EXHIBIT 10.1
EXECUTION COPY
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CREDIT AGREEMENT
among
PRIMEDIA INC.,
VARIOUS LENDING INSTITUTIONS,
BANK OF AMERICA, N.A.,
as Syndication Agent,
THE BANK OF NEW YORK,
and
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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Dated as of June 20, 2001
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X.X. XXXXXX SECURITIES INC.
and
BANC OF AMERICA SECURITIES
as Joint Advisors, Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
PAGE
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SECTION 1. Amount and Terms of Credit..........................................1
1.01 Commitments..........................................................1
1.02 Minimum Borrowing Amounts, etc.......................................3
1.03 Notice of Borrowing..................................................3
1.04 Disbursement of Funds................................................4
1.05 Register.............................................................5
1.06 Conversions..........................................................5
1.07 Pro Rata Borrowings..................................................5
1.08 Interest.............................................................6
1.09 Interest Periods.....................................................6
1.10 Increased Costs, Illegality, etc.....................................7
1.11 Compensation........................................................10
1.12 Change of Lending Office............................................11
1.13 Incremental Loan Commitments........................................11
SECTION 2. Letters of Credit..................................................12
2.01 Letters of Credit...................................................12
2.02 Minimum Stated Amount...............................................12
2.03 Letter of Credit Requests; Notices of Issuance......................12
2.04 Agreement to Repay Letter of Credit Drawings........................13
2.05 Letter of Credit Participations.....................................13
2.06 Increased Costs.....................................................15
SECTION 3. Fees; Commitments..................................................16
3.01 Fees................................................................16
3.02 Voluntary Reduction of Commitments..................................17
3.03 Mandatory Reduction of Commitments, etc.............................17
SECTION 4. Payments...........................................................19
4.01 Voluntary Prepayments...............................................19
4.02 Mandatory Repayments................................................20
4.03 Method and Place of Payment.........................................22
4.04 Net Payments........................................................23
SECTION 5. Conditions Precedent...............................................24
5.01 Conditions Precedent to the Initial Borrowing Date..................24
5.02 Conditions Precedent to each Credit Event...........................26
(i)
SECTION 6. Representations, Warranties and Agreements.........................27
6.01 Corporate Status....................................................27
6.02 Corporate Power and Authority.......................................27
6.03 No Violation........................................................28
6.04 Litigation..........................................................28
6.05 Use of Proceeds; Margin Regulations.................................28
6.06 Governmental Approvals..............................................29
6.07 Investment Company Act..............................................29
6.08 Public Utility Holding Company Act..................................29
6.09 True and Complete Disclosure........................................29
6.10 Financial Statements; Financial Condition...........................30
6.11 Tax Returns and Payments............................................30
6.12 Compliance with ERISA...............................................31
6.13 Subsidiaries........................................................31
6.14 Intellectual Property...............................................31
6.15 Compliance with Statutes, etc.......................................32
6.16 The Pledge Agreement................................................32
SECTION 7. Affirmative Covenants..............................................32
7.01 Information Covenants...............................................33
7.02 Books, Records and Inspections......................................35
7.03 Payment of Taxes....................................................35
7.04 Corporate Franchises................................................35
7.05 Compliance with Statutes, etc.......................................35
7.06 ERISA...............................................................35
7.07 End of Fiscal Years; Fiscal Quarters................................36
7.08 Use of Proceeds.....................................................36
7.09 Ownership of Subsidiaries...........................................36
7.10 Maintenance of Corporate Separateness...............................36
SECTION 8. Negative Covenants.................................................37
8.01 Changes in Business.................................................37
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc..............37
8.03 Liens...............................................................40
8.04 Indebtedness........................................................42
8.05 Advances, Investments and Loans.....................................43
8.06 Contingent Obligations..............................................45
8.07 Dividends, etc......................................................46
8.08 Transactions with Affiliates........................................48
8.09 Fixed Charge Coverage Ratio.........................................48
8.10 Interest Coverage Ratio.............................................48
8.11 Leverage Ratio......................................................49
8.12 Issuance of Stock...................................................49
8.13 Modifications of Certain Agreements, etc............................50
(ii)
8.14 Limitation on the Creation of Subsidiaries; Redesignation
of Partially-Owned Restricted Subsidiaries.......................50
SECTION 9. Events of Default..................................................51
9.01 Payments............................................................51
9.02 Representations, etc................................................52
9.03 Covenants...........................................................52
9.04 Default Under Other Agreements......................................52
9.05 Bankruptcy, etc.....................................................52
9.06 ERISA...............................................................53
9.07 Guaranty............................................................53
9.08 Pledge Agreement....................................................53
9.09 Judgments...........................................................53
9.10 Ownership...........................................................54
SECTION 10. Definitions.......................................................54
SECTION 11. The Administrative Agent..........................................83
11.01 Appointment........................................................83
11.02 Delegation of Duties...............................................84
11.03 Exculpatory Provisions.............................................84
11.04 Reliance by Administrative Agent...................................84
11.05 Notice of Default..................................................85
11.06 Non-Reliance on Administrative Agent and Other Banks...............85
11.07 Indemnification....................................................85
11.08 Administrative Agent in Its Individual Capacity....................86
11.09 Holders............................................................86
11.10 Resignation of the Administrative Agent; Successor Agent...........86
SECTION 12. Miscellaneous.....................................................87
12.01 Payment of Expenses, etc...........................................87
12.02 Right of Setoff....................................................87
12.03 Notices............................................................88
12.04 Benefit of Agreement...............................................88
12.05 No Waiver; Remedies Cumulative.....................................90
12.06 Payments Pro Rata..................................................90
12.07 Calculations; Computations.........................................91
12.08 Governing Law; Submission to Jurisdiction; Venue...................91
12.09 Counterparts.......................................................92
12.10 Effectiveness......................................................92
12.11 Headings Descriptive...............................................92
12.12 Amendment or Waiver................................................92
12.13 Survival...........................................................93
12.14 Domicile of Loans..................................................93
(iii)
12.15 Confidentiality....................................................93
12.16 Waiver of Jury Trial...............................................94
(iv)
ANNEX I List of Banks
ANNEX II Bank Addresses
ANNEX III Subsidiaries
ANNEX IV Liens
ANNEX V Existing Debt/Existing Contingent Obligations
ANNEX VI Existing Preferred Stock
ANNEX VII Existing Letters of Credit
ANNEX VIII Existing Unrestricted Subsidiaries
EXHIBIT A -- Form of Notice of Borrowing
EXHIBIT B -- Form of Pledge Agreement
EXHIBIT C-1 -- Form of Opinion of Simpson, Thacher & Xxxxxxxx
EXHIBIT C-2 -- Form of Opinion of Xxxxxxx X. Xxxxx, Esq.
