Company or any of its Restricted Subsidiaries,
threatened against or affecting Company or any of its Restricted Subsidiaries or
any property of Company or any of its Restricted Subsidiaries.
2
"Affected Lender" as defined in Section 2.17(b).
"Affected Loans" as defined in Section 2.17(b).
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 10% or more of the Securities having
ordinary voting power for the election of directors of such Person or (ii) to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities or by contract or otherwise.
Neither any Agent nor any Lender shall be deemed Affiliates of any Credit Party,
by virtue of the security interests granted under the Pledge and Security
Agreement.
"Agent" means each of the Joint Lead Arrangers, Joint Book Runners,
Syndication Agent, Administrative Agent, Collateral Agent and Documentation
Agent.
"Aggregate Amounts Due" as defined in Section 2.16.
"Aggregate Payments" as defined in Section 7.2.
"Agreement" means this Credit and Guaranty Agreement, dated as of
December 20, 2000, as it may be amended, restated, supplemented or otherwise
modified from time to time.
"Annualized Consolidated EBITDA" means, as of any date of
determination, Consolidated EBITDA for the most recently completed Fiscal
Quarter multiplied by four.
"Annualized Consolidated Revenues" means, as of any date of
determination, Net Revenues for the most recently completed Fiscal Quarter
multiplied by four.
"Applicable Commitment Fee Percentage" means a percentage per annum,
determined by reference to the Facilities Usage from time to time as set forth
below:
Facilities Usage Commitment Fee
**1/3 1.50%
--------------------------------------------------------
*1/3 **2/3 1.25%
--------------------------------------------------------
* 2/3 0.75%
========================================================
"Applicable Margin" means (i) from the Closing Date until the end of
Stage 1, (a) with respect to Loans (other than Purchase Money Loans) that are
Eurodollar Rate Loans, 4.25% per annum and (y) with respect to Purchase Money
Loans that are Eurodollar Rate Loans, 4.75% per annum, and (b) with respect to
Loans that are Base Rate Loans, an amount equal to the Applicable Margin for
Eurodollar Rate Loans as set forth in clause (i)(a)(x) or (i)(a)(y) above, as
applicable, minus 1.00% per annum; provided, however, on and after the date that
----- -------- -------
75% of Permitted IBX Facilities shall have achieved positive IBX Facility Net
Cashflow, each such
* greater than
** less than or equal to
3
Applicable Margin set forth above shall be reduced by 0.25% per annum; and (ii)
during Stage 2, (a) with respect to the Loans that are Eurodollar Rate Loans,
(x) in the case of Loans (other than Purchase Money Loans), a percentage, per
annum, determined by reference to the Total Leverage Ratio in effect from time
to time as set forth below:
==========================================================
Total Applicable Margin
Leverage For Eurodollar Rate
Ratio
----------------------------------------------------------
* 6.0:1.00 3.75%
----------------------------------------------------------
** 6.0:1.00 3.50%
* 4.5:1.00
----------------------------------------------------------
** 4.5:1.00 3.25%
* 3.0:1.00
----------------------------------------------------------
** 3.0:1.00 3.00%
==========================================================
and (y) in the case of Purchase Money Loans, 4.75% per annum and (b) with
respect to Loans that are Base Rate Loans, an amount equal to the Applicable
Margin for Eurodollar Rate Loans as set forth in clause (ii)(a) (x) and
(ii)(a)(y) minus 1.00% per annum. No change in the Applicable Margin
-----
contemplated by clause (ii) above shall be effective until three (3) Business
Days after the date on which Administrative Agent shall have received the
applicable financial statements and a Compliance Certificate pursuant to Section
5.1(d) calculating the Total Leverage Ratio. At any time Company has not
submitted to Administrative Agent the applicable information as and when
required under Section 5.1(d), the Applicable Margin shall be determined as if
the Total Leverage Ratio were in excess of 6.00:1.00 until such time as the
Company has provided the information required under Section 5.1(d). Within one
(1) Business Day of receipt of the applicable information as and when required
under Section 5.1(d), Administrative Agent shall give each Lender telefacsimile
or telephonic notice (confirmed in writing) of the Applicable Margin in effect
from such date. The Applicable Margin with respect to any New Term Loans shall
be set forth in the applicable Joinder Agreement.
If during Stage 1 or Stage 2 (i) Purchase Money Loans are permitted under the
terms of the Senior Notes to share pari passu in the Collateral securing the
other Loans and (ii) Purchase Money Loans are permitted to be guaranteed by the
Restricted Subsidiaries to the same extent as the other Loans, then from and
after such date, such Purchase Money Loans shall bear interest under the
foregoing provisions on the same basis as the other Loans.
"Applicable Reserve Requirement" means, at any time, for any
Eurodollar Rate Loan, the maximum rate, expressed as a decimal, at which
reserves (including, without limitation, any basic marginal, special,
supplemental, emergency or other reserves) are required to be maintained with
respect thereto against "Eurocurrency liabilities" (as such term is defined in
Regulation D) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or other applicable banking regulator.
Without limiting the effect of the foregoing, the Applicable Reserve Requirement
shall reflect any other reserves required to be maintained by such member banks
with respect to (i) any category of liabilities which includes deposits by
reference to which the applicable Adjusted Eurodollar Rate or any other interest
rate of a Loan is to be determined, or (ii) any category of extensions of credit
or other assets which
* greater than or equal to
** less than
4
include Eurodollar Rate Loans. A Eurodollar Rate Loan shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credit for proration, exceptions or
offsets that may be available from time to time to the applicable Lender. The
rate of interest on Eurodollar Rate Loans shall be adjusted automatically on and
as of the effective date of any change in the Applicable Reserve Requirement.
"A/R Sublimit" as defined in Section 2.1(a)(iii) hereof.
"A/R Sublimit Measurement Date" means the date of the most recently
available balance sheet of Company filed with the Securities Exchange Commission
or provided pursuant to Section 4.03 of the Senior Notes Indenture to the
trustee thereunder.
"Asset Sale" means a sale, lease or sublease (as lessor or sublessor),
sale and leaseback, assignment, conveyance, transfer or other disposition (any
such transaction, a "Disposition") to, or any exchange of property with, any
Person (other than the Company or any Guarantor Subsidiary), in one transaction
or a series of transactions, of all or any part of Company's or any of its
Restricted Subsidiaries' businesses, assets or properties of any kind, whether
real, personal, or mixed and whether tangible or intangible, whether now owned
or hereafter acquired, including, without limitation, the Capital Stock of any
of Company's Restricted Subsidiaries, other than (i) inventory (or other assets)
----------
sold or leased in the ordinary course of business, (ii) disposals of obsolete,
worn out or surplus property, (iii) a Qualifying San Xxxx Disposition, (iv)
Dispositions of other assets for aggregate consideration of less than $50,000
with respect to any transaction or series of related transactions and less than
$250,000 in the aggregate during any Fiscal Year, (v) sales of Cash Equivalents
in the ordinary course of business, (vi) Permitted Liens, and (vii) sale and
leaseback transactions in connection with Permitted Equipment Financing.
"Assignment Agreement" means an Assignment Agreement substantially in
the form of Exhibit E, with such amendments or modifications as may be approved
by Administrative Agent.
"Authorized Officer" means, as applied to any Person, any individual
holding the position of chairman of the board (if an officer), chief executive
officer, president and one of its vice presidents (or the equivalent thereof),
or such Person's chief financial officer and treasurer.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute.
"Base Rate" means, for any day, a rate per annum equal to the greater
of (i) the Prime Rate in effect on such day and (ii) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective day of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Base Rate Loan" means a Loan bearing interest at a rate determined by
reference to the Base Rate.
5
"Basic Upkeep" has the meaning assigned in Section 6.4(b).
"Beneficiary" means each Agent, Issuing Bank, Lender and Lender
Counterparty.
"Borrower" means (y) with respect to Loans (other than Purchase Money
Loans) and related Obligations, OpCo and (z) with respect to Purchase Money
Loans and related Obligations, the Company.
"Borrowing Base" means, at any time, 60% of Eligible Net PP&E. The
Borrowing Base at any date shall be determined by reference to the Borrowing
Base Certificate most recently delivered hereunder on or prior to such date as
specified in Section 5.1(e).
"Borrowing Base Certificate" has the meaning specified in Section
5.1(e).
"Business Day" means (i) any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the State of New York or is a day
on which banking institutions located in such state are authorized or required
by law or other governmental action to close and (ii) with respect to all
notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, the term "Business Day" shall mean
any day which is a Business Day described in clause (i) and which is also a day
for trading by and between banks in Dollar deposits in the London interbank
market.
"Capital Expenditure" means, for any period, the aggregate of all
expenditures of any Person during such period that, in accordance with GAAP, are
or should be included in "purchase of property and equipment" or similar items,
including without limitation construction in progress, reflected in the
statement of cash flows of such Person. Notwithstanding the foregoing, the term
"Capital Expenditure" shall not include capital expenditures constituting (i)
the reinvestment of Net Asset Sale Proceeds or Net Insurance/Condemnation
Proceeds made in accordance with Sections 2.12(a) and (b), (ii) Permitted
Acquisitions and (iii) that portion of any capital expenditure solely
attributable to or deemed paid for through the issuance by Company of a warrant
to purchase capital stock of Company.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is or should be accounted for as a capital lease on the
balance sheet of that Person.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation),
including, without limitation, partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or
rights to acquire any of the foregoing.
"Cash" means money, currency or a credit balance in any demand or
Deposit Account.
"Cash Equivalents" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the
6
United States Government or (b) issued by any agency of the United States the
obligations of which are backed by the full faith and credit of the United
States, in each case maturing within one year after such date; (ii) marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof,
in each case maturing within one year after such date and having, at the time of
the acquisition thereof, a rating of at least A1 from S&P or at least P1 from
Moody's; (iii) commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition thereof, a rating of
at least A1 from S&P or at least P1 from Moody's; (iv) certificates of deposit
or bankers' acceptances maturing within one year after such date and issued or
accepted by any Lender or by any commercial bank organized under the laws of the
United States of America or any state thereof or the District of Columbia that
(a) is at least "adequately capitalized" (as defined in the regulations of its
primary Federal banking regulator) and (b) has Tier 1 capital (as defined in
such regulations) of not less than $100,000,000; (v) repurchase obligations of
any Lender or of any commercial bank that is a member of the Federal Reserve
System, is organized under the laws of the United States or any State thereof
and has combined capital and surplus of at least $1 billion having a term of not
more than 90 days with respect to securities issued or fully guaranteed or
insured by the Government of the United States and (vi) shares of any money
market mutual fund that (a) has substantially all of its assets invested
continuously in the types of investments referred to in clauses (i) and (ii)
above, (b) has net assets of not less than $500,000,000, and (c) has the highest
rating obtainable from either S&P or Moody's or is operated by Xxxxxxx, Xxxxx &
Co. or an Affiliate thereof.
"Certificate re NonBank Status" means a certificate substantially in
the form of Exhibit F.
"Change of Control" means, at any time, (i) any Person or "group"
(within the meaning of Rules 13d3 and 13d5 under the Exchange Act) other than
the Founders (a) (x) shall have acquired beneficial ownership of 35% or more on
a fully diluted basis of the voting and/or economic interest in the Capital
Stock of Company and (y) the Founders own, in the aggregate, a lesser percentage
of the total voting and/or economic interest in the Capital Stock of the Company
than such Person and do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the board of
directors (or similar governing body) of Company or (b) shall have obtained the
power (whether or not exercised) to elect a majority of the members of the board
of directors (or similar governing body) of Company; (ii) the majority of the
seats (other than vacant seats) on the board of directors (or similar governing
body) of Company cease to be occupied by Persons who either (a) were members of
the board of directors of Company on the Closing Date or (b) were nominated for
election by the board of directors of Company, a majority of whom were directors
on the Closing Date or whose election or nomination for election was previously
approved by a majority of such directors; or (iii) any "change of control" or
similar event under the Senior Note Indenture or any document evidencing any
Permitted Equipment Financing or Permitted Unsecured Company Debt shall occur.
"Class" means (i) with respect to Lenders, each of the following
classes of Lenders: (a) Lenders having Term Loan Exposure, (b) Lenders having
Delayed Draw Term Loan Exposure, (c) Lenders having Revolving Loan Exposure and
(d) Lenders having New Term Loan
7
Exposure, and (ii) with respect to Loans, each of the following classes of
Loans: (a) Term Loans, (b) Delayed Draw Term Loans, (c) Revolving Loans and (d)
New Term Loans, if any.
"Closing Date" means the date on or before December 20, 2000 on which
the conditions set forth in Section 3.1 have been satisfied.
"Closing Date Certificate" means a Closing Date Certificate
substantially in the form of Exhibit G1.
"Closing Date Mortgaged Property" as defined in Section 3.1(f).
"Closing Financial Plan" means the financial plan for Company and its
Subsidiaries set forth in the Confidential Information Memorandum dated November
2000.
"Collateral" means, collectively, all of the real, personal and mixed
property (including Capital Stock) in which Liens are purported to be granted
pursuant to the Collateral Documents as security for the Obligations.
"Collateral Agent" as defined in the preamble hereto.
"Collateral Documents" means the Pledge and Security Agreement, the
Mortgages, the Landlord Agreements and all other instruments, documents and
agreements delivered by any Credit Party pursuant to this Agreement or any of
the other Credit Documents in order to grant to Collateral Agent, for the
benefit of Secured Parties, a Lien on any real, personal or mixed property of
that Credit Party as security for the Obligations.
"Commitments" means the commitments of Lenders to make Loans as set
forth in Section 2.1(a) of this Agreement. The amount of each Lender's
Commitment is set forth on Appendix A or in the applicable Assignment Agreement
or Joinder Agreement and is subject to any adjustment or reduction pursuant to
the terms and conditions hereof.
"Company" as defined in the preamble hereto.
"Complementary Business" means storage services, content distribution,
network management, security services, monitoring, site management and similar
related activities, in each case relating to the operation of Permitted IBX
Facilities.
"Compliance Certificate" means a Compliance Certificate substantially
in the form of Exhibit C.
"Consolidated Capital Expenditures" means, for any period, the
aggregate of all Capital Expenditures of Company and its Restricted Subsidiaries
during such period determined on a consolidated basis, in accordance with GAAP.
"Consolidated Cash Interest Expense" means, for any period,
Consolidated Interest Expense for such period, excluding any amount not payable
in Cash.
8
"Consolidated Current Assets" means, as at any date of determination,
the total assets of Company and its Restricted Subsidiaries on a consolidated
basis that may properly be classified as current assets in conformity with GAAP,
excluding Cash and Cash Equivalents.
"Consolidated Current Liabilities" means, as at any date of
determination, the total liabilities of Company and its Restricted Subsidiaries
on a consolidated basis that may properly be classified as current liabilities
in conformity with GAAP, excluding the current portion of long term debt.
"Consolidated EBITDA" means, for any period, an amount determined for
Company and its Restricted Subsidiaries on a consolidated basis equal to (i)
the sum, without duplication, of the amounts for such period of (a)
Consolidated Net Income, (b) Consolidated Interest Expense, (c) provisions for
taxes based on income, (d) total depreciation expense, (e) total amortization
expense, and (f) other nonCash items reducing Consolidated Net Income (excluding
any such nonCash item to the extent that it represents an accrual or reserve for
potential Cash items in any future period or amortization of a prepaid Cash item
that was paid in a prior period), minus (ii) other nonCash items increasing
-----
Consolidated Net Income for such period (excluding any such nonCash item to the
extent it represents the reversal of an accrual or reserve for potential Cash
item in any prior period), (iii) interest income, and (iv) to the extent not
otherwise deducted in determining Consolidated EBITDA, any payments made with
respect to the San Xxxx Ground Lease after transfer thereof to the San Xxxx
Subsidiary, all of the foregoing as determined in conformity with GAAP.
"Consolidated Excess Cash Flow" means, for any period, an amount (if
positive) equal to: (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated EBITDA, minus (b) the Consolidated Working Capital
-----
Adjustment, minus (ii) the sum, without duplication, of the amounts for such
-----
period of (a) repayments of Consolidated Total Debt (excluding repayments of
Revolving Loans except to the extent the Commitments are permanently reduced in
connection with such repayment), (b) Consolidated Capital Expenditures
(excluding any Capital Expenditures prohibited by Section 6.8) (net of (i) any
proceeds of any related financings with respect to such expenditures, and (ii)
any insurance and condemnation proceeds used to finance the replacement of
destroyed or appropriated property), (c) Consolidated Cash Interest Expense, and
(d) provisions for current taxes based on income of Company and its Restricted
Subsidiaries and payable in cash with respect to such period, and (e) to the
extent not otherwise deducted in determining Consolidated Excess Cash Flow, Cash
consideration paid for Permitted Acquisitions and Investments permitted
hereunder (in each case, net of any proceeds of related financings and issuances
of Capital Stock incurred to finance such Permitted Acquisitions and
Investments).
"Consolidated Interest Expense" means, for any period, total interest
expense (including commitment fees and that portion attributable to Capital
Leases in accordance with GAAP and capitalized interest) of Company and its
Restricted Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of Company and its Restricted Subsidiaries, including all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing and net costs under Interest Rate
Agreements, but excluding, however, any amounts referred to in Section 2.9
payable on or before the Closing Date.
9
"Consolidated Net Income" means, for any period, (i) the net income
(or loss) of Company and its Restricted Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in conformity with
GAAP, minus (ii) (a) the income (or loss) of any Person (other than a Restricted
-----
Subsidiary) in which any other Person (other than Company or any of its
Restricted Subsidiaries) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to Company or any of
its Restricted Subsidiaries by such Person during such period, (b) the income
(or loss) of any Person accrued prior to the date it becomes a Restricted
Subsidiary or is merged into or consolidated with Company or any of its
Restricted Subsidiaries or that Person's assets are acquired by Company or any
of its Restricted Subsidiaries, (c) the income of any Restricted Subsidiary to
the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary 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
Restricted Subsidiary, (d) any aftertax gains or losses attributable to Asset
Sales or returned surplus assets of any Pension Plan, and (e) (to the extent not
included in clauses (a) through (d) above) any net extraordinary gains or net
extraordinary losses.
"Consolidated Senior Secured Debt" means, as at any time of
determination, the aggregate stated balance sheet amount of all outstanding
Indebtedness of Company and its Restricted Subsidiaries under (i) this
Agreement, (ii) the Permitted Equipment Financings, (iii) any secured trade
payables and (iv) Capital Leases.
"Consolidated Total Capitalization" means the sum of (a) Consolidated
Total Debt and (b) paidinequity capital of the Company or any of its Restricted
Subsidiaries (including preferred stock but excluding (i) any additional equity
issued as payinkind dividends on issued and outstanding equity securities, (ii)
any capital contributed by the Company or any Restricted Subsidiary to any of
the Unrestricted Subsidiaries and (iii) any accumulated deficits resulting from
operations).
"Consolidated Total Debt" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness (without giving effect
to any original issue discount) of Company and its Restricted Subsidiaries
determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital" means, as at any date of determination,
the excess of Consolidated Current Assets over Consolidated Current Liabilities.
"Consolidated Working Capital Adjustment" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the end of such period exceeds (or is less
than) Consolidated Working Capital as of the beginning of such period.
"Contractual Obligation" means, as applied to any Person, any
provision of any Security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
10
"Contributing Guarantors" as defined in Section 7.2.
"Conversion/Continuation Date" means the effective date of a
continuation or conversion, as the case may be, as set forth in the applicable
Conversion/Continuation Notice.
"Conversion/Continuation Notice" means a Conversion/Continuation
Notice substantially in the form of Exhibit A2.
"Counterpart Agreement" means a Counterpart Agreement substantially in
the form of Exhibit H.
"Credit Date" means the date of a Credit Extension.
"Credit Document" means any of this Agreement, the Notes, if any,
Joinder Agreements, if any, the Collateral Documents, any documents or
certificates executed by OpCo in favor of Issuing Bank relating to Letters of
Credit, and all other documents, instruments or agreements executed and
delivered by a Credit Party for the benefit of the Agents, Issuing Bank or any
Lender in connection herewith, including Hedge Agreements with any Lender
Counterparty, in each case, as may be amended, supplemented or otherwise
modified from time to time.
"Credit Extension" means the making of a Loan or the issuing of a
Letter of Credit or the amendment or other modification of a Letter of Credit to
increase its stated amount, extend its period of effectiveness, or amend the
conditions under which it may be drawn.
"Credit Party" means the Company and any of its Restricted
Subsidiaries from time to time party to a Credit Document.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement, each of which is for the purpose of hedging
the foreign currency risk associated with Company's and its Restricted
Subsidiaries' operations.
"Default" means a condition or event that, after notice or lapse of
time or both, would constitute an Event of Default.
"Default Excess" means, with respect to any Defaulting Lender, the
excess, if any, of such Defaulting Lender's Pro Rata Share of the aggregate
outstanding principal amount of Loans of all Lenders (calculated as if all
Defaulting Lenders (other than such Defaulting Lender) had funded all of their
respective Defaulted Loans) over the aggregate outstanding principal amount of
all Loans of such Defaulting Lender.
"Default Period" as defined in Section 2.21.
"Defaulting Lender" as defined in Section 2.21.
"Defaulted Loan" as defined in Section 2.21.
11
"Delayed Draw Term Loan Commitment" means the Commitment of a Lender
to make or otherwise fund a Delayed Draw Term Loan to OpCo and "Delayed Draw
Term Loan Commitments" means such Commitments of all Lenders in the aggregate.
The amount of each Lender's Delayed Draw Term Loan Commitment, if any, is set
forth in Appendix A or in the applicable Assignment Agreement, subject to any
adjustment or reduction pursuant to the terms and conditions hereof. The
aggregate amount of the Delayed Draw Term Loan Commitments as of the Closing
Date is $75,000,000.
"Delayed Draw Term Loan Commitment Period" means the time period
commencing on the Closing Date through to and including the Delayed Draw Term
Loan Commitment Termination Date.
"Delayed Draw Term Loan Commitment Termination Date" means the earlier
to occur of (i) the date the Delayed Draw Term Loan Commitments are permanently
reduced to zero pursuant to Sections 2.11(b) or 2.12, (ii) the date of the
termination of the Commitments pursuant to Section 8.1, and (iii) the date
occurring twelve (12) months after the Closing Date.
"Delayed Draw Term Loan Exposure" means, with respect to any Lender,
as of any date of determination, the outstanding principal amount of the Delayed
Draw Term Loans of such Lender; provided, at any time prior to the making of the
--------
initial Delayed Draw Term Loans, the Delayed Draw Term Loan Exposure of any
Lender shall be equal to such Lender's Delayed Draw Term Loan Commitment.
"Delayed Draw Term Loan Installment" as defined in Section 2.10(a).
"Delayed Draw Term Loan Installment Date" as defined in Section
2.10(a).
"Delayed Draw Term Loan Lenders" means Lenders having Delayed Draw
Term Loan Exposure.
"Delayed Draw Term Loan Maturity Date" means the earlier of (i)
December 15, 2005 and (ii) the date that all Delayed Draw Term Loans shall
become due and payable in full hereunder, whether by acceleration or otherwise.
"Delayed Draw Term Loan Note" means a promissory note in the form of
Exhibit B2, as it may be amended, supplemented or otherwise modified from time
to time.
"Delayed Draw Term Loans" means any Delayed Draw Term Loans made by
any Lender to OpCo pursuant to Section 2.1(a)(ii) of this Agreement and any New
Delayed Draw Term Loans made by any Lender to OpCo pursuant to Section
2.1(a)(iv) of this Agreement.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Designation"as defined in Section 6.18(a).
12
"Disposition" as defined within the definition Asset Sale.
"Disqualified Stock" means any Equity Interest that, by its terms (or
by the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, (a) matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to April 15, 2006; provided, however,
-------- -------
that any Equity Interest that would constitute Disqualified Stock solely because
the holders thereof have the right to require the Company to repurchase such
Equity Interest upon the occurrence of a Change of Control or an Asset Sale
shall not constitute Disqualified Stock if the terms of such Equity Interest
provide that the Company may not repurchase or redeem such Equity Interest
pursuant to such provisions unless such repurchase or redemption complies with
Section 6.4 or (b) requires the payment of cash dividends or other payments to
the holder thereon, unless through December 15, 2005 such cash dividends or
------
other payments are only required to be paid and are only paid from the proceeds
of the issuance of such Equity Interest and sums of such proceeds are at the
time of such issuance placed in escrow for the purpose of making such payments
sufficient to make such payments through such date and are at all times prior to
such date sufficient therefor.
"Dollars" and the sign "$" mean the lawful money of the United States
of America.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
the United States of America, any State thereof or the District of Columbia.
"Eligible Assignee" means (i) any Lender, any Affiliate of any Lender
and any Related Fund (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof), and (ii) any commercial bank,
insurance company, investment or mutual fund or other entity that is an
"accredited investor" (as defined in Regulation D under the Securities Act) and
which extends credit or buys loans as one of its businesses; provided, no
--------
Affiliate of Company shall be an Eligible Assignee.
"Eligible Net PP&E" means, at any date of determination, an amount
equal to (i) the aggregate cost of Company's and its Restricted Subsidiaries'
assets located on a Permitted IBX Facility that may properly be classified, in
conformity with GAAP, as property, plant and equipment reflected on the
consolidated balance sheet of Company and its Restricted Subsidiaries, which in
the case of any such property, plant and equipment located at Permitted IBX
Facilities that are leased by Company or its Restricted Subsidiaries, is located
at Permitted IBX Facilities with respect to which (x) a Credit Party has taken
all such actions and executed and delivered, or caused to be executed and
delivered, all such mortgages, documents, instruments, agreements, opinions and
certificates described in Sections 3.1(f), 3.1(g), 3.1(h), and 3.1(k) to create
in favor of Collateral Agent, for the benefit of the Secured Parties, the valid
and perfected First Priority Liens referred to in such sections or (y) the
underlying leasehold interest is held by OpCo or other Restricted Subsidiary
and the Collateral Agent for the benefit of the Secured Parties has a First
Priority security interest in all of the Capital Stock of OpCo or such other
Restricted Subsidiary, as applicable, less (ii) the sum of (x) to the extent not
----
otherwise deducted in determining Eligible Net PP&E the accumulated depreciation
and any write-down or
13
write-off with respect to such property, plant and equipment, as determined in
conformity with GAAP, (y) to the extent not otherwise deducted in determining
Eligible Net PP&E, the aggregate cost of any assets otherwise included in
Eligible Net PP&E subject to security interests securing Permitted Equipment
Financing, less the accumulated depreciation and any write-down or write-off
with respect to the assets referenced in this clause (y), as determined in
conformity with GAAP, and (z) that portion of the aggregate cost of any assets
otherwise included in Eligible Net PP&E to the extent attributable to issuance
by Company of warrants to purchase Capital Stock of Company.
"Employee Benefit Plan" means any "employee benefit plan" as defined
in Section 3(3) of ERISA which is or was sponsored, maintained or contributed to
by, or required to be contributed by, Company, any of its Subsidiaries or any of
their respective ERISA Affiliates.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any Governmental Authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law; (ii) in connection with any
Hazardous Material or any actual or alleged Hazardous Materials Activity; or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"Environmental Laws" means any and all current or future foreign or
domestic, federal or state (or any subdivision of either of them), statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of Governmental
Authorities relating to (i) environmental matters, including those relating to
any Hazardous Materials Activity; (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials; or (iii) occupational safety
and health, industrial hygiene, land use or the protection of human, plant or
animal health or welfare, in any manner applicable to Company or any of its
Subsidiaries or any Facility.
"Equity Interests" means Capital Stock of Company and all warrants,
options or other rights to acquire Capital Stock of Company (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock of
Company).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is a member. Any former ERISA Affiliate of Company or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Company or
any such Subsidiary within the meaning of this definition with respect
14
to the period such entity was an ERISA Affiliate of Company or such Subsidiary
and with respect to liabilities arising after such period for which Company or
such Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability pursuant to Section
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on Company, any of its Subsidiaries or any of their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefor, or the
receipt by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
occurrence of an act or omission which could give rise to the imposition on
Company, any of its Subsidiaries or any of their respective ERISA Affiliates of
fines, penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071
of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a
material claim (other than routine claims for benefits) against any Employee
Benefit Plan other than a Multiemployer Plan or the assets thereof, or against
Company, any of its Subsidiaries or any of their respective ERISA Affiliates in
connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan (or any other Employee
Benefit Plan intended to be qualified under Section 401(a) of the Internal
Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or
the failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal Revenue Code; or
(xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.
"Escrowed Funds" as defined in Section 2.1(a)(ii).
"Eurodollar Rate Loan" means a Loan bearing interest at a rate
determined by reference to the Adjusted Eurodollar Rate.
15
"Event of Default" means each of the conditions or events set forth in
Section 8.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"Existing Indebtedness" means the Indebtedness listed on Schedule 6.1.
"Facilities Usage" means a fraction, calculated as of the last day of
each Fiscal Quarter (i) prior to the Delayed Draw Term Loan Commitment
Termination Date, the numerator of which is equal to the average daily Total
Utilization of Commitments during such Fiscal Quarter and the denominator of
which is equal to the average daily aggregate Commitments for all Lenders during
such Fiscal Quarter and (ii) on and after the Delayed Draw Term Loan Commitment
Termination Date, the numerator of which is equal to the average daily Total
Utilization of Revolving Loan Commitments and the denominator of which is equal
to the average daily aggregate Revolving Loan Commitments for all Lenders during
such Fiscal Quarter.
"Facility" means any real property (including all buildings, fixtures
or other improvements located thereon) now, hereafter or heretofore owned,
leased, operated or used by Company or any of its Subsidiaries or any of their
respective predecessors or Affiliates.
"Fair Share" as defined in Section 7.2.
"Fair Share Contribution Amount" as defined in Section 7.2.
"Fair Share Shortfall" as defined in Section 7.2.
"Federal Funds Effective Rate" means for any day, the rate per annum
(expressed, as a decimal, rounded upwards, if necessary, to the next higher
1/100 of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided, (i) if such day
--------
is not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Administrative Agent, in its capacity as a Lender, on
such day on such transactions as determined by Administrative Agent.
"Financial Officer Certification" means, with respect to the financial
statements for which such certification is required, the certification of the
chief financial officer of Company that such financial statements fairly
present, in all material respects, the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from
audit and normal yearend adjustments.
"Financial Plan" as defined in Section 5.1(k).
16
"First Priority" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that such Lien is
the only Lien to which such Collateral is subject, other than Permitted Liens.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Company and its Subsidiaries
ending on December 31/st/ of each calendar year.
"Flood Hazard Property" means any Real Estate Asset subject to a
mortgage in favor of the Collateral Agent, for the benefit of the Secured
Parties, and located in an area designated by the Federal Emergency Management
Agency as having special flood or mud slide hazards.
"Foreign Subsidiary"means, with respect to any Person, any Subsidiary
that is not a Domestic Subsidiary.
"Founders" means Benchmark Capital Partners II, L.P., Cisco Systems,
Inc., Microsoft Corporation, News Corp., Xxxxxx X. Xxxxx, XX, Xxx X. Xxxxxxx and
their respective Related Persons.
"Funding Date" as defined in the preamble.
"Funding Default" as defined in Section 2.21.
"Funding Guarantors" as defined in Section 7.2.
"Funding Notice" means a notice substantially in the form of Exhibit
A1.
"GAAP" means, subject to the limitations on the application thereof
set forth in Xxxxxxx 0.0, Xxxxxx Xxxxxx generally accepted accounting principles
in effect as of the date of determination thereof.
"Governmental Acts" means any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority.
"Governmental Authority" means any federal, state, municipal, national
or other government, governmental department, commission, board, bureau, court,
agency or instrumentality or political subdivision thereof or any entity or
officer exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government or any court, in
each case whether associated with a state of the United States, the United
States, or a foreign entity or government.
"Governmental Authorization" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any Governmental
Authority.
"Grantor" as defined in the Pledge and Security Agreement.
17
"GSCP" as defined in the preamble hereto.
"Guaranteed Obligations" as defined in Section 7.1.
"Guarantor" means (y) with respect to the Loans (other than Purchase
Money Loans) and related obligations, the Company and each Domestic Subsidiary
of Company that is a Restricted Subsidiary other than OpCo and (z) to the extent
not prohibited under the Senior Notes, with respect to Purchase Money Loans and
related obligations, each Domestic Subsidiary of Company that is a Restricted
Subsidiary.
"Guarantor Subsidiary" means each Guarantor other than Company.
"Guaranty" means the guaranty of each Guarantor set forth in Section
7.
"Hazardous Materials" means any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Governmental
Authority or which may or could pose a hazard to the health and safety of the
owners, occupants or any Persons in the vicinity of any Facility or to the
indoor or outdoor environment.
"Hazardous Materials Activity" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"Hedge Agreement" means an Interest Rate Agreement or a Currency
Agreement entered into with a Lender Counterparty in order to satisfy the
requirements of this Agreement or otherwise in the ordinary course of Company's
or any of its Subsidiaries' businesses and not for speculative purposes.
"Highest Lawful Rate" means the maximum lawful interest rate, if any,
that at any time or from time to time may be contracted for, charged, or
received under the laws applicable to any Lender which are presently in effect
or, to the extent allowed by law, under such applicable laws which may hereafter
be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"Historical Financial Statements" means as of the Closing Date, (i)
the audited financial statements of Company and its Subsidiaries for Fiscal Year
1999, 7consisting of balance sheets and the related consolidated statements of
income, stockholders' equity and cash flows for such Fiscal Year and (ii) the
unaudited financial statements of Company and its Subsidiaries as of the Fiscal
Quarter ending September 30, 2000, consisting of a balance sheet and the related
consolidated statements of income and cash flows for the ninemonth period ending
on such date, and, in the case of clauses (i) and (ii), certified by the chief
financial officer of Company that they fairly present, in all material respects,
the financial condition of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal yearend
adjustments.
18
"IBX Facilities" means Internet Business Exchange facilities,
including, without limitation, the Permitted IBX Facilities, which are designed,
developed (or acquired by) and operated by the Company or one of its Restricted
Subsidiaries for the purpose of providing Internet access, colocation services,
telecommunications access, mechanical and power systems and operations and
customer service and support and is either owned in fee by the Company or one of
its Restricted Subsidiaries or operated under a distinct long term lease
agreement between the Company or one of its Restricted Subsidiaries and a
landlord.
"IBX Facility Net Cashflow" means, with respect to any Permitted IBX
Facility, for any Fiscal Quarter, an amount equal to total revenue of such
Permitted IBX Facility less operating expenses associated with such Permitted
IBX Facility plus depreciation, amortization, stock-based compensation of the
employees associated with such Permitted IBX Facility and other noncash charges,
all as determined on a basis consistent with the Historical Financial
Statements.
"Increased Amount Date" as defined in Section 2.1(a)(iv).
"IncreasedCost Lender" as defined in Section 2.22.
"Indebtedness", as applied to any Person, means, without duplication,
(i) all indebtedness for borrowed money; (ii) that portion of obligations with
respect to Capital Leases that is properly classified as a liability on a
balance sheet in conformity with GAAP; (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for
borrowed money; (iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred
under ERISA and ordinary course trade payables), which purchase price is (a) due
more than six months from the date of incurrence of the obligation in respect
thereof or (b) evidenced by a note or similar written instrument; (v) all
indebtedness secured by any Lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person; (vi) the
face amount of any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings; (vii)
the direct or indirect guaranty, endorsement (other than for collection or
deposit in the ordinary course of business), comaking, discounting with recourse
or sale with recourse by such Person of the obligation of another; (viii) any
obligation of such Person the primary purpose or intent of which is to provide
assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the
holders thereof will be protected (in whole or in part) against loss in respect
thereof; (ix) any liability of such Person for the obligation of another through
any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (b) to maintain the
solvency or any balance sheet item, level of income or financial condition of
another if, in the case of any agreement described under subclauses (a) or (b)
of this clause (ix), the primary purpose or intent thereof is as described in
clause (viii) above; and (x) obligations of such Person in respect of any
exchange traded or over the counter derivative transaction, including, without
limitation, any Interest Rate Agreement or Currency Agreement, whether entered
into for hedging or speculative purposes; provided, in no event shall
--------
obligations
19
under any Interest Rate Agreement or any Currency Agreement be deemed
"Indebtedness" for any purpose under Sections 6.6 or 6.7, as applicable.
"Indemnified Liabilities" means, collectively, any and all
liabilities, obligations, losses, damages (including natural resource damages),
penalties, actions, judgments, suits, claims (including Environmental Claims),
costs (including the costs of any investigation, study, sampling, testing,
abatement, cleanup, removal, remediation or other response action necessary to
remove, remediate, clean up or xxxxx any Hazardous Materials Activity), expenses
and disbursements of any kind or nature whatsoever (including the reasonable
fees and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnities shall be designated as a party
or a potential party thereto, and any fees or expenses incurred by Indemnities
in enforcing this indemnity), whether direct, indirect or consequential and
whether based on any federal, state or foreign laws, statutes, rules or
regulations (including securities and commercial laws, statutes, rules or
regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against
any such Indemnities, in any manner relating to or arising out of (i) this
Agreement or the other Credit Documents or the transactions contemplated hereby
or thereby (including Lenders' agreement to make Credit Extensions or the use or
intended use of the proceeds thereof, or any enforcement of any of the Credit
Documents (including any sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Guaranty)); (ii) the statements
contained in the commitment letter delivered by any Lender to Company with
respect to the transactions contemplated by this Agreement; or (iii) any
Environmental Claim or any Hazardous Materials Activity relating to or arising
from, directly or indirectly, any past or present activity, operation, land
ownership, or practice of Company or any of its Subsidiaries.
"Indemnities" as defined in Section 10.3.
"Intellectual Property" as defined in the Pledge and Security
Agreement.
"Intellectual Property Collateral" means all of the Intellectual
Property subject to the Lien of the Pledge and Security Agreement.
"Interest Coverage Ratio" means the ratio, as of the last day of any
Fiscal Quarter, of (i) Annualized Consolidated EBITDA for the Fiscal Quarter
then ended, to (ii) Consolidated Cash Interest Expense for the fourFiscal
Quarter period then ended.
"Interest Payment Date" means with respect to (i) any Base Rate Loan,
each March 31, June 30, September 30 and December 31 of each year, commencing on
the first such date to occur after the Closing Date and the final maturity date
of such Loan; and (ii) any Eurodollar Rate Loan, the last day of each Interest
Period applicable to such Loan; provided, in the case of each Interest Period of
--------
longer than three months, "Interest Payment Date" shall also include each date
that is three months, or an integral multiple thereof, after the commencement of
such Interest Period.
20
"Interest Period" means, in connection with a Eurodollar Rate Loan, an
interest period of one, two, three or sixmonths, as selected by the applicable
Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (i)
initially, commencing on the Credit Date or Conversion/Continuation Date
thereof, as the case may be; and (ii) thereafter, commencing on the day on which
the immediately preceding Interest Period expires; provided, (a) if an Interest
--------
Period would otherwise expire on a day that is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day unless no further
Business Day occurs in such month, in which case such Interest Period shall
expire on the immediately preceding Business Day; (b) any Interest Period that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clauses (c) through (g), of this definition,
end on the last Business Day of a calendar month; (c) no Interest Period with
respect to any portion of any Term Loans, Delayed Draw Term Loans or New Term
Loans, as the case may be, shall extend beyond such Class's Term Loan Maturity
Date; and (d) no Interest Period with respect to any portion of the Revolving
Loans shall extend beyond the Revolving Loan Commitment Termination Date.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
hedging agreement or other similar agreement or arrangement, each of which is
for the purpose of hedging the interest rate exposure associated with Company's
and its Restricted Subsidiaries' operations.
"Interest Rate Determination Date" means, with respect to any Interest
Period, the date that is two (2) Business Days prior to the first day of such
Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"International Holdings" means Equinix Europe, Inc., a Delaware
corporation (and/or one or more additional Delaware corporations wholly-owned
by Company) that owns, directly or indirectly, all (other than director's
qualifying shares) of the Capital Stock of all Foreign Subsidiaries that are
Unrestricted Subsidiaries.
"Investment" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Restricted Subsidiaries of, or of a
beneficial interest in, any of the Securities of any other Person (other than by
Company or any whollyowned Guarantor Subsidiary with respect to any whollyowned
Guarantor Subsidiary); (ii) any direct or indirect redemption, retirement,
purchase or other acquisition for value, by any Restricted Subsidiary of Company
from any Person (other than Company or any whollyowned Guarantor Subsidiary), of
any Capital Stock of such Restricted Subsidiary; and (iii) any direct or
indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar expenditures in
the ordinary course of business) or capital contribution by Company or any of
its Restricted Subsidiaries to any other Person (other than by Company or any
whollyowned Guarantor Subsidiary to any whollyowned Guarantor Subsidiary),
including all indebtedness and accounts receivable from that other Person that
are not current assets or did not arise from sales to that other Person in the
ordinary course of business. The amount of any Investment shall be the original
cost of such Investment plus the cost of all additions thereto,
21
without any adjustments for increases or decreases in value, or writeups,
writedowns or writeoffs with respect to such Investment.
"Investment Related Property" as defined in the Pledge and Security
Agreement.
"Issuance Notice" means an Issuance Notice substantially in the form
of Exhibit A3.
"Issuing Bank" means one of Citicorp USA, Inc. and one or more other
Lenders acceptable to the Joint Lead Arrangers, as applicable, as Issuing Bank
hereunder, together with its permitted successors and assigns in such capacity.
"Joinder Agreement" means a joinder agreement substantially in the
form of Exhibit L, or as may be amended, restated supplemented or otherwise
modified from time to time.
"Joint Lead Arrangers" as defined in the preamble hereto.
"Joint Book Runners" as defined in the preamble hereto.
"Joint Venture" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership, limited liability company, or
other legal form; provided, in no event shall any corporate Subsidiary of any
--------
Person be considered to be a Joint Venture to which such Person is a party.
"Landlord Agreement" means an agreement duly executed by the landlord
of any Leasehold Property substantially in the form of Exhibit K with such
amendments or modifications as may be approved by Collateral Agent.
"Leasehold Property" means any leasehold interest (other than San Xxxx
Ground Lease) of Company or any of its Restricted Subsidiaries as lessee under
any lease of real property, other than any such leasehold interest designated
from time to time by Collateral Agent in its sole discretion as not being
required to be included in the Collateral.
"Lender" means each financial institution that becomes a Lender under
this Agreement as of the Closing Date or pursuant to Section 2.1(a)(iv),
together with each such institution's successors and permitted assigns.
"Lender Counterparty" means each Lender or any Affiliate of a Lender
Counterparty to a Hedge Agreement, including, without limitation, each such
Affiliate that enters into a Joinder Agreement with the Collateral Agent.
"Letter of Credit" means a commercial or standby letter of credit
issued or to be issued by Issuing Bank pursuant to this Agreement.
"Letter of Credit Sublimit" means the lesser of (i) $15,000,000 and
(ii) the aggregate unused amount of the Revolving Loan Commitments then in
effect.
22
"Letter of Credit Usage" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is, or at any time thereafter may
become, available for drawing under all Letters of Credit then outstanding, and
(ii) the aggregate amount of all drawings under Letters of Credit honored by
Issuing Bank and not theretofore reimbursed by or on behalf of OpCo.
"Lien" means (i) any lien, claim, mortgage, pledge, assignment,
security interest, charge or encumbrance of any kind (including any agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, and any lease in the nature thereof) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing and
(ii) in the case of Securities, any purchase option, call or similar right of a
third party with respect to such Securities.
"Loan" means any Loan made by a Lender to a Borrower pursuant to
Section 2.1(a)(i), 2(a)(ii), 2.1(a)(iii) or 2.1(a)(iv) of this Agreement.
"Margin Stock" as defined in Regulation T, U or X of the Board of
Governors of the Federal Reserve System as in effect from time to time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, operations, properties, assets, condition (financial or otherwise) or
prospects (with respect to prospects only, based upon the Closing Financial Plan
and other written business information provided by Company to Lender on or prior
to the Closing Date) of Company and its Restricted Subsidiaries taken as a
whole; (ii) the ability of any Credit Party to fully and timely perform the
Obligations; (iii) the legality, validity, binding effect or enforceability
against a Credit Party of a Credit Document to which it is a party; (iv) the
rights, remedies and benefits available to, or conferred upon, any Agent and any
Lender under any Credit Document; or (v) the Collateral Agent's Liens, on behalf
of Secured Parties, on the Collateral or the priority of such Liens.
"Material Contract" means any contract or other arrangement to which
Company or any of its Restricted Subsidiaries is a party (other than the Credit
Documents) for which breach, nonperformance, cancellation or failure to renew
could reasonably be expected to have a Material Adverse Effect.
"Material Real Estate Asset'' means (i) (a) any feeowned Real Estate
Asset located in the United States or Canada having a fair market value in
excess of $250,000 as of the date of the acquisition thereof, (b) any Leasehold
Property which is a IBX Facility to the extent the failure to comply with
Section 5.10 with respect thereto would cause the Collateral Agent to have at
any time a perfected First Priority Lien on less than 50% of all Leasehold
Properties which are IBX Facilities and (c) all Leasehold Properties which are
not IBX Facilities (other than the San Xxxx Ground Lease and existing
headquarter buildings) other than those with respect to which the aggregate
payments under the term of the lease are less than $100,000 per annum or (ii)
any Real Estate Asset (other than the San Xxxx Ground Lease and existing
headquarters) located in the United States or Canada that the Requisite Lenders
have determined is material to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Company or any Restricted
Subsidiary thereof taken as a whole.
23
"Moody's" means Xxxxx'x Investor Services, Inc.
"Mortgage" means a Mortgage substantially in the form of Exhibit J, as
it may be amended, restated, supplemented or otherwise modified from time to
time.
"Multiemployer Plan" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NAIC" means The National Association of Insurance Commissioners, and
any successor thereto.
"Narrative Report" means, with respect to the financial statements for
which such narrative report is required, a narrative report describing the
operations of Company and its Restricted Subsidiaries in the form prepared for
presentation to senior management thereof for the Fiscal Quarter or Fiscal Year
and for the period from the beginning of the then current Fiscal Year to the end
of such period to which such financial statements relate.
"Net Accounts Receivable" means as of any A/R Sublimit Measurement
Date, the consolidated net accounts receivable of the Company and its Restricted
Subsidiaries as shown on the consolidated financial statements of the Company
and its Restricted Subsidiaries as of the most recently completed Fiscal
Quarter; less, to the extent not otherwise deducted in determining net accounts
----
receivable of the Company and its Restricted Subsidiaries, accounts receivable
120 days past due and not fully reserved for at the end of such Fiscal Quarter.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale, an
amount equal to: (i) Cash payments (including any Cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or as a
result of the release of any amounts subject to any reserve described in clause
(c) below or otherwise, but only as and when so received) received by Company or
any of its Restricted Subsidiaries from such Asset Sale, minus (ii) any bona
-----
fide direct costs incurred in connection with such Asset Sale, including (a)
income or gains taxes payable by the seller as a result of any gain recognized
in connection with such Asset Sale, (b) payment of the outstanding principal
amount of, premium or penalty, if any, and interest on any Indebtedness (other
than the Loans) that is secured by a Lien on the stock or assets in question and
that is required to be repaid under the terms thereof as a result of such Asset
Sale, (c) attorneys' fees, accountants' fees, investment banking fees and other
customary costs, fees and expenses and commissions actually incurred in
connection therewith, and (d) a reasonable reserve for any indemnification
payments (fixed or contingent) attributable to seller's indemnities and
representations and warranties to purchaser in respect of such Asset Sale
undertaken by Company or any of its Restricted Subsidiaries in connection with
such Asset Sale.
"Net Insurance/Condemnation Proceeds" means an amount equal to: (i)
any Cash payments or proceeds received by Company or any of its Restricted
Subsidiaries (a) under any casualty insurance policy in respect of a covered
loss thereunder or (b) as a result of the taking of any assets of Company or any
of its Restricted Subsidiaries by any Person pursuant to the power of eminent
domain, condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, minus (ii) (a) any
-----
actual and reasonable costs incurred by Company or any of its Restricted
Subsidiaries in connection with
24
the adjustment or settlement of any claims of Company or such Subsidiary in
respect thereof, and (b) any bona fide direct costs incurred in connection with
any sale of such assets as referred to in clause (i)(b) of this definition,
including (1) income or gains taxes payable by the seller as a result of any
gain recognized in connection with the foregoing, (2) payment of the outstanding
principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or
assets in question and that is required to be repaid under the terms thereof as
a result of any sale of such assets, (3) attorneys' fees, accountants' fees,
investment banking fees and other customary costs, fees and expenses and
commissions actually incurred in connection therewith, and (4) a reasonable
reserve for any indemnification payments (fixed or contingent) attributable to
seller's indemnities and representations and warranties to purchaser in respect
of such asset sale undertaken by Company or any of its Restricted Subsidiaries
in connection with such asset sale.
"Net Revenues" means, for any period, the net revenues of Company and
its Restricted Subsidiaries on a consolidated basis for such period taken as a
single accounting period determined in conformity with GAAP (it being understood
that, in any event such net revenue shall be net of sales charges and
discounts).
"New Revolving Loan Commitments" as defined in Section 2.1(a)(iv).
"New Revolving Loan Lender" as defined in Section 2.1(a)(iv).
"New Term Loan" as defined in Section 2.1(a)(iv).
"New Term Loan Commitments" as defined in Section 2.1(a)(iv).
"New Term Loan Exposure" means, with respect to any Lender as of any
date of determination (i) prior to the funding of the New Term Loans that
Lender's New Term Loan Commitment, if any, and (ii) after the funding of the New
Term Loans, the outstanding principal amount of the New Term Loan of that
Lender.
"New Term Loan Lender" as defined in Section 2.1(a)(iv).
"New Term Loan Maturity Date" means the date that New Term Loans of a
Series shall become due and payable in full hereunder, as specified in the
applicable Joinder Agreement.
"New Term Loan Note" means a promissory note in the form of Exhibit
B4, as it may be amended, restated, supplemented or otherwise modified from time
to time.
"NonConsenting Lender" as defined in Section 2.22.
"NonUS Lender" as defined in Section 2.19(c).
"Note" means a Term Loan Note, a Delayed Draw Term Loan Note, a
Revolving Loan Note or a New Term Loan Note.
25
"Notice" means a Funding Notice, an Issuance Notice, or a
Conversion/Continuation Notice.
"Obligations" means all obligations of every nature of each Credit
Party from time to time owed to the Agents, the Lenders or any of them or their
respective Affiliates (including, without limitation, all former Agents, Lenders
or Lender Counterparties), under any Credit Document (including, without
limitation, with respect to a Hedge Agreement, net obligations owed thereunder
to any person who was a Lender or an Affiliate of a Lender at the time such
Hedge Agreement was entered into), whether for principal, interest (including
interest which, but for the filing of a petition in bankruptcy with respect to
such Credit Party, would have accrued on any Obligation, whether or not a claim
is allowed against such Credit Party for such interest in the related bankruptcy
proceeding), reimbursement of amounts drawn under Letters of Credit, payments
for early termination of Hedge Agreements, fees, expenses, indemnification or
otherwise.
"Obligee Guarantor" as defined in Section 7.7.
"Organizational Documents" means (i) with respect to any corporation,
its certificate or articles of incorporation, as amended, and its bylaws, as
amended, (ii) with respect to any limited partnership, its certificate of
limited partnership, as amended, and its partnership agreement, as amended,
(iii) with respect to any general partnership, its partnership agreement, as
amended, and (iv) with respect to any limited liability company, its certificate
of formation or articles of organization, as amended, and its operating
agreement, as amended. In the event any term or condition of this Agreement or
any other Credit Document requires any Organizational Document to be certified
by a secretary of state or similar governmental official, the reference to any
such "Organizational Document" shall only be to a document of a type customarily
certified by such governmental official.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"Permitted Acquisition" means any acquisition whether by purchase,
merger or otherwise, of all or substantially all of the assets of, all of the
Capital Stock of, or a business line or unit or a division of, any Person;
provided,
--------
(i) immediately prior to, and after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing or would
result therefrom;
(ii) all transactions in connection therewith shall be
consummated in accordance with all applicable laws and in conformity with
all applicable Governmental Authorizations;
(iii) in the case of the acquisition of Capital Stock, all of
the Capital Stock (except for any such Securities in the nature of
directors' qualifying
26
shares required pursuant to applicable law) issued by such Person or any
newly formed Restricted Subsidiary of Company in connection with such
acquisition shall be owned by Company or a Guarantor Subsidiary thereof,
and Company shall have taken, or caused to be taken, as of the date such
Person becomes a Subsidiary of Company, each of the actions set forth in
Sections 5.9 and/or 5.10, as applicable;
(iv) whether the consideration paid in such acquisition is cash
or stock, Company shall deliver to Joint Lead Arrangers a Financial
Officer's Certificate demonstrating (to the reasonable satisfaction of
Joint Lead Arrangers) that Company and its Restricted Subsidiaries shall be
in compliance, as of the first day of the most recently ended Fiscal
Quarter and after giving pro forma effect on a goingforward basis through
December 15, 2005 to such acquisition with the covenants contained in this
Agreement;
(v) Company shall have delivered to the Joint Lead Arrangers (A)
at least ten (10) Business Days prior to such proposed acquisition, a
Compliance Certificate evidencing compliance with Sections 6.6, 6.7 or 6.8,
as applicable, as required under clause (iv) above, together with all
relevant financial information with respect to such acquired assets,
including, without limitation, the aggregate consideration for such
acquisition and any other information required to demonstrate compliance
with Sections 6.6, 6.7 or 6.8, as applicable; and
(vi) any Person or assets or division as acquired in accordance
herewith shall be in the same business or lines of business in which
Company and/or its Subsidiaries are engaged as of the Closing Date, a
Complementary Business or such other lines of business as may be consented
to by Requisite Lenders.
"Permitted Equipment Financing" means (A) the secured equipment
financing facilities listed, and designated as such, on Schedule 6.1 and (B) one
or more purchase money, vendor or other equipment financing facilities or leases
(i) in an aggregate principal amount not in excess of $50,000,000 outstanding at
any time, (ii) pursuant to which Company may be advanced funds principally to
purchase or lease IBX Facility equipment or headquarters equipment or services
and to pay the costs of the engineering, construction, installation,
importation, development and improvement of such equipment, and (iii) which may
be secured only by the assets being financed thereby and with respect to which
no Restricted Subsidiary of Company is obligated.
"Permitted IBX Facilities" means those IBX Facilities listed on
Schedule 1.1(a) with respect to which development has commenced on or before the
Closing Date (i) owned or leased by the Company on the Closing Date or (ii)
owned or leased by OpCo or a whollyowned Domestic Subsidiary of OpCo on or after
the Closing Date, in each case having substantially those characteristics
contemplated in the Closing Financial Plan.
"Permitted Liens" means each of the Liens permitted pursuant to
Section 6.2.
27
"Permitted Unsecured Company Debt" means indebtedness of the Company
that is unsecured (other than funds escrowed from the proceeds of such
indebtedness for the purpose of making interest payments thereon) that is not
guaranteed by any Person and that is no less favorable (other than with respect
to interest rate or debt service funded from the proceeds of such indebtedness)
for the Company or the Lenders than the Senior Notes in any material respect (as
determined by the Joint Lead Arrangers).
"Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and Governmental Authorities.
"Pledge and Security Agreement" means each of the Pledge and Security
Agreements substantially in the form of Exhibit I-A and Exhibit I-B, as each may
be amended, supplemented or otherwise modified from time to time to be executed
by the Company, the applicable Borrower and each Guarantor.
"Prime Rate" means the rate of interest per annum that the
Administrative Agent announces from time to time as its prime lending rate, as
in effect from time to time. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
The Administrative Agent or any other Lender may make commercial loans or other
loans at rates of interest at, above or below the Prime Rate.
"Principal Office" means, for each of Administrative Agent and Issuing
Bank, such Person's "Principal Office" as set forth on Appendix B, or such other
office as such Person may from time to time designate in writing to the
applicable Borrower, Administrative Agent and each Lender.
"Pro Forma Consolidated Debt Service" means, as of any date of
determination, the sum, without duplication, of (i) Consolidated Cash Interest
Expense and (ii) all scheduled amortization (including any payment or prepayment
of principal of, premium, if any, or interest on, or redemption, purchase,
retirement, defeasance (including insubstance or legal defeasance), sinking fund
or similar payment) in respect of Indebtedness, in each case payable by Company
and its Restricted Subsidiaries during the immediately succeeding four Fiscal
Quarters assuming, for purposes of calculating Consolidated Cash Interest
Expense for any such succeeding four Fiscal Quarter period, Indebtedness
outstanding as of the date of such calculation shall remain outstanding during
such four Fiscal Quarter period (except to the extent of any scheduled
amortization, redemption, retirement or similar payment scheduled during such
four Fiscal Quarter period) and that the average interest rate applicable to
outstanding Indebtedness of the Credit Parties as of the date of such
calculation applies with respect to Indebtedness outstanding during such four
Fiscal Quarter period.
"Pro Forma Debt Service Coverage Ratio" means the ratio as of the last
day of any Fiscal Quarter of (i) Annualized Consolidated EBITDA for the Fiscal
Quarter then ended to (ii) Pro Forma Consolidated Debt Service, in each case as
set forth in the most recent
28
Compliance Certificate delivered by Company to Administrative Agent pursuant to
Section 5.1(d).
"Projections" as defined in Section 4.8.
"Pro Rata Share" means (i) with respect to all payments, computations
and other matters relating to the Term Loan of any Lender, the percentage
obtained by dividing (x) the Term Loan Exposure of that Lender by (y) the
aggregate Term Loan Exposure of all Lenders; (ii) with respect to all payments,
computations and other matters relating to the Delayed Draw Term Loan Commitment
or the Delayed Draw Term Loans of any Lender, the percentage obtained by
dividing (x) the Delayed Draw Term Loan Exposure of that Lender by (y) the
aggregate Delayed Draw Term Loan Exposure of all Lenders; (iii) with respect to
all payments, computations and other matters relating to the Revolving Loan
Commitment or the Revolving Loans of any Lender, the percentage obtained by
dividing (x) the Revolving Loan Exposure of that Lender by (y) the aggregate
Revolving Loan Exposure of all Lenders; (iv) with respect to all payments,
computations and other matters relating to the New Term Loan Commitments, if
any, or the New Term Loan, if any, of any Lender, the percentage obtained by
dividing (x) the New Term Loan Exposure of that Lender with respect to the
relevant Series by (y) the sum of the aggregate New Term Loan Exposure of all
Lenders for such Series; and (v) for all other purposes with respect to each
Lender, the percentage obtained by dividing (x) the sum of the Revolving Loan
Exposure of that Lender plus the Delayed Draw Loan Exposure of that Lender plus
---- ----
the Term Loan Exposure of that Lender plus the New Term Loan Exposure of that
----
Lender by (y) the sum of the aggregate Revolving Loan Exposure of all Lenders
plus the sum of the aggregate Delayed Draw Term Loan Exposure of all Lenders
----
plus the aggregate Term Loan Exposure of all Lenders plus the aggregate New Term
---- ----
Loan Exposure of all Lenders, in any such case as the applicable percentage may
be adjusted by assignments permitted pursuant to Section 10.6. The Pro Rata
Share of each Lender as of the Closing Date for purposes of each of clauses (i),
(ii) and (iii) of the preceding sentence is set forth opposite the name of that
Lender in Appendices A1, A2 and A3, respectively.
"Purchase Money Loans" as defined in Section 2.1(a)(iii).
"Qualifying Equity" means any Equity Interest other than Disqualified
Stock issued by Company after the Closing Date.
"Qualifying San Xxxx Disposition" means a Disposition of any portion
of the San Xxxx Property or rights under the San Xxxx Ground Lease if the
proceeds of such Disposition are used exclusively in connection with the
development of the San Xxxx Property and/or one or more Permitted IBX
Facilities.
"Real Estate Asset" means, at any time of determination, any interest
(fee, leasehold or otherwise) then owned by any Credit Party in any real
property.
"Record Document" means, with respect to any Leasehold Property, (i)
the lease evidencing such Leasehold Property or a memorandum thereof, executed
and acknowledged by the owner of the affected real property, as lessor, or (ii)
if such Leasehold Property was acquired or subleased from the holder of a
Recorded Leasehold Interest, the applicable assignment or
29
sublease document, executed and acknowledged by such holder, in each case in
form sufficient to give such constructive notice upon recordation and otherwise
in form reasonably satisfactory to Collateral Agent.
"Recorded Leasehold Interest" means a Leasehold Property with respect
to which a Record Document has been recorded in all places necessary or
desirable, in Administrative Agent's reasonable judgment, to give constructive
notice of such Leasehold Property to thirdparty purchasers and encumbrancers of
the affected real property.
"Register" as defined in Section 2.5(b).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reimbursement Date" as defined in Section 2.2(d).
"Related Fund" means, with respect to any Lender that is an investment
fund, any other investment fund that invests in commercial loans and that is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Related Person" means any Person who controls, is controlled by or is
under common control with a Founder; provided that for purposes of this
--------
definition "control" means the beneficial ownership of more than 50% of the
total voting power of a Person normally entitled to vote in the election of
directors, managers or trustees, as applicable, of a Person; provided, further,
-------- -------
that with respect to any natural Person, each member of such Person's immediate
family shall be deemed to be a Related Person of such Person.
"Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of any Hazardous Material into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Material), including the
movement of any Hazardous Material through the air, soil, surface water or
groundwater.
"Replacement Lender" as defined in Section 2.22.
"Requisite Class Lenders" means, at any time of determination (i) for
the Class of Lenders having Term Loan Exposure, Lenders having or holding at
least a majority of the sum of the aggregate Term Loan Exposure of all Lenders,
(ii) for the Class of Lenders having Delayed Draw Term Loan Exposure, Lenders
having or holding at least a majority of the sum of the aggregate Delayed Draw
Term Loan Exposure of all Lenders, (iii) for the Class of Lenders having
Revolving Loan Exposure, Lenders having or holding at least a majority of the
sum of the aggregate Revolving Loan Exposure of all Lenders and (iv) for each
Class of Lenders having New Term Loan Exposure, if any, Lenders having or
holding at least a majority of the sum of the aggregate New Term Loan Exposure
of such Lenders.
"Requisite Lenders" means one or more Lenders having or holding Term
Loan Exposure, Delayed Draw Term Loan Exposure, Revolving Loan Exposure and/or
New Term
30
Loan Exposure for a Series representing more than 50% of the sum of (i) the
aggregate Term Loan Exposure of all Lenders, (ii) the aggregate Delayed Draw
Term Loan Exposure of all Lenders, (iii) the aggregate Revolving Loan Exposure
of all Lenders and (iv) the aggregate New Term Loan Exposure of all Lenders for
all Series.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company or OpCo now or hereafter outstanding, except a dividend payable
solely in shares of that class of stock to the holders of that class; (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock
of Company now or hereafter outstanding; except to the extent payable in
exchange for shares of Capital Stock of Company, (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock of Company or OpCo now or
hereafter outstanding; except to the extent paid with shares of Capital Stock of
Company or OpCo or warrants, options or other rights to acquire any such shares,
and (iv) any payment or prepayment of principal of, premium, if any, or interest
on, or redemption purchase, retirement, defeasance (including in-substance or
legal defeasance), sinking fund or similar payment with respect to, the Senior
Notes any Permitted Unsecured Company Debt or any Permitted Equipment Financing;
provided that Restricted Junior Payments shall not include cash dividends made
--------
on preferred stock of Company issued after the Closing Date to the extent that
such dividends are only required to be paid and are only paid from the proceeds
of the issuance of such preferred stock escrowed for such purpose.
"Restricted Subsidiaries" means all direct or indirect subsidiaries of
the Company or OpCo which are not Unrestricted Subsidiaries.
"Revolving Loan Commitment" means the commitment of a Lender to make
Revolving Loans pursuant to Section 2.1(a)(iii) and to acquire participations in
Letters of Credit hereunder, and "Revolving Loan Commitments" means such
commitments of all Lenders in the aggregate. The amount of each Lender's
Revolving Loan Commitment, if any, is set forth in Appendix A3 or in the
applicable Assignment Agreement, subject to any adjustment or reduction pursuant
to the terms and conditions hereof. The aggregate amount of the Revolving Loan
Commitments as of the Closing Date is the lesser of (i) $25,000,000 and (ii) the
A/R Sublimit.
"Revolving Loan Commitment Period" means the period from the Closing
Date to but excluding the Revolving Loan Commitment Termination Date.
"Revolving Loan Commitment Termination Date" means the earliest to
occur of (i) December 15, 2005; (ii) the date the Revolving Loan Commitments are
permanently reduced to zero pursuant to Section 2.11(b) or 2.12, and (iii) the
date of the termination of the Revolving Loan Commitments pursuant to Section
8.1.
"Revolving Loan Exposure" means, with respect to any Lender as of any
date of determination, (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment; and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that Lender, (b) in the
case of Issuing Bank, the aggregate Letter of Credit Usage in respect of
31
all Letters of Credit issued by that Lender (net of any participations by
Lenders in such Letters of Credit) and (c) the aggregate amount of all
participations by that Lender in any outstanding Letters of Credit or any
unreimbursed drawing under any Letter of Credit.
"Revolving Loan Maturity Date'' means the earlier of (i) December 15,
2005 and (ii) the date that all Revolving Loans shall become due and payable in
full hereunder, whether by acceleration or otherwise.
"Revolving Loans" means any revolving Loans (including, without
limitation, Purchase Money Loans) made by Lenders to the applicable Borrower
pursuant to Section 2.1(a)(iii) of this Agreement.
"Revolving Loan Note" means a promissory note in the form of Exhibit
B3, as it may be amended, supplemented or otherwise modified from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw
Hill Corporation.
"San Xxxx Ground Lease" means the Ground Lease by and between iStar
San Xxxx, LLC, as Lessor, and Company, as Lessee, dated June 21, 2000 as amended
or restated from time to time but not, in any event, such that the amounts
payable with respect thereto exceed amounts payable with respect thereto as
contemplated by the Closing Financial Plan or otherwise materially increase the
obligations of the Company thereunder.
"San Xxxx Property" the property leased pursuant to the San Xxxx
Ground Lease.
"San Xxxx Incremental L/C Amount" means, as of any date of
determination, an amount (not to exceed $25,000,000) by which the obligations,
contingent or otherwise, of Company to provide a letter of credit under the San
Xxxx Ground Lease (as in existence on the Closing Date) under any circumstances
exceed $10,000,000.
"San Xxxx Subsidiary" means Equinix-DC, Inc., a wholly-owned
Unrestricted Subsidiary of Company, into which the San Xxxx Ground Lease and/or
the San Xxxx Property may be contributed and in connection with such transfer
Company may retain the obligations in connection with the San Xxxx Ground Lease;
provided that such obligations of Company shall be extinguished upon the earlier
--------
of (a) written notice by the Company or (b) receipt by the San Xxxx Subsidiary
(or any Affiliate in a financing for the benefit of San Xxxx Subsidiary) of
aggregate proceeds from debt, capital leases or equity issuances of (i) $25
million in the aggregate for tenant improvements with respect to the San Xxxx
Property or (ii) $45 million in the aggregate for any expenditure in connection
with maintenance, use or development of the San Xxxx Property (exclusive of
proceeds of any Qualifying San Xxxx Disposition and exclusive of any proceeds
applied to make rental payments under the San Xxxx Ground Lease) (either such
receipt, a "San Xxxx Triggering Event"); provided further, such transfer may
-------- -------
not be consummated until such time as the monthly payment obligations with
respect to the San Xxxx Ground Lease in effect or of the Closing Date have been
reduced by at least $50,000.
"San Xxxx Triggering Event" as defined within the definition of San
Xxxx Subsidiary.
32
"Secured Parties" as defined in the Pledge and Security Agreement.
"Securities" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profitsharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"Senior Leverage Ratio" means the ratio, as of the last day of any
Fiscal Quarter, of (i) Consolidated Senior Secured Debt as of such date to (ii)
Annualized Consolidated EBITDA.
"Senior Notes" means the 13% Senior Notes due 2007 issued by Company
in the aggregate principal amount of $200,000,000 pursuant to the Senior Notes
Indenture, as in effect on the Closing Date and as such notes may thereafter be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under Section 6.16.
"Senior Notes Indenture" means the Senior Notes Indenture dated as of
December 1, 1999 between Company and State Street Bank and Trust Company of
California, N.A., as trustee, pursuant to which the Senior Notes have been
issued, as in effect on the Closing Date and as such indenture may thereafter be
amended, restated, supplemented or otherwise modified from time to time to the
extent permitted under Section 6.16.
"Series" as defined in Section 2.1(a)(iv).
"Solvency Certificate" means a Solvency Certificate of the chief
financial officer of Company substantially in the form of Exhibit G2.
"Solvent" means, with respect to any Person, that as of the date of
determination both (i) (a) the sum of such Person's debt (including contingent
liabilities) does not exceed all of its property, at a fair valuation; (b) the
present fair saleable value of the property of such Person is not less than the
amount that will be required to pay the probable liabilities on such Person's
then existing debts as they become absolute and matured; (c) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (d) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (ii) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability (irrespective of whether such contingent liabilities
meet the criteria for accrual under Statement of Financial Accounting Standard
No. 5).
33
"Stage 1" means the period from the Closing Date to and including June
30, 2002.
"Stage 2" means the period from July 1, 2002 through the later of (i)
December 15, 2005 and (ii) any New Term Loan Maturity Date.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided, in determining the percentage of ownership interests of any
--------
Person controlled by another Person, no ownership interest in the nature of a
"qualifying share" of the former Person shall be deemed to be outstanding.
"Syndication Agent" as defined in the preamble hereto.
"Tax" means any present or future tax, levy, impost, duty, assessment,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; provided, "Tax on the overall net income" of a Person shall be
--------
construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person's applicable principal office
(and/or, in the case of a Lender, its lending office) is located or in which
that Person (and/or, in the case of a Lender, its lending office) is deemed to
be doing business on all or part of the net income, profits or gains (whether
worldwide, or only insofar as such income, profits or gains are considered to
arise in or to relate to a particular jurisdiction, or otherwise) of that Person
(and/or, in the case of a Lender, its applicable lending office).
"Term Loan" means a Term Loan made by a Lender to OpCo pursuant to
Section 2.1(a)(i) of this Agreement and any New Term Loans made by a Lender to
OpCo pursuant to Section 2.1(a)(iv) of this Agreement.
"Term Loan Commitment" means the commitment of a Lender to make or
otherwise fund a Term Loan to OpCo and "Term Loan Commitments" means such
commitments of all Lenders in the aggregate. The amount of each Lender's Term
Loan Commitment, if any, is set forth on Appendix A1 or in the applicable
Assignment Agreement, subject to any adjustment or reduction pursuant to the
terms and conditions hereof. The aggregate amount of the Term Loan Commitments
as of the Closing Date is $50,000,000.
"Term Loan Commitment Termination Date" means the Funding Date.
"Term Loan Exposure" means, with respect to any Lender, as of any date
of determination, the outstanding principal amount of the Term Loans of such
Lender; provided, at any time prior to the making of the Term Loans, the Term
--------
Loan Exposure of any Lender shall be equal to such Lender's Term Loan
Commitment.
34
"Term Loan Installments" as defined in Section 2.10(a).
"Term Loan Installment Date" as defined in Section 2.10(a).
"Term Loan Maturity Date" means the earlier of (i) December 15, 2005,
and (ii) the date that all Term Loans shall become due and payable in full
hereunder, whether by acceleration or otherwise.
"Term Loan Note" means a promissory note in the form of Exhibit B1, as
it may be amended, restated, supplemented or otherwise modified from time to
time.
"Term Loan Maturity Date" means the Term Loan Maturity Date, the
Delayed Draw Term Loan Maturity Date or any New Term Loan Maturity Date.
"Terminated Lender" as defined in Section 2.22.
"Total Leverage Ratio" means the ratio as of the last day of any
Fiscal Quarter of (a) Consolidated Total Debt to (b) Annualized Consolidated
EBITDA.
"Total Utilization Exposure" means, as at any date of determination,
the sum of (i) the aggregate principal amount of all outstanding Term Loans,
(ii) the aggregate principal amount of all outstanding Delayed Draw Term Loans,
(iii) the aggregate principal amount of all outstanding Revolving Loans (other
than Revolving Loans made for the purpose of reimbursing Issuing Bank for any
amount drawn under any Letter of Credit, but not yet so applied), (iv) the
Letter of Credit Usage and (v) the aggregate principal amount of all outstanding
New Term Loans, if any.
"Total Utilization of Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Delayed Draw Term Loans, (ii) the aggregate principal amount of all outstanding
Revolving Loans (other than Revolving Loans made for the purpose of reimbursing
Issuing Bank for any amount drawn under any Letter of Credit, but not yet so
applied), and (iii) the Letter of Credit Usage.
"Total Utilization of Revolving Loan Commitments" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
reimbursing Issuing Bank for any amount drawn under any Letter of Credit, but
not yet so applied), and (ii) the Letter of Credit Usage.
"Transaction Costs" means the fees, costs and expenses payable by
Company or any of Company's Subsidiaries on or before the Closing Date in
connection with the transactions contemplated by the Credit Documents.
"Type of Loan" means with respect to any of the Term Loans, Delayed
Draw Term Loans, New Term Loans or Revolving Loans, a Base Rate Loan or a
Eurodollar Rate Loan.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
35
"UCC Questionnaire" means any certificate in form satisfactory to the
Collateral Agent that provides information with respect to any personal or mixed
property of each Credit Party.
"Unadjusted Eurodollar Rate Component" means that component of the
interest costs to Company in respect of a Eurodollar Rate Loan that is based
upon the rate obtained pursuant to clause (i) of the definition of Adjusted
Eurodollar Rate.
"Unrestricted Subsidiaries" means (i) each Subsidiary of Company
identified on Schedule 1.1(b), (ii) each Subsidiary of Company that shall be
designated an "Unrestricted Subsidiary" pursuant to and in compliance with
Section 6.18, and (ii) each Subsidiary of an Unrestricted Subsidiary.
1.2 Accounting Terms. Except as otherwise expressly provided herein, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to Section 5.1(a),
5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in Section 5.1(f)), if applicable). Subject to the
foregoing, calculations in connection with the definitions, covenants and other
provisions hereof shall utilize accounting principles and policies in conformity
with those used to prepare the Historical Financial Statements.
1.3 Interpretation, etc. Any of the terms defined herein may, unless the
context otherwise requires, be used in the singular or the plural, depending on
the reference. References herein to any Section, Appendix, Schedule or Exhibit
shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may
be, hereof unless otherwise specifically provided. The use herein of the word
"include" or "including", when following any general statement, term or matter,
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
SECTION 2 LOANS AND LETTERS OF CREDIT
2.1 Loans.
(a) Loans.
(i) Term Loans. Subject to the terms and conditions hereof, each
----------
Lender holding a Term Loan Commitment severally agrees to make, on the
Funding Date, a Term Loan to OpCo in an amount equal to such Lender's Term
Loan Commitment; provided that after giving effect to the making of any
--------
Delayed Draw Term Loans in no event shall the Total Utilization Exposure
exceed the Borrowing Base as set forth in a Borrowing Base Certificate
delivered pursuant to Section 5.1(e) in connection with the making of such
Loans. OpCo may make only one borrowing under the Term Loan Commitment
which shall be on the
36
Funding Date. Any amount borrowed under this Section 2.1(a)(i) and
subsequently repaid or prepaid may not be reborrowed. Subject to Sections
2.10(a), 2.11(a) and 2.12, all amounts owed hereunder with respect to the
Term Loans shall be paid in full no later than the Term Loan Maturity Date.
Each Lender's Term Loan Commitment shall terminate immediately and without
further action on the Funding Date after giving effect to the funding of
such Lender's Term Loan Commitment.
(ii) Delayed Draw Term Loans. During the Delayed Draw Term Loan
-----------------------
Commitment Period, subject to the terms and conditions hereof, each Lender
holding a Delayed Draw Term Loan Commitment severally agrees to make
Delayed Draw Term Loans to OpCo in the aggregate amount up to but not
exceeding such Lender's Delayed Draw Term Loan Commitment; provided that
--------
after giving effect to the making of any Delayed Draw Term Loans in no
event shall (x) the Total Utilization of the Delayed Draw Term Loan
Commitments exceed the Delayed Draw Term Loan Commitments then in effect
and (y) the Total Utilization Exposure exceed the Borrowing Base as set
forth in a Borrowing Base Certificate delivered pursuant to Section 5.1(e)
in connection with the making of such Loans; provided, however, that if, on
-------- -------
the date which is twelve (12) months following the Closing Date, any
portion of the Delayed Draw Term Loan Commitment is not permitted to be
drawn as a result of the application of clause (y) of the immediately
preceding proviso, OpCo shall be entitled (but not obligated) to borrow the
portion of the Delayed Draw Term Loans which is required to be drawn on
such date in accordance with the last sentence of this paragraph, so long
as such amount (the "Escrowed Funds") is held in a pledged account included
in the Collateral in which the Collateral Agent for the benefit of the
Secured Parties has a First Priority Lien on such terms and conditions
satisfactory to Administrative Agent until such time as OpCo demonstrates
compliance with such proviso in a Borrowing Certificate delivered pursuant
to Section 5.1(e). OpCo may make one or more drawings on the Delayed Draw
Term Loan Commitments during the Delayed Draw Term Loan Commitment Period.