EXHIBIT C-3 -- Form of Opinion of White & Case LLP
EXHIBIT D -- Form of Officer's Certificate
EXHIBIT E -- Form of Subsidiary Guaranty
EXHIBIT F -- Form of Contribution Agreement
EXHIBIT G -- Form of Assignment and Assumption Agreement
EXHIBIT H -- Form of Subsidiary Assumption Agreement
(v)
CREDIT AGREEMENT, dated as of June 20, 2001, among
PRIMEDIA INC., a
Delaware corporation (the "Borrower"), the lending institutions listed from time
to time on Annex I hereto (each a "Bank" and, collectively, the "Banks"), BANK
OF AMERICA, N.A. as Syndication Agent (the "Syndication Agent"), THE BANK OF
NEW
YORK and THE BANK OF NOVA SCOTIA, as Co-Documentation Agents, and THE CHASE
MANHATTAN BANK, as Administrative Agent (the "Administrative Agent"). Unless
otherwise defined herein, all capitalized terms used herein and defined in
Section 10 are used herein as so defined.
W I T N E S S E T H:
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Banks are willing to make available to the Borrower the credit
facilities provided for herein:
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 COMMITMENTS. (a) Subject to and upon the terms and conditions
set forth herein, each Bank with a Term Loan A Commitment severally agrees to
make, on the Initial Borrowing Date, a term loan or term loans (each a "Term
Loan A" and, collectively, "Term Loans A") to the Borrower, which Term Loans A
(i) shall be made pursuant to a single drawing, (ii) shall, at the option of the
Borrower, be Base Rate Loans or Eurodollar Loans, PROVIDED that all Term Loans A
made as part of the same Borrowing shall, unless otherwise specifically provided
herein, consist of Term Loans A of the same Type, and (iii) shall equal for each
Bank, in initial aggregate principal amount, that amount which equals the Term
Loan A Commitment of such Bank on the Initial Borrowing Date (before giving
effect to the termination thereof on such date pursuant to Section 3.03(b)).
Once repaid, Term Loans A incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein,
each Bank with a Term Loan B Commitment severally agrees to make, on the Initial
Borrowing Date, a term loan or term loans (each a "Term Loan B" and,
collectively, the "Term Loans B" and, together with the Term Loans A, the "Term
Loans") to the Borrower, which Term Loans B (i) shall be made pursuant to a
single drawing, (ii) shall, at the option of the Borrower, be Base Rate Loans or
Eurodollar Loans, PROVIDED that all Term Loans B made as part of the same
Borrowing shall, unless otherwise specifically provided herein, consist of Term
Loans B of the same Type, and (iii) shall equal for each Bank, in initial
aggregate principal amount, that amount which equals the Term Loan B Commitment
of such Bank on the Initial Borrowing Date (before giving effect to the
termination thereof on such date pursuant to Section 3.03(b)). Once repaid, Term
Loans B incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions herein set forth,
each Bank with a Revolving Loan Commitment severally agrees at any time and from
time to time on and after the Initial Borrowing Date and prior to the Revolving
Loan Maturity Date, to make a revolving loan or revolving loans (each a "
Revolving Loan" and, collectively, the " Revolving
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Loans") to the Borrower, which Revolving Loans (i) shall, at the option of the
Borrower, be Base Rate Loans or Eurodollar Loans, PROVIDED that all Revolving
Loans made as part of the same Borrowing shall, unless otherwise specifically
provided herein, consist of Revolving Loans of the same Type, (ii) may be repaid
and reborrowed in accordance with the provisions hereof, (iii) shall not exceed
for any Bank at any time outstanding that aggregate principal amount which, when
combined with such Bank's Adjusted Percentage, if any, of the sum of (x) the
Letter of Credit Outstandings at such time plus (y) the outstanding principal
amount of Swingline Loans at such time, equals (1) if such Bank is a
Non-Defaulting Bank, the Adjusted Revolving Loan Commitment of such Bank at such
time and (2) if such Bank is a Defaulting Bank, the Revolving Loan Commitment of
such Bank at such time and (iv) shall not exceed in aggregate principal amount
at any time outstanding, when combined with the aggregate principal amount of
all Swingline Loans then outstanding and the aggregate amount of all Letter of
Credit Outstandings at such time, an amount equal to the Total Revolving Loan
Commitment at such time.
(d) Subject to and upon the terms and conditions herein set forth,
Chase in its individual capacity agrees to make, at any time and from time to
time on and after the Initial Borrowing Date and prior to the Swingline Expiry
Date, a revolving loan or revolving loans (each a "Swingline Loan" and,
collectively, the "Swingline Loans") to the Borrower, which Swingline Loans (i)
shall be made and maintained as Base Rate Loans, (ii) may be repaid and
reborrowed in accordance with the provisions hereof, (iii) shall not exceed in
aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks
then outstanding and the Letter of Credit Outstandings at such time, an amount
equal to the Adjusted Total Revolving Loan Commitment then in effect (after
giving effect to any reductions to the Adjusted Total Revolving Loan Commitment
on such date) and (iv) shall not exceed in aggregate principal amount at any
time outstanding the Maximum Swingline Amount. Chase will not make a Swingline
Loan after it has received written notice from the Required Banks that one or
more of the applicable conditions to Credit Events specified in Section 5 are
not then satisfied.
(e) On any Business Day, Chase may, in its sole discretion, give
notice to the Banks that its outstanding Swingline Loans shall be funded with a
Borrowing of Revolving Loans (PROVIDED that each such notice shall be deemed to
have been automatically given upon the occurrence of an Event of Default under
Section 9.05), in which case a Borrowing of Revolving Loans constituting Base
Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day by all Banks with a Revolving Loan
Commitment PRO RATA based on each Bank's Adjusted Percentage (determined before
giving effect to any termination of the Revolving Loan Commitments pursuant to
the last paragraph of Section 9), and the proceeds thereof shall be applied
directly to repay Chase for such outstanding Swingline Loans. Each such Bank
hereby irrevocably agrees to make Base Rate Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by Chase
notwithstanding (i) that the amount of the Mandatory Borrowing may not comply
with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any
conditions specified in Section 5 are then satisfied, (iii) whether a Default or
an Event of Default has occurred and is continuing, (iv) the date of such
Mandatory Borrowing and (v) any reduction in the Total Revolving Loan Commitment
or Adjusted Total Revolving Loan Commitment after any such Swingline Loans
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were made. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy Code in respect
of the Borrower), then each such Bank (other than Chase) hereby agrees that it
shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) from Chase (without recourse or
warranty other than that such Swingline Loans are free and clear of any Liens)
such assignment of the outstanding Swingline Loans as shall be necessary to
cause such Banks to share in such Swingline Loans ratably based upon their
respective Adjusted Percentages (determined before giving effect to any
termination of the Revolving Loan Commitments pursuant to the last paragraph of
Section 9), PROVIDED that all interest payable on the Swingline Loans shall be
for the account of Chase until the date the respective assignment is purchased
and, to the extent attributable to the purchased assignment, shall be payable to
the Bank purchasing same from and after such date of purchase. Upon any change
in the Revolving Loan Commitments or Adjusted Percentages of the Banks pursuant
to Section 1.10(c)(ii) or 12.04(b), or upon the occurrence of a Bank Default, it
is hereby agreed that, with respect to all outstanding Swingline Loans, there
shall be an automatic adjustment to the participations pursuant to this Section
1.01(e) to reflect the new Adjusted Percentages of the assigning and assignee
Banks or of all Non-Defaulting Banks, as the case may be.
1.02 MINIMUM BORROWING AMOUNTS, ETC. The aggregate principal amount
of each Borrowing shall not be less than the Minimum Borrowing Amount for such
Loans. More than one Borrowing may be incurred on any day, PROVIDED that at no
time shall there be outstanding more than 25 Borrowings of Eurodollar Loans.
1.03 NOTICE OF BORROWING. (a) Whenever the Borrower desires to incur
Loans hereunder (excluding Swingline Loans and Revolving Loans incurred pursuant
to a Mandatory Borrowing), it shall give the Administrative Agent at its Notice
Office, prior to 1:00 P.M. (
New York time), at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Eurodollar Loans and at least one Business Day's prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of
Base Rate Loans to be incurred hereunder. Each such notice (each, together with
each notice referred to in Section 1.03(b)(i), a "Notice of Borrowing"), except
as otherwise expressly provided in Section 1.10, shall be irrevocable, and, in
the case of each written notice and each confirmation of telephonic notice,
shall be in the form of Exhibit A, appropriately completed to specify (i)
whether the Loans being incurred pursuant to such Borrowing shall consist of
Term Loans A, Term Loans B or Revolving Loans, (ii) the aggregate principal
amount of such Loans to be made pursuant to such Borrowing, (iii) the date of
such Borrowing (which shall be a Business Day) and (iv) whether the respective
Borrowing shall consist of Base Rate Loans or Eurodollar Loans and, if
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall promptly give each Bank which is required to make
Loans pursuant to the Borrowing specified in the respective Notice of Borrowing
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing, of such Bank's proportionate share thereof, if any, and of
the other matters covered by the Notice of Borrowing.