Any amounts borrowed under this Section 2.1(a)(ii) and subsequently repaid
or prepaid may not be reborrowed. Subject to Sections 2.10(a), 2.11(a) and
2.12, all amounts owed hereunder with respect to the Delayed Draw Term
Loans shall be paid in full no later than the Delayed Draw Term Loan
Maturity Date. Each Lender's Delayed Draw Term Loan Commitment shall
terminate immediately and without further action upon the funding in full
of such Lender's Delayed Draw Term Loan Commitment. The Delayed Draw Term
Loan Commitment shall expire immediately and without further action on a
date occurring twelve (12) months after the Closing Date, if Delayed Draw
Term Loans in an amount equal to the aggregate Delayed Draw Term Loan
Commitments are not made on or before such date.
(iii) Revolving Loans. During the Revolving Loan Commitment
---------------
Period, subject to the terms and conditions hereof, each Lender holding a
Revolving Loan Commitment severally agrees to make Revolving Loans to OpCo
in the aggregate amount up to but not exceeding such Lender's Revolving
Loan
37
Commitment as of the Closing Date; provided that after giving effect to the
--------
making of any Revolving Loans in no event shall (x) the Total Utilization
of Revolving Loan Commitments exceed the lesser of (i) the Revolving Loan
Commitments then in effect and (ii) to the extent required in order to
comply with the terms of the Senior Notes, 85% of Net Accounts Receivable
(the "A/R Sublimit") determined as of the most recent A/R Sublimit
Measurement Date or (y) the Total Utilization Exposure exceed the Borrowing
Base as set forth in a Borrowing Base Certificate delivered pursuant to
Section 5.1(e) in connection with the making of such Loans provided,
--------
further that, notwithstanding the foregoing, the Company may make
-------
borrowings otherwise permitted under the Revolving Facility in excess of
the A/R Sublimit to finance not greater than 20% of the costs of equipment
and software located in Permitted IBX Facilities either owned by the
Company or leased by the Company under a lease subject to a leasehold
mortgage in favor of the Collateral Agent for the benefit of the Lenders
providing such Purchase Money Loans ("Purchase Money Loans"); provided,
--------
that, any Purchase Money Loans made to the Company shall be secured solely
by the assets purchased with the proceeds of such Loans. Amounts borrowed
pursuant to this Section 2.1(a)(iii) may be repaid and reborrowed during
the Revolving Loan Commitment Period. Subject to Sections 2.11 and 2.12,
each Lender's Revolving Loan Commitment shall expire on the Revolving Loan
Commitment Termination Date and all Revolving Loans and all other amounts
owed hereunder with respect to the Revolving Loans and the Revolving Loan
Commitments shall be paid in full no later than such date. If as of any
A/R Sublimit Measurement Date the A/R Sublimit exceeds the amount
outstanding under the Revolving Loans (net of any amounts outstanding under
the Purchase Money Loans), a portion of the Purchase Money Loans equal to
the amount of such excess shall be automatically deemed converted to
Revolving Loans outstanding to OpCo and shall, on and after such date be
treated for all purposes as such Revolving Loans and not as Purchase Money
Loans.
(iv) Incremental Facilities. To the extent not prohibited under
----------------------
the Senior Notes, OpCo or Company may by written notice to Syndication
Agent elect to request (A) prior to the Revolving Loan Commitment
Termination Date, an increase in the existing Revolving Loan Commitments
(any such increase, the "New Revolving Loan Commitments") and/or (B) the
establishment of one or more new term loan commitments (the "New Term Loan
Commitments"), by an amount not in excess of $100,000,000 in the aggregate
and not less than $5,000,000 individually (or such lesser amount which
shall be approved by Syndication Agent or such lesser amount that shall
constitute the difference between $100,000,000 and all such New Revolving
Loan Commitments and New Term Loan Commitments), and integral multiples of
$5,000,000 in excess of that amount. Each such notice shall specify (A) the
date (each, an "Increased Amount Date") on which Company proposes that the
New Revolving Loan Commitment or the New Term Loan Commitment, as
applicable, shall be effective and that Loans be made pursuant to the New
Term Loan Commitments ("New Term Loans"), which shall be a date not less
than 10 Business Days after the date on which such notice is delivered to
Syndication Agent and (B) the identity of each
38
Lender or other Person (each, a "New Revolving Loan Lender" or a "New Term
Loan Lender", as applicable) to whom OpCo or Company, as applicable,
proposes any portion of such New Revolving Loan Commitment or New Term Loan
Commitment, as applicable, be allocated and the amounts of such
allocations; provided that any Lender approached to provide all or a
--------
portion of the New Revolving Loan Commitment or New Term Loan Commitment
may elect or decline, in its sole discretion, to provide a New Revolving
Loan Commitment or a New Term Loan Commitment. Such New Revolving Loan
Commitment or New Term Loan Commitment shall become effective, as of such
Increased Amount Date; provided that (1) no Default or Event of Default
--------
shall exist on such Increased Amount Date before or after giving effect to
such New Revolving Loan Commitment or New Term Loan Commitment, as
applicable; (2) both before and after giving effect to the making of any
Series of New Term Loans each of the conditions set forth in Section 3.2
shall be satisfied; (3) the New Revolving Loan Commitment or New Term Loan
Commitment, as applicable, shall be effected pursuant to one or more
Joinder Agreements executed and delivered to Administrative Agent, and each
shall be recorded in the Register, each of which shall be subject to the
requirements set forth in Section 2.19(c); (4) the applicable Borrower
shall make any payments required pursuant to Section 2.17(c) in connection
with the New Revolving Loan Commitment, and (5) the applicable Borrower
shall deliver or cause to be delivered any legal opinions, Notes and/or
other documents reasonably requested by Administrative Agent in connection
with any such transaction. Any New Term Loans made shall be designated a
separate series (each, a "Series") of New Term Loans for all purposes of
this Agreement.
On any Increased Amount Date on which New Revolving Loan Commitments are
effected, subject to the satisfaction of the foregoing terms and conditions, (a)
each of the Lenders holding Revolving Loans shall assign to each of the New
Revolving Loan Lenders, and each of the New Revolving Loan Lenders shall
purchase from each of the Lenders holding Revolving Loans, at the principal
amount thereof, such interests in the Revolving Loans outstanding on such
Increased Amount Date as shall be necessary in order that, after giving effect
to all such assignments and purchases, such Revolving Loans will be held by
existing Lenders and New Revolving Loan Lenders ratably in accordance with their
Revolving Loan Commitments after giving effect to the addition of such New
Revolving Loan Commitment to the Revolving Commitments, (b) each New Revolving
Commitment shall be deemed for all purposes a Revolving Commitment and each Loan
made thereunder (a "New Revolving Loan") shall be deemed, for all purposes, a
Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with
respect to the Revolving Commitments and all matters relating thereto.
On any Increased Amount Date on which any New Term Loan Commitments of any
Series are effective, subject to the satisfaction of the foregoing terms and
conditions, (i) each New Term Loan Lender of any Series shall make a New Term
Loan to Company to the extent required to be made under such New Term Loan
Commitment on such date, and (ii) each New Term Loan Lender of any Series shall
become a Lender hereunder with respect to the New Term Loan Commitment of such
Series and the New Term Loans of such Series made pursuant thereto.
39
The Syndication Agent shall notify the Lenders promptly in writing upon
receipt of the applicable Borrower's notice of each Increased Amount Date and in
respect thereof the New Revolving Loan Commitment and the New Revolving Loan
Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders
of such Series, as applicable, and, in the case of each notice to any Lender
with a Revolving Loans Commitment, the respective interests in such Lender's
Revolving Loans subject to the assignments contemplated by this section.
The terms and provisions of the New Term Loans of any Series and New Term
Loan Commitments of any Series shall be, except as otherwise set forth herein or
in the Joinder Agreement, identical to the Term Loans and in any event (i) the
amortization of all New Term Loans of any Series, shall occur no sooner than the
proportional amortization of the Term Loans, (ii) the final maturity of all New
Term Loans of any Series shall be no earlier than the Term Loan Maturity Date,
(iii) the rate of interest applicable to New Term Loans of any Series shall be
determined by the applicable Borrower and applicable new Lenders and shall be
set forth in each applicable Joinder Agreement and any New Term Loans made to
the Company shall, to the extent necessary to comply with the Senior Notes,
otherwise be made on the same basis as the Purchase Money Loans. Each Joinder
Agreement may, without the consent of any other Lenders, effect such amendments
to this Agreement and the other Credit Documents as may be necessary or
appropriate, in the opinion of the Syndication Agent and the Administrative
Agent, to effect the provision of this Section 2.1(a)(iv).
(b) Borrowing Mechanics for Loans.
-----------------------------
(i) Delayed Draw Term Loans shall be made in minimum amounts
of $10,000,000 pursuant to a maximum of seven drawings.
(ii) Revolving Loans shall be made in a minimum amount of
$1,000,000 and integral multiples of $500,000 in excess thereof.
(iii) With respect to Term Loans, OpCo shall deliver to
Administrative Agent a fully executed and delivered Closing Date
Certificate and a Funding Notice on the Closing Date. Promptly upon receipt
by Administrative Agent of such certificate, Administrative Agent shall
notify each Lender in writing of the proposed borrowing.
(iv) Whenever a Borrower desires that Lenders make Loans, the
applicable Borrower shall deliver to Administrative Agent telephonic
notice, followed by a fully executed and delivered Funding Notice no later
than 10:00 a.m. (New York City time) at least three (3) Business Days in
advance of the proposed Credit Date in the case of a Eurodollar Rate Loan,
and at least one (1) Business Day in advance of the proposed Credit Date in
the case of a Base Rate Loan. Except as otherwise provided herein, a
Funding Notice for a Loan that is a Eurodollar Rate Loan shall be
irrevocable on and after the related Interest Rate Determination Date, and
the applicable Borrower shall be bound to make a borrowing in accordance
therewith.
40
(v) Notice of receipt of each Funding Notice in respect of
Loans, together with the amount of each Lender's Pro Rata Share thereof, if
any, together with the applicable interest rate, shall be provided by
Administrative Agent to each applicable Lender by telefacsimile with
reasonable promptness, but (provided Administrative Agent shall have
received such notice by 12:00 p.m. (New York City time)) not later than
2:00 p.m. (New York City time) on the same day as Administrative Agent's
receipt of such notice from the applicable Borrower.
(vi) Each Lender shall make the amount of its Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on the
applicable Credit Date by wire transfer of same day funds in Dollars, at
the Administrative Agent's Principal Office. Except as provided herein,
upon satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of such Loans available to the
applicable Borrower by 3:00 p.m. New York City time on the applicable
Credit Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Loans received by Administrative Agent from Lenders to
be credited to the account of the applicable Borrower at the Administrative
Agent's Principal Office or such other account as may be designated in
writing to Administrative Agent by the applicable Borrower.
2.2 Issuance of Letters of Credit and Purchase of Participations Therein.
(a) Letters of Credit. During the Revolving Loan Commitment Period,
-----------------
subject to the terms and conditions hereof, Issuing Bank agrees to issue
Letters of Credit for the account of OpCo in the aggregate amount up to but not
exceeding the Letter of Credit Sublimit; provided, (i) each Letter of Credit
--------
shall be denominated in Dollars; (ii) the stated amount of each Letter of Credit
shall not be less than $500,000 or such lesser amount as is acceptable to
Issuing Bank; (iii) after giving effect to such issuance, in no event shall the
Total Utilization of Revolving Loan Commitments exceed the Revolving Loan
Commitments then in effect; (iv) after giving effect to such issuance, to the
extent required in order to comply with the terms of the Senior Notes, the Total
Utilization of Revolving Loan Commitments, less the aggregate amount outstanding
under any Purchase Money Loans, shall not exceed the A/R Sublimit; (v) after
giving effect to such issuance, in no event shall the Letter of Credit Usage
exceed the Letter of Credit Sublimit then in effect; (vi) in no event shall any
standby Letter of Credit have an expiration date later than the earlier of the
Revolving Loan Commitment Termination Date and the date which is one year from
the date of issuance of such standby Letter of Credit; and (vii) in no event
shall any commercial Letter of Credit (x) have an expiration date later than the
earlier of (1) the Revolving Loan Commitment Termination Date and (2) the date
which is 180 days from the date of issuance of such commercial Letter of Credit
or (y) be issued if such commercial Letter of Credit is otherwise unacceptable
to the Issuing Bank in its reasonable discretion. Subject to the foregoing,
Issuing Bank may agree that a standby Letter of Credit will automatically be
extended for one or more successive periods not to exceed one year each, unless
Issuing Bank elects not to extend for any such additional period; provided,
--------
Issuing Bank shall not extend any such Letter of Credit if it has received
written notice that an Event of Default has occurred and is continuing at the
time Issuing Bank must elect to allow such extension; provided
--------
41
further, in the event a Funding Default exists, Issuing Bank shall not be
-------
required to issue any Letter of Credit unless Issuing Bank has entered into
arrangements satisfactory to it and OpCo to eliminate Issuing Bank's risk with
respect to the participation in Letters of Credit of the Defaulting Lender,
including by cash collateralizing such Defaulting Lender's Pro Rata Share of the
Letter of Credit Usage.
(b) Notice of Issuance. Whenever OpCo desires the issuance of a
------------------
Letter of Credit, it shall deliver to Administrative Agent and Issuing Bank an
Issuance Notice no later than 12:00 p.m. (New York City time) at least three (3)
Business Days such shorter period as may be agreed to by Issuing Bank in any
particular instance, in advance of the proposed date of issuance. Upon
satisfaction or waiver of the conditions set forth in Section 3.2, Issuing Bank
shall issue the requested Letter of Credit only in accordance with Issuing
Bank's standard operating procedures. Upon the issuance of any Letter of Credit
or amendment or modification to a Letter of Credit, Issuing Bank shall promptly
notify each Lender in writing of such issuance, which notice shall be
accompanied by a copy of such Letter of Credit or amendment or modification to a
Letter of Credit and the amount of such Lender's respective participation in
such Letter of Credit pursuant to Section 2.2(e). Within fifteen (15) days
after the end of each month ending after the Closing Date, so long as any Letter
of Credit shall have been outstanding during such month, Issuing Bank shall
deliver to each Lender a report setting forth for such month the daily aggregate
amount available to be drawn under the Letters of Credit that were outstanding
during such month.
(c) Responsibility of Issuing Bank With Respect to Requests for
-----------------------------------------------------------
Drawings and Payments. In determining whether to honor any drawing under any
---------------------
Letter of Credit by the beneficiary thereof, Issuing Bank shall be responsible
only to examine the documents delivered under such Letter of Credit with
reasonable care so as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of Credit. As between
OpCo and Issuing Bank, OpCo assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit issued by Issuing Bank, by the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation
of the foregoing, Issuing Bank shall not be responsible for: the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; the validity
or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; failure of the beneficiary of any such
Letter of Credit to comply fully with any conditions required in order to draw
upon such Letter of Credit; errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; errors in interpretation of
technical terms; any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any such Letter of Credit or
of the proceeds thereof; the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
any consequences arising from causes beyond the control of Issuing Bank,
including any Governmental Acts; none of the above shall affect or impair, or
prevent the vesting of, any of Issuing Bank's rights or powers hereunder.
Without limiting the foregoing and in furtherance thereof, any action taken or
omitted by Issuing Bank under or in connection with the Letters of
42
Credit or any documents and certificates delivered thereunder, if taken or
omitted in good faith, shall not put Issuing Bank under any resulting liability
to OpCo. Notwithstanding anything to the contrary contained in this Section
2.2(c), OpCo shall retain any and all rights it may have against Issuing Bank
for any liability arising solely out of the gross negligence or willful
misconduct of Issuing Bank.
(d) Reimbursement by the applicable Borrower of Amounts Drawn or Paid
-----------------------------------------------------------------
Under Letters of Credit. In the event Issuing Bank has determined to honor a
-----------------------
drawing under a Letter of Credit, it shall immediately notify OpCo and
Administrative Agent, and OpCo shall reimburse Issuing Bank on or before the
Business Day immediately following the date on which such drawing is honored
(the "Reimbursement Date") in an amount in Dollars and in same day funds equal
to the amount of such honored drawing; provided, anything contained herein to
--------
the contrary notwithstanding, (i) unless OpCo shall have notified
Administrative Agent and Issuing Bank prior to 10:00 a.m. (New York City time)
on the date such drawing is honored that OpCo intends to reimburse Issuing Bank
for the amount of such honored drawing with funds other than the proceeds of
Revolving Loans, OpCo shall be deemed to have given a timely Funding Notice to
Administrative Agent requesting Lenders to make Revolving Loans that are Base
Rate Loans on the Reimbursement Date in an amount in Dollars equal to the amount
of such honored drawing, (and the Administrative Agent shall give prompt
written notice thereof and of the amount of its respective Pro Rata Share of the
amount of such honored drawing to each of the Lenders) and (ii) subject to
satisfaction or waiver of the conditions specified in Section 3.2, Lenders
shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans
in the amount of such honored drawing, the proceeds of which shall be applied
directly by Administrative Agent to reimburse Issuing Bank for the amount of
such honored drawing; and provided further, if for any reason proceeds of
-------- -------
Revolving Loans are not received by Issuing Bank on the Reimbursement Date in an
amount equal to the amount of such honored drawing, OpCo shall reimburse Issuing
Bank, on demand, in an amount in same day funds equal to the excess of the
amount of such honored drawing over the aggregate amount of such Revolving
Loans, if any, which are so received. Nothing in this Section 2.2(d) shall be
deemed to relieve any Lender from its obligation to make Revolving Loans on the
terms and conditions set forth herein, and OpCo shall retain any and all rights
it may have against any Lender resulting from the failure of such Lender to make
such Revolving Loans under this Section 2.2(d).
(e) Lenders' Purchase of Participations in Letters of Credit.
--------------------------------------------------------
Immediately upon the issuance of each Letter of Credit, each Lender having a
Revolving Loan Commitment shall be deemed to have purchased, and hereby agrees
to irrevocably purchase, from Issuing Bank a participation in such Letter of
Credit and any drawings honored thereunder in an amount equal to such Lender's
Pro Rata Share (with respect to the Revolving Loan Commitments) of the maximum
amount which is or at any time may become available to be drawn thereunder. In
the event that OpCo shall fail for any reason to reimburse Issuing Bank as
provided in Section 2.2(d), Issuing Bank shall promptly notify each Lender in
writing of the unreimbursed amount of such honored drawing and of such Lender's
respective participation therein based on such Lender's Pro Rata Share of the
Revolving Loan Commitments. Each Lender shall make available to Issuing Bank an
amount equal to its respective participation, in Dollars and in same day funds,
at the office of Issuing Bank specified in such notice, not later than 12:00
p.m. (New York City time) on the first business day (under the laws of the
jurisdiction in which such office of Issuing Bank is located) after the date
notified by Issuing Bank. In the event that any Lender
43
fails to make available to Issuing Bank on such business day the amount of such
Lender's participation in such Letter of Credit as provided in this Section
2.2(e), Issuing Bank shall be entitled to recover such amount on demand from
such Lender together with interest thereon for three (3) Business Days at the
rate customarily used by Issuing Bank for the correction of errors among banks
and thereafter at the Base Rate. Nothing in this Section 2.2(e) shall be deemed
to prejudice the right of any Lender to recover from Issuing Bank any amounts
made available by such Lender to Issuing Bank pursuant to this Section 2.2(e) in
the event that it is determined that the payment with respect to a Letter of
Credit in respect of which payment was made by such Lender constituted gross
negligence or willful misconduct on the part of Issuing Bank. In the event
Issuing Bank shall have been reimbursed by other Lenders pursuant to this
Section 2.2(e) for all or any portion of any drawing honored by Issuing Bank
under a Letter of Credit, such Issuing Bank shall distribute to each Lender
which has paid all amounts payable by it under this Section 2.2(e) with respect
to such honored drawing such Lender's Pro Rata Share of all payments
subsequently received by Issuing Bank from OpCo in reimbursement of such honored
drawing promptly when such payments are received. Any such distribution shall be
made to a Lender at its primary address set forth below its name on Appendix B
or at such other address as such Lender may request.
(f) Obligations Absolute. The obligation of OpCo to reimburse Issuing
--------------------
Bank for drawings honored under the Letters of Credit issued by it and to repay
any Revolving Loans made by Lenders pursuant to Section 2.2(d) and the
obligations of Lenders under Section 2.2(e) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: any lack of
validity or enforceability of any Letter of Credit; the existence of any claim,
setoff, defense or other right which OpCo or any Lender may have at any time
against a beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), Issuing Bank, Lender or any other
Person or, in the case of a Lender, against OpCo, whether in connection
herewith, the transactions contemplated herein or with any unrelated transaction
(including any underlying transaction between OpCo or one of its Subsidiaries
and the beneficiary for which any Letter of Credit was procured); any draft or
other document presented under any 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; payment by Issuing Bank under any
Letter of Credit against presentation of a draft or other document which does
not substantially comply with the terms of such Letter of Credit; any adverse
change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of OpCo or any of its Subsidiaries; any breach hereof or
of any other Credit Document by any party thereto; any other circumstance or
happening whatsoever, whether or not similar to any of the foregoing; or the
fact that an Event of Default or a Default shall have occurred and be
continuing; provided, in each case, that payment by Issuing Bank under the
--------
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of Issuing Bank under the circumstances in question.
(g) Indemnification. Without duplication of any obligation of OpCo
---------------
under Section 10.2 or 10.3, in addition to amounts payable as provided herein,
OpCo agrees to protect, indemnify, pay and save harmless Issuing Bank and the
other Agents and Lenders from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
44
counsel) which Issuing Bank may incur or be subject to as a consequence, direct
or indirect, of the issuance of any Letter of Credit by Issuing Bank, the
wrongful dishonor by Issuing Bank of a proper demand for payment made under any
Letter of Credit issued by it, or the failure of Issuing Bank to honor a drawing
under any such Letter of Credit as a result of any Governmental Act, in each
case, other than as a result of the gross negligence or willful misconduct of
Issuing Bank.
2.3 Pro Rata Shares; Availability of Funds.
(a) Pro Rata Shares. All Loans shall be made, and all participations
---------------
purchased, by Lenders concurrently and proportionately to their respective Pro
Rata Shares, it being understood that no Lender shall be responsible for any
default by any other Lender in such other Lender's obligation to make a Loan
requested hereunder or purchase a participation required hereby nor shall any
Commitment of any Lender be increased or decreased as a result of a default by
any other Lender in such other Lender's obligation to make a Loan requested
hereunder or purchase a participation required hereby.
(b) Availability of Funds. Unless Administrative Agent shall have
---------------------
been notified by any Lender prior to the applicable Credit Date that such Lender
does not intend to make available to Administrative Agent the amount of such
Lender's Loan requested on such Credit Date, Administrative Agent may assume
that such Lender has made such amount available to Administrative Agent on such
Credit Date and Administrative Agent may, in its sole discretion, but shall not
be obligated to, make available to the applicable Borrower a corresponding
amount on such Credit Date. If such corresponding amount is not in fact made
available to Administrative Agent by such Lender, Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender
together with interest thereon, for each day from such Credit Date until the
date such amount is paid to Administrative Agent, at the customary rate set by
Administrative Agent for the correction of errors among banks for three (3)
Business Days and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon Administrative Agent's demand therefor,
Administrative Agent shall promptly notify the applicable Borrower and the
applicable Borrower shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Credit Date until the date such amount is paid to Administrative Agent, at the
rate payable hereunder for Base Rate Loans for such Class of Loans. Nothing in
this Section 2.3(b) shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that the applicable
Borrower may have against any Lender as a result of any default by such Lender
hereunder.
2.4 Use of Proceeds. The proceeds of the Loans shall be used (i) to
provide financing for the cost of design, development, acquisition,
construction, installation, improvement, transportation and/or integration of
equipment, inventory or facility assets, inventory or network assets and of
leasing and acquiring of real property, and (ii) for working capital and other
general corporate purposes of the Company and its Domestic Subsidiaries,
including Permitted Acquisitions; provided that, Purchase Money Loans may only
--------
be used to finance not more than 20% of the costs of equipment and software
located in Permitted IBX Facilities either owned by the Company or leased by the
Company under a lease subject to a leasehold mortgage in favor of the Collateral
Agent. No portion of the proceeds of any Credit Extension shall be used by
Company or any of its Subsidiaries in any manner that might cause
45
such Credit Extension or the application of such proceeds to violate Regulation
T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve
System or any other regulation thereof or to violate the Exchange Act.
2.5 Evidence of Debt; Register; Lenders' Books and Records; Notes.
(a) Lenders' Evidence of Debt. Each Lender shall maintain on its
-------------------------
internal records an account or accounts evidencing the Indebtedness of each
Borrower to such Lender, including the amounts of the Loans made by it and each
repayment and prepayment in respect thereof. Any such recordation shall be
conclusive and binding on the Borrowers, absent manifest error; provided,
--------
failure to make any such recordation, or any error in such recordation, shall
not affect any Lender's Commitments or either Borrower's Obligations in respect
of any applicable Loans; and provided further, in the event of any inconsistency
-------- -------
between the Register and any Lender's records, the recordations in the Register
shall govern.
(b) Register. Administrative Agent shall maintain at its Principal
--------
Office a register for the recordation of the names and addresses of Lenders and
the Commitments and Loans of each Lender from time to time (the "Register").
The Register shall be available for inspection by either Borrower or any Lender
at any reasonable time and from time to time upon reasonable prior notice.
Administrative Agent shall record in the Register the Commitments and the Loans,
and each repayment or prepayment in respect of the principal amount of the
Loans, and any such recordation shall be conclusive and binding on the
applicable Borrower and each Lender, absent manifest error; provided, failure to
--------
make any such recordation, or any error in such recordation, shall not affect
any Lender's Commitments or either Borrower's Obligations in respect of any
Loan. Each Borrower hereby designates the Administrative Agent to serve as such
Borrower's agent solely for purposes of maintaining the Register as provided in
this Section 2.5, and each Borrower hereby agrees that, to the extent the
Administrative Agent serves in such capacity, the Administrative Agent and its
officers, directors, employees, agents and affiliates shall constitute
"Indemnitees."
(c) Notes. If so requested by any Lender by written notice to a
-----
Borrower (with a copy to Administrative Agent) at least two (2) Business Days
prior to the Closing Date, or at any time thereafter, such Borrower shall
execute and deliver to such Lender (and/or, if applicable and if so specified in
such notice, to any Person who is an assignee of such Lender pursuant to Section
10.6) on the Closing Date (or, if such notice is delivered after the Closing
Date, promptly after such Borrower's receipt of such notice) a Note or Notes to
evidence such Lender's Loans.
2.6 Interest on Loans.
(a) Except as otherwise set forth herein, each Loan shall bear
interest on the unpaid principal amount thereof from the date made through
repayment (whether by acceleration or otherwise) thereof as follows:
(i) if a Base Rate Loan, at the Base Rate plus the Applicable
----
Margin; or
46
(ii) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate
plus the Applicable Margin.
----
(b) The basis for determining the rate of interest with respect to any
Loan, and the Interest Period with respect to any Eurodollar Rate Loan, shall be
selected by the applicable Borrower and notified to Administrative Agent and
Lenders pursuant to the applicable Funding Notice or Conversion/Continuation
Notice, as the case may be; provided, the Loans initially shall be made and
--------
maintained as either Base Rate Loans or Eurodollar Rate Loans having an Interest
Period of no longer than one month until the date which is the earlier of (i)
the date which is 60 days following the Closing Date and (ii) the date that
Syndication Agent notifies the applicable Borrower that the primary syndication
of the Loans and Commitments has been completed, as determined by Syndication
Agent. If on any day a Loan is outstanding with respect to which a Funding
Notice or Conversion/Continuation Notice has not been delivered to
Administrative Agent in accordance with the terms hereof specifying the
applicable basis for determining the rate of interest, then for that day such
Loan shall be a Base Rate Loan.
(c) In connection with Eurodollar Rate Loans there shall be no more
than ten (10) Interest Periods outstanding at any time. In the event a Borrower
fails to specify between a Base Rate Loan or a Eurodollar Rate Loan in the
applicable Funding Notice or Conversion/Continuation Notice, such Loan (if
outstanding as a Eurodollar Rate Loan) will be automatically converted into a
Base Rate Loan on the last day of the thencurrent Interest Period for such Loan
(or if outstanding as a Base Rate Loan will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan). In the event the applicable
Borrower fails to specify an Interest Period for any Eurodollar Rate Loan in the
applicable Funding Notice or Conversion/Continuation Notice, the applicable
Borrower shall be deemed to have selected an Interest Period of one month. As
soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate
Determination Date, Administrative Agent shall determine (which determination
shall, absent manifest error, be final, conclusive and binding upon all parties)
the interest rate that shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in
writing) to the applicable Borrower and each Lender.
(d) Interest payable pursuant to Section 2.6(a) shall be computed in
the case of Base Rate Loans on the basis of a 365day or 366day year, as the case
may be, and in the case of Eurodollar Rate Loans, on the basis of a 360day year,
in each case for the actual number of days elapsed in the period during which it
accrues. In computing interest on any Loan, the date of the making of such Loan
or the first day of an Interest Period applicable to such Loan or, with respect
to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of
conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may
be, shall be included, and the date of payment of such Loan or the expiration
date of an Interest Period applicable to such Loan or, with respect to a Base
Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of
such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be
excluded; provided, if a Loan is repaid on the same day on which it is made, one
--------
day's interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each Loan shall
be payable in arrears (i) on each Interest Payment Date applicable to that Loan;
(ii) in the case of
47
any prepayment of that Loan, whether voluntary or mandatory, on the date of
prepayment (to the extent accrued on the amount being prepaid); and (iii) at
maturity, including final maturity; provided, however, with respect to any
--------
voluntary prepayment of a Base Rate Loan, accrued interest shall instead be
payable on the applicable Interest Payment Date.
(f) OpCo agrees to pay to Issuing Bank, with respect to drawings
honored under any Letter of Credit, interest on the amount paid by Issuing Bank
in respect of each such honored drawing from the date such drawing is honored to
but excluding the date such amount is reimbursed by or on behalf of OpCo at a
rate equal to, for the period from the date such drawing is honored to but
excluding the applicable Reimbursement Date, the rate of interest otherwise
payable hereunder with respect to Revolving Loans that are Base Rate Loans, and
thereafter, a rate which is 2% per annum in excess of the rate of interest
otherwise payable hereunder with respect to Revolving Loans that are Base Rate
Loans.
(g) Interest payable pursuant to Section 2.6(f) shall be computed on
the basis of a 365/366day year for the actual number of days elapsed in the
period during which it accrues, and shall be payable on demand or, if no demand
is made, on the date on which the related drawing under a Letter of Credit is
reimbursed in full. Promptly upon receipt by Issuing Bank of any payment of
interest pursuant to Section 2.6(f), Issuing Bank shall distribute to each
Lender, out of the interest received by Issuing Bank in respect of the period
from the date such drawing is honored to but excluding the date on which Issuing
Bank is reimbursed for the amount of such drawing (including any such
reimbursement out of the proceeds of any Revolving Loans), the amount that such
Lender would have been entitled to receive in respect of the letter of credit
fee that would have been payable in respect of such Letter of Credit for such
period if no drawing had been honored under such Letter of Credit. In the event
Issuing Bank shall have been reimbursed by Lenders for all or any portion of
such honored drawing, Issuing Bank shall distribute to each Lender which has
paid all amounts payable by it under Section 2.2(e) with respect to such honored
drawing such Lender's Pro Rata Share of any interest received by Issuing Bank in
respect of that portion of such honored drawing so reimbursed by Lenders for the
period from the date on which Issuing Bank was so reimbursed by Lenders to but
excluding the date on which such portion of such honored drawing is reimbursed
by OpCo.
2.7 Conversion/Continuation.
(a) Subject to Section 2.17 and so long as no Default or Event of
Default shall have occurred and then be continuing, the applicable Borrower
shall have the option:
(i) to convert at any time all or any part of any Term Loan or
Revolving Loan equal to $1,000,000 and integral multiples of $500,000 in
excess of that amount from one Type of Loan to another Type of Loan;
provided, a Eurodollar Rate Loan may only be converted on the expiration of
--------
the Interest Period applicable to such Eurodollar Rate Loan unless the
applicable Borrower shall pay all amounts due under Section 2.17 in
connection with any such conversion; or
(ii) upon the expiration of any Interest Period applicable to any
Eurodollar Rate Loan, to continue all or any portion of such Loan equal to
48
$1,000,000 and integral multiples of $500,000 in excess of that amount as a
Eurodollar Rate Loan.
(b) The applicable Borrower shall deliver a Conversion/Continuation
Notice to Administrative Agent no later than 10:00 a.m. (New York City time) at
least one (1) Business Day in advance of the proposed conversion date (in the
case of a conversion to a Base Rate Loan) and at least three (3) Business Days
in advance of the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan). Except as
otherwise provided herein, a Conversion/Continuation Notice for conversion to,
or continuation of, any Eurodollar Rate Loans (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and the applicable Borrower shall be bound to effect a
conversion or continuation in accordance therewith.
2.8 Default Interest. Upon the occurrence and during the continuance of
an Event of Default described in Section 8.1(a), the principal amount of all
Loans and, to the extent permitted by applicable law, any interest payments on
the Loans or any fees or other amounts owed hereunder not paid when due, in each
case whether at stated maturity, by notice of prepayment, by acceleration or
otherwise, shall thereafter bear interest (including postpetition interest in
any proceeding under the Bankruptcy Code or other applicable bankruptcy laws)
payable on demand at a rate that is 2% per annum in excess of the interest rate
otherwise payable hereunder with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable hereunder for Base Rate Loans);
provided, in the case of Eurodollar Rate Loans, upon the expiration of the
--------
Interest Period in effect at the time any such increase in interest rate is
effective, such Eurodollar Rate Loans shall thereupon become Base Rate Loans and
shall thereafter bear interest payable upon demand at a rate which is 2% per
annum in excess of the interest rate otherwise payable hereunder for Base Rate
Loans. Payment or acceptance of the increased rates of interest provided for in
this Section 2.8 is not a permitted alternative to timely payment and shall not
constitute a waiver of any Event of Default or otherwise prejudice or limit any
rights or remedies of Administrative Agent, any other Agent or any Lender.
2.9 Fees.
(a) Company agrees to pay from the time of the Closing Date to Lenders
having Term Loan Exposure, Delayed Draw Term Loan Exposure and/or Revolving
Exposure through Administrative Agent:
(i) a commitment fee equal to (1) the average of the daily unused
Commitments of such Lender during the preceding Fiscal Quarter multiplied
by, (2) the Applicable Commitment Fee Percentage; and
(ii) Letter of Credit fees equal to (1) the Applicable Margin for
Revolving Loans that are Eurodollar Rate Loans (other than Purchase Money
Loans), times (2) the average daily maximum amount available to be drawn
under all such Letters of Credit (regardless of whether any conditions for
drawing could then be met and determined as of the close of business on any
date of determination).
49
(iii) All fees referred to in this Section 2.9(a) shall be paid
to Administrative Agent at its Principal Office and upon receipt,
Administrative Agent shall promptly distribute to each Lender its Pro Rata
Share thereof.
(b) OpCo agrees to pay directly to Issuing Bank, for its own account,
the following fees:
(i) a fronting fee equal to 0.25%, per annum, times the aggregate
daily amount available to be drawn under all Letters of Credit (determined
as of the close of business on any date of determination); and
(ii) such documentary and processing charges for any issuance,
amendment, transfer or payment of a Letter of Credit as are in accordance
with Issuing Bank's standard schedules for such charges and as in effect at
the time of such issuance, amendment, transfer or payment, as the case may
be.
(c) All fees referred to in Section 2.9(a) and 2.9(b)(i) shall be
calculated on the basis of a 360day year and the actual number of days elapsed
and shall be payable (i) quarterly in arrears on March 31, June 30, September 30
and December 31 of each year, commencing on the first such date to occur after
the Closing Date, (ii) on the Term Loan Commitment Termination Date (iii) on the
Delayed Draw Term Loan Commitment Termination Date and (iv) on the Revolving
Loan Commitment Termination Date.
(d) In addition to any of the foregoing fees, Company agrees to pay to
Agents such other fees in the amounts and at the times separately agreed upon by
Company and such Agents thereby.
(e) In addition, Company agrees to pay such commitment and other fees
as may be payable in connection with New Revolving Loan Commitments and New Term
Loan Commitments, if any, as set forth in the applicable Joinder Agreement or
otherwise agreed to in writing by Company.
2.10 Scheduled Payments.
(a) Scheduled Term Loan and Delayed Draw Term Loan Installments. The
-----------------------------------------------------------
principal amounts of the Term Loans outstanding and the Delayed Draw Term Loans
outstanding on the Delayed Draw Term Loan Commitment Termination Date,
respectively, shall be repaid in the aggregate annual percentages set forth
below in equal consecutive quarterly installments (each, a "Term Loan
Installment" or a "Delayed Draw Term Loan Installment" as the case may be) on
the last day of each Fiscal Quarter (each, a "Term Loan Installment Date" or a
"Delayed Draw Term Loan Installment Date" as the case may be) occurring in each
of the Fiscal Years set forth below, commencing March 31, 2003:
50
================================================================
Term Loan and Delayed Term Loan and Delayed
Draw Term Loan Draw Term Loan
Installment Dates Installments
----------------------------------------------------------------
March 31, 2003 5%
----------------------------------------------------------------
June 30, 2003 5%
----------------------------------------------------------------
September 30, 2003 5%
----------------------------------------------------------------
December 31, 2003 5%
----------------------------------------------------------------
March 31, 2004 10%
----------------------------------------------------------------
June 30, 2004 10%
----------------------------------------------------------------
September 30, 2004 10%
----------------------------------------------------------------
December 31, 2004 10%
----------------------------------------------------------------
March 31, 2005 10%
----------------------------------------------------------------
June 30, 2005 10%
----------------------------------------------------------------
September 30, 2005 10%
----------------------------------------------------------------
December 15, 2005 10%
================================================================
Notwithstanding the foregoing, (i) such Term Loan Installments or Delayed Draw
Term Loan Installments, as the case may be, shall be reduced in connection with
any voluntary or mandatory prepayments of the Term Loans or the Delayed Draw
Term Loans, as the case may be, in accordance with Sections 2.11, 2.12 and 2.13,
as applicable; and (ii) the Term Loans or the Delayed Draw Term Loans, together
with all other amounts owed hereunder with respect thereto, shall, in any event,
be paid in full no later than the Term Loan Maturity Date or the Delayed Draw
Term Loan Maturity Date, as the case may be.