Page 4
(b) (i) Whenever the Borrower desires to incur a Borrowing of
Swingline Loans hereunder, it shall give Chase no later than 12:00 Noon (
New
York time) on the day such Swingline Loan is to be made, written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Loan to be
incurred hereunder. Each such Notice of Borrowing shall be irrevocable and shall
specify in each case (x) the date of such Borrowing (which shall be a Business
Day) and (y) the aggregate principal amount of the Swingline Loans to be
incurred pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(e), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section.
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent, Chase (in the case of a Borrowing of Swingline Loans) or
the Letter of Credit Issuer (in the case of the issuance of Letters of Credit),
as the case may be, may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent, Chase or the Letter of Credit Issuer, as the case may be,
in good faith to be from the chairman, a vice chairman, the president, the chief
financial officer, the treasurer, an assistant treasurer, the supervisor, cash
management or a director of treasury operations of the Borrower. In each such
case, the Borrower hereby waives the right to dispute the Administrative
Agent's, Chase's or the Letter of Credit Issuer's record of the terms of such
telephonic notice.
1.04 DISBURSEMENT OF FUNDS. (a) No later than 1:00 P.M. (
New York
time) on the date specified in each Notice of Borrowing relating to any Loans
(or (x) in the case of Swingline Loans, no later than 2:00 P.M. (
New York time)
on the date specified pursuant to Section 1.03(b)(i) or (y) in the case of
Mandatory Borrowings, no later than 12:00 Noon (
New York time) on the date
specified in Section 1.01(e)), each Bank with a Commitment under the respective
Tranche will make available its Pro Rata Share (if any) of each Borrowing of
Loans requested to be made on such date in the manner provided below (or, in the
case of Swingline Loans, Chase will make available the full amount thereof). All
such amounts shall be made available to the Administrative Agent in U.S. Dollars
and immediately available funds at the Payment Office and the Administrative
Agent promptly will make available to the Borrower by depositing to its account
at the Payment Office the aggregate of the amounts so made available in the type
of funds received (other than in respect of Mandatory Borrowings). Unless the
Administrative Agent shall have been notified by any Bank prior to the date of
Borrowing of any Loans referred to in this Section 1.04(a) that such Bank does
not intend to make available to the Administrative Agent its portion of the
Borrowing or Borrowings to be made on such date, the Administrative Agent may
assume that such Bank has made such amount available to the Administrative Agent
on such date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so)
make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Bank
and the Administrative Agent has made available same to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount from
such Bank. If such Bank does not pay such corresponding amount forthwith upon
the Administrative Agent's demand therefor, the Administrative Agent shall
Page 5
promptly notify the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The Administrative Agent shall
also be entitled to recover from such Bank or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Bank, the
overnight Federal Funds Effective Rate or (y) if paid by the Borrower, the then
applicable rate of interest, calculated in accordance with Section 1.08, for the
respective Loans. Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
the Borrower may have against any Bank as a result of any failure by such Bank
to make Loans hereunder.
1.05 REGISTER. (a) The Administrative Agent shall maintain a
register for the recordation of the Commitments of the Banks from time to time
and the principal amount of the Term Loans A, Term Loans B, Revolving Loans and
Swingline Loans owing to each Bank (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error. The
Register shall be available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(b) The Borrower hereby agrees to provide a Note, promptly upon the
request of any Bank, to the extent such Bank has requested such Note in
connection with any pledge or assignment by such Bank of any or all of its Loans
hereunder to a Federal Reserve Bank.
1.06 CONVERSIONS. The Borrower shall have the option to convert on
any Business Day all or a portion at least equal to the applicable Minimum
Borrowing Amount of the outstanding principal amount of the Loans (other than
Swingline Loans, which at all times shall be maintained as Base Rate Loans)
owing by the Borrower into a Borrowing or Borrowings of another Type of Loan;
PROVIDED that (i) no such partial conversion of a Borrowing of Eurodollar Loans
shall reduce the outstanding principal amount of the Eurodollar Loans made
pursuant to such Borrowing to less than the Minimum Borrowing Amount applicable
thereto, (ii) Base Rate Loans may not be converted into Eurodollar Loans if a
Default or Event of Default is in existence and the Administrative Agent and/or
the Required Banks have notified the Borrower that such a conversion will not be
permitted as a result thereof and (iii) Borrowings of Eurodollar Loans resulting
from this Section 1.06 shall be limited in number as provided in Section 1.02.
Each such conversion shall be effected by the Borrower by giving the
Administrative Agent at its Notice Office, prior to 1:00 P.M. (
New York time),
at least three Business Days (or one Business Day in the case of a conversion
into Base Rate Loans) prior written notice (or telephonic notice promptly
confirmed in writing) (each a "Notice of Conversion") specifying the Loans to be
so converted, the Type of Loans to be converted into and, if to be converted
into a Borrowing of Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each Bank prompt notice
of any such proposed conversion affecting any of its Loans.
1.07 PRO RATA BORROWINGS. All Borrowings of Term Loans A, Term Loans
B and Revolving Loans under this Agreement shall be made by the Banks PRO RATA
on the basis of their Term Loan A Commitments, Term Loan B Commitments or
Revolving Loan Commitments, as the case may be, provided that all Borrowings of
Revolving Loans made pursuant to a Mandatory
Page 6
Borrowing shall be incurred from the Banks with Revolving Loan Commitments PRO
RATA on the basis of their Adjusted Percentages. It is understood that no Bank
shall be responsible for any default by any other Bank of its obligation to make
Loans hereunder and that each Bank shall be obligated to make the Loans to be
made by it hereunder, regardless of the failure of any other Bank to make its
Loans hereunder.