(b) No Amortization of Revolving Loans. No interim amortization shall
----------------------------------
be required with respect to the Revolving Loans.
(c) Scheduled New Term Loan Installments. Provisions with respect to
------------------------------------
scheduled repayments of New Term Loans shall be as set forth in each applicable
Joinder Agreement.
2.11 Voluntary Prepayments/Commitment Reductions.
(a) Voluntary Prepayments.
---------------------
(i) Any time and from time to time:
(1) with respect to Base Rate Loans, the applicable Borrower
may prepay, subject to Section 2.11(c), any such Loans on any Business Day in
whole or in part, in an aggregate minimum amount of $2,000,000 and integral
multiples of $1,000,000 in excess of that amount; and
51
(2) with respect to Eurodollar Rate Loans, the applicable
Borrower may prepay, subject to Sections 2.11(c) and 2.17, any such Loans on any
Business Day in whole or in part in an aggregate minimum amount of $2,000,000
and integral multiples of $1,000,000 in excess of that amount.
(ii) All such prepayments shall be made:
(1) upon not less than one (1) Business Days' prior written
or telephonic notice in the case of Base Rate Loans; and
(2) upon not less than three (3) Business Days' prior
written or telephonic notice in the case of Eurodollar Rate Loans,
in each case given to Administrative Agent, as the case may be, by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly
confirmed in writing to Administrative Agent (and Administrative Agent will
promptly transmit such telephonic or original notice by telefacsimile or
telephone to each Lender). Upon the giving of any such notice, the principal
amount of the Loans specified in such notice shall become due and payable on the
prepayment date specified therein.
(b) Voluntary Commitment Reductions.
-------------------------------
(i) Borrowers may, subject to Section 2.11(c), upon not less than
three (3) Business Days' prior written or telephonic notice confirmed in
writing to Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by telefacsimile or
telephonic notice to each applicable Lender), at any time and from time to
time terminate in whole or permanently reduce in part, without premium or
penalty, the Revolving Loan Commitments in an amount up to the amount by
which the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments at the time of such proposed termination or
reduction; provided, any such partial reduction of the Revolving Loan
--------
Commitments shall be in an aggregate minimum amount of $2,000,000 and
integral multiples of $1,000,000 in excess of that amount.
(ii) OpCo may, subject to Section 2.11(c), upon not less than
three (3) Business Days' prior written or telephonic notice confirmed in
writing to Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by telefacsimile or
telephonic notice to each applicable Lender), at any time and from time to
time terminate in whole or permanently reduce in part, without premium or
penalty, the Delayed Draw Term Loan Commitments in an amount up to the
amount by which the Delayed Draw Term Loan Commitments exceed the Total
Utilization of Delayed Draw Term Loan Commitments at the time of such
proposed termination or reduction; provided, any such partial reduction of
--------
the Delayed Draw Term Loan Commitments shall be in an aggregate minimum
amount of $2,000,000 and integral multiples of $1,000,000 in excess of that
amount.
52
(iii) the applicable Borrower's notice to Administrative Agent
shall designate the date (which shall be a Business Day) of such
termination or reduction and the amount of any partial reduction, and such
termination or reduction of the Delayed Draw Term Loan Commitments and/or
Revolving Loan Commitments, as applicable, shall be effective on the date
specified in the applicable Borrower's notice and shall reduce the Delayed
Draw Term Loan Commitments and/or Revolving Loan Commitment of each Lender
proportionately to its Pro Rata Share thereof.
(c) Prepayment/Reduction Premium. Any voluntary prepayment (other
----------------------------
than prepayments of Revolving Loans) and/or Commitment reduction pursuant to
Sections 2.11(a) and/or 2.11(b), respectively, shall be subject (i) at any time
prior to the first anniversary of the Closing Date, to the payment by the
applicable Borrower of an amount equal to the aggregate amount of the Loans
being so repaid, prepaid or Commitment reduced multiplied by 1.25%; and (ii)
-------------
after the first anniversary of the Closing Date but prior to the second
anniversary thereof, to the payment by the applicable Borrower of an amount
equal to the aggregate amount of the Loans being so repaid, prepaid or
Commitment reduced multiplied by 1%.
-------------
2.12 Mandatory Prepayments/Commitment Reductions.
(a) Asset Sales. If, within the period of one hundred eighty (180)
-----------
days after the receipt by Company or any of its Restricted Subsidiaries of Net
Asset Sale Proceeds, OpCo (or to the extent such Net Asset Sale Proceeds are
proceeds of the sale of assets of Company, Company) has not invested (or
committed to invest within 180 days and actually invested within a period of 270
days) such Net Asset Sale Proceeds in long term productive assets of the general
type used in the business of the Company and its Restricted Subsidiaries, as
certified to Administrative Agent by Company, then, to the extent Borrowers have
not previously done so, Borrowers shall prepay Loans and the Commitments shall
be permanently reduced as set forth in Section 2.13, in either case in an amount
equal to the excess of such Net Asset Sale Proceeds over amounts invested as
aforesaid; provided that, notwithstanding the foregoing, any prepayment under
--------
this Section 2.12(a) on account of Net Asset Sale Proceeds from the sale or
other disposition of assets purchased with the proceeds of Purchase Money Loans
shall be used by Company immediately to prepay Purchase Money Loans. Pending a
determination whether any Net Asset Sale Proceeds will be applied to prepay
Loans and/or reduce Commitments pursuant to the preceding sentence, such Net
Asset Sale Proceeds shall be applied to prepay outstanding Revolving Loans
(without a reduction in the Revolving Loan Commitments).
(b) Insurance/Condemnation Proceeds. If, within the period of one
-------------------------------
hundred eighty (180) days after the receipt by Company or any of its Restricted
Subsidiaries of Net Insurance/Condemnation Proceeds, OpCo (or to the extent such
Net Asset Sale Proceeds are proceeds of the sale of assets of Company, Company)
has not invested (or committed to invest within 180 days and actually invested
within a period of 270 days) such Net Insurance/Condemnation Proceeds in long
term productive assets of general type used in the business of Company and its
Restricted Subsidiaries, as certified to Administrative Agent by Company then,
to the extent the applicable Borrower has not previously done so, the applicable
Borrower shall prepay Loans and the Commitments shall be permanently reduced as
set forth in Section 2.13, in either case in an amount equal to the excess of
such Net Insurance/Condemnation
53
Proceeds over amounts invested as aforesaid; provided, that, notwithstanding the
--------
foregoing, any prepayment under this Section 2.12(b) arising due to Net
Insurance/Condemnation Proceeds in respect of assets purchased with the proceeds
of Purchase Money Loans shall be applied by Company to the prepayment of
Purchase Money Loans. Pending a determination on whether any Net
Insurance/Condemnation Proceeds shall be applied to prepay outstanding Loans
and/or reduce Commitments pursuant to the preceding sentence, such Net
Insurance/Condemnation Proceeds shall be applied to prepay outstanding Revolving
Loans (without a reduction in the Revolving Loan Commitments).
(c) Consolidated Excess Cash Flow. In the event that there shall be
-----------------------------
Consolidated Excess Cash Flow for any Fiscal Year, commencing with Fiscal Year
2003, Borrowers shall, no later than ninety (90) days after the end of such
Fiscal Year, prepay the Loans and/or the Commitments shall be permanently
reduced as set forth in Section 2.13 in an aggregate amount equal to 50% of such
Consolidated Excess Cash Flow.
(d) Commitment Limits. Borrowers shall from time to time prepay the
-----------------
Revolving Loans to the extent necessary so that (i) the Total Utilization of
Revolving Loan Commitments shall not at any time exceed the Revolving Loan
Commitments then in effect and (ii) amounts outstanding under the A/R Sublimit
shall not at any time exceed 85% of Net Accounts Receivable. Company shall also
from time to time prepay the Delayed Draw Term Loans to the extent necessary so
that the Total Utilization of Delayed Draw Term Loan Commitments shall not at
any time exceed the Delayed Draw Term Loan Commitments then in effect.
(e) Borrowing Base. Borrowers shall from time to time prepay the
--------------
Loans to the extent necessary so that the sum of (i) the aggregate principal
amount of all outstanding Term Loans plus (ii) the Total Utilization of
----
Revolving Loan Commitments plus (iii) the aggregate amount of all outstanding
----
Delayed Draw Term Loans plus (iv) the aggregate amount of all New Term Loans, if
----
any, shall not at any time exceed the Borrowing Base then in effect.
(f) Prepayment Certificate. Concurrently with any prepayment of the
----------------------
Loans and/or reduction of the Commitments pursuant to Sections 2.12(a) through
2.12(e), Borrowers shall deliver to Administrative Agent a certificate of an
Authorized Officer (a copy of which Administrative Agent shall promptly provide
to each Lender) demonstrating the calculation of the amount of the applicable
net proceeds or Consolidated Excess Cash Flow, as the case may be. In the event
that Borrowers shall subsequently determine that the actual amount received
exceeded the amount set forth in such certificate, Borrowers shall promptly make
an additional prepayment of the Loans and/or the Commitments shall be
permanently reduced in an amount equal to such excess, and Borrowers shall
concurrently therewith deliver to Administrative Agent (a copy of which
Administrative Agent shall promptly provide to each Lender) a certificate of an
Authorized Officer demonstrating the derivation of such excess.
(g) Prepayment/Reduction Premium. Any prepayment (other than
----------------------------
prepayments of Revolving Loans) and/or Commitment reduction pursuant to Sections
2.12(a) through 2.12(e) shall be subject (i) at any time prior to the first
anniversary of the Closing Date, to the payment by the applicable Borrower of an
amount equal to the aggregate amount of the Loans being so repaid, prepaid or
Commitment reduced multiplied by 1.25%; and (ii) after the
-------------
54
first anniversary of the Closing Date but prior to the second anniversary
thereof, to the payment by the applicable Borrower of an amount equal to the
aggregate amount of the Loans being so repaid, prepaid or Commitment reduced
multiplied by 1.0%.
-------------
2.13 Application of Prepayments/Reductions.
(a) Application of Voluntary Prepayments by Type of Loans. Any
-----------------------------------------------------
prepayment of any Loan pursuant to Section 2.11(a) shall be applied as specified
by the applicable Borrower, in the applicable notice of prepayment; provided,
--------
that such Borrower shall prepay all outstanding Purchase Money Loans prior to
prepaying any other Revolving Loans. In the event a Borrower fails to specify
the Loans to which any such prepayment shall be applied, such prepayment shall
be applied as follows:
first, to repay outstanding Purchase Money Loans to the full extent
thereof;
second, to repay other outstanding Revolving Loans to the full extent
thereof; and
third, to prepay the Term Loans, the Delayed Draw Term Loans and New
Term Loans, if any, on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof).
Any prepayment of Term Loans and Delayed Draw Term Loans pursuant to Section
2.13(a) shall be further applied, on a pro rata basis, to the remaining
scheduled Term Loan Installments and Delayed Draw Term Loan Installments, as
applicable.
(b) Application of Mandatory Prepayments by Type of Loans. (i) Any
-----------------------------------------------------
amount required to be prepaid pursuant to Section 2.12(a)(c) and (e) shall be
applied (unless otherwise specified in Section 2.12 with respect to Purchase
Money Loans) as follows:
first, to prepay the Term Loans and Delayed Draw Term Loans (and to
further reduce any unused Delayed Draw Term Loan Commitments), and New Term
Loans, if any, on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) and (x) in the case of the Term Loans and
Delayed Draw Term Loans, shall be further applied to the remaining scheduled
Term Loan Installments or Delayed Draw Term Loan Installments, as applicable, in
inverse order of maturity and (y) in the case of New Term Loans, if any, shall
be applied pro rata among each outstanding Series and further applied to the
scheduled installments of principal of the New Term Loans of such Series in
inverse order of maturity;
second, to prepay the Revolving Loans (with any Purchase Money Loans
being prepaid first) and to reduce the Revolving Loan Commitment);
third, to prepay outstanding reimbursement obligations with respect to
Letters of Credit; and
fourth, to cash collateralize Letters of Credit;
(ii) Notwithstanding the foregoing, with respect to New Term
Loans, a lesser amount may be required to be prepaid or waived if set forth
in the
55
applicable Joinder Agreement; provided that, any such amounts waived or not
--------
used to prepay New Term Loans shall be used to further prepay first, on a
pro rata basis, Delayed Draw Term Loans and Term Loans and, second,
Revolving Loans as provided above.
(c) Application of Prepayments of Loans to Base Rate Loans and
----------------------------------------------------------
Eurodollar Rate Loans. Considering each Class of Loans being prepaid
---------------------
separately, any prepayment thereof shall be applied first to Base Rate Loans to
the full extent thereof before application to Eurodollar Rate Loans, in each
case in a manner which minimizes the amount of any payments required to be made
by the applicable Borrower pursuant to Section 2.17(c).
2.14 Allocation of Certain Payments and Proceeds. If an Event of Default
shall have occurred and not otherwise be waived, and the maturity of the
Obligations shall have been accelerated pursuant to Section 8.1, all payments or
proceeds received by Agents hereunder in respect of any of the Obligations,
shall be applied by Agents in accordance with the application arrangements
described in Section 6.5 of the Pledge and Security Agreement.
2.15 General Provisions Regarding Payments.
(a) All payments by a Borrower of principal, interest, fees and other
Obligations shall be made in Dollars in same day funds, without defense, setoff
or counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 12:00 p.m. (New York City time) on the date
due at the Administrative Agent's Principal Office for the account of Lenders;
funds received by Administrative Agent after that time on such due date shall be
deemed to have been paid by the applicable Borrower on the next succeeding
Business Day.
(b) All payments in respect of the principal amount of any Loan (other
than voluntary prepayments of Revolving Loans) shall include payment of accrued
interest on the principal amount being repaid or prepaid, and all such payments
(and, in any event, any payments in respect of any Loan on a date when interest
is due and payable with respect to such Loan) shall be applied to the payment of
interest before application to principal.
(c) Administrative Agent shall promptly distribute to each Lender at
such address as such Lender shall indicate in writing, such Lender's applicable
Pro Rata Share, giving effect to any adjustment from Pro Rata Shares on and
after the Closing Date, of all payments and prepayments of principal and
interest due hereunder, together with all other amounts due thereto, including,
without limitation, all fees payable with respect thereto, to the extent
received by Administrative Agent.
(d) Notwithstanding the foregoing provisions hereof, if any
Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.
(e) Subject to the provisos set forth in the definition of "Interest
Period", whenever any payment to be made hereunder shall be stated to be due on
a day that is not a Business Day, such payment shall be made on the next
succeeding Business Day and such
56
extension of time shall be included in the computation of the payment of
interest hereunder or of the Revolving Loan Commitment fees hereunder.
(f) Each Borrower hereby authorizes Administrative Agent to charge its
accounts with Administrative Agent in order to cause timely payment to be made
to Administrative Agent of all principal, interest, fees and expenses due
hereunder (subject to sufficient funds being available in its accounts for that
purpose).
(g) Administrative Agent shall deem any payment by or on behalf of a
Borrower hereunder that is not made in same day funds prior to 12:00 p.m. (New
York City time) on or before the due date to be a nonconforming payment. Any
such payment shall not be deemed to have been received by Administrative Agent
until the later of (i) the time such funds become available funds, and (ii) the
applicable next Business Day. Administrative Agent shall give prompt telephonic
notice to the applicable Borrower and each applicable Lender (confirmed in
writing) if any payment is nonconforming. Any nonconforming payment may
constitute or become a Default or Event of Default in accordance with the terms
of Section 8.1(a). Interest shall continue to accrue on any principal as to
which a nonconforming payment is made until such funds become available funds
(but in no event less than the period from the date of such payment to the next
succeeding applicable Business Day) at the rate determined pursuant to Section
2.8 from the date such amount was due and payable until the date such amount is
paid in full.
2.16 Ratable Sharing. Lenders hereby agree among themselves that, except
as otherwise provided in the Collateral Documents with respect to amounts
realized from the exercise of rights with respect to Liens on the Collateral, if
any of them shall, whether by voluntary payment (other than a voluntary
prepayment of Loans made and applied in accordance with the terms hereof),
through the exercise of any right of setoff or banker's lien, by counterclaim or
cross action or by the enforcement of any right under the Credit Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to such Lender hereunder or
under the other Credit Documents (collectively, the "Aggregate Amounts Due" to
such Lender) which is greater than the proportion received by any other Lender
in respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall notify Administrative Agent
and each other Lender of the receipt of such payment and apply a portion of such
payment to purchase participations (which it shall be deemed to have purchased
from each seller of a participation simultaneously upon the receipt by such
seller of its portion of such payment) in the Aggregate Amounts Due to the other
Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by
all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all
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or part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of a Credit Party or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations shall be promptly
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. Each Borrower expressly consents to the foregoing arrangement
and agrees that any holder of a participation so purchased may exercise any and
all rights of banker's lien, setoff or counterclaim with respect to any and all
monies owing by the
57
applicable Borrower to that holder with respect thereto as fully as if that
holder were owed the amount of the participation held by that holder.
2.17 Making or Maintaining Eurodollar Rate Loans.
(a) Inability to Determine Applicable Interest Rate. In the event
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that Administrative Agent shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by telefacsimile or by telephone confirmed
in writing) to the applicable Borrower and each Lender of such determination,
whereupon no Loans may be made as, or converted to, Eurodollar Rate Loans until
such time as Administrative Agent notifies the applicable Borrower and Lenders
(by telefacsimile or by telephonic notice confirmed in writing) that the
circumstances giving rise to such notice no longer exist, and any Funding Notice
or Conversion/Continuation Notice given by the applicable Borrower with respect
to the Loans in respect of which such determination was made shall be deemed to
be, in the case of a Conversion Notice, rescinded by the applicable Borrower
and, in the case of a Funding Notice, deemed to be a Funding Notice in respect
of Base Rate Loans.
(b) Illegality or Impracticability of Eurodollar Rate Loans. In the
-------------------------------------------------------
event that on any date any Lender shall have determined (which determination
shall be final and conclusive and binding upon all parties hereto but shall be
made only after consultation with the applicable Borrower and Administrative
Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans
has become unlawful as a result of compliance by such Lender in good faith with
any law, treaty, governmental rule, regulation, guideline or order (or would
conflict with any such treaty, governmental rule, regulation, guideline or order
not having the force of law even though the failure to comply therewith would
not be unlawful), or has become impracticable, as a result of contingencies
occurring after the date hereof which materially and adversely affect the London
interbank market or the position of such Lender in that market, then, and in any
such event, such Lender shall be an "Affected Lender" and it shall on that day
give notice (by telefacsimile or by telephone confirmed in writing) to the
applicable Borrower and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender and by
telefacsimile or telephonic notice confirmed in writing). Thereafter the
obligation of the Affected Lender to make Loans as, or to convert Loans to,
Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by
the Affected Lender, to the extent such determination by the Affected Lender
relates to a Eurodollar Rate Loan then being requested by the applicable
Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the
Affected Lender shall make such Loan as (or continue such Loan as or convert
such Loan to, as the case may be) a Base Rate Loan, the Affected Lender's
obligation to maintain its outstanding Eurodollar Rate Loans (the "Affected
Loans") shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when
required by law, and the Affected Loans shall automatically convert into Base
Rate Loans on the date of such termination. Notwithstanding the foregoing, to
the extent a determination by an Affected Lender as described above relates to a
Eurodollar Rate Loan then being requested by the applicable Borrower pursuant to
a Funding
58
Notice or a Conversion/Continuation Notice, the applicable Borrower shall have
the option, subject to the provisions of Section 2.17(c), to rescind such
Funding Notice or Conversion/Continuation Notice as to all Lenders by giving
notice (by telefacsimile or by telephone confirmed in writing) to Administrative
Agent of such rescission on the date on which the Affected Lender gives notice
of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender by
telefacsimile or by telephonic notice confirmed in writing). Except as provided
in the immediately preceding sentence, nothing in this Section 2.17(b) shall
affect the obligation of any Lender other than an Affected Lender to make or
maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance
with the terms hereof.
(c) Compensation for Breakage or NonCommencement of Interest Periods.
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The applicable Borrower shall compensate each Lender, upon written request by
such Lender (which request shall set forth the basis for requesting such
amounts), for all reasonable losses, expenses and liabilities (including any
interest paid by such Lender to lenders of funds borrowed by it to make or carry
its Eurodollar Rate Loans and any loss, expense or liability sustained by such
Lender in connection with the liquidation or reemployment of such funds but
excluding loss of anticipated profits) which such Lender may sustain if for any
reason as a result of Borrower's action or omission a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding
Notice or a telephonic request for borrowing, or a conversion to or continuation
of any Eurodollar Rate Loan does not occur on a date specified therefor in a
Conversion/Continuation Notice or a telephonic request for conversion or
continuation; if any prepayment or other principal payment or any conversion of
any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan; or if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by such Borrower or as a consequence of any default by such
Borrower in the repayment of its Eurodollar Rate Loans when required by the
terms thereof.
(d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or
--------------------------------
transfer Eurodollar Rate Loans at, to, or for the account of any of its branch
offices or the office of an Affiliate of such Lender.
(e) Assumptions Concerning Funding of Eurodollar Rate Loans.
-------------------------------------------------------
Calculation of all amounts payable to a Lender under this Section 2.17 and under
Section 2.18 shall be made as though such Lender had actually funded each of its
relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of such
Lender to a domestic office of such Lender in the United States of America;
provided, however, each Lender may fund each of its Eurodollar Rate Loans in any
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manner it sees fit and the foregoing assumptions shall be utilized only for the
purposes of calculating amounts payable under this Section 2.17 and under
Section 2.18.
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2.18 Increased Costs; Capital Adequacy.
(a) Compensation For Increased Costs and Taxes. Subject to the
------------------------------------------
provisions of Section 2.19 (which shall be controlling with respect to the
matters covered thereby), in the event that any Lender (which term shall include
Issuing Bank for purposes of this Section 2.18(a)) shall determine (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto) that any law, treaty or governmental rule, regulation
or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination of a court or
Governmental Authority, in each case that becomes effective after the date
hereof, or compliance by such Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasigovernmental authority (whether or not having the force of law):
subjects such Lender (or its applicable lending office) to any additional Tax
(other than any Tax on the overall net income of such Lender) with respect to
this Agreement or any of its obligations hereunder or any payments to such
Lender (or its applicable lending office) of principal, interest, fees or any
other amount payable hereunder or thereunder; imposes, modifies or holds
applicable any reserve (including any marginal, emergency, supplemental, special
or other reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement against assets held by, or deposits or other liabilities in or for
the account of, or advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to Eurodollar Rate Loans that are
reflected in the definition of Adjusted Eurodollar Rate); or imposes any other
condition (other than with respect to a Tax matter) on or affecting such Lender
(or its applicable lending office) or its obligations hereunder or under any
other Credit Document or the London interbank market; and the result of any of
the foregoing is to increase the cost to such Lender of agreeing to make, making
or maintaining Eurodollar Rate Loans hereunder or to reduce any amount received
or receivable by such Lender (or its applicable lending office) with respect
thereto; then, in any such case, the applicable Borrower shall promptly pay to
such Lender, upon receipt of the statement referred to in the next sentence,
such additional amount or 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 may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder or under any other Credit Document. Such Lender shall deliver to the
applicable Borrower (with a copy to Administrative Agent) a written statement,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Lender under this Section 2.18(a), which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
(b) Capital Adequacy Adjustment. In the event that any Lender (which
---------------------------
term shall include Issuing Bank for purposes of this Section 2.18(b)) shall
have determined that the adoption, effectiveness, phasein or applicability after
the date hereof of any law, rule or regulation (or any provision thereof)
regarding capital adequacy, or any change therein or in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on
60
the capital of such Lender or any corporation controlling such Lender as a
consequence of, or with reference to, such Lender's Loans or Commitments or
Letters of Credit, or participations therein or other obligations hereunder with
respect to the Loans or the Letters of Credit to a level below that which such
Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phasein, applicability, change or compliance (taking
into consideration the policies of such Lender or such controlling corporation
with regard to capital adequacy), then from time to time, within five (5)
Business Days after receipt by the applicable Borrower from such Lender of the
statement referred to in the next sentence, the applicable Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender or
such controlling corporation on an aftertax basis for such reduction. Such
Lender shall deliver to the applicable Borrower (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to Lender under this Section 2.18(b),
which statement shall be conclusive and binding upon all parties hereto absent
manifest error.
(c) Limitation on Retroactive Effect. Failure or delay on the part of
--------------------------------
any Lender to demand compensation pursuant to this Section 2.18 shall not
constitute a waiver of such Lender's right to demand such compensation;
provided, however, that the Borrowers shall not be required to compensate a
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Lender pursuant to this Section 2.18 for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender notifies
Borrowers of the change giving rise to such increased costs or reductions and of
such Lender's intention to claim compensation therefor; provided further that if
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the change giving rise to such increased costs or reductions is retroactive,
then the 180-day period referred to above shall be extended to include the
period of retroactive effective thereof.
2.19 Taxes; Withholding, etc.
(a) Payments to Be Free and Clear. All sums payable by any Credit
-----------------------------
Party hereunder and under the other Credit Documents shall (except to the extent
required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than a Tax on the overall net income
of any Lender) imposed, levied, collected, withheld or assessed by or within the
United States of America or any political subdivision in or of the United States
of America or any other jurisdiction from or to which a payment is made by or on
behalf of any Credit Party or by any federation or organization of which the
United States of America or any such jurisdiction is a member at the time of
payment.
(b) Withholding of Taxes. If any Credit Party or any other Person is
--------------------
required by law to make any deduction or withholding on account of any such Tax
from any sum paid or payable by any Credit Party to Administrative Agent or any
Lender (which term shall include Issuing Bank for purposes of this Section
2.19(b)) under any of the Credit Documents: the applicable Borrower shall
notify Administrative Agent of any such requirement or any change in any such
requirement as soon as the applicable Borrower becomes aware of it; the
applicable Borrower shall pay any such Tax before the date on which penalties
attach thereto, such payment to be made (if the liability to pay is imposed on
any Credit Party) for its own account or (if that liability is imposed on
Administrative Agent or such Lender, as the case may be) on behalf of and in the
name of Administrative Agent or such Lender; the sum payable by such Credit
Party in respect of which the relevant deduction, withholding or payment is
required shall be increased
61
to the extent necessary to ensure that, after the making of that deduction,
withholding or payment, Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to what it would have received had no
such deduction, withholding or payment been required or made; and within thirty
(30) days after paying any sum from which it is required by law to make any
deduction or withholding, and within thirty (30) days after the due date of
payment of any Tax which it is required by clause (ii) above to pay, the
applicable Borrower shall deliver to Administrative Agent and the other affected
parties evidence satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the relevant taxing or
other authority; provided, no such additional amount shall be required to be
paid to any Lender under clause (iii) above except to the extent that any change
after the date hereof (in the case of each Lender listed on the signature pages
hereof on the Closing Date) or after the effective date of the Assignment
Agreement or Joinder Agreement pursuant to which such Lender became a Lender (in
the case of each other Lender) in any such requirement for a deduction,
withholding or payment as is mentioned therein shall result in an increase in
the rate of such deduction, withholding or payment from that in effect at the
date hereof or at the date of such Assignment Agreement or Joinder Agreement, as
the case may be, in respect of payments to such Lender.
(c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that
-----------------------------------------------
is not a United States Person (as such term is defined in Section 7701(a)(30) of
the Internal Revenue Code) for U.S. federal income tax purposes (a "NonUS
Lender") shall deliver to Administrative Agent for transmission to the
applicable Borrower, on or prior to the Closing Date (in the case of each Lender
listed on the signature pages hereof on the Closing Date) or on or prior to the
date of the Assignment Agreement or Joinder Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and at such other times as
may be necessary in the determination of the applicable Borrower or
Administrative Agent (each in the reasonable exercise of its discretion), two
original copies of Internal Revenue Service Form W8BEN or W8ECI (or any
successor forms), properly completed and duly executed by such Lender, and such
other documentation required under the Internal Revenue Code and reasonably
requested by the applicable Borrower to establish that such Lender is not
subject to deduction or withholding of United States federal income tax with
respect to any payments to such Lender of principal, interest, fees or other
amounts payable under any of the Credit Documents, or if such Lender is not a
"bank" or other Person described in Section 881(c)(3) of the Internal Revenue
Code and cannot deliver either Internal Revenue Service Form W8BEN or W8ECI
pursuant to clause (i) above, a Certificate re NonBank Status together with two
original copies of Internal Revenue Service Form W8 (or any successor form),
properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and reasonably requested
by the applicable Borrower to establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to any
payments to such Lender of interest payable under any of the Credit Documents.
Each Lender required to deliver any forms, certificates or other evidence with
respect to United States federal income tax withholding matters pursuant to this
Section 2.19(c) hereby agrees, from time to time after the initial delivery by
such Lender of such forms, certificates or other evidence, whenever a lapse in
time or change in circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, that such Lender shall
promptly deliver to Administrative Agent for transmission to the applicable
Borrower two new original copies of Internal Revenue Service Form W8BEN or
W8ECI, or a Certificate re NonBank Status and two original copies of
62
Internal Revenue Service Form W8, as the case may be, properly completed and
duly executed by such Lender, and such other documentation required under the
Internal Revenue Code and reasonably requested by the applicable Borrower to
confirm or establish that such Lender is not subject to deduction or withholding
of United States federal income tax with respect to payments to such Lender
under the Credit Documents, or notify Administrative Agent and the applicable
Borrower of its inability to deliver any such forms, certificates or other
evidence. The applicable Borrower shall not be required to pay any additional
amount to any NonUS Lender under Section 2.19(b)(iii) if such Lender shall have
failed to deliver the forms, certificates or other evidence referred to in the
second sentence of this Section 2.19(c), or (2) to notify Administrative Agent
and the applicable Borrower of its inability to deliver any such forms,
certificates or other evidence, as the case may be; provided, if such Lender
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shall have satisfied the requirements of the first sentence of this Section
2.19(c) on the Closing Date or on the date of the Assignment Agreement or
Joinder Agreement pursuant to which it became a Lender, as applicable, nothing
in this last sentence of Section 2.19(c) shall relieve the applicable Borrower
of its obligation to pay any additional amounts pursuant to Section 2.18(a) in
the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding as
described herein.
2.20 Obligation to Mitigate. Each Lender (which term shall include Issuing
Bank for purposes of this Section 2.21) agrees that, as promptly as practicable
after the officer of such Lender responsible for administering its Loans or
Letters of Credit, as the case may be, becomes aware of the occurrence of an
event or the existence of a condition that would cause such Lender to become an
Affected Lender or that would entitle such Lender to receive payments under
Section 2.17, 2.18 or 2.20, it will, to the extent not inconsistent with the
internal policies of such Lender and any applicable legal or regulatory
restrictions, (i) use reasonable efforts to make, issue, fund or maintain its
applicable Commitments or Loans, including any Affected Loans, through another
office of such Lender, or (ii) take such other measures as such Lender may deem
reasonable, if as a result thereof the circumstances which would cause such
Lender to be an Affected Lender would cease to exist or the additional amounts
which would otherwise be required to be paid to such Lender pursuant to Section
2.17, 2.18 or 2.19 would be materially reduced and if, as determined by such
Lender in its sole discretion, the making, issuing, funding or maintaining of
such Commitments, Loans or Letters of Credit through such other office or in
accordance with such other measures, as the case may be, would not otherwise
adversely affect such Commitments, Loans or Letters of Credit or the interests
of such Lender; provided, such Lender will not be obligated to utilize such
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other office pursuant to this Section 2.21 unless the applicable Borrower agrees
to pay all incremental expenses incurred by such Lender as a result of utilizing
such other office as described in clause (i) above. A certificate as to the
amount of any such expenses payable by the applicable Borrower pursuant to this
Section 2.21 (setting forth in reasonable detail the basis for requesting such
amount) submitted by such Lender to the applicable Borrower (with a copy to
Administrative Agent) shall be conclusive absent manifest error.
2.21 Defaulting Lenders. Anything contained herein to the contrary
notwithstanding, in the event that any Lender defaults (a "Defaulting Lender")
in its obligation to fund (a "Funding Default") any Loan or its portion of any
unreimbursed payment under Section 2.2(e)
63
(in each case, a "Defaulted Loan"), then (a) during any such period when such
default is continuing with respect to such Defaulting Lender (the "Default
Period"), such Defaulting Lender shall not be deemed to be a "Lender" for
purposes of voting on any matters (including the granting of any consents or
waivers) with respect to any of the Credit Documents; (b) to the extent
permitted by applicable law, until such time as the Default Excess with respect
to such Defaulting Lender shall have been reduced to zero, any voluntary
prepayment of the Loans shall, if the applicable Borrower so directs at the time
of making such voluntary prepayment, be applied to the Loans of other Lenders as
if such Defaulting Lender had no Loans outstanding and the Delayed Draw Term
Loan Exposure and the Revolving Loan Exposure of such Defaulting Lender were
zero, and any mandatory prepayment of the Loans shall, if the applicable
Borrower so directs at the time of making such mandatory prepayment, be applied
to the Loans of other Lenders (but not to the Loans of such Defaulting Lender),
it being understood and agreed that the applicable Borrower shall be entitled to
retain any portion of any mandatory prepayment of the Loans that is not paid to
such Defaulting Lender solely as a result of the operation of the provisions of
this clause (b); (c) such Defaulting Lender's Delayed Draw Term Loan Commitment
and Revolving Loan Commitment and outstanding Loans and such Defaulting Lender's
Pro Rata Share of the Letter of Credit Usage shall be excluded for purposes of
calculating the commitment fee payable to Lenders in respect of any day during
any Default Period with respect to such Defaulting Lender, and such Defaulting
Lender shall not be entitled to receive any commitment fee pursuant to Section
2.9 with respect to such Defaulting Lender's Revolving Loan Commitment and
Delayed Draw Term Loan Commitment in respect of any Default Period with respect
to such Defaulting Lender; and (d) the Total Utilization of Commitments as at
any date of determination shall be calculated as if such Defaulting Lender had
funded all Defaulted Loans of such Defaulting Lender. No Revolving Loan
Commitment or Delayed Draw Term Loan Commitment of any Lender shall be increased
or otherwise affected, and, except as otherwise expressly provided in this
Section 2.21, performance by the applicable Borrower of its obligations
hereunder and the other Credit Documents shall not be excused or otherwise
modified as a result of any Funding Default or the operation of this Section
2.21. The rights and remedies against a Defaulting Lender under this Section
2.21 are in addition to other rights and remedies which the applicable Borrower
may have against such Defaulting Lender with respect to any Funding Default and
which Administrative Agent or any Lender may have against such Defaulting Lender
with respect to any Funding Default.
2.22 Removal or Replacement of a Lender. Anything contained herein to the
contrary notwithstanding, in the event that: (i) any Lender (an "IncreasedCost
Lender") shall give notice to the applicable Borrower that such Lender is an
Affected Lender or that such Lender is entitled to receive payments under
Section 2.17, 2.18 or 2.19, the circumstances which have caused such Lender to
be an Affected Lender or which entitle such Lender to receive such payments
shall remain in effect, and such Lender shall fail to withdraw such notice
within five (5) Business Days after the applicable Borrower's request for such
withdrawal; or (ii) any Lender shall become a Defaulting Lender, the Default
Period for such Defaulting Lender shall remain in effect, and such Defaulting
Lender shall fail to cure the default as a result of which it has become a
Defaulting Lender within five (5) Business Days after the applicable Borrower's
request that it cure such default; or (iii) in connection with any proposed
amendment, modification, termination, waiver or consent with respect to any of
the provisions hereof as contemplated by Section 10.5(b), the consent of
Requisite Lenders shall have been obtained but the consent of one or more of
such other Lenders (each a "NonConsenting Lender") whose consent is required
64
shall not have been obtained; then, with respect to each such IncreasedCost
Lender, Defaulting Lender or NonConsenting Lender (the "Terminated Lender"), the
applicable Borrower may, by giving written notice to Administrative Agent and
any Terminated Lender of its election to do so, elect to cause such Terminated
Lender (and such Terminated Lender hereby irrevocably agrees) to assign its
outstanding Loans and its Revolving Loan Commitments, if any, and/or Delayed
Draw Term Loan Commitment, if any, in full to one or more Eligible Assignees
(each a "Replacement Lender") in accordance with the provisions of Section 10.6
and Terminated Lender shall pay any fees payable thereunder in connection with
such assignment; provided, (1) on the date of such assignment, the Replacement
--------
Lender shall pay to Terminated Lender 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 Terminated Lender, (B) an amount equal to all unreimbursed drawings
that have been funded by such Terminated 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 such Terminated Lender pursuant to
Section 2.9; (2) on the date of such assignment, the applicable Borrower shall
pay any amounts payable to such Terminated Lender pursuant to Section 2.17(c),
2.18 or 2.19 or otherwise as if it were a prepayment; and (3) in the event such
Terminated Lender is a NonConsenting Lender, each Replacement Lender shall
consent, at the time of such assignment, to each matter in respect of which such
Terminated Lender was a NonConsenting Lender; provided, such Borrower may not
--------
make such election with respect to any Terminated Lender that is also an Issuing
Bank unless, prior to the effectiveness of such election, Company shall have
caused each outstanding Letter of Credit issued thereby to be cancelled. Upon
the prepayment of all amounts owing to any Terminated Lender and the termination
of such Terminated Lender's Revolving Loan Commitments, if any, and/or Delayed
Draw Term Loan Commitment, if any, such Terminated Lender shall no longer
constitute a "Lender" for purposes hereof; provided, any rights of such
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Terminated Lender to indemnification hereunder shall survive as to such
Terminated Lender.