1.08 INTEREST. (a) The unpaid principal amount of each Base Rate
Loan shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise) at a rate per annum which shall at all
times be the Applicable Margin (or, in the case of Term Loans B, the Applicable
Term Loan B Margin) plus the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the
Applicable Margin (or, in the case of Term Loans B, the Applicable Term Loan B
Margin) plus the relevant Eurodollar Rate.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall bear interest at a rate per annum equal
to the Base Rate in effect from time to time plus the sum of (i) 2% and (ii) the
Applicable Margin (or, in the case of Term Loans B, the Applicable Term Loan B
Margin) for Base Rate Loans; PROVIDED that principal in respect of Eurodollar
Loans shall bear interest after the same becomes due (whether by acceleration or
otherwise) until the end of the applicable Interest Period for such Eurodollar
Loan at a per annum rate equal to 2% in excess of the rate of interest
applicable on the due date therefor.
(d) Interest shall accrue from and including the date of any
Borrowing to, but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on the last
Business Day of each March, June, September and December, (ii) in respect of
each Eurodollar Loan, on the last day of each Interest Period applicable thereto
and, in the case of an Interest Period in excess of three months, on each date
occurring at three month intervals after the first day of such Interest Period
and (iii) in respect of each Loan, on any prepayment or conversion (on the
amount prepaid or converted), at maturity (whether by acceleration or otherwise)
and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest rate
for any Borrowing of Eurodollar Loans for any Interest Period, shall promptly
notify the Borrower and the Banks thereof.
1.09 INTEREST PERIODS. At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 1:00 P.M. (
New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Administrative
Page 7
Agent written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the Borrower, be a one, two, three, six or, if available to each
of the Banks (as determined by each such Bank in good faith based on prevailing
conditions in the interbank Eurodollar market on any date of determination
thereof) nine or twelve month period (or if agreed to by each Bank in the
respective Tranche, such other period as requested by the Borrower).
Notwithstanding anything to the contrary contained above:
(i) unless otherwise requested by the Borrower and agreed to by
each Bank in the respective Tranche, the initial Interest Period for any
Borrowing of Eurodollar Loans shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing of Base Rate Loans)
and each Interest Period occurring thereafter in respect of such Borrowing
shall commence on the day on which the next preceding Interest Period
applicable thereto expires;
(ii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day
of such calendar month;
(iii) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, PROVIDED that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) no Interest Period for a Borrowing under any Tranche of Loans
shall be elected which would extend beyond the respective Maturity Date
for such Tranche; and
(v) no Interest Period may be elected at any time when a Default
or Event of Default is then in existence and the Administrative Agent
and/or the Required Banks have notified the Borrower that such an election
will not be permitted as a result thereof.
If upon the expiration of any Interest Period, the Borrower has failed to elect
a new Interest Period to be applicable to the respective Borrowing of Eurodollar
Loans as provided above, or a Default or an Event of Default then exists and the
Administrative Agent and/or the Required Banks have given the notice referred to
in clause (v) above, the Borrower shall be deemed to have elected to convert
such Borrowing into a Borrowing of Base Rate Loans effective as of the
expiration date of such current Interest Period.
1.10 INCREASED COSTS, ILLEGALITY, ETC. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Bank, shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any
Interest Period that, by reason of any changes arising after the date of
this Agreement affecting the interbank
Page 8
Eurodollar market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans because of (x) any change since the date of this
Agreement in any applicable law, governmental rule, regulation, guideline,
order or request (whether or not having the force of law), or in the
interpretation or administration thereof and including the introduction of
any new law or governmental rule, regulation, guideline, order or request
such as, for example, but not limited to, (A) a change since the Effective
Date in the basis of taxation of payment to any Bank of the principal of
or interest on the Loans or any other amounts payable hereunder (except
for changes with respect to Taxes and those taxes described in clauses (x)
and (y) of the proviso in the second sentence of Section 4.04) or (B) a
change since the Effective Date in official reserve requirements, but, in
all events, excluding reserves required under Regulation D to the extent
included in the computation of the Eurodollar Rate and/or (y) other
circumstances affecting such Bank, the interbank Eurodollar market or the
position of such Bank in such market; or
(iii) at any time since the Effective Date, that the making or
continuance of any Eurodollar Loan has become unlawful by compliance by
such Bank in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule,
regulation, guideline or order not having the force of law but with which
such Bank customarily complies even though the failure to comply therewith
would not be unlawful), or has become impracticable as a result of a
contingency occurring after the Effective Date which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent in the case
of clause (i) above) shall (x) on such date and (y) within 10 Business Days of
the date on which such event no longer exists give notice (by telephone
confirmed in writing) to the Borrower and (except in the case of clause (i)) to
the Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies the Borrower and the Banks that
the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred shall
be deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower agrees to pay to such Bank, upon written demand therefor (accompanied
by the written notice referred to below), such additional amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Bank in its sole discretion shall determine) as shall be
required to compensate such Bank for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the additional
amounts owed to such Bank, showing the basis for the calculation thereof,
submitted to the Borrower by such Bank shall, absent manifest error, be final
and conclusive and binding upon all parties hereto) and (z) in the case of
clause (iii) above, the Borrower shall take one of the actions specified in
Section 1.10(b) as promptly as possible and, in any event, within the time
period required by law.
Page 9
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii) the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof promptly (but in
any event no later than the later of (x) the Business Day next preceding the
date of such Borrowing and (y) one Business Day after the Borrower was notified
by a Bank pursuant to Section 1.10(a)(ii) or (iii)), or (ii) if the affected
Eurodollar Loan is then outstanding, upon at least three Business Days' notice
to the Administrative Agent, require the affected Bank to convert each such
Eurodollar Loan into a Base Rate Loan (which conversion, in the case of the
circumstances described in Section 1.10(a)(iii), shall occur no later than the
last day of the Interest Period then applicable to such Eurodollar Loan (or such
earlier date as shall be required by applicable law)); PROVIDED that if more
than one Bank is affected at any time, then all affected Banks must be treated
the same pursuant to this Section 1.10(b).
(c) (i) If any Bank shall have determined that after the Effective
Date, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Bank with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Bank could have achieved
but for such adoption, change or compliance (taking into consideration such
Bank's policies with respect to capital adequacy), then from time to time,
within 15 days after demand by such Bank (with a copy to the Administrative
Agent), accompanied by the notice referred to in the last sentence of this
clause (i), the Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such reduction. Each Bank, upon
determining in good faith that any additional amounts will be payable pursuant
to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall set forth the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish the Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(c).
(ii) If (x) any Bank becomes a Defaulting Bank or otherwise
defaults in its obligations to make Loans or fund Unpaid Drawings, (y) any Bank
has notified the Borrower that one of its Eurodollar Loans is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), or (z) any Bank is owed
increased costs or other amounts under Section 1.10(c)(i), 2.06 or 4.04 and, in
the case of such clause (y) or (z), compensation or other action with respect to
such event is not otherwise requested generally by the other Banks, the Borrower
shall have the right, if no Default or Event of Default then exists and, in the
case of a Bank described in clause (y) or (z) above, such Bank has not changed
its applicable lending office with the effect of eliminating such increased
cost, to replace such Bank (the "Replaced Bank") with another commercial bank or
banks or other financial institutions (collectively, the "Replacement Bank")
reasonably acceptable to the Administrative Agent, and, in the case of any
Replaced Bank with a Revolving Loan Commitment, the Letter of Credit Issuer,
PROVIDED that (i) at the time of any replacement
Page 10
pursuant to this Section 1.10(c)(ii), the Replacement Bank shall enter into one
or more assignment agreements pursuant to Section 12.04(b) hereof (and with all
fees payable pursuant to said Section 12.04(b) to be paid by the Replacement
Bank) pursuant to which the Replacement Bank shall acquire all of the
Commitments and outstanding Loans of, and participations in Letters of Credit
by, the Replaced Bank and, in connection therewith, shall pay to the Replaced
Bank (or the Letter of Credit Issuer in the case of the proviso contained in
clause (b) below or Chase in the case of clause (d) below) in respect thereof an
amount equal to the sum of (a) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Bank, (b) an amount
equal to the sum of such Replaced Bank's Adjusted Percentage (for this purpose,
determined as if the adjustment described in clause (y) of the immediately
succeeding sentence had been made with respect to such Replaced Bank) of all
Unpaid Drawings and all then unpaid interest with respect thereto at such time,
PROVIDED that in the event such Replaced Bank did not reimburse the Letter of
Credit Issuer pursuant to Section 2.05(c) in respect of any Unpaid Drawing, such
amount shall instead be paid to the Letter of Credit Issuer, (c) an amount equal
to any unpaid obligation of the Replaced Bank pursuant to Section 1.01(e), which
amount shall be paid to Chase, and (d) an amount equal to all accrued, but
theretofore unpaid, Fees owing to the Replaced Bank pursuant to Section 3.01
hereof and (ii) all obligations of the Borrower owing to the Replaced Bank
(other than those specifically described in clause (i) above in respect of which
the assignment purchase price has been, or is concurrently being, paid) shall be
paid in full to such Replaced Bank concurrently with such replacement. Upon the
execution of the respective assignment documentation pursuant to clause (i)
above and the payment of amounts referred to in clauses (i) above and (ii)
above, (x) the Replacement Bank shall become a Bank or Banks hereunder, as the
case may be, and the Replaced Bank shall cease to constitute a Bank hereunder,
except with respect to indemnification provisions (including, without
limitation, Sections 1.10, 1.11, 2.06, 4.04, 11.07 and 12.01 of this Agreement)
under this Agreement, which shall survive as to such Replaced Bank and (y) the
Adjusted Percentages of the Banks shall be automatically adjusted at such time
to give effect to such replacement (and to give effect to the replacement of a
Defaulting Bank with one or more Non-Defaulting Banks).