SECTION 3 CONDITIONS PRECEDENT
3.1 Closing Date. The obligation of any Lender to make a Credit Extension
on or after the Closing Date is subject to the satisfaction, or waiver in
accordance with Section 10.5, of the following conditions on or before the
Closing Date:
(a) Credit Documents. Administrative Agent and Syndication Agent
----------------
shall have received sufficient copies of each Credit Document originally
executed and delivered by each applicable Credit Party for each Lender.
(b) Organizational Documents; Incumbency. Administrative Agent and
------------------------------------
Syndication Agent shall have received (i) sufficient copies of each
Organizational Document executed (original in the case of Bylaws) and delivered
by each Credit Party, as applicable, and, to the extent applicable, certified as
of a recent date by the appropriate governmental official, for each Lender and
its counsel, each dated the Closing Date or a recent date prior thereto; (ii)
signature and incumbency certificates of the officers of such Person executing
the Credit Documents to which it is a party; (iii) resolutions of the Board of
Directors or similar governing body of each Credit Party approving and
authorizing the execution, delivery and performance of this Agreement and the
other Credit Documents to which it is a party or by which it or its assets may
be bound as of the Closing Date, certified as of the Closing Date by its
secretary or an
65
assistant secretary as being in full force and effect without modification or
amendment; (iv) a good standing certificate from the applicable Governmental
Authority of each Credit Party's jurisdiction of incorporation, organization or
formation and in each jurisdiction in which it is qualified as a foreign
corporation or other entity to do business, each dated a recent date prior to
the Closing Date; and (v) such other documents as Administrative Agent or
Syndication Agent may reasonably request.
(c) Organizational and Capital Structure. The organizational
------------------------------------
structure and capital structure of Company and its Subsidiaries shall be as set
forth on Schedule 4.2.
(d) Existing Indebtedness. On the Closing Date, Company and its
---------------------
Subsidiaries shall have (other than as identified in Schedule 6.1(i)) repaid in
full all Existing Indebtedness, (ii) terminated any commitments to lend or make
other extensions of credit thereunder, (iii) delivered to Syndication Agent and
Administrative Agent all documents or instruments necessary to release all Liens
securing such Existing Indebtedness or other obligations of Company and its
Subsidiaries thereunder being repaid on the Closing Date, and (iv) made
arrangements satisfactory to Syndication Agent and Administrative Agent with
respect to the cancellation of any letters of credit outstanding under Existing
Indebtedness being repaid on the Closing Date or the issuance of Letters of
Credit under Existing Indebtedness being repaid on the Closing Date to support
the obligations of Company and its Subsidiaries with respect thereto.
(e) Governmental Authorizations and Consents. Each Credit Party shall
----------------------------------------
have obtained all Governmental Authorizations and all consents of other Persons,
in each case that are necessary or advisable in connection with the transactions
contemplated by the Credit Documents and each of the foregoing shall be in full
force and effect and in form and substance reasonably satisfactory to
Syndication Agent and Administrative Agent. All applicable waiting periods
shall have expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose adverse conditions
on the transactions contemplated by the Credit Documents and no action, request
for stay, petition for review or rehearing, reconsideration, or appeal with
respect to any of the foregoing shall be pending, and the time for any
applicable agency to take action to set aside its consent on its own motion
shall have expired.
(f) Real Estate Assets. In order to create in favor of Collateral
------------------
Agent, for the benefit of Secured Parties, a valid and, subject to any filing
and/or recording referred to herein, perfected First Priority security interest
in certain Real Estate Assets, Collateral Agent shall have received from Company
and each applicable Guarantor:
(i) fully executed and notarized Mortgages, in proper form for
recording in all appropriate places in all applicable jurisdictions,
encumbering each Real Estate Asset listed in Schedule 3.1(f) (each, a
"Closing Date Mortgaged Property''), which in the case of the Leasehold
Properties at which the Permitted IBX Facilities are located, shall
include at least 50% of the total number of such Leasehold Properties;
66
(ii) an opinion of counsel (which counsel shall be reasonably
satisfactory to Collateral Agent) in each state in which a Closing Date
Mortgaged Property is located with respect to the enforceability of the
form(s) of Mortgages to be recorded in such state and such other matters as
Collateral Agent may reasonably request, in each case in form and substance
reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Closing
Date Mortgaged Property, a Landlord Agreement, and evidence that such
Leasehold Property is a Recorded Leasehold Interest;
(iv) (a) ALTA mortgagee title insurance policies or
unconditional commitments therefor issued by (a) a title company with
respect to each Closing Date Mortgaged Property, in amounts not less than
the fair market value of each Closing Date Mortgaged Property, together
with a title report issued by a title company with respect thereto, dated
not more than thirty (30) days prior to the Closing Date and copies of all
recorded documents listed as exceptions to title or otherwise referred to
therein, each in form and substance reasonably satisfactory to Collateral
Agent and Syndication Agent and (B) evidence satisfactory to Collateral
Agent and Syndication Agent that such Credit Party has paid to the title
company or to the appropriate governmental authorities all expenses and
premiums of the title company and all other sums required in connection
with the issuance of such title policy and all recording and stamp taxes
(including mortgage recording and intangible taxes) payable in connection
with recording the Mortgages for each Closing Date Mortgaged Property in
the appropriate real estate records;
(v) evidence of flood insurance with respect to each Flood
Hazard Property that is located in a community that participates in the
National Flood Insurance Program, in each case in compliance with any
applicable regulations of the Board of Governors of the Federal Reserve
System, in form and substance reasonably satisfactory to Collateral Agent
and Syndication Agent; and
(vi) ALTA surveys of all Closing Date Mortgaged Properties
(other than Leasehold Properties consisting of space in a building occupied
by more than two additional tenants), certified to Collateral Agent and
dated not more than thirty (30) days prior to the Closing Date.
(g) Personal and Mixed Property Collateral. In order to create in
--------------------------------------
favor of Collateral Agent, for the benefit of Secured Parties, a valid and
perfected First Priority security interest in the personal property Collateral,
Collateral Agent shall have received:
(i) (1) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Collateral Agent) representing all
certificated shares or other interests (however designated) with respect to
Capital Stock pledged pursuant to the Pledge and Security Agreement and (2)
all instruments and
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promissory notes (which instruments shall be accompanied by instruments of
transfer or assignment duly endorsed in blank and otherwise in form and
substance satisfactory to Collateral Agent) evidencing all Indebtedness
pledged pursuant to the Pledge and Security Agreement;
(ii) a completed UCC Questionnaire dated the Closing Date and
executed by an executive officer of each Credit Party, together with all
attachments contemplated thereby, including (1) other than as set forth in
Schedule 3.1(g)(ii) the results of a recent search, by a Person
satisfactory to Syndication Agent and Collateral Agent, of UCC financing
statements and fixture filings and all judgment and tax lien filings which
may have been made with respect to any personal or mixed property of any
Credit Party, together with copies of all such filings disclosed by such
search, and (2) UCC termination statements duly executed by all applicable
Persons for filing in all applicable jurisdictions as may be necessary to
terminate any effective UCC financing statements or fixture filings
disclosed in such search (other than any such financing statements or
fixture filings in respect of Permitted Liens);
(iii) UCC financing statements, duly executed by each applicable
Credit Party with respect to all personal and mixed property Collateral of
such Credit Party, for filing in all jurisdictions as may be necessary or,
in the opinion of Collateral Agent, desirable to perfect the security
interests created in such Collateral pursuant to the Collateral Documents
under the UCC;
(iv) all releases, cover sheets or other documents or
instruments required to be filed in order to create or perfect Liens in
respect of any Intellectual Property Collateral pursuant to the laws of the
United States;
(v) opinions of counsel (which counsel shall be reasonably
satisfactory to Collateral Agent) with respect to the creation and
perfection of the security interests in favor of Collateral Agent in such
Collateral and such other matters governed by the laws of each jurisdiction
in which any Credit Party or any personal property Collateral is located as
Collateral Agent may reasonably request, in each case in form and substance
reasonably satisfactory to Collateral Agent; and
(vi) evidence that each Credit Party shall have taken or caused
to be taken any other action, executed and delivered or caused to be
executed and delivered any other agreement (other than agreements required
to be entered into prior to the Funding Date and set forth on Schedule
3.2(b)), document and instrument (including, without limitation, any
agreements governing deposit and/or security accounts), and made or caused
to be made any other filing and recording (other than as set forth herein)
required pursuant to the Pledge and Security Agreement or otherwise
reasonably required by Collateral Agent.
(h) Environmental Reports. Syndication Agent and Administrative Agent
---------------------
shall have received such reports and/or other information, in form, scope and
substance
68
satisfactory to Syndication Agent and Administrative Agent, regarding
environmental matters relating to the Facilities.
(i) Financial Statements; Projections. Lenders shall have received
---------------------------------
from Company (i) the Historical Financial Statements, (ii) copies of all
management reports and management letters prepared for Company and its
Subsidiaries by independent public accountants; and (iii) a financial forecast
for Company and its Restricted Subsidiaries, for the period from Fiscal Year
2000 through and including Fiscal Year 2005 (detailed by Fiscal Quarters for
each such Fiscal Year); and all of the foregoing financial statements and the
other information will not be inconsistent, in any material respect, with any
information previously provided to Lenders.
(j) Evidence of Insurance. Syndication Agent, Collateral Agent and
---------------------
Administrative Agent shall have received a certificate from Company's insurance
broker or other evidence satisfactory to them that all insurance required to be
maintained pursuant to Section 5.5 is in full force and effect and that
Collateral Agent, for the benefit of Secured Parties has been named as
additional insured and loss payee thereunder to the extent required under
Section 5.5.
(k) Opinions of Counsel to Credit Parties. Lenders and their
-------------------------------------
respective counsel shall have received originally executed copies of the
favorable written opinions of Xxxx, Xxxx, Xxxx & Freidenrich LLP, Xxxxx
Xxxxxxxxxx LLP, Xxxxx, Danzig, Scherer, Xxxxxx & Peretti LLP, Xxxxxxxx & Xxxxxx
LLP, Xxxxxxxx & Peters, Reed, Xxxxx, Xxxxx & Xxxxxx LLP, counsel for Credit
Parties, in the form of Exhibit D and as to such other matters as Administrative
Agent or Syndication Agent may reasonably request, and otherwise in form and
substance reasonably satisfactory to each of Administrative Agent, Syndication
Agent and Collateral Agent and their counsel, dated the Closing Date (and each
Credit Party hereby instructs such counsel to deliver such opinions to Agents
and Lenders).
(l) Opinions of Counsel to Syndication Agent. Lenders shall have
----------------------------------------
received originally executed copies of one or more favorable written opinions of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to Syndication Agent and
Administrative Agent and addressed to the Agents and the Lenders dated as of the
Closing Date, in form and substance reasonably satisfactory to Syndication
Agent.
(m) Fees. Company shall have paid to Syndication Agent,
----
Administrative Agent and Collateral Agent the fees payable on the Closing Date
referred to in Section 2.9(d).
(n) Solvency Certificate. On the Closing Date, Syndication Agent,
--------------------
Administrative Agent and Lenders shall have received a Solvency Certificate from
Company.
(o) Borrowing Base Certificate and Closing Date Certificate. Company
-------------------------------------------------------
shall have delivered to Syndication Agent and Administrative Agent an originally
executed Borrowing Base Certificate and Closing Date Certificate, together with
all attachments thereto.
(p) Material Contracts. Company and its Subsidiaries shall have made
------------------
available to Syndication Agent and Administrative Agent copies of all Material
Contracts in effect on the Closing Date.
69
(q) Material Contract Consents. Company shall have used reasonable
--------------------------
best efforts to obtain a consent to the collateral assignment to Administrative
Agent, Syndication Agent and Lenders of rights existing under all Material
Contracts listed on Schedule 4.17(a), such consent in form and substance
reasonably satisfactory to Administrative Agent and Syndication Agent.
(r) No Litigation. Syndication Agent and Administrative Agent shall
-------------
have received a certificate on behalf of Company from an Authorized Officer of
Company, in form and substance reasonably satisfactory to Syndication Agent and
Administrative Agent, certifying that there are no actions, suits,
investigations, litigations or proceedings or other legal or regulatory
developments, pending or threatened in any court or before any arbitrator or
Governmental Authority that, singly or in the aggregate, materially impairs any
of the transactions contemplated by the Credit Documents, or that could have a
Material Adverse Effect.
(s) Completion of Proceedings. All partnership, corporate and other
-------------------------
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Administrative Agent or Syndication Agent and its counsel shall be
satisfactory in form and substance to Administrative Agent and Syndication Agent
and such counsel, and Administrative Agent, Syndication Agent and such counsel
shall have received all such counterpart originals or certified copies of such
documents as Administrative Agent or Syndication Agent may reasonably request.
Each Lender, by delivering its signature page to this Agreement on the Closing
Date, shall be deemed to have acknowledged receipt of, and consented to and
approved, each Credit Document and each other document required to be approved
by any Agent, Requisite Lenders or Lenders, as applicable, on or prior to the
Closing Date.
3.2 Conditions to Each Credit Extension.
(a) Conditions Precedent. The obligation of each Lender to make any
--------------------
Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date,
including the Funding Date, are subject to the satisfaction, or waiver in
accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed
and delivered Funding Notice or Issuance Notice, as the case may be, and a
Borrowing Base Certificate;
(ii) after making any Loans and/or Letters of Credit requested
on such Credit Date, the Total Utilization Exposure shall not exceed the
Borrowing Base as set forth in a Borrowing Base Certificate delivered in
connection with the making of such Loans;
(iii) after making any Revolving Loans and/or Letters of Credit
requested on such Credit Date, the Total Utilization of Revolving Loan
Commitments shall not exceed the Revolving Loan Commitments then in effect;
70
(iv) after making any Delayed Draw Term Loans requested on such
Credit Date, the Total Utilization of Delayed Draw Term Loan Commitments
shall not exceed the Delayed Draw Term Loan Commitments then in effect;
(v) no injunction or other restraining order shall have been
issued and no hearing to cause an injunction or other restraining order to
be issued shall be pending or noticed with respect to any action, suit or
proceeding seeking to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the transactions
contemplated hereby or the making of any Loan;
(vi) as of such Credit Date, the representations and warranties
contained herein and in the other Credit Documents shall be true and
correct in all material respects on and as of that Credit Date to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date;
(vii) as of such Credit Date, no event shall have occurred and
be continuing or would result from the consummation of the applicable
Credit Extension that would constitute an Event of Default or a Default;
(viii) With respect to Purchase Money Loans, Company shall (y)
have provided Administrative Agent and Collateral Agent with such
information as they may reasonable request confirming the use of proceeds
of such Purchase Money Loans in conformity with the requirements of this
Agreement and the Senior Notes and (z) taken such actions as Collateral
Agent may reasonably request to ensure that such Purchase Money Loans are
secured by First Priority Liens on the assets purchased with the proceeds
thereof; and
(ix) on or before the date of issuance of any Letter of Credit,
Administrative Agent shall have received all other information required by
the applicable Issuance Notice, and such other documents or information as
Issuing Bank may reasonably require in connection with the issuance of such
Letter of Credit.
(x) Company shall have transferred to (y) OpCo the assets
(including, without limitation, cash and leasehold interests) associated
with each of the Permitted IBX Facilities and (z) to Unrestricted
Subsidiaries certain assets to be used by such Unrestricted Subsidiaries,
in each case as set forth on Schedule 3.2(a)(x).
(b) Certain Conditions to Loans. The Obligations of each Lender
---------------------------
having a Commitment to make a Loan shall be subject to satisfaction, or waiver
in accordance with Section 10.5, of the conditions set forth on Schedule 3.2(b)
on or before the Funding Date.
71
(c) Notices. Any Notice shall be executed by an Authorized Officer in
-------
a writing delivered to Administrative Agent. In lieu of delivering a Notice,
Company may give Administrative Agent telephonic notice by the required time of
any proposed borrowing, conversion/continuation or issuance of a Letter of
Credit, as the case may be; provided each such notice shall be promptly
--------
confirmed in writing by delivery of the applicable Notice to Administrative
Agent (and Issuing Bank in the case of a notice with respect to a Letter of
Credit) on or before the applicable date of borrowing, continuation/conversion
or issuance. Neither Administrative Agent, Issuing Bank nor any Lender shall
incur any liability to Company in acting upon any telephonic notice referred to
above that Administrative Agent believes in good faith to have been given by a
duly authorized officer or other person authorized on behalf of Company or for
otherwise acting in good faith.
SECTION 4 REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Issuing Bank to enter into this Agreement
and to make each Credit Extension to be made thereby, each Credit Party
represents and warrants to each Lender and Issuing Bank, on the Closing Date and
on each Credit Date, that the following statements are true and correct:
4.1 Organization; Requisite Power and Authority; Qualification. Each of
the Credit Parties (a) is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization as identified in Schedule
4.1, (b) has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Credit Documents to which it is a party and to
carry out the transactions contemplated thereby, and (c) is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had, and could not be reasonably expected to have, a Material Adverse Effect.
4.2 Capital Stock and Ownership. The Capital Stock of each of the Credit
Parties has been duly authorized and validly issued and is fully paid and
nonassessable. Except as set forth on Schedule 4.2, as of the date hereof,
there is no existing option, warrant, call, right, commitment or other agreement
to which any of the Credit Parties, other than the Company, is a party
requiring, and there is no membership interest or other Capital Stock of any of
the Credit Parties, other than the Company, outstanding which upon conversion or
exchange would require, the issuance by any of the Credit Parties, other than
the Company, of any additional membership interests or other Capital Stock of
any of the Credit Parties, other than the Company, or other Securities
convertible into, exchangeable for or evidencing the right to subscribe for or
purchase, a membership interest or other Capital Stock of any of the Credit
Parties, other than the Company. Schedule 4.2 correctly sets forth the
ownership interest of the Credit Parties in their respective Subsidiaries as of
the Closing Date.
4.3 Due Authorization. The execution, delivery and performance of the
Credit Documents have been duly authorized by all necessary action on the part
of each Credit Party that is a party thereto.
72
4.4 No Conflict. The execution, delivery and performance by the Credit
Parties of the Credit Documents to which they are parties and the consummation
of the transactions contemplated by the Credit Documents do not and will not
violate any provision of any law or any governmental rule or regulation
applicable to any of the Credit Parties, any of the Organizational Documents of
any of the Credit Parties, or any order, judgment or decree of any court or
other agency of government binding on any of the Credit Parties; conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any Contractual Obligation of any of the Credit Parties; result
in or require the creation or imposition of any Lien upon any of the properties
or assets of any of the Credit Parties (other than any Liens created under any
of the Credit Documents in favor of Collateral Agent, on behalf of Secured
Parties); or require any approval of stockholders, members or partners or any
approval or consent of any Person under any Contractual Obligation of any of the
Credit Parties, except for such approvals or consents which will be obtained on
or before the Closing Date and disclosed in writing to Lenders.
4.5 Governmental Consents. The execution, delivery and performance by
Credit Parties of the Credit Documents to which they are parties and the
consummation of the transactions contemplated by the Credit Documents do not and
will not require any registration with, consent or approval of, or notice to, or
other action to, with or by, any Governmental Authority except as otherwise set
forth on Schedule 4.5, and except for filings and recordings with respect to the
Collateral to be made, or otherwise delivered to Collateral Agent for filing
and/or recordation, as of the Closing Date.
4.6 Binding Obligation. Each Credit Document has been duly executed and
delivered by each Credit Party that is a party thereto and is the legally valid
and binding obligation of such Credit Party, enforceable against such Credit
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
4.7 Historical Financial Statements. The Historical Financial Statements
were prepared in conformity with GAAP and fairly present, in all material
respects, the financial position, on a consolidated basis, of the Persons
described in such financial statements as at the respective dates thereof and
the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the
case of any such unaudited financial statements, to changes resulting from audit
and normal yearend adjustments. As of the Closing Date, neither Company nor any
of its Subsidiaries has any contingent liability or liability for taxes,
longterm lease or unusual forward or longterm commitment that is not reflected
in the Historical Financial Statements or the notes thereto and which in any
such case is material in relation to the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Company and any of
its Subsidiaries taken as a whole.
4.8 Projections. On and as of the Closing Date, the financial forecast of
Company and its Restricted Subsidiaries delivered pursuant to Section 3.1(i)
(the "Projections") is based on good faith estimates and assumptions made by the
management of Company; provided, the Projections are not to be viewed as facts
--------
and that actual results during the period or periods covered by the Projections
may differ from such Projections and that the differences may be
73
material; provided further, as of the Closing Date, management of Company
-------- -------
believed that the Projections were reasonable and attainable.
4.9 No Material Adverse Change. Since December 31, 1999, no event or
change has occurred that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect.
4.10 No Restricted Junior Payments. Since December 31, 1999, none of the
Credit Parties has directly or indirectly declared, ordered, paid or made, or
set apart any sum or property for, any Restricted Junior Payment or agreed to do
so except as permitted pursuant to Section 6.4.
4.11 Adverse Proceedings, etc. There are no Adverse Proceedings,
individually or in the aggregate, that could reasonably be expected to have a
Material Adverse Effect. None of the Credit Parties is in violation of any
applicable laws (including Environmental Laws) that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, or
is subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
4.12 Payment of Taxes. Except as otherwise permitted under Section 5.3,
all tax returns and reports of Company and its Subsidiaries required to be filed
by any of them have been timely filed, and all taxes shown on such tax returns
to be due and payable and all assessments, fees and other governmental charges
upon Company and its Subsidiaries and upon their respective properties, assets,
income, businesses and franchises which are due and payable have been paid when
due and payable. Company knows of no proposed tax assessment against Company or
any of its Subsidiaries which is not being actively contested by Company or such
Subsidiary in good faith and by appropriate proceedings; provided, such reserves
--------
or other appropriate provisions, if any, as shall be required in conformity with
GAAP shall have been made or provided therefor.
4.13 Properties.
(a) Title. Each Credit Party has (i) good, sufficient and legal title
-----
to (in the case of fee interests in real property), (ii) valid leasehold
interests in (in the case of leasehold interests in real or personal property),
and (iii) good title to (in the case of all other personal property), all of
their respective properties and assets reflected in their respective Historical
Financial Statements referred to in Section 4.7 and in the most recent financial
statements delivered pursuant to Section 5.1, in each case except for assets
disposed of since the date of such financial statements in the ordinary course
of business or as otherwise permitted under Section 6.9. Except as permitted by
this Agreement, all such properties and assets are free and clear of Liens.
(b) Real Estate. As of the Closing Date, Schedule 4.13 contains a
-----------
true, accurate and complete list of (i) all Real Estate Assets, and (ii) all
leases, subleases or assignments of leases (together with all amendments,
modifications, supplements, renewals or
74
extensions of any thereof) affecting each Real Estate Asset of any Credit Party,
regardless of whether such Credit Party is the landlord or tenant (whether
directly or as an assignee or successor in interest) under such lease, sublease
or assignment. Except as specified in Schedule 4.13, each agreement listed in
clause (ii) of the immediately preceding sentence is in full force and effect
and Company does not have knowledge of any default that has occurred and is
continuing thereunder, and each such agreement constitutes the legally valid and
binding obligation of each applicable Credit Party, enforceable against such
Credit Party in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles.
4.14 Collateral.
(a) Attachment and Perfection. The execution and delivery of the
-------------------------
Collateral Documents by Credit Parties, together with the actions taken on or
prior to the date hereof pursuant to Sections 3.1(f) and 3.1(g), are effective
to create in favor of Collateral Agent, on behalf of Secured Parties, as
security for their respective Obligations, a valid and perfected First Priority
Lien on all of the Collateral, and all filings and other actions necessary or
desirable to perfect and maintain the perfection and First Priority status of
such Liens have been duly made or taken and remain in full force and effect,
other than (i) the filing of any UCC financing statements delivered to
Collateral Agent for filing (but not yet filed), (ii) the actions required under
federal law to register and record interests in intellectual property and (iii)
the periodic filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Collateral Agent.
(b) Governmental Approvals, Etc. No authorization, approval or other
----------------------------
action by, and no notice to or filing with, any Governmental Authority or
regulatory body is required for either (i) the pledge or grant by any Credit
Party of the Liens purported to be created in favor of Collateral Agent pursuant
to any of the Collateral Documents or (ii) the exercise by Collateral Agent of
any rights or remedies in respect of any Collateral (whether specifically
granted or created pursuant to any of the Collateral Documents or created or
provided for by applicable law), except (A) for filings or recordings
contemplated by Sections 3.1(f) and 3.1(g) and (B) as may be required in
connection with the disposition of any Investment Related Property, or by laws
generally affecting the offering and sale of Securities.
(c) Filings. Except with respect to any Permitted Lien and such as
-------
may have been filed in favor of Collateral Agent as contemplated by Section
3.1(f) or 3.1(g), no effective UCC financing statement, fixture filing or other
instrument similar in effect covering all or any part of the Collateral is on
file in any filing or recording office.
(d) Disclosure. All information supplied to Collateral Agent by or on
----------
behalf of any Credit Party with respect to any of the Collateral (in each case
taken as a whole with respect to any particular Collateral) is accurate and
complete in all material respects.
4.15 Environmental Matters. Neither any of the Credit Parties nor any of
their respective Facilities or operations are subject to any outstanding written
order, consent decree or settlement agreement with any Person relating to any
Environmental Law, any Environmental
75
Claim, or any Hazardous Materials Activity that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect. None
of the Credit Parties has received any letter or request for information under
Section 104 of the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. (S) 9604) or any comparable state law. There are and,
to each of the Credit Parties' knowledge, have been, no conditions, occurrences,
or Hazardous Materials Activities which could reasonably be expected to form the
basis of an Environmental Claim against any of the Credit Parties that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither any of the Credit Parties nor, to any Credit
Party's knowledge, any predecessor of any of the Credit Parties has filed any
notice under any Environmental Law indicating past or present treatment of
Hazardous Materials at any Facility, and none of the Credit Parties' operations
involves the generation, transportation, treatment, storage or disposal of
hazardous waste, as defined under 40 C.F.R. Parts 260270 or any state
equivalent. Compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws could not be reasonably
expected to have, individually or in the aggregate, a Material Adverse Effect.
No event or condition has occurred or is occurring with respect to any of the
Credit Parties or their respective Facilities relating to any Environmental Law,
any Release of Hazardous Materials, or any Hazardous Materials Activity which
individually or in the aggregate has had, or could reasonably be expected to
have, a Material Adverse Effect.
4.16 No Defaults. None of the Credit Parties is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists which, with the giving of notice or the lapse of time or both, could
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.
4.17 Material Contracts. (a)Schedule 4.17(a) contains a true, correct and
complete list of all the Material Contracts in effect on the Closing Date, and
except as described thereon, all such Material Contracts are in full force and
effect and no material defaults currently exist thereunder or under any lease
governing Leasehold Property.
(b) Each Credit Party owns or possesses all the patents, trademarks,
service marks, trade names, copyrights and licenses, and all rights with respect
to the foregoing, necessary for the conduct of its business as presently
conducted without any known conflict with the rights of others. Schedule
4.17(b) accurately and completely lists all Intellectual Property owned or
possessed by or licensed to such Credit Party.
4.18 Governmental Regulation. None of the Credit Parties is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940 or under any other federal or
state statute or regulation which may limit its ability to incur Indebtedness or
which may otherwise render all or any portion of the Obligations unenforceable.
None of the Credit Parties is a "registered investment company" or a company
"controlled" by a "registered investment company" or a "principal underwriter"
of a "registered investment company" as such terms are defined in the Investment
Company Act of 1940.
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4.19 Margin Stock. None of the Credit Parties is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock. No part of the proceeds of
the Loans made to such Credit Party will be used to purchase or carry any such
margin stock or to extend credit to others for the purpose of purchasing or
carrying any such margin stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
4.20 Employee Matters. None of the Credit Parties is engaged in any unfair
labor practice that could reasonably be expected to have a Material Adverse
Effect. There is (a) no unfair labor practice complaint pending against any of
the Credit Parties, or to the best knowledge of the Credit Parties, 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 that is so pending against any of the Credit Parties or to the best
knowledge of the Credit Parties, threatened against any of them, (b) no strike
or work stoppage in existence or threatened involving any of the Credit Parties
that could reasonably be expected to have a Material Adverse Effect, and (c) to
the best knowledge of the Credit Parties, no union representation question
existing with respect to the employees of any of the Credit Parties and, to the
best knowledge of the Credit Parties, no union organization activity that is
taking place, except (with respect to any matter specified in clause (a), (b) or
(c) above, either individually or in the aggregate) such as is not reasonably
likely to have a Material Adverse Effect.
4.21 Employee Benefit Plans. Each of the Credit Parties and each of their
respective ERISA Affiliates are in compliance with all applicable provisions and
requirements of ERISA and the Internal Revenue Code and the regulations and
published interpretations thereunder with respect to each Employee Benefit Plan,
and have performed all their obligations under each Employee Benefit Plan. Each
Employee Benefit Plan which is intended to qualify under Section 401(a) of the
Internal Revenue Code is so qualified. No material liability to the PBGC (other
than required premium payments), the Internal Revenue Service, any Employee
Benefit Plan or any Trust established under Title IV of ERISA has been or is
expected to be incurred by any of the Credit Parties or any of their ERISA
Affiliates. No ERISA Event has occurred or is reasonably expected to occur.
Except to the extent required under Section 4980B of the Internal Revenue Code
or similar state laws, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or
former employee of any of the Credit Parties or any of their respective ERISA
Affiliates. As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), does not exceed $500,000. As of the most recent
valuation date for each Multiemployer Plan for which the actuarial report is
available, the potential liability of the Credit Parties and their respective
ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within
the meaning of Section 4203 of ERISA), when aggregated with such potential
liability for a complete withdrawal from all Multiemployer Plans, based on
information available pursuant to Section 4221(e) of ERISA, does not exceed
$1,500,000. Each of the Credit Parties and each of their ERISA Affiliates have
complied with the requirements of Section 515 of ERISA with respect to each
Multiemployer Plan and are not in material "default" (as defined in Section
4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.
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4.22 Solvency. Each Credit Party is and, upon the incurrence of any
Obligation by such Credit Party on any date on which this representation and
warranty is made, will be, Solvent.
4.23 Compliance with Statutes, etc. Each of the Credit Parties is in
compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all Governmental Authorities, in respect of
the conduct of its business and the ownership of its property (including
compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or governing its business and the requirements of any permits
issued under such Environmental Laws with respect to any such Real Estate Asset
or the operations of Company or any of its Subsidiaries), except such
noncompliance that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
4.24 Disclosure. No representation or warranty of any Credit Party
contained in any Credit Document or, except as set forth on Schedule 4.24, in
any other documents, certificates or written statements furnished to Lenders by
or on behalf of any Credit Party for use in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact (known to each Credit Party, in the case of any document
not furnished by any of them) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in
which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions
believed by each Credit Party to be reasonable at the time made, it being
recognized by 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 are no facts
known (or which should upon the reasonable exercise of diligence be known) to
any Credit Party (other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect and that have not been disclosed herein or in such other
documents, certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
SECTION 5 AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that so long as any Commitment is in
effect and until payment in full of all Obligations and cancellation or
expiration of all Letters of Credit, each Credit Party shall perform, and shall
cause each of its Subsidiaries to perform, all covenants in this Section 5.
5.1 Financial Statements and Other Reports. Company will deliver to
Administrative Agent and Lenders:
(a) Monthly Reports. As soon as available, and in any event within
---------------
fortyfive (45) days after the end of each month ending after the Closing Date,
the consolidated balance sheet of Company and its Restricted Subsidiaries as at
the end of such month and the related consolidated statements of income and cash
flows of Company and its Restricted Subsidiaries together with other statistical
operating data for such month, setting forth in each case in comparative form
reasonably acceptable to the Joint Lead Arrangers the corresponding figures for
the corresponding periods of the previous Fiscal Year and the corresponding
figures from the
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Financial Plan for the current Fiscal Year, all in reasonable detail, together
with a Financial Officer Certification with respect thereto;
(b) Quarterly Financial Statements. As soon as available, and in any
------------------------------
event within fortyfive (45) days after the end of each Fiscal Quarter of each
Fiscal Year, (i) the consolidated and consolidating balance sheet of Company and
its Restricted Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated (and with respect to statements of income, consolidating)
statements of income and cash flows of Company and its Restricted Subsidiaries
for such Fiscal Quarter, setting forth in each case in comparative form
reasonably acceptable to the Joint Lead Arrangers the corresponding figures for
the corresponding periods of the previous Fiscal Year and the corresponding
figures from the Financial Plan for the current Fiscal Year and the Closing
Financial Plan, and (ii) a schedule setting forth the A/R Sublimit as of the
last day of such Fiscal Quarter all in reasonable detail, together with (1) a
Financial Officer Certification, (2) a supplement, reasonably acceptable to the
Joint Lead Arrangers, to the publicly filed Narrative Report discussing
additional material information pertaining specifically to the financial
statements listed in clause (i) as distinguished from the analogous publicly
filed financial statements of the Company and its Subsidiaries and (3) revised
Schedules 4.1 and 4.2 (if necessary) reflecting all changes in the
organizational structure and capital structure of Company and its Restricted
Subsidiaries since the delivery of the last quarterly financial information,
which revised Schedules 4.1 and 4.2 will be deemed to amend the thenexisting
Schedules 4.1 and 4.2 for all purposes under this Agreement;
(c) Annual Financial Statements. As soon as available, and in any
---------------------------
event within ninety (90) days after the end of each Fiscal Year, (i) the
consolidated and consolidating balance sheet of Company and its Restricted
Subsidiaries as at the end of such Fiscal Year and the related consolidated (and
with respect to statements of income, consolidating) statements of income,
stockholders' equity and cash flows of Company and its Restricted Subsidiaries
for such Fiscal Year, setting forth in each case in comparative form the
corresponding figures for the previous Fiscal Year and the corresponding figures
from the Financial Plan for the Fiscal Year covered by such financial statements
and the Closing Financial Plan, in reasonable detail, together with a Financial
Officer Certification and a Narrative Report with respect thereto; (ii) with
respect to each consolidated financial statements a report thereon of
PricewaterhouseCoopers LLP or other independent certified public accountants of
recognized national standing selected by Company, and reasonably satisfactory to
Administrative Agent (which report shall be unqualified as to going concern and
scope of audit, and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position of
Company and its Restricted Subsidiaries, as at the dates indicated and the
results of their operations and their cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the examination by
such accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards) together
with a written statement by such independent certified public accountants
stating that their audit examination has included a review of the terms of
Sections 6.6 and 6.7 the Credit Documents, whether, in connection therewith,
any condition or event that constitutes a Default or an Event of Default under
Section 6.6 or 6.7 has come to their attention and, if such a condition or event
has come to their attention, specifying the nature and period of existence
thereof, and that nothing has come to their attention that causes them to
believe that the
79
information contained in any Compliance Certificate is not correct or that the
matters set forth in such Compliance Certificate are not stated in accordance
with the terms hereof and (iii) revised Schedules 4.1 and 4.2 (if necessary)
reflecting all changes in the organizational structure and capital structure of
Company and its Restricted Subsidiaries since the delivery of the last quarterly
financial information, which revised Schedules 4.1 and 4.2 will be deemed to
amend the then existing Schedules 4.1 and 4.2 for all purposes under this
Agreement;
(d) Compliance Certificate. Together with each delivery of financial
----------------------
statements of Company and its Restricted Subsidiaries pursuant to Sections
5.1(b) and 5.1(c), a completed Compliance Certificate duly executed by an
Authorized Officer;
(e) Borrowing Base Certificate. (i) On the Closing Date, (ii) within
--------------------------
fortyfive (45) days after the end of each Fiscal Quarter, (iii) concurrently
with each Notice of Borrowing and (iv) concurrently with any prepayment pursuant
to Section 2.12(e), a duly executed and completed certificate of an Authorized
Officer ("Borrowing Base Certificate") in substantially the form of Exhibit M
setting forth the Borrowing Base as of the Closing Date, the last day of each
Fiscal Quarter, the date of such Notice of Borrowing, or other date as may be
reasonably requested by Administrative Agent, Syndication Agent or Collateral
Agent, each such Certificate to be certified as complete and correct on behalf
of Company by an Authorized Officer of Company, together with such supporting
documentation and additional reports with respect to the Borrowing Base as
Administrative Agent shall reasonably request;
(f) Statements of Reconciliation after Change in Accounting
-------------------------------------------------------
Principles. If, as a result of any change in accounting principles and policies
from those used in the preparation of the Historical Financial Statements, the
consolidated financial statements of Company and its Restricted Subsidiaries
delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material
respect from the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change in accounting
principles and policies been made, then, together with the first delivery of
such financial statements after such change, one or more a statements of
reconciliation for all such prior financial statements in form and substance
satisfactory to Administrative Agent;
(g) SEC Reports. Promptly upon their becoming available, copies of
-----------
(i) all financial statements, reports, notices and proxy statements sent or made
available generally by Company to its security holders acting in such capacity
or by any Subsidiary of Company to its security holders other than Company or
another Subsidiary of Company, (ii) all regular and periodic reports (but not
including, unless requested by Administrative Agent, routine reports regularly
filed with the FCC and state commissions with jurisdiction over
telecommunications matters) and all registration statements (other than on Form
S8 or a similar form) and prospectuses, if any, filed by Company or any of its
Restricted Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority, and
(iii) all press releases and other statements made available generally by
Company or any of its Restricted Subsidiaries to the public concerning material
developments in the business of Company or any of its Restricted Subsidiaries;
(h) Notice of Default. Promptly upon any officer of Company obtaining
-----------------
knowledge (i) of any condition or event that constitutes a Default or an Event
of Default or that
80
notice has been given to Company with respect thereto; (ii) that any Person has
given any notice to Company or any of its Subsidiaries or taken any other action
with respect to any event or condition set forth in Section 8.1(b); (iii) of any
condition or event of a type required to be disclosed in a current report on
Form 8K of the Securities and Exchange Commission; or (iv) of the occurrence of
any event or change that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect, a certificate of its Authorized Officers
specifying the nature and period of existence of such condition, event or
change, or specifying the notice given and action taken by any such Person and
the nature of such claimed Event of Default, Default, default, event or
condition, and what action Company has taken, is taking and proposes to take
with respect thereto;
(i) Notice of Litigation. Promptly upon any officer of Company
--------------------
obtaining knowledge of the institution of, or nonfrivolous threat of, any
Adverse Proceeding not previously disclosed in writing by Company to Lenders, or
any material development in any Adverse Proceeding that, in the case of either
(i) or (ii) if adversely determined, could be reasonably expected to have a
Material Adverse Effect, or seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain relief as a result of, the
transactions contemplated hereby or any of the other Credit Documents, written
notice thereof together with such other information as may be reasonably
available to Company to enable Lenders and their counsel to evaluate such
matters;
(j) ERISA. Promptly upon becoming aware of the occurrence of or
-----
forthcoming occurrence of any ERISA Event, a written notice specifying the
nature thereof, what action Company, any of its Restricted Subsidiaries or any
of their respective ERISA Affiliates has taken, is taking or proposes to take
with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect
thereto; and with reasonable promptness, copies of each Schedule B (Actuarial
Information) to the annual report (Form 5500 Series) filed by Company, any of
its Restricted Subsidiaries or any of their respective ERISA Affiliates with the
Internal Revenue Service with respect to each Pension Plan; all notices
received by Company, any of its Restricted Subsidiaries or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and copies of such other documents or governmental reports or
filings relating to any Employee Benefit Plan as Administrative Agent shall
reasonably request;
(k) Financial Plan. As soon as available and in any event no later
--------------
than sixty (60) days following the beginning of each Fiscal Year, a consolidated
plan and financial forecast for such Fiscal Year and the lesser of the next
three (3) succeeding Fiscal Years and the period remaining through December 15,
2005 (a "Financial Plan"), including a forecasted consolidated balance sheet
and forecasted consolidated statements of income and cash flows of Company and
its Restricted Subsidiaries for each such Fiscal Year, together with pro forma
Compliance Certificates for each such Fiscal Year and an explanation of the
assumptions on which such forecasts are based and forecasted consolidated
statements of income and cash flows of Company and its Restricted Subsidiaries
for each month of each such Fiscal Year, together with an explanation of the
assumptions on which such forecasts are based;
(l) Insurance Report. As soon as practicable and in any event by the
----------------
last day of each Fiscal Year, commencing on December 31, 2001, a report in form
and substance
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satisfactory to Administrative Agent and Collateral Agent outlining all material
insurance coverage maintained as of the date of such report by Company and its
Restricted Subsidiaries and all material insurance coverage planned to be
maintained by Company and its Restricted Subsidiaries in the immediately
succeeding Fiscal Year;
(m) Notice of Change in Board of Directors. With reasonable
--------------------------------------
promptness, written notice of any change in the board of directors (or similar
governing body) of Company or OpCo;
(n) Annual UCC Questionnaire. By the last day of each Fiscal Year,
------------------------
commencing on December 31, 2001, a completed UCC Questionnaire in form and
substance satisfactory to Collateral Agent;
(o) Notice Regarding Material Contracts. Promptly, and in any event
-----------------------------------
within ten (10) Business Days (i) after any Material Contract of Company or any
of its Restricted Subsidiaries is terminated prior to its scheduled term or
amended in a manner that is materially adverse to Company or such Restricted
Subsidiary, as the case may be, or (ii) any new Material Contract is entered
into, a written statement describing such event, with copies of such material
amendments or new contracts, delivered to Administrative Agent (to the extent
(1) such information is not disclosed or incorporated by reference in any filing
with the Securities and Exchange Commission, and (2) such delivery is permitted
by the terms of any such Material Contract, provided, no such prohibition on
delivery shall be effective if it were bargained for by Company or its
applicable Restricted Subsidiary with the intent of avoiding compliance with
this Section 5.1(o)), and an explanation of any actions being taken with respect
thereto;
(p) Environmental Reports and Audits. As soon as practicable
--------------------------------
following receipt thereof, copies of all environmental audits and reports with
respect to environmental matters at any Facility or which relate to any
environmental liabilities of Company or its Restricted Subsidiaries which, in
any such case, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;
(q) Other Information. With reasonable promptness, such other
-----------------
information and data with respect to Company or any of its Subsidiaries as from
time to time may be reasonably requested by Administrative Agent, Syndication
Agent, Collateral Agent or any Lender.