1.11 COMPENSATION. The Borrower agrees to compensate each Bank in
the appropriate currency, upon its written request (which request shall set
forth the basis for requesting such compensation), for all reasonable losses,
expenses and liabilities (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits or
other funds required by such Bank to fund its Eurodollar Loans but excluding
loss of anticipated profit with respect to any Loans) which such Bank may
sustain: (i) if for any reason (other than a default by such Bank or the
Administrative Agent) a Borrowing of Eurodollar Loans does not occur on a date
specified therefor in a Notice of Borrowing or Notice of Conversion (whether or
not withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any repayment, prepayment or conversion of any Eurodollar Loans occurs
on a date which is not the last day of an Interest Period applicable thereto;
(iii) if any prepayment of any Eurodollar Loans is not made on any date
specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay its Loans when
required by the terms of this Agreement or (y) an election made pursuant to
Section 1.10(b). Calculation of all amounts payable to a Bank under this Section
1.11 shall be made as though that Bank had actually funded its relevant
Eurodollar Loan through the purchase of a
Page 11
Eurodollar deposit bearing interest at the Eurodollar Rate in an amount equal to
the amount of that Loan, having a maturity comparable to the relevant Interest
Period and through the transfer of such Eurodollar deposit from an offshore
office of that Bank to a domestic office of that Bank in the United States of
America; PROVIDED, HOWEVER, that each Bank may fund each of its Eurodollar Loans
in any manner it sees fit and the foregoing assumption shall be utilized only
for the calculation of amounts payable under this Section 1.11.
1.12 CHANGE OF LENDING OFFICE. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c)(i), 2.06 or 4.04 with respect to such Bank, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office for any Loans
or Letters of Credit affected by such event; PROVIDED that such designation is
made on such terms that in the sole judgment of such Bank, such Bank and its
lending office suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequences of the event giving rise to the operation of
any such Section. Nothing in this Section 1.12 shall affect or postpone any of
the obligations of the Borrower or the right of any Bank provided in Sections
1.10, 2.06 or 4.04.
1.13 INCREMENTAL LOAN COMMITMENTS. At any time and from time to time
on and after the Effective Date and prior to the Term Loan B Maturity Date, the
Borrower may request that one or more Banks or other lending institutions (each
such lending institution, an "Incremental Loan Lending Institution"), as the
case may be, (i) enter into commitments to make additional term loans as a Term
Loan A or a Term Loan B, subject to all the terms and conditions set forth in
this
Credit Agreement and the other Credit Documents pertaining to Term Loans A
or Term Loans B, as the case may be, (ii) enter into commitments to make
additional Revolving Loans, subject to all the terms and conditions set forth in
this
Credit Agreement and all other Credit Documents pertaining to Revolving
Loans and Revolving Loan Commitments and/or (iii) enter into commitments to make
new term loans or new revolving loans pursuant to one or more new Tranches
hereunder (any such commitment to make additional Term Loans A, Term Loans B,
Revolving Loans or other loans hereunder, an "Incremental Loan Commitment");
PROVIDED, that (A) any such new Tranche shall have an average life to maturity
no shorter than the other Tranches (excluding Swingline Loans) taken as a whole,
(B) the final maturity of any such new Tranche shall occur no earlier than six
months after the Term Loan B Maturity Date, (C) no Incremental Loan Commitment
may be added at a time when a Default or Event of Default exists, (D) the
aggregate amount of any single Incremental Loan Commitment shall not be less
than $25,000,000, (E) the aggregate amount of all Incremental Loan Commitments
shall not exceed $300,000,000 and (F) any such new Tranche that amortizes shall
be subject to semi-annual amortization. Each Incremental Loan Commitment
(whether constituting an addition to an existing Tranche or a new Tranche) shall
be incorporated into this Agreement pursuant to a supplement or amendment hereto
or an amendment and restatement hereof executed and delivered by the Borrower,
the Administrative Agent and each Incremental Loan Lending Institution whose
Commitment is increasing pursuant thereto, and such Persons are hereby
authorized to enter into any such supplement, amendment or amendment and
restatement (which shall be binding on all parties), to the extent necessary
(but only to the extent necessary) to effect such Incremental Loan Commitment.
Page 12
SECTION 2. Letters of Credit.
2.01 LETTERS OF CREDIT. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request the Letter of Credit
Issuer at any time and from time to time on or after the Initial Borrowing Date
and prior to the Business Day next preceding the Revolving Loan Maturity Date to
issue, for the account of the Borrower and in support of (x) trade obligations
of the Borrower and/or its Restricted Subsidiaries and/or (y) on a standby
basis, such other obligations (contingent or otherwise) of the Borrower and/or
its Restricted Subsidiaries to any other Person, in each case, that arise in the
ordinary course of business and are in respect of general corporate purposes
(including, without limitation, in connection with Permitted Acquisitions) of
the Borrower and/or its Restricted Subsidiaries, and subject to and upon the
terms and conditions herein set forth the Letter of Credit Issuer agrees to
issue from time to time, irrevocable letters of credit in such form as may be
approved by the Letter of Credit Issuer and the Administrative Agent (each such
letter of credit, a "Letter of Credit" and collectively, the "Letters of
Credit").
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall
be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings at such time, would exceed either (x) $75,000,000 or (y) when added
to the aggregate principal amount of all Revolving Loans made by Non-Defaulting
Banks and Swingline Loans then outstanding, the Adjusted Total Revolving Loan
Commitment at such time; (ii) each Letter of Credit shall have an expiry date
occurring not later than two years after such Letter of Credit's date of
issuance, provided that standby Letters of Credit may provide that, absent
notice to the contrary from the Letter of Credit Issuer to the beneficiary
thereof, the expiry date shall be automatically extended for successive one year
periods and (iii) no Letter of Credit shall have an expiry date occurring later
than the Business Day next preceding the Revolving Loan Maturity Date.
(c) Annex VII attached hereto contains a description of all
letters of credit issued or deemed issued and outstanding under the Existing
Credit Agreements on the Initial Borrowing Date. Each such letter of credit,
including any extension thereof (each, an "Existing Letter of Credit") shall
constitute a "Letter of Credit" for all purposes of this Agreement, issued, for
purposes of Section 2.05(a), on the Initial Borrowing Date.