5.2 Existence. Except as otherwise permitted under Section 6.9, each
Credit Party will, and will cause each of its Restricted Subsidiaries to, at all
times preserve and keep in full force and effect its existence and all rights
and franchises, licenses and permits material to its business; provided, no
--------
Credit Party or any of its Restricted Subsidiaries shall be required to preserve
any such existence, right or franchise, licenses and permits if such Person's
board of directors (or similar governing body) shall determine in good faith
that the preservation thereof is no longer desirable in the conduct of the
business of such Person, and that the loss thereof is not disadvantageous in any
material respect to such Person or to Lenders.
5.3 Payment of Taxes and Claims. Each Credit Party will, and will cause
each of its Subsidiaries to, pay all Taxes imposed upon it or any of its
properties or assets or in respect of
82
any of its income, businesses or franchises before any penalty or fine accrues
thereon, and all claims (including claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or may
become a Lien upon any of its properties or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided, no such Tax or
--------
claim need be paid if it is being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, so long as adequate
reserve or other appropriate provision, as shall be required in conformity with
GAAP shall have been made therefor, and in the case of a charge or claim which
has or may become a Lien against any of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral to
satisfy such Tax or claim. No Credit Party will, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any consolidated income Tax
return with any Person (other than Company or any of its Subsidiaries).
5.4 Maintenance of Properties. Each Credit Party will, and will cause
each of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition, ordinary wear and tear excepted, all material
properties used or useful in the business of any Credit Party and from time to
time will make or cause to be made all appropriate repairs, renewals and
replacements thereof, and each Credit Party shall defend any Collateral against
all Persons at any time claiming an interest therein.
5.5 Insurance. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such comprehensive general liability
insurance, third party property damage insurance, business interruption
insurance, workers' compensation and employer's liability insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Restricted Subsidiaries as
may be satisfactory to the Collateral Agent, but in any event not less than as
shown on Schedule 5.5 hereto and made a part hereof, and in each case in such
amounts (giving effect to self-insurance in amounts acceptable to the Collateral
Agent), with such deductibles and limits, covering such risks and otherwise on
such terms and conditions as shall be acceptable to the Collateral Agent.
Without limiting the generality of the foregoing, Company will maintain or cause
to be maintained: (a) flood insurance with respect to each Flood Hazard
Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of
the Board of Governors of the Federal Reserve System, (b) insurance with respect
to property owned by third parties and maintained at IBX Facilities with such
insurance companies, in such amounts, with such deductibles, and covering such
risks as are acceptable to the Collateral Agent, Administrative Agent and
Syndication Agent and (c) replacement value casualty insurance on an all-risks
basis on the Collateral under such policies of insurance, with such insurance
companies, in such amounts, with such deductibles, and covering such risks and
otherwise on such terms and conditions as are acceptable to the Collateral
Agent; (d) with respect to each policy of insurance, a waiver of subrogation in
favor of the Collateral Agent and the Lenders; and (e) policies of insurance
that (i) insure the interests of the Collateral Agent and the Lenders and their
respective Affiliates regardless of any breach of or violation by any Credit
Party of any warranties, declarations or conditions contained therein, (ii)
contain cross liability clauses, (iii) provide that the insurance shall be
primary and without right of contribution from any other insurance which may be
available to any of the Collateral Agent or Lenders, (iv) provide that the
Collateral Agent and the Lenders have no responsibility, obligation or liability
for premiums, commissions, assessments or calls in connection with such
83
insurance. Each such policy of liability insurance shall name each of the
Collateral Agent and the Lenders and their respective Affiliates, as additional
insureds thereunder and in the case of each business interruption and casualty
insurance policy, contain a standard lender's loss payable clause or
endorsement, satisfactory in form and substance to Collateral Agent, that names
Collateral Agent, on behalf of Lenders, as the loss payee thereunder for any
covered loss in excess of $500,000. Each such policy of insurance shall provide
for at least thirty (30) days' prior written notice to Collateral Agent of any
reduction of coverage or cancellation of such policy. On the Closing Date and
within thirty (30) days prior to each anniversary of the policies of insurance
required to be maintained pursuant to this Section 5.5, the Borrower shall
deliver or cause to be delivered to the Collateral Agent (which shall promptly
furnish a copy thereof to each of the Lenders) an insurance broker's opinion
letter from the Borrowers' independent insurance agent confirming that the
insurance premiums with respect to the policies of insurance required to be
maintained pursuant to this Section 5.5 have been paid, that such policies are
in full force and effect, and that such policies meet the insurance requirements
set forth in this Section 5.5. The Borrower shall also furnish or cause to be
furnished to the Collateral Agent (which shall promptly furnish a copy or copies
thereof to each of the Lenders) a certificate or certificates of insurance (i)
evidencing that all the coverages required to be maintained pursuant to this
Section 5.5 have been renewed and continue to be in full force and effect for
such period as shall be then stipulated, (ii) specifying the insurers with whom
the insurances are carried and (iii) containing such other certifications and
undertakings as are customarily provided to Lenders, as reasonably requested by
the Collateral Agent or any Lender.
5.6 Books and Records; Inspections; Lenders Meetings. Each Credit Party
will, and will cause each of its Restricted Subsidiaries and the San Xxxx
Subsidiary to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
business and activities. Each Credit Party will, and will cause each of its
Subsidiaries to, permit any authorized representatives designated by any Lender
(or, after the occurrence and during the continuance of any Event of Default,
any Lender) to visit and inspect any of the facilities of any Credit Party and
any of its respective Subsidiaries, to inspect, copy and take extracts from its
and their financial and accounting records, and to discuss its and their
affairs, finances and accounts with its and their officers and independent
public accountants, all upon reasonable notice and at such reasonable times
during normal business hours and as often as may reasonably be requested.
Company will, upon the request of Administrative Agent or Requisite Lenders,
participate in a meeting of Agents and Lenders once during each Fiscal Year to
be held at Company's corporate offices (or at such other location as may be
agreed to by Company and Administrative Agent) at such time as may be agreed to
by Company and Administrative Agent.
5.7 Compliance with Laws. Each Credit Party will comply, and shall cause
each of its Subsidiaries and all other Persons, if any, on or occupying any
Facility to comply, with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority (including all
Environmental Laws), noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
5.8 Environmental.
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(a) Environmental Disclosure. Company will deliver to Administrative
------------------------
Agent and Lenders:
(i) as soon as practicable following receipt thereof, copies of
all environmental audits, investigations, analyses and reports of any kind
or character, whether prepared by personnel of Company or any of its
Subsidiaries or any Unrestricted Subsidiaries or by independent
consultants, Governmental Authorities or any other Persons, with respect to
significant environmental matters at any Facility or with respect to any
Environmental Claims;
(ii) promptly upon the occurrence thereof, written notice
describing in reasonable detail (A) any Release required to be reported to
any federal, state or local governmental or regulatory agency under any
applicable Environmental Laws and any remedial action taken by Company or
any other Person in response thereto, (B) any Hazardous Materials
Activities the existence of which has a reasonable possibility of resulting
in one or more Environmental Claims having, individually or in the
aggregate, a Material Adverse Effect, (C) any Environmental Claims that,
individually or in the aggregate, have a reasonable possibility of
resulting in a Material Adverse Effect, and (D) Company's discovery of any
occurrence or condition on any real property adjoining or in the vicinity
of any Facility that could cause such Facility or any part thereof to be
subject to any material restrictions on the ownership, occupancy,
transferability or use thereof under any Environmental Laws;
(iii) as soon as practicable following the sending or receipt
thereof by Company or any of its Subsidiaries or any Unrestricted
Subsidiaries, a copy of any and all written communications with respect to
(A) any Environmental Claims that, individually or in the aggregate, have a
reasonable possibility of giving rise to a Material Adverse Effect, (B) any
Release required to be reported to any federal, state or local governmental
or regulatory agency, and (C) any request for information from any
governmental agency that suggests such agency is investigating whether
Company or any of its Subsidiaries or any Unrestricted Subsidiaries may be
potentially responsible for any Hazardous Materials Activity;
(iv) prompt written notice describing in reasonable detail (A)
any proposed acquisition of stock, assets, or property by Company or any of
its Subsidiaries or any Unrestricted Subsidiaries that could reasonably be
expected to (i) expose Company or any of its Subsidiaries to, or result in,
Environmental Claims that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect or (ii) affect
the ability of Company or any of its Subsidiaries or any Unrestricted
Subsidiaries to maintain in full force and effect all material Governmental
Authorizations required under any Environmental Laws for their respective
operations and (B) any proposed action to be taken by Company or any of
its Subsidiaries or any Unrestricted Subsidiaries to modify current
operations in a manner that could reasonably be expected to subject Company
or any of its Subsidiaries or any Unrestricted Subsidiaries to any
additional material obligations or requirements under any Environmental
Laws; and
85
(v) with reasonable promptness, such other documents and
information as from time to time may be reasonably requested by
Administrative Agent or Collateral Agent in relation to any matters
disclosed pursuant to this Section 5.8(a).
(b) Hazardous Materials Activities, Etc. Each Credit Party shall
-----------------------------------
promptly take, and shall cause each of its Subsidiaries or any Unrestricted
Subsidiaries promptly to take, any and all actions necessary to cure any
violation of applicable Environmental Laws by such Credit Party or its
Subsidiaries or any Unrestricted Subsidiaries that could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect, and make
an appropriate response to any Environmental Claim against such Credit Party or
any of its Subsidiaries or any Unrestricted Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so could
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
5.9 Subsidiaries. In the event that, after the Closing Date, any Person
becomes a Restricted Subsidiary of Company or a first tier Foreign Subsidiary,
Company shall promptly (i) deliver, or cause to be delivered to Collateral Agent
certificates (accompanied by irrevocable undated stock powers, duly endorsed in
blank and otherwise satisfactory in form and substance to Collateral Agent)
representing the Capital Stock of such Subsidiary, which shall be pledged
pursuant to the Pledge and Security Agreement and deliver, or cause to be
delivered, to Collateral Agent such other additional agreements or instruments,
each in form and substance, as may be necessary or desirable to create in favor
of Collateral Agent, for the benefit of the Secured Parties, a valid and
perfected First Priority security interest in all of the Capital Stock of such
Subsidiary (65% in the case of a Foreign Subsidiary), (ii) cause each such
Domestic Subsidiary to become a Guarantor hereunder and a Grantor under the
Pledge and Security Agreement by executing and delivering to Administrative
Agent and Collateral Agent a Counterpart Agreement duly executed by an
Authorized Officer of such Domestic Subsidiary, and (iii) take all such actions
and execute and deliver, or cause to be executed and delivered, all such
documents, instruments, agreements, and certificates similar to those described
in Sections 3.1(b), 3.1(f), 3.1(g) and 3.1(k). With respect to each such
Subsidiary, Company shall promptly send to Administrative Agent and Collateral
Agent written notice setting forth with respect to such Person (i) the date on
which such Person became a Subsidiary of Company, and (ii) all of the data
required to be set forth in Schedule 4.1 with respect to all Subsidiaries of
Company, and such written notice shall be deemed to supplement Schedule 4.1 for
all purposes hereof.
5.10 Post Closing Covenants With Respect to Real Estate Assets. (a)Other
than in respect to the San Xxxx Ground Lease, in the event that any Credit Party
acquires a Material Real Estate Asset or a Real Estate Asset owned on the
Closing Date becomes a Material Real Estate Asset and such interest has not
otherwise been made subject to the Lien of the Collateral Documents in favor of
Collateral Agent, for the benefit of Secured Parties, then such Credit Party,
contemporaneously with acquiring such Material Real Estate Asset or (other than
San Xxxx Ground Lease) with such real estate asset becoming a Material Real
Estate Asset, shall take all such actions and execute and deliver, or cause to
be executed and delivered, all such mortgages, documents, instruments,
agreements, opinions and certificates similar to those described in Sections
3.1(f), 3.1(g), 3.1(h) and 3.1(k) with respect to each such Material Real Estate
Asset that Administrative Agent shall reasonably request to create in favor of
Collateral Agent, for the
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benefit of Secured Parties, a valid and, subject to any filing and/or recording
referred to herein, perfected First Priority security interest in such Material
Real Estate Assets and the personal property located thereon.
(b) Company and its Subsidiaries shall at all times with respect to
Leasehold Properties which are not Material Real Estate Assets, use reasonable
commercial efforts to comply with Section 5.10 as though such Leasehold
Properties were Material Real Estate Assets.
(c) In addition to the foregoing, Company and its Restricted
Subsidiaries shall, at the request of Requisite Lenders, deliver, from time to
time, to Administrative Agent such appraisals as are required by law or
regulation of Real Estate Assets with respect to which Collateral Agent has been
granted a Lien, such best efforts to include, where possible, best efforts to
obtain a Landlord Agreement with the exception of paragraphs 4, 5 and 7 of
Exhibit K where a landlord refuses to consent to a leasehold mortgage.
5.11 Interest Rate Protection. No later than ninety (90) days following
the Closing Date and at all times thereafter, Company shall maintain, or caused
to be maintained, in effect one or more Interest Rate Agreements for a term of
not less than three years and otherwise in form and substance reasonably
satisfactory to Administrative Agent and Syndication Agent, which Interest Rate
Agreements shall at all times effectively limit the amount of Indebtedness of
the Company and its Restricted Subsidiaries bearing interest at a floating rate
to no more than 50% of the aggregate principal amount of Consolidated Total Debt
outstanding as of any date of determination.
5.12 Post Closing Covenants With Respect to Permitted Equipment Financing
Collateral. Upon termination of all outstanding obligations of the Company
under any Permitted Equipment Financing, Company, contemporaneously with the
repayment of such outstanding obligations, shall (i) terminate any and all Liens
granted in connection with such Permitted Equipment Financing, (ii) be deemed to
have granted to Collateral Agent, for the benefit of Secured Parties, a valid
security interest and continuing lien on all of Company's right, title and
interest in, to and under such Collateral, (iii) grant to the Collateral Agent,
for the benefit of Secured Parties, a security interest and continuing lien on
all of Company's right, title and interest in, to and under such Collateral, by
executing and delivering to the Collateral Agent a Confirmation of Grant,
substantially in the form of Exhibit N attached hereto, and (iv) deliver to
Collateral Agent duly executed UCC financing statements and all other
instruments, notices, releases or certificates as Collateral Agent may
reasonably request from time to time.
5.13 Further Assurances. At any time or from time to time upon the request
of Administrative Agent, each Credit Party will, at its expense, promptly
execute, acknowledge and deliver such further documents and do such other acts
and things as Administrative Agent, Syndication Agent or Collateral Agent may
reasonably request in order to effect fully the purposes of the Credit
Documents. In furtherance and not in limitation of the foregoing, each Credit
Party shall take such actions as Administrative Agent, Syndication Agent or
Collateral Agent may reasonably request from time to time (including, without
limitation, the execution and delivery of guaranties, security agreements,
pledge agreements, mortgages, deeds of trust, landlord's consents and estoppels,
control agreements, stock powers, financing statements and other documents, the
filing or recording of any of the foregoing, title insurance with respect to
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any of the foregoing that relates to any Real Estate Asset, and the delivery of
stock certificates and other collateral with respect to which perfection is
obtained by possession) to ensure that the Obligations are guarantied by the
Guarantors and are secured by substantially all of the assets of Company, and
its Restricted Subsidiaries and all of the outstanding Capital Stock of
Company's Subsidiaries (subject to limitations contained in the Credit Documents
with respect to Foreign Subsidiaries).
5.14 Maintenance of Certain Cash. Company and/or International Holdings
shall maintain Cash and/or Cash Equivalents in an aggregate amount equal to the
San Xxxx Incremental L/C Amount.
5.15 Notice of Default Under Lease. Upon receipt of any notice of default
under any lease for domestic Leasehold Property, Company shall immediately
notify Collateral Agent thereof.
SECTION 6 NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment is
in effect and until payment in full of all Obligations and cancellation or
expiration of all Letters of Credit, such Credit Party shall perform, and shall
cause each of its Subsidiaries to perform, all covenants in this Section 6.
6.1 Indebtedness. No Credit Party shall, directly or indirectly, create,
incur, assume or guaranty, or otherwise become or remain directly or indirectly
liable with respect to any Indebtedness, except:
------
(a) the Obligations, including any Indebtedness under any Hedge
Agreement with any Lender Counterparty;
(b) (x) Indebtedness (i) of OpCo or any Restricted Subsidiary to
Company or to OpCo or any other Restricted Subsidiary of Company that is a
Domestic Subsidiary, or (ii) for so long as no Event of Default has occurred and
is continuing under Section 8.1(a) of this Agreement, of Company to OpCo or any
Restricted Subsidiary (and if Purchase Money Loans are outstanding,
notwithstanding the occurrence and continuation of such Event of Default);
provided that, to the extent that any proceeds used to provide such Indebtedness
--------
to Company is subject to a Lien granted pursuant to the Collateral Documents,
such proceeds are applied to either ordinary course operating expenses of the
Company or to service Indebtedness of Company to the extent funds for such
purposes are not otherwise available to Company; provided, that all such
--------
Indebtedness shall be evidenced by promissory notes and all such notes shall be
subject to a First Priority Lien pursuant to the Pledge and Security Agreement,
all such Indebtedness shall be unsecured and subordinated in right of payment to
the payment in full of the Obligations pursuant to the terms of the applicable
promissory notes or an intercompany subordination agreement that in any such
case, is reasonably satisfactory to Administrative Agent and the Collateral
Agent, and any payment by any such Guarantor Subsidiary under any guaranty of
the Obligations shall result in a pro tanto reduction of the amount of any
Indebtedness owed by such Restricted Subsidiary to Company or to any of its
Restricted Subsidiaries for whose benefit such payment is made; provided further
-------- -------
that the foregoing
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restrictions shall not apply to the extent not permitted under the Senior Note
Indenture and (y) Indebtedness of any Subsidiary of Company which is not a
Guarantor Subsidiary to any other Subsidiary of Company that is not a Guarantor
Subsidiary;
(c) Permitted Unsecured Company Debt; provided, (i) immediately prior
--------
to, and after giving effect to the incurrence of such Permitted Unsecured
Company Debt, no Default or Event of Default shall have occurred and be
continuing or would result from such incurrence; (ii) Company and its
Subsidiaries shall be in compliance with, immediately prior to and after giving
pro forma effect to the incurrence of such Indebtedness as if such Indebtedness
had been incurred at the beginning of the measurement period for the most
recently completed Fiscal Quarter, Section 6.6, 6.7, and 6.8, as applicable;
(d) Indebtedness incurred by Company or any of its Restricted
Subsidiaries arising from agreements providing for indemnification, adjustment
of purchase price or similar obligations (other than for borrowed money), or
from guaranties or letters of credit, surety bonds or performance bonds securing
the performance of Company or any such Restricted Subsidiary pursuant to such
agreements, in connection with Permitted Acquisitions or permitted dispositions
of any business, assets or Restricted Subsidiary of Company;
(e) Indebtedness which may be deemed to exist pursuant to any
guaranties, performance, surety, statutory, appeal or similar obligations
incurred in the ordinary course of business of Company and its Restricted
Subsidiaries;
(f) Indebtedness in respect of netting services, overdraft protections
and otherwise in connection with Deposit Accounts;
(g) guaranties in the ordinary course of business of the obligations
of suppliers, customers, franchisees and licensees of Company and its Restricted
Subsidiaries;
(h) Indebtedness described in Schedule 6.1 and refinancings and
extensions of any such Indebtedness if the average life to maturity thereof is
greater than or equal to that of the Indebtedness being refinanced or extended;
provided, such Indebtedness refinanced or extended (A) does not include
--------
Indebtedness of an obligor that was not an obligor with respect to the
Indebtedness being extended or refinanced, (B) does not exceed in principal
amount the Indebtedness being extended or refinanced (except it may be increased
by an amount to cover the fees and expenses, including consent fees, placement
fees and prepayment premiums, relating to such refinancing) and (C) may not be
incurred, created or assumed if any Default or Event of Default has occurred and
is continuing or would result therefrom;
(i) Permitted Equipment Financings;
(j) the Senior Notes; and
(k) Indebtedness of Company with respect to (x) the retention of
liability with respect to the San Xxxx Ground Lease after the creation of the
San Xxxx Subsidiary until the occurrence of a San Xxxx Triggering Event and (y)
Basic Upkeep and guarantees of leases contributed to Foreign Subsidiaries
pursuant to Section 6.4(b), provided that Company shall use its continuing
--------
reasonable best efforts to obtain the release of any such guarantees.
89
6.2 Liens. No Credit Party shall, directly or indirectly, create, incur,
assume or permit to exist any Lien on or with respect to any property or asset
of any kind (including any document or instrument in respect of goods or
accounts receivable) of Company or any of its Restricted Subsidiaries, whether
now owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC of any State or under any similar recording or
notice statute, except:
------
(a) Liens in favor of Collateral Agent for the benefit of Secured
Parties granted pursuant to any Credit Document;
(b) Liens for Taxes not yet due or that are being contested in good
faith by appropriate proceedings; provided adequate reserves with respect
--------
thereto are maintained on the books of the Credit Party as may be required with
GAAP;
(c) statutory Liens of landlords, banks (and rights of setoff), of
carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other
Liens imposed by law (other than any such Lien imposed pursuant to Section 401
(a)(29) or 412(n) of the Internal Revenue Code or by ERISA), in each case
incurred in the ordinary course of business for amounts not yet overdue or for
amounts that are overdue and that (in the case of any such amounts overdue for a
period in excess of five days) are being contested in good faith by appropriate
proceedings, so long as such reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made for any such contested
amounts;
(d) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other types
of social security, deposits made in the ordinary course of business with
utility companies, and Liens incurred or deposits made in the ordinary course of
business to secure the performance of tenders, statutory or regulatory
obligations, surety and appeal bonds, bids, leases, government contracts, trade
contracts, performance and returnofmoney bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money or other
Indebtedness), so long as no foreclosure, sale or similar proceedings have been
commenced with respect to any portion of the Collateral on account thereof;
(e) easements, rightsofway, restrictions, encroachments, and other
minor defects or irregularities in title, in each case which do not and will not
interfere in any material respect with the ordinary conduct of the business of
Company or any of its Subsidiaries;
(f) any interest or title of a lessor or sublessor under any lease of
real estate permitted hereunder;
(g) Liens solely on any xxxx xxxxxxx money deposits made by Company or
any of its Restricted Subsidiaries in connection with any letter of intent or
purchase agreement permitted hereunder entered into by it;
(h) Purported Liens evidenced by the filing of precautionary UCC
financing statements relating solely to operating leases of personal property
entered into in the ordinary course of business;
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(i) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(j) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(k) licenses of patents, trademarks and other intellectual property
rights granted by Company or any of its Subsidiaries in the ordinary course of
business and not interfering in any respect with the ordinary conduct of the
business of Company or such Subsidiary;
(l) Liens described in Schedule 6.2 or on a title report delivered
pursuant to Section 3.1(f)(iv);
(m) Liens in favor of the trustee under the Senior Notes Indenture
and/or the trustee or other representative of holders of Permitted Unsecured
Company Debt with respect to Cash and/or Cash Equivalents funded solely from the
proceeds received by Company from the sale of the Senior Notes or Permitted
Unsecured Company Debt, as the case may be;
(n) Liens consisting of judgment or judicial attachment Liens with
respect to judgments that do not constitute an Event of Default;
(o) Liens securing Permitted Equipment Financings; provided, any such
--------
Lien shall encumber only the assets acquired with the proceeds of such Permitted
Equipment Financings.
(p) Liens incurred in connection with the purchase of shipping of
goods or assets on the related assets and proceeds thereof in favor of the
seller or shipper of such goods or assets;
(q) Liens on escrowed Cash representing a portion of the proceeds of
permitted sales of assets by the Company or a Restricted Subsidiary established
to satisfy contingent post-closing obligations that it owes (including earn-
outs, indemnities and working capital adjustments).
6.3 No Further Negative Pledges. Except with respect to (i) specific
property encumbered to secure payment of particular Indebtedness or to be sold
pursuant to an executed agreement with respect to a permitted Asset Sale, and
(ii) restrictions by reason of customary provisions restricting assignments,
subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business (provided that such
restrictions are limited to the property or assets secured by such Liens or the
property or assets subject to such leases, licenses or similar agreements, as
the case may be) and (iii) restrictions on transfer with respect to Capital
Stock of a second tier Unrestricted Subsidiary that a Credit Party owns, no
Credit Party shall enter into any agreement prohibiting the creation or
assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired.
6.4 Restricted Junior Payments; Restrictions on Investments in
Unrestricted Subsidiaries; Restricted Rental and Upkeep Payments. (a)No Credit
Party shall, directly or
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indirectly, declare, order, pay, make or set apart any sum for any Restricted
Junior Payment except that (i) Company may make payments in an aggregate maximum
amount of $1,000,000 to retire, or to obtain the surrender of, shares of its
common equity issued to its employees, directors or consultants or any
outstanding warrants, options or other rights to acquire shares of its common
equity issued to any such Persons and Company may acquire fractional shares of
its common equity at fair market value thereof for not in excess of $250,000 in
the aggregate, (ii) Company may make regularly scheduled payments of principal
and interest (but not voluntary prepayments other than a voluntary prepayment
made pursuant to a refinancing permitted under Section 6.1) in respect of the
Senior Notes, any Permitted Unsecured Company Debt and Permitted Equipment
Financings in accordance with the terms of, and only to the extent required by,
the indenture or other agreement pursuant to which such Indebtedness was issued
and (iii) so long as no Event of Default under Section 8.01(a) has occurred and
is continuing (and if Purchase Money Loans are outstanding, notwithstanding the
occurrence and continuation of such Event of Default), OpCo may make
distributions to Company; provided that, in no event shall OpCo distribute to
--------
Company any assets subject to a Lien established under the Collateral Documents.
(b) Neither the Company nor any Restricted Subsidiary shall, directly
or indirectly, make any guaranty on behalf of, declare, order, pay, make,
transfer or set apart any sum or assets of, for or constituting any contribution
of capital or assets to, or payment to or on behalf of (in each case, other
than, so long as no Event of Default has occurred and is continuing, cash
consisting of the net cash proceeds (or assets purchased with such net cash
proceeds) of issuances of Qualifying Equity), any Unrestricted Subsidiary;
except that so long as no Event of Default has occurred and is continuing (i)
------
Company or any Restricted Subsidiary may make payments of rent, property tax,
power and maintenance commitments provided for in the Closing Financial Plan and
similar expenses related to the basic upkeep (all such expenses listed in this
clause (i) collectively, "Basic Upkeep") of the rental property set forth on
Schedule 6.4(b)(i) for so long as, with respect to each lease, no expenditures
of any nature have been made for the use or development of the leased site (it
being understood that expenditures for Basic Upkeep shall not be deemed
expenditures for such use or development); (ii) Company may contribute the San
Xxxx Ground Lease to the San Xxxx Subsidiary and retain the liability and make
payments associated with the San Xxxx Ground Lease until the occurrence of a San
Xxxx Triggering Event, (iii) Company or any Restricted Subsidiary may make
investments in Unrestricted Subsidiaries in an aggregate amount equal to
$25,000,000 less the San Xxxx Incremental L/C Amount, (iv) Company and
Restricted Subsidiaries may contribute to Foreign Subsidiaries leases with
respect to foreign operations in existence on the Closing Date and (v) Company
or any Restricted Subsidiary may make Investments permitted pursuant to Section
6.5(g).
6.5 Investments. Except as provided in Section 6.4(b), neither the
Company nor any Restricted Subsidiary shall, directly or indirectly, make or own
any Investment in any Person, including without limitation any Joint Venture,
except:
------
(a) Cash Equivalents;
(b) equity Investments owned as of the Closing Date in any Subsidiary
and equity investments made in Restricted Subsidiaries after the Closing Date;
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(c) Investments (i) in accounts receivable arising and trade credit
granted in the ordinary course of business and in any Securities received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors and (ii) deposits, prepayments and other credits to suppliers made in
the ordinary course of business consistent with the past practices of Company
and its Restricted Subsidiaries;
(d) intercompany loans to the extent permitted under Section 6.1(b);
(e) Consolidated Capital Expenditures permitted by Section 6.8;
(f) Investments made in connection with Permitted Acquisitions
permitted pursuant to Section 6.9 and Investments in Unrestricted Subsidiaries
pursuant to Section 6.4(b);
(g) So long as no Event of Default has occurred and is continuing,
Investments by Company or a Restricted Subsidiary in other Persons in an
aggregate amount not to exceed at any time, after giving effect to any proposed
Investment, $10,000,000; provided however, that the net Cash proceeds from the
-------- -------
sale or other disposition permitted under Section 6.9 of any previously held
Investment may be used by Company to make Investments subject to the limits set
forth in this Section 6.5(g);
(h) Other Investments to the extent made with the proceeds of
issuances of Qualifying Equity; and
(i) loans made or commited before the Closing Date as set forth on
Schedule 6.5(i) and loans to employees of the Company in an aggregate amount not
to exceed $3,000,000 for the purchase of real estate; provided that each such
--------
loan shall be secured by a first mortgage on the real estate so purchased.
6.6 Stage 1 Financial Covenants. During Stage 1:
(a) Minimum Annualized Revenues. Company shall not permit Annualized
---------------------------
Consolidated Revenues for any Fiscal Quarter during Stage 1, beginning December
31, 2000, to be less than the correlative amount indicated as set forth on
Schedule 6.6(a).
(b) Maximum Cumulative Consolidated EBITDA Losses. Company shall not
---------------------------------------------
permit Consolidated EBITDA losses (measured on a cumulative basis from October
1, 2000) for any Fiscal Quarter during Stage 1, beginning with the Fiscal
Quarter ending December 31, 2000, to be greater than the correlative amount
indicated as set forth on Schedule 6.6(b).
(c) Consolidated Senior Secured Debt to Consolidated Total
-------------------------------------------------------
Capitalization. Company shall not permit the ratio of Consolidated Senior
--------------
Secured Debt to Consolidated Total Capitalization at any time during Stage 1 to
exceed 0.33:1.00.
(d) Consolidated Total Debt to Consolidated Total Capitalization.
------------------------------------------------------------
Company shall not permit the ratio of Consolidated Total Debt to Consolidated
Total Capitalization at any time during Stage 1 to exceed 0.66:1.00.
6.7 Stage 2 Financial Covenants. During Stage 2:
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(a) Senior Leverage Ratio. Company shall not permit the Senior
---------------------
Leverage Ratio as of the last day of any Fiscal quarter during Stage 2 to exceed
the correlative ratio indicated as set forth on Schedule 6.7(a).
(b) Total Leverage Ratio. Company shall not permit the Total Leverage
--------------------
Ratio as of the last day of any Fiscal Quarter during Stage 2 to exceed the
correlative ratio indicated as set forth on Schedule 6.7(b).
(c) Interest Coverage Ratio. Company shall not permit the Interest
-----------------------
Coverage Ratio as of the last day of any Fiscal Quarter during Stage 2 to be
less than the correlative ratio indicated as set forth on Schedule 6.7(c).
(d) Pro Forma Debt Service Coverage Ratio. Company shall not at any
-------------------------------------
time during the periods set forth on Schedule 6.7(d) permit the ratio of (i)
Annualized Consolidated EBITDA plus up to $15 million of available balance sheet
cash (excluding restricted cash) to (ii) required consolidated pro forma
amortization and principal payments and consolidated cash interest expense for
the next four consecutive quarters to be less than the correlative ratios set
forth on Schedule 6.7(d).
With respect to any Fiscal Quarter during which a Permitted Acquisition or an
Asset Sale has occurred (each, a "Subject Transaction"), for purposes of
determining compliance with the financial covenants set forth in Section 6.6 and
this Section 6.7, the covenants shall be calculated with respect to such period
on a pro forma and projected basis (without giving effect to adjustments to
increase Consolidated Adjusted EBITDA to account for expected improvements in
the operations of the Permitted Acquisition unless approved in writing by the
Joint Lead Arrangers and which pro forma adjustments shall be accompanied by a
Financial Officer Certification) using the historical audited financial
statements of any business so acquired or to be acquired or sold or to be sold
and the consolidated financial statements of the Company and its Restricted
Subsidiaries which shall be reformulated as if such Subject Transaction, and any
Indebtedness incurred or repaid in connection therewith, had been consummated or
incurred or repaid at the beginning of such Fiscal Quarter (and assuming that
such Indebtedness bears interest during any portion of the applicable
measurement period prior to the relevant acquisition at the weighted average of
the interest rates applicable to outstanding Loans incurred during such Fiscal
Quarter.
6.8 Maximum Cumulative Consolidated Capital Expenditures. During Stage 1
and Stage 2, Company shall not and shall not permit its Restricted Subsidiaries
to make or incur Consolidated Capital Expenditures, in any Fiscal Year indicated
on Schedule 6.8, in an aggregate amount for Company and its Restricted
Subsidiaries in excess of the corresponding amount set forth on Schedule 6.8;
provided that, a portion, not to exceed 50% of any amount permitted to be
--------
expended in a Fiscal Year but not expended during such Fiscal Year, may be
carried forward and expended during the immediately succeeding Fiscal Year.
6.9 Fundamental Changes; Disposition of Assets; Acquisitions. Neither the
Company nor any Restricted Subsidiary shall, enter into any transaction of
merger or consolidation, or liquidate, windup or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease or sublease (as lessor or
sublessor), transfer or otherwise dispose of, in one
94
transaction or a series of transactions, all or any part of its business, assets
or property of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible, whether now owned or hereafter acquired, or acquire by
purchase or otherwise (other than purchases or other acquisitions of inventory,
materials and equipment in the ordinary course of business) the business,
property or fixed assets of, or stock or other evidence of beneficial ownership
of, any Person or any division or line of business or other business unit of any
Person, except:
------
(a) any Restricted Subsidiary of Company may be merged with or into
any other Restricted Subsidiary, or be liquidated, wound up or dissolved, or all
or any part of its business, property or assets may be conveyed, sold, leased,
transferred or otherwise disposed of, in one transaction or a series of
transactions, to any Restricted Subsidiary; provided, in the case of such a
--------
merger, a Restricted Subsidiary shall be the continuing or surviving Person;
(b) sales or other dispositions of assets which do not constitute
Asset Sales;
(c) Asset Sales, the proceeds of which (valued at the principal amount
thereof in the case of nonCash proceeds consisting of notes or other debt
Securities and valued at fair market value in the case of other nonCash
proceeds) (i) are less than $250,000 with respect to any single Asset Sale or
series of related Asset Sales and (ii) when aggregated with the proceeds of all
other Asset Sales made within the same Fiscal Year, are less than $1,000,000;
provided (1) the consideration received for such assets shall be in an amount at
--------
least equal to the fair market value thereof (determined in good faith by the
board of directors of Company (or similar governing body)), (2) no less than
85% thereof shall be paid in Cash, and (3) the Net Asset Sale Proceeds thereof
shall be applied as required by Section 2.12(a);
(d) Permitted Acquisitions; provided the aggregate amount of cash
--------
consideration for such Permitted Acquisitions during the term of the Facilities
shall not exceed $25,000,000 (excluding any cash consideration to the extent
funded solely with the proceeds of Qualifying Equity).
(e) Investments made in accordance with Section 6.5.
6.10 Disposal of Subsidiary Interests. Except for any sale of 100% of the
Capital Stock of any of its Subsidiaries made in compliance with the provisions
of Section 6.9, no Credit Party shall directly or indirectly sell, assign,
pledge or otherwise encumber or dispose of any Capital Stock of any of its
Restricted Subsidiaries, except to qualify directors if required by applicable
law; or permit any of its Restricted Subsidiaries directly or indirectly to
sell, assign, pledge or otherwise encumber or dispose of any Capital Stock of
any of its Restricted Subsidiaries or first tier Unrestricted Subsidiaries,
except to Company or a whollyowned Guarantor Subsidiary of Company (subject to
the restrictions on such disposition otherwise imposed hereunder), or to qualify
directors if required by applicable law.
6.11 Sales and LeaseBacks. Except as set forth on Schedule 6.11, no Credit
Party shall, directly or indirectly, become or remain liable as lessee or as a
guarantor or other surety with respect to any lease of any property (whether
real, personal or mixed), whether now owned or hereafter acquired, which such
Credit Party has sold or transferred or is to sell or to transfer to any other
Person (other than Company or any of its Restricted Subsidiaries), or intends
to use
95
for substantially the same purpose as any other property which has been or is to
be sold or transferred by such Credit Party to any Person (other than Company or
any of its Restricted Subsidiaries) in connection with such lease.
6.12 Sale and Discount of Receivables. No Credit Party shall, nor shall it
permit any of its Subsidiaries to, directly or indirectly, sell with recourse,
or discount or otherwise sell for less than the face value thereof, any of its
notes or accounts receivable (it being understood that the restriction contained
in this Section 6.12 shall not apply to any write-off of bad debt in the
ordinary course of business consistent with prior practice).
6.13 Transactions with Shareholders and Affiliates. (a) No Credit Party
shall, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 10% or more of any class of Capital
Stock of Company or any of its Subsidiaries or with any Affiliate of Company or
of any such holder, on terms that are less favorable to Company or that
Subsidiary, as the case may be, than those that might be obtained at the time
from a Person who is not such a holder or Affiliate; provided, the foregoing
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restriction shall not apply to (a) any transaction between Company and any
Restricted Subsidiary or between any of the Guarantor Subsidiaries; (b)
reasonable and customary fees paid to members of the board of directors (or
similar governing body) of Company and its Subsidiaries; (c) compensation
arrangements entered into in the ordinary course of business for officers and
other employees of Company and its Subsidiaries; and (d) transactions described
in Schedule 6.13.
(b) Each Credit Party will (i) maintain entity records and books of
account separate from those of any other entity which is an Affiliate of such
Credit Party; (ii) not commingle its funds or assets with those of any other
entity which is an Affiliate of such Credit Party, and (iii) provide that its
board of directors or other analogous governing body will hold all appropriate
meetings to authorize and approve such Person's entity actions, which meetings
will be separate from those of other Credit Parties.
6.14 Conduct of Business. From and after the Closing Date, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, engage in any business
other than (i) the businesses engaged in by such Credit Party on the Closing
Date and Complementary Businesses and (ii) such other lines of business as may
be consented to by Requisite Lenders.
6.15 Permitted IBX Facilities. Except for the making of payments relating
to Basic Upkeep as provided under Section 6.4(b), Company shall not, nor shall
it permit any of its Restricted Subsidiaries to, build out, commence the
construction of, operate or acquire a IBX Facility (whether in connection with a
Permitted Acquisition pursuant to Section 6.9, a Capital Expenditure pursuant to
Section 6.8 or otherwise and whether independently or by joint venture) other
than Permitted IBX Facilities; except that Company or any Restricted Subsidiary
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may make payments of rent, property tax and similar expenses related to the
basic upkeep of the rental property (x) (i) with respect to domestic properties
leased by the Company or any of its Restricted Subsidiaries and set forth on
Schedule 6.15 or (ii) additional domestic leases approved by the Administrative
Agent not to exceed $6 million per year in the aggregate and (y) for so long as
it is owned by OpCo or other Restricted Subsidiary and no San Xxxx Triggering
Event occured, property governed by the San Xxxx Ground Lease (including
payments for expenses
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relating to the San Xxxx entitlement process specifically reflected in the
Closing Financial Plan); in the case of both clauses (x)(ii) and (y), for so
long as, with respect to each lease, no expenditures of any nature have been
made for the use or development of the leased site; provided that, upon the
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occurrence and continuation of an Event of Default (i) no payments may be made
under this Section 6.15(x)(ii) other than payments under leases or other
contracts entered into prior to the Closing Date and only during the 45-day
period following such Event of Default and (ii) no payments may be made under
this Section 6.15(y) after the 45-day period following such Event of Default.
6.16 Amendments or Waivers of Certain Documents.
No Credit Party shall, amend or otherwise change the terms of the
Senior Notes, any Permitted Unsecured Company Debt or any Permitted Equipment
Financing, or make any payment consistent with an amendment thereof or change
thereto, if the effect of such amendment or change is to increase the interest
rate on such Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions of such Indebtedness (or of any guaranty
thereof), or if the effect of such amendment or change, together with all other
amendments or changes made, is to increase materially the obligations of the
obligor thereunder or to confer any additional rights on the holders of such
Indebtedness (or a trustee or other representative on their behalf) which would
be adverse to any Credit Party or Lenders.
6.17 Fiscal Year. No Credit Party shall change its Fiscal Yearend from
December 31.
6.18 Unrestricted Subsidiaries.
(a) Company may designate (and shall give prompt notice of such
designation to Agents and Lender) (y) a Foreign Subsidiary, wholly-owned
directly or indirectly by International Holdings and (z) provided that the San
Xxxx Subsidiary has assumed the assets and liabilities under the San Xxxx Ground
Lease (it being understood that Company may retain the obligations with respect
to the San Xxxx Ground Lease as contemplated in the definition of San Xxxx
Subsidiary), San Xxxx Subsidiary, as an Unrestricted Subsidiary under this
Agreement (a "Designation") only if:
(i) no Event of Default shall have occurred and be continuing
or would result therefrom at the time of or after giving effect to such
Designation;
(ii) after giving effect to such Designation, Company and its
Restricted Subsidiaries would be in compliance with each of the covenants
set forth in Sections 6.6, 6.7 and 6.8, as applicable, calculated on a pro
forma basis as if such Designation had occurred immediately prior to the
first day of the period of four consecutive fiscal quarters most recently
ended;
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(iii) other than San Xxxx Subsidiary, such Unrestricted
Subsidiary and its Subsidiaries shall not have any assets or operations
located in the United States of America or Canada;
(iv) Company has delivered to the Administrative Agent (x)
written notice of such Designation and (y) a certificate, dated the
effective date of such Designation, of an Authorized Officer of Company
stating that no Event of Default has occurred and is continuing or would
result from such Designation and setting forth reasonably detailed
calculations, together with all relevant financial information with respect
thereto, demonstrating pro forma compliance with each of Sections 6.6, 6.7
and 6.8, as applicable, in accordance with clause (ii) above, and
(v) such Subsidiary shall be designated and qualify as an
"Unrestricted Subsidiary" for purposes of the Senior Note Indenture.
(b) Except as contemplated by the definition of San Xxxx Subsidiary,
neither Company nor any Restricted Subsidiary shall at any time (x) provide any
guaranty of any Indebtedness of any Unrestricted Subsidiary (y) be directly or
indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z) be
directly or indirectly liable for any other Indebtedness which provides that the
holder thereof may (upon notice, lapse of time or both) declare a default
thereon (or cause such Indebtedness or the payment thereof to be accelerated,
payable or subject to repurchase prior to its final scheduled maturity) upon the
occurrence of a default with respect to any other Indebtedness that is
Indebtedness of an Unrestricted Subsidiary; provided that Company may remain
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liable with respect to lease obligations relating to leases contributed to
Foreign Subsidiaries pursuant to 6.4(b)(iv).
(c) Company shall not create or suffer to exist any Foreign Subsidiary
that is not an Unrestricted Subsidiary.
6.19 Acquisition and Ownership of Assets by Company. Except to the extent
contemplated under Section 6.4(a), Company shall not acquire or own any
operating assets other than (i) replacement assets, (ii) assets owned on the
Funding Date following the transfer of assets set forth on Schedule 3.2(a)(x),
(iii) assets acquired with the proceeds of Permitted Equipment Financing or a
Purchase Money Loan and (iv) assets from a Restricted Subsidiary so long as such
asset is not subject to a Lien under the Collateral Documents.
6.20 Company Subsidiaries. The Company shall not after the Closing Date
(i) create any new direct Restricted Subsidiary other than International
Holdings or (ii) acquire any equity interest in any other entity unless all such
equity interests are subject to a First Priority Lien in favor of the Collateral
Agent for the benefit of Lenders.
6.21 San Xxxx Subsidiary. Neither the Company nor OpCo shall permit San
Xxxx Subsidiary to dispose of any assets of San Xxxx Subsidiary, other than in
arms-length transactions. Until the occurrence of a San Xxxx Triggering Event,
neither the Company nor OpCo shall, nor shall they permit San Xxxx Subsidiary
to, effectuate a Disposition (other than a Qualifying San Xxxx Disposition) of
any portion of the San Xxxx Property or rights under the San Xxxx Ground Lease.
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SECTION 7 GUARANTY
7.1 Guaranty of the Obligations. Subject to the provisions of Section
7.2, Guarantors jointly and severally hereby irrevocably and unconditionally
guaranty to Administrative Agent for the ratable benefit of the Beneficiaries
the due and punctual payment in full of all Obligations when the same shall
become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. (S) 362(a)) (collectively, the "Guaranteed Obligations");
provided that Company's obligations with respect to Purchase Money Loans shall
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be included in the defined term Guaranteed Obligations only to the extent not
violative of the Senior Notes.
7.2 Contribution by Guarantors. Each Guarantor desires to allocate among
themselves (collectively, the "Contributing Guarantors"), in a fair and
equitable manner, their obligations arising under this Guaranty. Accordingly,
in the event any payment or distribution is made on any date by a Guarantor (a
"Funding Guarantor") under this Guaranty that exceeds its Fair Share as of such
date, such Funding Guarantor shall be entitled to a contribution from each of
the other Contributing Guarantors in the amount of such other Contributing
Guarantor's Fair Share Shortfall as of such date, with the result that all such
contributions will cause each Contributing Guarantor's Aggregate Payments to
equal its Fair Share as of such date. "Fair Share" means, with respect to a
Contributing Guarantor as of any date of determination, an amount equal to the
ratio of the Fair Share Contribution Amount with respect to such Contributing
Guarantor to the aggregate of the Fair Share Contribution Amounts with respect
to all Contributing Guarantors multiplied by the aggregate amount paid or
distributed on or before such date by all Funding Guarantors under this Guaranty
in respect of the obligations Guaranteed. "Fair Share Shortfall" means, with
respect to a Contributing Guarantor as of any date of determination, the excess,
if any, of the Fair Share of such Contributing Guarantor over the Aggregate
Payments of such Contributing Guarantor. "Fair Share Contribution Amount"
means, with respect to a Contributing Guarantor as of any date of determination,
the maximum aggregate amount of the obligations of such Contributing Guarantor
under this Guaranty that would not render its obligations hereunder or
thereunder subject to avoidance as a fraudulent transfer or conveyance under
Section 548 of Title 11 of the United States Code or any comparable applicable
provisions of state law; provided, solely for purposes of calculating the "Fair
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Share Contribution Amount" with respect to any Contributing Guarantor for
purposes of this Section 7.2, any assets or liabilities of such Contributing
Guarantor arising by virtue of any rights to subrogation, reimbursement or
indemnification or any rights to or obligations of contribution hereunder shall
not be considered as assets or liabilities of such Contributing Guarantor.
"Aggregate Payments" means, with respect to a Contributing Guarantor as of any
date of determination, an amount equal to the aggregate amount of all payments
and distributions made on or before such date by such Contributing Guarantor in
respect of this Guaranty (including, without limitation, in respect of this
Section 7.2), minus the aggregate amount of all payments received on or before
such date by such Contributing Guarantor from the other Contributing Guarantors
as contributions under this Section 7.2. The amounts payable as contributions
hereunder shall be determined as of the date on which the related payment or
distribution is made by the applicable Funding Guarantor. The allocation among
Contributing Guarantors of their obligations as set forth in this Section 7.2
shall not be construed in any way
99
to limit the liability of any Contributing Guarantor hereunder. Each Guarantor
is a third party beneficiary to the contribution agreement set forth in this
Section 7.2.
7.3 Payment by Guarantors. Subject to Section 7.2, Guarantors hereby
jointly and severally agree, in furtherance of the foregoing and not in
limitation of any other right which any Beneficiary may have at law or in equity
against any Guarantor by virtue hereof, that upon the failure of the applicable
Borrower to pay any of the Guaranteed Obligations when and as the same shall
become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. (S) 362(a)), Guarantors will upon demand pay, or cause to be
paid, in Cash, to Administrative Agent for the ratable benefit of Beneficiaries,
an amount equal to the sum of the unpaid principal amount of all Guaranteed
Obligations then due as aforesaid, accrued and unpaid interest on such
Guaranteed Obligations (including interest which, but for the applicable
Borrower's becoming the subject of a case under the Bankruptcy code, would have
accrued on such Guaranteed Obligations, whether or not a claim is allowed
against the applicable Borrower for such interest in the related bankruptcy
case) and all other Guaranteed Obligations then owed to Beneficiaries as
aforesaid.
7.4 Liability of Guarantors Absolute. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guaranteed Obligations in Cash. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of
collectability. This Guaranty is a primary obligation of each Guarantor and not
merely a contract of surety;
(b) Administrative Agent may enforce this Guaranty upon the occurrence
of an Event of Default notwithstanding the existence of any dispute between the
applicable Borrower and any Beneficiary with respect to the existence of such
Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the
obligations of the applicable Borrower and the obligations of any other
guarantor (including any other Guarantor) of the obligations of the applicable
Borrower, and a separate action or actions may be brought and prosecuted against
such Guarantor whether or not any action is brought against the applicable
Borrower or any of such other guarantors and whether or not the applicable
Borrower is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or abridge any
Guarantor's liability for any portion of the Guaranteed Obligations which has
not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any
Guarantor's covenant to pay a portion of the Guaranteed Obligations, such
judgment shall not be deemed to release such Guarantor from its covenant to pay
the portion of the Guaranteed Obligations that is not the subject of such suit,
and such judgment shall not, except to the extent
100
satisfied by such Guarantor in Cash, limit, affect, modify or abridge any other
Guarantor's liability hereunder in respect of the Guaranteed Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability hereof or
giving rise to any reduction, limitation, impairment, discharge or termination
of any Guarantor's liability hereunder, from time to time may (i) renew, extend,
accelerate, increase the rate of interest on, or otherwise change the time,
place, manner or terms of payment of the Guaranteed Obligations; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Guaranteed Obligations or any
agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other guaranties of
the Guaranteed Obligations and take and hold security for the payment hereof or
the Guaranteed Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or
without consideration, any security for payment of the Guaranteed Obligations,
any other guaranties of the Guaranteed Obligations, or any other obligation of
any Person (including any other Guarantor) with respect to the Guaranteed
Obligations; (v) enforce and apply any security now or hereafter held by or for
the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations
and direct the order or manner of sale thereof, or exercise any other right or
remedy that such Beneficiary may have against any such security, in each case as
such Beneficiary in its discretion may determine consistent herewith or the
applicable Hedge Agreement and any applicable security agreement, including
foreclosure on any such security pursuant to one or more judicial or nonjudicial
sales, whether or not every aspect of any such sale is commercially reasonable,
and even though such action operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of any Guarantor against
the applicable Borrower or any security for the Guaranteed Obligations; and (vi)
exercise any other rights available to it under the Credit Documents or the
Hedge Agreements; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be
valid and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than the indefeasible
payment in full of the Guaranteed Obligations in Cash), including the occurrence
of any of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or enjoining, by
order of court, by operation of law or otherwise, of the exercise or enforcement
of, any claim or demand or any right, power or remedy (whether arising under the
Credit Documents or the Hedge Agreements, at law, in equity or otherwise) with
respect to the Guaranteed Obligations or any agreement relating thereto, or with
respect to any other guaranty of or security for the payment of the Guaranteed
Obligations; (ii) any rescission, waiver, amendment or modification of, or any
consent to departure from, any of the terms or provisions (including provisions
relating to events of default) hereof, any of the other Credit Documents, any of
the Hedge Agreements or any agreement or instrument executed pursuant thereto,
or of any other guaranty or security for the Guaranteed Obligations, in each
case whether or not in accordance with the terms hereof or such Credit Document,
such Hedge Agreement or any agreement relating to such other guaranty or
security; (iii) the Guaranteed Obligations, or any agreement relating thereto,
at any time being found to be illegal, invalid or unenforceable in any respect;
(iv) the application of payments received from any source (other than payments
received pursuant to the other Credit Documents
101
or any of the Hedge Agreements or from the proceeds of any security for the
Guaranteed Obligations, except to the extent such security also serves as
collateral for indebtedness other than the Guaranteed Obligations) to the
payment of indebtedness other than the Guaranteed Obligations, even though any
Beneficiary might have elected to apply such payment to any part or all of the
Guaranteed Obligations; (v) any Beneficiary's consent to the change,
reorganization or termination of the corporate structure or existence of Company
or any of its Subsidiaries and to any corresponding restructuring of the
Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, setoffs or counterclaims which the applicable
Borrower may allege or assert against any Beneficiary in respect of the
Guaranteed Obligations, including failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, accord and satisfaction and
usury; and (viii) any other act or thing or omission, or delay to do any other
act or thing, which may or might in any manner or to any extent vary the risk of
any Guarantor as an obligor in respect of the Guaranteed Obligations.
7.5 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit
of Beneficiaries: any right to require any Beneficiary, as a condition of
payment or performance by such Guarantor, to proceed against the applicable
Borrower, any other guarantor (including any other Guarantor) of the Guaranteed
Obligations or any other Person, proceed against or exhaust any security held
from the applicable Borrower, any such other guarantor or any other Person,
proceed against or have resort to any balance of any Deposit Account or credit
on the books of any Beneficiary in favor of the applicable Borrower or any other
Person, or (iv) pursue any other remedy in the power of any Beneficiary
whatsoever; any defense arising by reason of the incapacity, lack of authority
or any disability or other defense of the applicable Borrower or any other
Guarantor including any defense based on or arising out of the lack of validity
or the unenforceability of the Guaranteed Obligations or any agreement or
instrument relating thereto or by reason of the cessation of the liability of
the applicable Borrower or any other Guarantor from any cause other than payment
in full of the Guaranteed Obligations in Cash; any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; any defense based upon any Beneficiary's errors or omissions in the
administration of the Guaranteed Obligations, except behavior which amounts to
bad faith; any principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms hereof and any legal or equitable
discharge of such Guarantor's obligations hereunder, the benefit of any statute
of limitations affecting such Guarantor's liability hereunder or the enforcement
hereof, any rights to setoffs, recoupments and counterclaims, and promptness,
diligence and any requirement that any Beneficiary protect, secure, perfect or
insure any security interest or lien or any property subject thereto; notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance hereof, notices of
default hereunder, under the Hedge Agreements or under any agreement or
instrument related thereto, notices of any renewal, extension or modification of
the Guaranteed Obligations or any agreement related thereto, notices of any
extension of credit to the applicable Borrower and notices of any of the matters
referred to in Section 7.4 and any right to consent to any thereof; and any
defenses or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the
terms hereof.
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7.6 Guarantors' Rights of Subrogation, Contribution, etc. Until the
Guaranteed Obligations shall have been indefeasibly paid in full and all
Commitments shall have terminated and all Letters of Credit shall have expired
or been cancelled, each Guarantor hereby waives any claim, right or remedy,
direct or indirect, that such Guarantor now has or may hereafter have against
the applicable Borrower or any other Guarantor or any of its assets in
connection with this Guaranty or the performance by such Guarantor of its
obligations hereunder, in each case whether such claim, right or remedy arises
in equity, under contract, by statute, under common law or otherwise and
including without limitation any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against the
applicable Borrower with respect to the Guaranteed Obligations, any right to
enforce, or to participate in, any claim, right or remedy that any Beneficiary
now has or may hereafter have against the applicable Borrower, and any benefit
of, and any right to participate in, any collateral or security now or hereafter
held by any Beneficiary. In addition, until the Guaranteed Obligations shall
have been indefeasibly paid in full in Cash and the Commitments shall have
terminated and all Letters of Credit shall have expired or been cancelled, each
Guarantor shall withhold exercise of any right of contribution such Guarantor
may have against any other guarantor (including any other Guarantor) of the
Guaranteed Obligations, including, without limitation, any such right of
contribution as contemplated by Section 7.2. Each Guarantor further agrees
that, to the extent the waiver or agreement to withhold the exercise of its
rights of subrogation, reimbursement, indemnification and contribution as set
forth herein is found by a court of competent jurisdiction to be void or
voidable for any reason, any rights of subrogation, reimbursement or
indemnification such Guarantor may have against the applicable Borrower or
against any collateral or security, and any rights of contribution such
Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights any Beneficiary may have against the applicable
Borrower, to all right, title and interest any Beneficiary may have in any such
collateral or security, and to any right any Beneficiary may have against such
other guarantor. If any amount shall be paid to any Guarantor on account of any
such subrogation, reimbursement, indemnification or contribution rights at any
time when all Guaranteed Obligations shall not have been finally and
indefeasibly paid in full in Cash, such amount shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over
to Administrative Agent for the benefit of Beneficiaries to be credited and
applied against the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms hereof.
7.7 Subordination of Other Obligations. Any Indebtedness of any Borrower
or any Guarantor now or hereafter held by any Guarantor (the "Obligee
Guarantor") is hereby subordinated in right of payment to the Guaranteed
Obligations, and any such indebtedness collected or received by the Obligee
Guarantor after an Event of Default has occurred and is continuing shall be held
in trust for Administrative Agent on behalf of Beneficiaries and shall forthwith
be paid over to Administrative Agent for the benefit of Beneficiaries to be
credited and applied against the Guaranteed Obligations but without affecting,
impairing or limiting in any manner the liability of the Obligee Guarantor under
any other provision hereof.
7.8 Continuing Guaranty. This Guaranty is a continuing guaranty and shall
remain in effect until all of the Guaranteed Obligations shall have been finally
and indefeasibly paid in full in Cash and the Revolving Loan Commitments shall
have terminated and all Letters of Credit shall have expired or been cancelled.
Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to
future transactions giving rise to any Guaranteed Obligations.
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7.9 Authority of Guarantors or Borrower. It is not necessary for any
Beneficiary to inquire into the capacity or powers of any Guarantor or the
applicable Borrower or the officers, directors or any agents acting or
purporting to act on behalf of any of them.
7.10 Financial Condition of Borrower. Any Credit Extension may be made to
a Borrower or continued from time to time, and any Hedge Agreements may be
entered into from time to time, in each case without notice to or authorization
from any Guarantor regardless of the financial or other condition of Company at
the time of any such grant or continuation or at the time such Hedge Agreement
is entered into, as the case may be. No Beneficiary shall have any obligation
to disclose or discuss with any Guarantor its assessment, or any Guarantor's
assessment, of the financial condition of the applicable Borrower. Each
Guarantor has adequate means to obtain information from the applicable Borrower
on a continuing basis concerning the financial condition of the applicable
Borrower and its ability to perform its obligations under the Credit Documents
and the Hedge Agreements, and each Guarantor assumes the responsibility for
being and keeping informed of the financial condition of the applicable Borrower
and of all circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations. Each Guarantor hereby waives and relinquishes any duty on the part
of any Beneficiary to disclose any matter, fact or thing relating to the
business, operations or conditions of the applicable Borrower now known or
hereafter known by any Beneficiary.
7.11 Bankruptcy, etc. So long as any Guaranteed Obligations remain
outstanding, no Guarantor shall, without the prior written consent of
Administrative Agent acting pursuant to the instructions of Requisite Lenders,
commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency case or proceeding of or against the applicable
Borrower or any other Guarantor. The obligations of Guarantors hereunder shall
not be reduced, limited, impaired, discharged, deferred, suspended or terminated
by any case or proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of the
applicable Borrower or any other Guarantor or by any defense which the
applicable Borrower or any other Guarantor may have by reason of the order,
decree or decision of any court or administrative body resulting from any such
proceeding.
(a) Each Guarantor acknowledges and agrees that any interest on any
portion of the Guaranteed Obligations which accrues after the commencement of
any case or proceeding referred to in clause (a) above (or, if interest on any
portion of the Guaranteed Obligations ceases to accrue by operation of law by
reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or
proceeding had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantors and Beneficiaries that the
Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto should
be determined without regard to any rule of law or order which may relieve the
applicable Borrower of any portion of such Guaranteed Obligations. Guarantors
will permit any trustee in bankruptcy, receiver, debtor in possession, assignee
for the benefit of creditors or similar person to pay Administrative Agent, or
allow the claim of Administrative Agent in respect of, any such interest
accruing after the date on which such case or proceeding is commenced.
(b) In the event that all or any portion of the Guaranteed Obligations
are paid by the applicable Borrower, the obligations of Guarantors hereunder
shall continue and remain in
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full force and effect or be reinstated, as the case may be, in the event that
all or any part of such payment(s) are rescinded or recovered directly or
indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise (whether by demand, settlement, litigation or otherwise), and any such
payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.
7.12 Notice of Events. As soon as any Guarantor obtains knowledge thereof,
such Guarantor shall give Administrative Agent written notice of any condition
or event which has resulted in a material adverse change in the financial
conditions of any Guarantor or the applicable Borrower or a breach of or
noncompliance with any term, condition or covenant contained herein, any other
Credit Document, any Hedge Agreement or any other document delivered pursuant
hereto or thereto.
7.13 Discharge of Guaranty Upon Sale of Guarantor. If all of the Capital
Stock of any Guarantor or any of its successors in interest hereunder shall be
sold or otherwise disposed of (including by merger or consolidation) in
accordance with the terms and conditions hereof, the Guaranty of such Guarantor
or such successor in interest, as the case may be, hereunder shall automatically
be discharged and released without any further action by any Beneficiary or any
other Person effective as of the time of such Asset Sale; provided, as a
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condition precedent to such discharge and release, Administrative Agent shall
have received evidence satisfactory to it that arrangements satisfactory to it
have been made for delivery to Administrative Agent of the applicable Net Asset
Sale Proceeds of such disposition pursuant to Section 2.12(a).
SECTION 8 EVENTS OF DEFAULT
8.1 Events of Default. If any one or more of the following conditions or
events (each, an Event of Default) shall occur:
(a) Failure to Make Payments When Due. Failure by a Borrower to pay
---------------------------------
(i) when due any installment of principal of any Loan, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by mandatory
prepayment or otherwise; (ii) when due any amount payable to Issuing Bank in
reimbursement of any drawing under a Letter of Credit; or (iii) any interest on
any Loan or any fee or any other amount due hereunder or under any of the other
Credit Documents within five (5) days after the date due; or
(b) Default in Other Agreements. Failure of any Credit Party to pay
---------------------------
when due any principal of or interest on or any other amount payable in respect
of one or more items of Indebtedness (other than Indebtedness referred to in
Section 8.1(a)) in an individual principal amount of $250,000 or more or with an
aggregate principal amount of $1,000,000 or more, in each case beyond the grace
period, if any, provided therefor; or (ii) breach or default by any Credit Party
with respect to any other material term of one or more items of Indebtedness in
the individual or aggregate principal amounts referred to in clause (i) above or
any loan agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness, in each case beyond the grace period, if any, provided
therefor, if the effect of such breach or default is to cause, or to permit the
holder or holders of that Indebtedness (or a trustee on behalf of such holder or
holders), to cause, that Indebtedness to become or be declared due and payable
(or
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redeemable) prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; or
(c) Breach of Certain Covenants. Failure of any Credit Party to
---------------------------
perform or comply with any term or condition contained in Section 2.4, Section
5.1(h), Section 5.2 or Section 6; failure to comply with any material term or
condition governing insurance of Company required pursuant to Section 5.5 for a
period of 15 days from the time of receipt of notice under the applicable
insurance agreement;
(d) Breach of Representations, etc. Any representation, warranty,
-------------------------------
certification or other statement made or deemed made by any Credit Party in any
Credit Document or in any statement or certificate at any time given by any
Credit Party or any of its Subsidiaries in writing pursuant hereto or thereto or
in connection herewith or therewith shall be false in any material respect as of
the date made or deemed made; or
(e) Other Defaults Under Credit Documents. Any Credit Party shall
-------------------------------------
default in the performance of or compliance with any term contained herein or
any of the other Credit Documents, other than any such term referred to in any
other Section of this Section 8.1, and such default shall not have been remedied
or waived within thirty (30) days after the earlier of (i) an officer of such
Credit Party becoming aware of such default or (ii) receipt by the applicable
Borrower of notice from Administrative Agent or any Lender of such default; or
(f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court
-----------------------------------------------------
of competent jurisdiction shall enter a decree or order for relief in respect of
Company or any of its Restricted Subsidiaries in an involuntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, which decree or order is not stayed; or any
other similar relief shall be granted under any applicable federal or state law;
or (ii) an involuntary case shall be commenced against Company or any of its
Restricted Subsidiaries under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or
order of a court having jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or other officer having
similar powers over Company or any of its Restricted Subsidiaries, or over all
or a substantial part of its property, shall have been entered; or there shall
have occurred the involuntary appointment of an interim receiver, trustee or
other custodian of Company or any of its Restricted Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Company or any of its Restricted Subsidiaries, and any such event
described in this clause (ii) shall continue for sixty (60) days without having
been dismissed, bonded or discharged; or
(g) Voluntary Bankruptcy; Appointment of Receiver, etc.. (i) Company
---------------------------------------------------
or any of its Restricted Subsidiaries shall have an order for relief entered
with respect to it or shall commence a voluntary case under the Bankruptcy Code
or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Company
106
or any of its Restricted Subsidiaries shall make any assignment for the benefit
of creditors; or (ii) Company or any of its Restricted Subsidiaries shall be
unable, or shall fail generally, or shall admit in writing its inability, to pay
its debts as such debts become due; or the board of directors (or similar
governing body) of Company or any of its Restricted Subsidiaries (or any
committee thereof) shall adopt any resolution or otherwise authorize any action
to approve any of the actions referred to herein or in Section 8.1(f); or
(h) Judgments and Attachments. Any money judgment, writ or warrant of
-------------------------
attachment or similar process involving (i) in any individual case an amount in
excess of $250,000 or (ii) in the aggregate at any time an amount in excess of
$1,000,000 (in either case to the extent not adequately covered by insurance as
to which a solvent and unaffiliated insurance Company has acknowledged coverage)
shall be entered or filed against Company or any of its Restricted Subsidiaries
or any of their respective assets and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty (60) days (or in any event later than
five days prior to the date of any proposed sale thereunder); or
(i) Dissolution. Any order, judgment or decree shall be entered
-----------
against any Credit Party decreeing the dissolution or split up of such Credit
Party and such order shall remain undischarged or unstayed for a period in
excess of thirty (30) days; or
(j) Employee Benefit Plans. There shall occur one or more ERISA
----------------------
Events which individually or in the aggregate results in or might reasonably be
expected to result in liability of Company, any of its Restricted Subsidiaries
or any of their respective ERISA Affiliates in excess of $1,500,000 during the
term hereof; or there shall exist an amount of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for
all Pension Plans (excluding for purposes of such computation any Pension Plans
with respect to which assets exceed benefit liabilities), which exceeds
$500,000; or
(k) Change of Control. A Change of Control shall occur;
-----------------
(l) Guaranties, Collateral Documents and other Credit Documents. At
-----------------------------------------------------------
any time after the execution and delivery thereof, (i) the Guaranty for any
reason, other than the satisfaction in full of all Obligations in Cash, shall
cease to be in full force and effect (other than in accordance with its terms)
or shall be declared to be null and void or any Guarantor shall repudiate its
obligations thereunder, (ii) this Agreement or any Collateral Document ceases to
be in full force and effect (other than by reason of a release of Collateral in
accordance with the terms hereof or thereof or the satisfaction in full of the
Obligations in Cash in accordance with the terms hereof) or shall be declared
null and void, or Collateral Agent shall not have or shall cease to have a valid
and perfected Lien in any Collateral (other than by reason of a release of
Collateral in accordance with the terms hereof or thereof or willful misconduct
or the part of the Collateral Agent) purported to be covered by the Collateral
Documents with the priority required by the relevant Collateral Document, in
each case for any reason other than the failure of Collateral Agent or any
Secured Party to take any action within its control, or (iii) any Credit Party
shall contest the validity or enforceability of any Credit Document in writing
or deny in writing that it has any further liability, including with respect to
future advances by Lenders, under any Credit Document to which it is a party; or
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(m) The Company or any Restricted Subsidiary is in default on any
obligation to make base rental payments under at least one lease with respect to
either (i) each of any three Leasehold Properties which are Permitted IBX
Facilities or (ii) each of the two Leasehold Properties which are designated as
"San Xxxx IBX" and "Secaucus IBX", respectively, on Schedule 1.1(a).
THEN, (1) upon the occurrence of any Event of Default described in Section
8.1(f) or 8.1(g), automatically, and (2) upon the occurrence of any other Event
of Default, at the request of (or with the consent of) Requisite Lenders, upon
notice to Company by Administrative Agent, (A) the Revolving Loan Commitments
and Delayed Draw Term Loan Commitments, if any, of each Lender having such
Commitments and the obligation of Issuing Bank to issue any Letter of Credit
shall immediately terminate; each of the following shall immediately become due
and payable, in each case without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by each
Credit Party: the unpaid principal amount of and accrued interest on the Loans,
an amount equal to the maximum amount that may at any time be drawn under all
Letters of Credit then outstanding (regardless of whether any beneficiary under
any such Letter of Credit shall have presented, or shall be entitled at such
time to present, the drafts or other documents or certificates required to draw
under such Letters of Credit), and all other Obligations; provided, the
--------
foregoing shall not affect in any way the obligations of Lenders under Section
2.2(e); (C) the Administrative Agent may cause the Collateral Agent to enforce
any and all Liens and security interests created pursuant to Collateral
Documents; and (D) Administrative Agent shall direct Company to pay (and Company
hereby agrees upon receipt of such notice, or upon the occurrence of any Event
of Default specified in Section 8.1(f) and (g) to pay) to Administrative Agent
such additional amounts of cash, to be held as security for Company's
reimbursement Obligations in respect of Letters of Credit then outstanding,
equal to the Letter of Credit Usage at such time.
SECTION 9 AGENTS
9.1 Appointment of Agents. GSCP is hereby appointed a Joint Lead
Arranger, a Joint Book Runner and Syndication Agent hereunder, and each Lender
hereby authorizes Joint Lead Arranger, Joint Book Runner and Syndication Agent
to act as its agents in accordance with the terms hereof and the other Credit
Documents. Xxxxxxx Xxxxx Barney Inc. is hereby appointed a Joint Lead Arranger
and a Joint Book Runner. Citicorp USA, Inc. is hereby appointed Administrative
Agent (for purposes of this Section 9, the terms "Administrative Agent" and
"Agent" shall also include CIT Lending Services Corporation in its capacity as
Collateral Agent pursuant to the Collateral Documents) hereunder and under the
other Credit Documents and each Lender hereby authorizes Administrative Agent to
act as its agent in accordance with the terms hereof and the other Credit
Documents. Each Agent hereby agrees to act upon the express conditions
contained herein and the other Credit Documents, as applicable. The provisions
of this Section 9 are solely for the benefit of Agents and Lenders and no Credit
Party shall have any rights as a third party beneficiary of any of the
provisions thereof. In performing its functions and duties hereunder, each
Agent shall act solely as an agent of Lenders and does not assume and shall not
be deemed to have assumed any obligation towards or relationship of agency or
trust with or for Company or any of its Subsidiaries. Each of Joint Lead
Arrangers, Joint Book Runners, Syndication Agent and Documentation Agent,
without consent of or notice to any party hereto, may assign any and all of its
rights or obligations
108
hereunder to any of its Affiliates. As of the Closing Date, all the respective
obligations of GSCP and Xxxxxxx Xxxxx Xxxxxx Inc., in their respective
capacities as Joint Lead Arranger and Joint Book Runner and GSCP in its capacity
as Syndication Agent CIT Lending Services Corporation, shall terminate. CIT
Lending Services Corporation is hereby appointed as the Collateral Agent under
the Pledge and Security Agreement and the other Collateral Documents and each
Agent and each Lender hereby authorizes CIT Lending Services Corporation to act
as Collateral Agent for its benefit and for the benefit of the other Secured
Parties hereunder and under the other Credit Documents and each Agent and each
Lender hereby authorizes Collateral Agent to act as its agent in accordance with
the terms hereof and the other Credit Documents. Each Lender further authorizes
the Administrative Agent to be the agent in connection with the Guaranty.
9.2 Powers and Duties. Each Lender irrevocably authorizes each Agent to
take such action on such Lender's behalf and to exercise such powers, rights and
remedies hereunder and under the other Credit Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental thereto.
Each Agent shall have only those duties and responsibilities that are expressly
specified herein and the other Credit Documents. Each Agent may exercise such
powers, rights and remedies and perform such duties by or through its agents or
employees. No Agent shall have, by reason hereof or any of the other Credit
Documents, a fiduciary relationship in respect of any Lender; and nothing herein
or any of the other Credit Documents, expressed or implied, is intended to or
shall be so construed as to impose upon any Agent any obligations in respect
hereof or any of the other Credit Documents except as expressly set forth herein
or therein.
9.3 General Immunity.
(a) No Responsibility for Certain Matters. No Agent shall be
-------------------------------------
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency hereof or any other
Credit Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by any of Agent to Lenders or by or on behalf of any
Credit Party to any Agent or any Lender in connection with the Credit Documents
and the transactions contemplated thereby or for the financial condition or
business affairs of any Credit Party or any other Person liable for the payment
of any Obligations, nor shall any Agent be required to ascertain or inquire as
to the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained in any of the Credit Documents or as to the
use of the proceeds of the Loans or as to the existence or possible existence of
any Event of Default or Default. Anything contained herein to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from
confirmations of the amount of outstanding Loans or the Letter of Credit Usage
or the component amounts thereof.
(b) Exculpatory Provisions. No Agent nor any of its officers,
----------------------
partners, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by any Agent under or in connection with any of the
Credit Documents except to the extent caused by such Agent's gross negligence or
willful misconduct. Each Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection
herewith or any of the other Credit Documents or from the exercise of any power,
discretion or
109
authority vested in it hereunder or thereunder unless and until such Agent shall
have received instructions in respect thereof from Requisite Lenders (or such
other Lenders as may be required to give such instructions under Section 10.5)
and, upon receipt of such instructions from Requisite Lenders (or such other
Lenders, as the case may be), such Agent shall be entitled to act or (where so
instructed) refrain from acting, or to exercise such power, discretion or
authority, in accordance with such instructions. Without prejudice to the
generality of the foregoing, (i) each Agent shall be entitled to rely, and shall
be fully protected in relying, upon any communication, instrument or document
believed by it to be genuine and correct and to have been signed or sent by the
proper Person or Persons, and shall be entitled to rely and shall be protected
in relying on opinions and judgments of attorneys (who may be attorneys for
Company and its Subsidiaries), accountants, experts and other professional
advisors selected by it; and (ii) no Lender shall have any right of action
whatsoever against any Agent as a result of such Agent acting or (where so
instructed) refraining from acting hereunder or any of the other Credit
Documents in accordance with the instructions of Requisite Lenders (or such
other Lenders as may be required to give such instructions under Section 10.5).
9.4 Agents Entitled to Act as Lender. The agency hereby created shall in
no way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, each
Agent, in its individual capacity, shall have the same rights and powers
hereunder as any other Lender and may exercise the same as if it were not
performing the duties and functions delegated to it hereunder, and the term
"Lender" shall, unless the context clearly otherwise indicates, include each
Agent in its individual capacity. Any Agent, in its individual capacity, and
its Affiliates may accept deposits from, lend money to and generally engage in
any kind of banking, trust, financial advisory or other business with either
Borrower or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from either
Borrower for services in connection herewith and otherwise without having to
account for the same to Lenders.
9.5 Lenders' Representations, Warranties and Acknowledgment. Each Lender
represents and warrants that it has made its own independent investigation of
the financial condition and affairs of Company and its Subsidiaries in
connection with Credit Extensions hereunder and that it has made and shall
continue to make its own appraisal of the creditworthiness of Company and its
Subsidiaries. No Agent shall have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Lenders or to provide any Lender 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, and no Agent shall have
any responsibility with respect to the accuracy of or the completeness of any
information provided to Lenders.
9.6 Right to Indemnity. Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify each Agent, to the extent that such Agent shall
not have been reimbursed by any Credit Party, for and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including reasonable counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against such Agent in exercising its powers, rights and remedies
or performing its duties hereunder or under the other Credit Documents or
otherwise in its capacity as such Agent in any
110
way relating to or arising out hereof or the other Credit Documents; provided,
--------
no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or willful
misconduct. If any indemnity furnished to any Agent for any purpose shall, in
the opinion of such Agent, be insufficient or become impaired, such Agent may
call for additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished; provided, in
--------
no event shall this sentence require any Lender to indemnify any Agent against
any liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement in excess of such Lender's Pro Rata Share thereof; and
provided further, this sentence shall not be deemed to require any Lender to
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indemnify any Agent against any liability, obligation, loss, damage, penalty,
action, judgment, suit, cost, expense or disbursement described in the proviso
in the immediately preceding sentence.
9.7 Successor Administrative Agent and Collateral Agent.
(a) Successor Administrative Agent. Administrative Agent may resign
------------------------------
at any time by giving thirty (30) days' prior written notice thereof to Lenders
and the Borrowers, and Administrative Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in writing delivered to
the Borrowers and Administrative Agent and signed by Requisite Lenders. Upon
any such notice of resignation or any such removal, Requisite Lenders shall have
the right, with the Borrowers' consent (which shall not be unreasonably withheld
or delayed and wich shall not be required while and Event of Default exists), to
appoint a successor Administrative Agent. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, that successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring or
removed Administrative Agent and the retiring or removed Administrative Agent
shall promptly (i) transfer to such successor Administrative Agent all records
and other documents necessary or appropriate in connection with the performance
of the duties of the successor Administrative Agent under the Credit Documents,
and (ii) take such other actions, as may be necessary or appropriate in
connection with the assignment to such successor Administrative Agent, whereupon
such retiring or removed Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Credit Documents.
(b) Successor Collateral Agent. Collateral Agent may resign at any
--------------------------
time by giving thirty (30) days' prior written notice thereof to Administrative
Agent, Lenders and the Borrowers, and Collateral Agent may be removed at any
time with or without cause by an instrument or concurrent instruments in writing
delivered to the Borrowers, Collateral Agent and Administrative Agent and signed
by Requisite Lenders. Upon any such notice of resignation or any such removal,
Requisite Lenders shall have the right, upon five (5) Business Days' notice to
the Administrative Agent, following receipt of the Borrowers' consent (which
shall not be unreasonable withheld or delayed and which shall not be required
while an Even5 of Default exists), to appoint a successor Collateral Agent.
Upon the acceptance of any appointment as Collateral Agent hereunder by a
successor Collateral Agent, that successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Collateral Agent and the retiring or removed
Collateral Agent shall promptly (i) transfer to such successor Collateral Agent
all sums, Securities and other items of Collateral held under the Collateral
Documents, together with all records and other documents necessary or
111
appropriate in connection with the performance of the duties of the successor
Collateral Agent under the Credit Documents, and (ii) execute and deliver to
such successor Collateral Agent such amendments to financing statements, and
take such other actions, as may be necessary or appropriate in connection with
the assignment to such successor Collateral Agent of the security interests
created under the Collateral Documents, whereupon such retiring or removed
Collateral Agent shall be discharged from its duties and obligations hereunder
and under the other Credit Documents.
9.8 Collateral Documents and Guaranty.
(a) Agents under Collateral Documents and Guaranty. Each Lender
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hereby further authorizes Administrative Agent or Collateral Agent, as
applicable, on behalf of and for the benefit of Lenders, to be the agent for and
representative of Lenders with respect to the Guaranty, the Collateral and the
Collateral Documents. Subject to Section 10.5, without further written consent
or authorization from Lenders, each of Administrative Agent and Collateral
Agent, as applicable may execute any documents or instruments necessary to
release any Lien encumbering any item of Collateral (i) that is the subject of
(A) a sale or other disposition of assets (B) a Lien securing a Permitted
Equipment Financing or (ii) to which Requisite Lenders (or such other Lenders as
may be required to give such consent under Section 10.5) have otherwise
consented or release any Guarantor from the Guaranty pursuant to Section 7.13
or with respect to which Requisite Lenders (or such other Lenders as may be
required to give such consent under Section 10.5) have otherwise consented;
provided that in the case of clause (i)(B) above, such release of Lien shall
only be effectuated by the delivery of a release, substantially in the form of
Exhibit O attached hereto, together with any other documents or instruments
required therein, by the Collateral Agent to the Company.
(b) Right to Realize on Collateral and Enforce Guaranty. Anything
---------------------------------------------------
contained in any of the Credit Documents to the contrary notwithstanding, each
Credit Party, each Agent and each Lender hereby agree that no Lender shall have
any right individually to realize upon any of the Collateral or to enforce the
Guaranty, it being understood and agreed that all powers, rights and remedies
hereunder may be exercised solely by Administrative Agent for the benefit of
Secured Parties, in accordance with the terms hereof and all powers, rights and
remedies under the Collateral Documents may be exercised solely by Collateral
Agent, and in the event of a foreclosure by Collateral Agent on any of the
Collateral pursuant to a public or private sale, Collateral Agent or any Lender
may be the purchaser of any or all of such Collateral at any such sale and
Collateral Agent, as agent for and representative of Secured Parties (but not
any Lender or Lenders in its or their respective individual capacities unless
Requisite Lenders shall otherwise agree in writing) shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price for
all or any portion of the Collateral sold at any such public sale, to use and
apply any of the Obligations as a credit on account of the purchase price for
any collateral payable by Collateral Agent at such sale.
SECTION 10 MISCELLANEOUS
10.1 Notices. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given to a Credit Party,
Joint Lead Arrangers, Joint Book Runners, Syndication Agent, Collateral Agent,
Administrative Agent, Issuing Bank
112
or Documentation Agent, shall be sent to such Person's address as set forth on
Appendix B or in the other relevant Credit Document, and in the case of any
Lender, the address as indicated on Appendix B or otherwise indicated to
Administrative Agent in writing. Each notice hereunder shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service and signed for against receipt thereof, upon
receipt of telefacsimile or telex, or three (3) Business Days after depositing
it in the United States mail with postage prepaid and properly addressed;
provided, no notice to any Agent shall be effective until received by such
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Agent.
10.2 Expenses. Whether or not the transactions contemplated hereby shall
be consummated, Company agrees to pay promptly all the actual and reasonable
costs and expenses of Joint Lead Arrangers, Joint Book Runners and Syndication
Agent associated with the syndication of the credit facilities hereunder and
expenses of preparation of the Credit Documents and any consents, amendments,
waivers or other modifications thereto; all the costs of furnishing all
opinions by counsel for any Credit Party; the reasonable fees, expenses and
disbursements of counsel to Agents (in each case including allocated costs of
internal counsel) in connection with the negotiation, preparation, execution and
administration of the Credit Documents and any consents, amendments, waivers or
other modifications thereto and any other documents or matters requested by any
Credit Party; all the actual costs and reasonable expenses of creating and
perfecting Liens in favor of Collateral Agent, for the benefit of Secured
Parties pursuant hereto, including filing and recording fees, expenses and
taxes, stamp or documentary taxes, search fees, title insurance premiums and
reasonable fees, expenses and disbursements of counsel to each Agent and of
counsel providing any opinions that any Agent or Requisite Lenders may request
in respect of the Collateral or the Liens created pursuant to the Collateral
Documents; all the actual costs and reasonable fees, expenses and disbursements
of any auditors, accountants, consultants or appraisers; all the actual costs
and reasonable expenses (including the reasonable fees, expenses and
disbursements of any appraisers, consultants, advisors and agents employed or
retained by Administrative Agent and its counsel) in connection with the custody
or preservation of any of the Collateral; all other actual and reasonable costs
and expenses incurred by each Agent in connection with the negotiation,
preparation and execution of the Credit Documents and any consents, amendments,
waivers or other modifications thereto and the transactions contemplated
thereby; and after the occurrence of a Default or an Event of Default, all
costs and expenses, including reasonable attorneys' fees (including allocated
costs of internal counsel) and costs of settlement, incurred by any Agent and
Lenders in enforcing any Obligations of or in collecting any payments due from
any Credit Party hereunder or under the other Credit Documents by reason of such
Default or Event of Default (including in connection with the sale of,
collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranty) or in connection with any refinancing or
restructuring of the credit arrangements provided hereunder in the nature of a
"workout" or pursuant to any insolvency or bankruptcy cases or proceedings.
10.3 Indemnity. In addition to the payment of expenses pursuant to Section
10.2, whether or not the transactions contemplated hereby shall be consummated,
each Credit Party agrees to defend (subject to Indemnitees' selection of
counsel), indemnify, pay and hold harmless, each Agent and Lender and their
respective Affiliates and each of their and their respective Affiliates'
officers, partners, directors, trustees, employees and agents (each, an
113
"Indemnitee"), from and against any and all Indemnified Liabilities; provided,
--------
no Credit Party shall have any obligation to any Indemnitee hereunder with
respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise from the gross negligence or willful misconduct of that
Indemnitee, as determined by a court of competent jurisdiction in a final, non-
appealable judgment order or decree. To the extent that the undertakings to
defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be
unenforceable in whole or in part because they are violative of any law or
public policy, the applicable Credit Party shall contribute the maximum portion
that it is permitted to pay and satisfy under applicable law to the payment and
satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of
them.
10.4 SetOff. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, upon the
occurrence of any Event of Default each Lender is hereby authorized by each
Credit Party at any time or from time to time subject to the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed),
without notice to any Credit Party or to any other Person (other than
Administrative Agent), any such notice being hereby expressly waived, to set off
and to appropriate and to apply any and all deposits (general or special,
including Indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by such Lender to or for the credit or the account of any
Credit Party against and on account of the obligations and liabilities of any
Credit Party to such Lender hereunder, the Letters of Credit and participations
therein and under the other Credit Documents, including all claims of any nature
or description arising out of or connected hereto, the Letters of Credit and
participations therein or with any other Credit Document, irrespective of
whether or not such Lender shall have made any demand hereunder or the
principal of or the interest on the Loans or any amounts in respect of the
Letters of Credit or any other amounts due hereunder or under any other Credit
Documents shall have become due and payable pursuant to Section 2 and although
such obligations and liabilities, or any of them, may be contingent or
unmatured. Each Credit Party hereby further grants to Administrative Agent and
each Lender a security interest in all Deposit Accounts maintained with
Administrative Agent or such Lender as security for the Obligations.
10.5 Amendments and Waivers.
(a) Requisite Lenders' Consent. Subject to Sections 10.5(b) and
--------------------------
10.5(c), no amendment, modification, termination or waiver of any provision of
the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall in any event be effective without the written concurrence of the Requisite
Lenders.
(b) Affected Lenders' Consent. Without the written consent of each
-------------------------
Lender (other than a Defaulting Lender) that would be affected thereby, no
amendment, modification, termination, or consent shall be effective if the
effect thereof would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) waive, reduce or postpone any scheduled repayment (but not
prepayment), or any reimbursement obligation in connection with any Letter
of
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Credit waive or postpone the Revolving Loan Commitment Termination Date or
the Delayed Draw Term Loan Commitment Termination Date;
(iii) extend the stated expiration date of any Letter of Credit
beyond the Revolving Loan Commitment Termination Date;
(iv) reduce the rate of interest on any Loan (other than any
waiver of any increase in the interest rate applicable to any Loan pursuant
to Section 2.10) or any fee payable hereunder;
(v) extend the time for payment of any such interest or fees;
(vi) reduce the principal amount of any Loan or any
reimbursement obligation in respect of any Letter of Credit;
(vii) amend, modify, terminate or waive any provision of this
Section 10.5(b) or Section 10.5(c) or Section 10.6(a);
(viii) amend the definition of "Requisite Lenders" or "Pro Rata
Share"; provided, with the consent of Requisite Lenders (except that such
--------
consent shall not be required in the case of Indebtedness incurred or
commitments made under Section 2.1(a)(iv) of this Agreement), additional
extensions of credit pursuant hereto may be included in the determination
of "Requisite Lenders" or "Pro Rata Share" on substantially the same basis
as the Term Loan Commitments, the Term Loans, the Delayed Draw Term Loan
Commitments, the Delayed Draw Term Loans, the Revolving Loan Commitments,
the Revolving Loans, the New Term Loan Commitments and the New Term Loans
are included on the Closing Date;
(ix) release or otherwise subordinate all or substantially all
of the Collateral or all or substantially all of the Guarantors (or Company
alone) from the Guaranty except as expressly provided in the Credit
Documents; or
(x) consent to the assignment or transfer by any Credit Party
of any of its rights and obligations under any Credit Document.
(c) Other Consents. No amendment, modification, termination or waiver
--------------
of any provision of the Credit Documents, or consent to any departure by any
Credit Party therefrom, shall:
(i) increase any Commitment of any Lender over the amount
thereof then in effect without the consent of such Lender; provided, no
--------
amendment, modification or waiver of any condition precedent, covenant,
Default or Event of Default shall constitute an increase in any Revolving
Loan Commitment of any Lender;
(ii) amend the definition of "Requisite Class Lenders" without
the consent of Requisite Class Lenders of each Class affected by such
amendment;
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provided, with the consent of the Requisite Lenders, additional extensions
--------
of credit pursuant hereto may be included in the determination of such
"Requisite Class Lenders" on substantially the same basis as the Term Loan
Commitments, the Term Loans, the Delayed Draw Term Loans Commitments, the
Delayed Draw Term Loans, the Revolving Loan Commitments, the Revolving
Loans and the New Term Loan Commitments and the New Term Loans are included
on the Closing Date;
(iii) alter the required application of any repayments or
prepayments as between Classes pursuant to Section 2.13 without the consent
of Requisite Class Lenders of each Class which is being allocated a lesser
repayment or prepayment as a result thereof; provided, Requisite Lenders
--------
may waive, in whole or in part, any prepayment so long as the application,
as between Classes, of any portion of such prepayment which is still
required to be made is not altered;
(iv) amend, modify, terminate or waive any obligation of Lenders
relating to the purchase of participations in Letters of Credit as provided
in Section 2.2(e) without the written consent of Administrative Agent and
of Issuing Bank; or
(v) amend, modify, terminate or waive any provision of Section
9 or Section 10 as the same applies to any Agent, or any other provision
hereof as the same applies to the rights or obligations of any Agent, in
each case without the consent of such Agent.
(d) Execution of Amendments, etc. Administrative Agent may, but shall
-----------------------------
have no obligation to, with the concurrence of any Lender, execute amendments,
modifications, waivers or consents on behalf of such Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. 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. Any amendment, modification, termination,
waiver or consent effected in accordance with this Section 10.5 shall be binding
upon each Lender at the time outstanding, each future Lender and, if signed by a
Credit Party, on such Credit Party.
10.6 Successors and Assigns; Participations.
(a) Generally. This Agreement shall be binding upon the parties
---------
hereto and their respective successors and assigns and shall inure to the
benefit of the parties hereto and the successors and assigns of Lenders. No
Credit Party's rights or obligations hereunder nor any interest therein may be
assigned or delegated by any Credit Party without the prior written consent of
all Lenders.
(b) Register. The Borrowers, Administrative Agent and Lenders shall
--------
deem and treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Loans listed therein for all
purposes hereof, and no assignment or transfer of any such Commitment or Loan
shall be effective, in each case, unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been delivered to
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and accepted by Administrative Agent and recorded in the Register as provided in
Section 10.6(e). Prior to such recordation, all amounts owed with respect to the
applicable Commitment or Loan shall be owed to the Lender listed in the Register
as the owner thereof, and any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is
listed in the Register as a Lender shall be conclusive and binding on any
subsequent holder, assignee or transferee of the corresponding Commitments or
Loans.
(c) Right to Assign. Each Lender shall have the right at any time to
---------------
sell, assign or transfer all or a portion of its rights and obligations under
this Agreement, including, without limitation, all or a portion of its
Commitment or Loans owing to it, Note or Notes held by it, or other Obligation
(provided, however, that each such assignment shall be of a uniform, and not
-------- -------
varying, percentage of all rights and obligations under and in respect of any
Loan and any related Commitments):
(i) to any Person meeting the criteria of clause (i) of the
definition of the term of "Eligible Assignee" upon the giving of notice to
the applicable Borrower or Borrowers and Administrative Agent; and
(ii) to any Person meeting the criteria of clause (ii) of the
definition of the term of "Eligible Assignee" and, in the case of
assignments of Loans or Commitments to any such Person (except in the case
of assignments made by or to GSCP or to another Lender), consented to by
each of the applicable Borrower or Borrowers and Administrative Agent (such
consent not to be (x) unreasonably withheld or delayed or, (y) in the case
of either Borrower, required at any time an Event of Default shall have
occurred and then be continuing; provided that, in any event, notice of
--------
such assignment shall be given promptly to Borrowers if their consent is
not otherwise required); provided, further each such assignment pursuant to
--------
this Section 10.6(c)(ii) shall be in an aggregate amount of not less than
$5,000,000 (or such lesser amount as may be agreed to by the applicable
Borrower or Borrowers and Administrative Agent or as shall constitute the
aggregate amount of the Commitments and other Obligations of the assigning
Lender); provided, further, that after giving effect to such assignment,
-------- -------
the assigning Lender shall have Commitments and Loans aggregating at least
$5,000,000 (unless such assigning Lender is assigning all of its
Commitments and Loans), in each case unless otherwise agreed to by the
applicable Borrower or Borrowers and Administrative Agent.
(d) Mechanics. The assigning Lender and the assignee thereof shall
---------
execute and deliver to Administrative Agent an Assignment Agreement, together
with (i) a processing and recordation fee of $2,000 in the case of all
assignments (except that only one fee shall be payable in the case of
contemporaneous assignments to Related Funds), and (ii) such forms, certificates
or other evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may be
required to deliver to Administrative Agent pursuant to Section 2.19(c).
(e) Notice of Assignment. Upon its receipt of a duly executed and
--------------------
completed Assignment Agreement, together with the processing and recordation fee
referred to in Section
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10.6(d) (and any forms, certificates or other evidence required by this
Agreement in connection therewith), Administrative Agent shall record the
information contained in such Assignment Agreement in the Register, shall give
prompt notice thereof to the applicable Borrower or Borrowers and shall maintain
a copy of such Assignment Agreement.
(f) Representations and Warranties of Assignee. Each Lender, upon
------------------------------------------
execution and delivery hereof or upon executing and delivering an Assignment
Agreement, as the case may be, represents and warrants as of the Closing Date or
as of the applicable Effective Date (as defined in the applicable Assignment
Agreement) that it is an Eligible Assignee; it has experience and expertise in
the making of or investing in commitments or loans such as the applicable
Commitments or Loans, as the case may be; and it will make or invest in, as the
case may be, its Commitments or Loans for its own account in the ordinary course
of its business and without a present view to distribution of such Commitments
or Loans within the meaning of the Securities Act or the Exchange Act or other
federal securities laws (it being understood that, subject to the provisions of
this Section 10.6, the disposition of such Commitments or Loans or any interests
therein shall at all times remain within its exclusive control).
(g) Effect of Assignment. Subject to the terms and conditions of this
--------------------
Section 10.6, as of the "Effective Date" specified in the applicable Assignment
Agreement: the assignee thereunder shall have the rights and obligations of a
"Lender" hereunder to the extent such rights and obligations hereunder have been
assigned to it pursuant to such Assignment Agreement and shall thereafter be a
party hereto and a "Lender" for all purposes hereof; the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have been
assigned thereby pursuant to such Assignment Agreement, relinquish its rights
(other than any rights which survive the termination hereof under Section 10.8)
and be released from its obligations hereunder (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender's rights and obligations hereunder, such Lender shall cease to be a party
hereto; provided, anything contained in any of the Credit Documents to the
--------
contrary notwithstanding, (y) Issuing Bank shall continue to have all rights and
obligations thereof with respect to such Letters of Credit until the
cancellation or expiration of such Letters of Credit and the reimbursement of
any amounts drawn thereunder) and (z) such assigning Lender shall continue to be
entitled to the benefit of all indemnities hereunder as specified herein with
respect to matters arising out of the prior involvement of such assigning Lender
as a Lender hereunder; the Revolving Loan Commitments shall be modified to
reflect the Revolving Loan Commitment of such assignee and any remaining
Revolving Loan Commitment of such assigning Lender, if any; (i) the Delayed Draw
Term Loan Commitments shall be modified to reflect the Delayed Draw Term Loan
Commitment of such assignee and any remaining Delayed Draw Term Loan Commitment
of such assigning Lender, if any; and (ii) if any such assignment occurs after
the issuance of any Note hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as practicable,
surrender its applicable Notes to Administrative Agent for cancellation, and
thereupon the applicable Borrower or Borrowers shall issue and deliver new
Notes, if so requested by the assignee and/or assigning Lender, to such assignee
and/or to such assigning Lender, with appropriate insertions, to reflect the new
Commitments and/or outstanding Loans of the assignee and/or the assigning
Lender.
(h) Participations. Each Lender shall have the right at any time to
--------------
sell one or more participations to any Person (other than Company, any of its
Subsidiaries or any of its
118
Affiliates) in all or any part of its Commitments, Loans or in any other
Obligation. The holder of any such participation, other than an Affiliate of the
Lender granting such participation, shall not be entitled to require such Lender
to take or omit to take any action hereunder except with respect to any
amendment modification or waiver that would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Commitment Termination Date) in which
such participant is participating, or reduce the rate or extend the time of
payment of interest or fees thereon (except in connection with a waiver of
applicability of any postdefault increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Commitment shall not constitute a change in the terms of such participation, and
that an increase in any Commitment or Loan shall be permitted without the
consent of any participant if the participant's participation is not increased
as a result thereof), (ii) consent to the assignment or transfer by any Credit
Party of any of its rights and obligations under this Agreement or (iii) release
or subordinate all or substantially all of the Collateral under the Collateral
Documents or the Guarantors (except as expressly provided in the Credit
Documents) supporting the Loans hereunder in which such participant is
participating. All amounts payable by any Credit Party hereunder, including
amounts payable to such Lender pursuant to Section 2.17(c), 2.18 or 2.19, shall
be determined as if such Lender had not sold such participation. Each Credit
Party and each Lender hereby acknowledge and agree that, solely for purposes of
Sections 2.16 and 10.4, any participation will give rise to a direct obligation
of each Credit Party to the participant and the participant shall be considered
to be a "Lender."
(i) Certain Other Assignments. In addition to any other assignment
-------------------------
permitted pursuant to this Section 10.6, (i) any Lender may assign and pledge
all or any portion of its Loans, the other Obligations owed to such Lender, and
its Notes, if any, to secure obligations of such Lender, including, without
limitation, any pledge or assignment to secure obligations to any Federal
Reserve Bank or as collateral security for any loan or other financing
transaction as in or in connection with any securitization or similar
transaction, and this Section 10.6 shall not apply to any such pledge or
assignment of a security interest or other transaction described herein;
provided, (x) no Lender, as between the applicable Borrower or Borrowers and
--------
such Lender, shall be relieved of any of its obligations hereunder as a result
of any such assignment and pledge, and provided further, (y) in no event shall
-------- -------
the applicable Federal Reserve Bank or trustee or other financing party be
considered to be a "Lender" or be entitled to require the assigning Lender to
take or omit to take any action hereunder and (z) any transfer of the rights and
obligations of a "Lender" hereunder to any Person upon the foreclosure of any
pledge or security interest referred to in this clause (i) may only be made
pursuant to the provisions of Sections 10.6(c) through (e) governing assignments
of interests in the Loans.
10.7 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken
or condition exists.
10.8 Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements made herein shall survive the
execution and delivery
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hereof and the making of any Credit Extension. Notwithstanding anything herein
or implied by law to the contrary, the agreements of each Credit Party set forth
in Sections 2.17(c), 2.18, 2.19, 10.2, 10.3 and 10.4 and the agreements of
Lenders set forth in Sections 2.16 and 9.6 shall survive the payment of the
Loans, the cancellation or expiration of the Letters of Credit and the
reimbursement of any amounts drawn thereunder, and the termination hereof.
10.9 No Waiver; Remedies Cumulative. No failure or delay on the part of
any Agent or any Lender in the exercise of any power, right or privilege
hereunder or under any other Credit Document shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other power, right or
privilege. The rights, powers and remedies given to each Agent and each Lender
hereby are cumulative and shall be in addition to and independent of all rights,
powers and remedies existing by virtue of any statute or rule of law or in any
of the other Credit Documents or any of the Hedge Agreements. Any forbearance
or failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be
a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.
10.10 Marshalling; Payments Set Aside. Neither any Agent nor any Lender
shall be under any obligation to marshal any assets in favor of any Credit Party
or any other Person or against or in payment of any or all of the Obligations.
To the extent that any Credit Party makes a payment or payments to
Administrative Agent or Lenders (or to Administrative Agent, on behalf of
Lenders), or Collateral Agent, Administrative Agent or Lenders enforce any
security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause (whether by demand, settlement, litigation or otherwise), then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.
10.11 Severability. In case any Note shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
10.12 Entire Agreement. This Agreement (together with the Exhibits
hereto, the Schedules hereto and the other agreements, documents and instruments
delivered in connection herewith) and the Credit Documents constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof and supersede all other prior agreements and understandings, both
written and verbal, among the parties or any of them with respect to the subject
matter hereof.
10.13 Obligations Several; Independent Nature of Lenders' Rights. The
obligations of Lenders hereunder are several and no Lender shall be responsible
for the obligations or
120
Commitment of any other Lender hereunder. Nothing contained herein or in any
other Credit Document, and no action taken by Lenders pursuant hereto or
thereto, shall be deemed to constitute Lenders as a partnership, an association,
a joint venture or any other kind of entity. The amounts payable at any time
hereunder to each Lender shall be a separate and independent debt, and each
Lender shall be entitled to protect and enforce its rights arising hereunder and
it shall not be necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
10.14 Headings. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any
other purpose or be given any substantive effect.
10.15 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401,
SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
10.16 CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST
ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT,
OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING
AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; WAIVES ANY DEFENSE OF FORUM
NON CONVENIENS; AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE
WITH SECTION 10.1; AGREES THAT SERVICE AS PROVIDED IN CLAUSE (c) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN
ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT; AND AGREES AGENTS AND LENDERS RETAIN THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
10.17 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALLENCOMPASSING OF ANY AND ALL
121
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF
THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND
THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS.
EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION
10.17 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR
ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.18 Confidentiality. Each Lender shall hold all nonpublic information
obtained pursuant to the requirements hereof and sufficiently identified to such
Lender as being non-public which has been identified as confidential by either
Borrower in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with prudent lending
or investing practices, it being understood and agreed by each Borrower that in
any event a Lender may make disclosures to Affiliates of such Lender (and to
other persons authorized by a Lender or Agent to organize, present or
disseminate such information in connection with disclosures otherwise made in
accordance with this Section 10.18), disclosures reasonably required by any bona
fide or potential assignee, transferee or participant in connection with the
contemplated assignment, transfer or participation by such Lender of any Loans
Commitments and other Obligations or any participations therein or by any direct
or indirect contractual counterparties (or the professional advisors thereto) in
Hedge Agreements (provided, such counterparties and advisors are advised of and
agree to be bound by the provisions of this Section 10.18) or disclosures
required or requested by any governmental agency or representative thereof or by
the NAIC or pursuant to legal process; provided, unless specifically prohibited
--------
by applicable law or court order, each Lender shall make reasonable efforts to
notify the applicable Borrower of any request by any governmental agency or
representative thereof (other than any such request in connection with any
examination of the financial condition or other routine examination of such
Lender by such governmental agency) for disclosure of any such nonpublic
information prior to disclosure of such information; provided, further, that in
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no event shall any Lender be obligated or required to return any materials
furnished by Company or any of its Subsidiaries; and provided, further, that
-------- -------
notwithstanding the foregoing, each Lender and its Affiliates shall have the
right to (i) list the name and logo of each of the Borrowers and the Guarantors,
as provided by the Borrowers and the Guarantors from time to time, and describe
the transaction that is the subject of this
122
Agreement in their marketing materials and (ii) post such information,
including, without limitation, a customary "tombstone", on its web site.
10.19 Usury Savings Clause. Notwithstanding any other provision herein,
the aggregate interest rate charged with respect to any of the Obligations,
including all charges or fees in connection therewith deemed in the nature of
interest under applicable law shall not exceed the Highest Lawful Rate. If the
rate of interest (determined without regard to the preceding sentence) under
this Agreement at any time exceeds the Highest Lawful Rate, the outstanding
amount of the Loans made hereunder shall bear interest at the Highest Lawful
Rate until the total amount of interest due hereunder equals the amount of
interest which would have been due hereunder if the stated rates of interest set
forth in this Agreement had at all times been in effect. In addition, if when
the Loans made hereunder are repaid in full the total interest due hereunder
(taking into account the increase provided for above) is less than the total
amount of interest which would have been due hereunder if the stated rates of
interest set forth in this Agreement had at all times been in effect, then to
the extent permitted by law, the applicable Borrower shall pay to Administrative
Agent, for the account of the Lenders, an amount equal to the difference between
the amount of interest paid and the amount of interest which would have been
paid if the Highest Lawful Rate had at all times been in effect.
Notwithstanding the foregoing, it is the intention of Lenders and each Borrower
to conform strictly to any applicable usury laws. Accordingly, if any Lender
contracts for, charges, or receives any consideration which constitutes interest
in excess of the Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender's option be applied
to the outstanding amount of the Loans made hereunder or be refunded to the
applicable Borrower.
10.20 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument.
10.21 Effectiveness. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
Company and Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
123
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
EQUINIX, INC.
By:_____________________________
Name:
Title:
EQUINIX OPERATING CO., INC.
By:_____________________________
Name:
Title:
EQUINIX EUROPE, INC.
By:_____________________________
Name:
Title:
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Joint Lead Arranger, Joint Book Runner,
Syndication Agent and a Lender
By:_____________________________________
Authorized Signatory
XXXXXXX XXXXX BARNEY INC.,
as Joint Lead Arranger and Joint Book Runner
By:____________________________________
Authorized Signatory
CITICORP USA, INC.,
as Administrative Agent, an Issuing Bank and a Lender
By:____________________________________
Name:
Title:
CIT LENDING SERVICES CORPORATION,
as Collateral Agent and a Lender
By:____________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION,
as a Lender
By:____________________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
as a Lender
By:____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Lender
By:____________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as a Lender
By:____________________________________
Name:
Title:
COMERICA BANK, CALIFORNIA,
as a Lender
By:____________________________________
Name:
Title:
APPENDIX A1
TO CREDIT AND GUARANTY AGREEMENT
Term Loan Commitments
=======================================================================================================
Pro
Lender Term Loan Commitment Rata Share
=======================================================================================================
Xxxxxxx Xxxxx Credit Partners L.P. $10,000,000.00 20.00000000%
-------------------------------------------------------------------------------------------------------
Citicorp USA, Inc./Xxxxxxx Xxxxx Barney $10,000,000.00 20.00000000%
Inc.
-------------------------------------------------------------------------------------------------------
General Electric Capital Corporation $ 8,333,333.33 16.66666666%
-------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $ 6,666,666.67 13.33333334%
-------------------------------------------------------------------------------------------------------
CIT Lending Services Corporation $ 5,000,000.00 10.00000000%
-------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia $ 5,000,000.00 10.00000000%
-------------------------------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi Trust Company $ 5,000,000.00 10.00000000%
-------------------------------------------------------------------------------------------------------
Comerica Bank, California $ 0.00 0.00000000%
-------------------------------------------------------------------------------------------------------
Total $50,000,000.00 100.00000000%
=======================================================================================================
A-1
APPENDIX A2
TO CREDIT AND GUARANTY AGREEMENT
Delayed Draw Term Loan Commitments
=======================================================================================================
Delayed Draw Pro
Lender Term Loan Commitment Rata Share
=======================================================================================================
Xxxxxxx Xxxxx Credit Partners L.P. $15,000,000.00 20.00000000%
-------------------------------------------------------------------------------------------------------
Citicorp USA, Inc./Xxxxxxx Xxxxx Barney $15,000,000.00 20.00000000%
Inc.
-------------------------------------------------------------------------------------------------------
General Electric Capital Corporation $12,500,000.00 16.66666667%
-------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $10,000,000.00 13.33333333%
-------------------------------------------------------------------------------------------------------
CIT Lending Services Corporation $ 7,500,000.00 10.00000000%
-------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia $ 7,500,000.00 10.00000000%
-------------------------------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi Trust Company $ 7,500,000.00 10.00000000%
-------------------------------------------------------------------------------------------------------
Comerica Bank, California $ 0.00 0.00000000%
-------------------------------------------------------------------------------------------------------
Total $75,000,000.00 100.00000000%
=======================================================================================================
A-2
APPENDIX A3
TO CREDIT AND GUARANTY AGREEMENT
Revolving Loan Commitments
=======================================================================================================
Lender Revolving Loan Commitment Pro Rata Share
=======================================================================================================
Xxxxxxx Xxxxx Credit Partners L.P. $ 2,500,000.00 10.00000000%
-------------------------------------------------------------------------------------------------------
Citicorp USA, Inc./Xxxxxxx Xxxxx $ 2,500,000.00 10.00000000%
Barney Inc.
-------------------------------------------------------------------------------------------------------
General Electric Capital Corporation $ 4,166,666.67 16.66666667%
-------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $ 3,333,333.33 13.33333333%
-------------------------------------------------------------------------------------------------------
CIT Lending Services Corporation $ 2,500,000.00 10.00000000%
-------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia $ 2,500,000.00 10.00000000%
-------------------------------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi Trust Company $ 2,500,000.00 10.00000000%
-------------------------------------------------------------------------------------------------------
Comerica Bank, California $ 5,000,000.00 20.00000000%
-------------------------------------------------------------------------------------------------------
Total $25,000,000.00 100.00000000%
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
X-0
XXXXXXXX X
TO CREDIT AND GUARANTY AGREEMENT
Notice Addresses
EQUINIX, INC.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
EQUINIX OPERATING CO., INC.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
EQUINIX EUROPE, INC.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
in each case, with a copy to:
Xxxx Xxxx Xxxx & Freidenrich, LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
B-1
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as Joint Lead Arranger, Joint Book Runner,
Syndication Agent and a Lender
Xxxxxxx Xxxxx Credit Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx
Telecopier: (000) 0000000
with a copy to:
Xxxxxxx Xxxxx Credit Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopier: (000) 0000000
B-2
XXXXXXX XXXXX BARNEY INC.,
as Joint Lead Arranger and Joint Book Runner
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
B-3
CITICORP USA, INC.,
as Administrative Agent, an Issuing Bank and a Lender
Administrative Agent's and Issuing Bank's Principal Office:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
B-4
CIT LENDING SERVICES CORPORATION
as Collateral Agent and a Lender
00 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Vice-President - Credit
Telecopier: (000) 000-0000
B-5
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
GE Capital Structured Finance Group
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopier: 000-000-0000
B-6
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Lender
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx - Vice President
Telecopier: (000) 000-0000
X-0
XXX XXXX XX XXXX XXXXXX,
as a Lender
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Telecopier: (000) 000-0000
B-8
THE CHASE MANHATTAN BANK,
as a Lender
Global Media and Telecommunications Group
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx, Vice President
Telecopier: (000) 000-0000
X-0
XXXXXXXX XXXX, XXXXXXXXXX,
as a Lender
000 Xxx Xxxxx Xxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
B-10