2.02 MINIMUM STATED AMOUNT. The initial Stated Amount of each Letter
of Credit shall be not less than $5,000 or such lesser amount acceptable to the
Letter of Credit Issuer, PROVIDED that no more than 40 Letters of Credit (or
such greater number acceptable to the Letter of Credit Issuer) shall be
outstanding at any one time.
2.03 LETTER OF CREDIT REQUESTS; NOTICES OF ISSUANCE. (a) Whenever
the Borrower desires that a Letter of Credit be issued, it shall give the
Administrative Agent and the Letter of Credit Issuer written notice (or
telephonic notice confirmed in writing) thereof prior to 12:00 Noon (
New York
time) at least five Business Days' (or such shorter period as may be acceptable
to the Letter of Credit Issuer) prior to the proposed date of issuance (which
shall be a Business Day) (each a "Letter of Credit Request"), which Letter of
Credit Request shall include an application for such Letter of Credit and any
other documents that the Letter of Credit Issuer
Page 13
customarily requires in connection therewith. The Administrative Agent shall
promptly notify each Bank of each Letter of Credit Request.
(b) The Letter of Credit Issuer shall, on the date of each
issuance of a Letter of Credit by it or amendment thereto, give the
Administrative Agent, each Bank and the Borrower written notice of the issuance
or amendment of such Letter of Credit, accompanied by a copy to the
Administrative Agent of the Letter of Credit or Letters of Credit issued by it
or of the amendment thereto.
2.04 AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS. (a) The Borrower
hereby agrees to reimburse the Letter of Credit Issuer, by making payment to the
Administrative Agent in immediately available funds at the Payment Office, for
any payment or disbursement made by the Letter of Credit Issuer under any Letter
of Credit issued by it (each such amount so paid or disbursed until reimbursed,
an "Unpaid Drawing") no later than one Business Day following the date of such
payment or disbursement, with interest on the amount so paid or disbursed by the
Letter of Credit Issuer, to the extent not reimbursed prior to 1:00 P.M. (New
York time) on the date of such payment or disbursement, from and including the
date paid or disbursed to but not including the date the Letter of Credit Issuer
is reimbursed therefor at a rate per annum which shall be the Applicable Margin
for Base Rate Loans that are Revolving Loans plus the Base Rate as in effect
from time to time (plus an additional 2% per annum if not reimbursed by the
third Business Day after the date of such payment or disbursement), such
interest also to be payable on demand. The Letter of Credit Issuer shall provide
the Borrower prompt notice of any payment or disbursement made by it under any
Letter of Credit issued by it, although the failure of, or delay in, giving any
such notice shall not release or diminish the obligations of the Borrower under
this Section 2.04(a) or under any other Section of this Agreement.
(b) The Borrower's obligation under this Section 2.04 to reimburse
the Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances, including, without limitation, those set forth in Section
2.05(e)(i) through (v), inclusive, and irrespective of any setoff, counterclaim
or defense to payment which the Borrower may have or have had against the Letter
of Credit Issuer, the Administrative Agent or any Bank, including, without
limitation, any defense based upon the failure of any drawing under a Letter of
Credit to conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such drawing; PROVIDED,
HOWEVER, that the Borrower shall not be obligated to reimburse the Letter of
Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under
a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer.
2.05 LETTER OF CREDIT PARTICIPATIONS. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Bank
with a Revolving Loan Commitment, and each such Bank (each a "Participant")
shall be deemed irrevocably and unconditionally to have purchased and received
from such Letter of Credit Issuer, without recourse or warranty, an undivided
interest and participation, to the extent of such Bank's Adjusted Percentage, in
such Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the
Page 14
Borrower under this Agreement with respect thereto (although Letter of Credit
Fees shall be payable directly to the Administrative Agent for the account of
the Banks as provided in Section 3.01(b) and the Participants shall have no
right to receive any portion of any Facing Fees) and any security therefor or
guaranty pertaining thereto. Upon any change in the Revolving Loan Commitments
or Adjusted Percentages of the Banks pursuant to Section 1.10(c)(ii) or 12.04(b)
or otherwise, or upon the occurrence of a Bank Default, it is hereby agreed
that, with respect to all outstanding Letters of Credit and Unpaid Drawings,
there shall be an automatic adjustment to the participations pursuant to this
Section 2.05 to reflect the new Adjusted Percentages of the assigning and
assignee Banks or of all Non-Defaulting Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the
Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by the Letter of Credit Issuer under or in connection
with any Letter of Credit if taken or omitted in the absence of gross negligence
or willful misconduct, shall not create for the Letter of Credit Issuer any
resulting liability.
(c) In the event that the Letter of Credit Issuer makes any
payment under any Letter of Credit and the Borrower shall not have reimbursed
such amount in full to the Letter of Credit Issuer pursuant to Section 2.04(a),
the Letter of Credit Issuer shall promptly notify the Administrative Agent, and
the Administrative Agent shall promptly notify each Participant of such failure,
and each Participant shall promptly and unconditionally pay to the
Administrative Agent for the account of the Letter of Credit Issuer, the amount
of such Participant's Adjusted Percentage of such unreimbursed payment in U.S.
Dollars and in same day funds; PROVIDED, HOWEVER, that no Participant shall be
obligated to pay to the Administrative Agent its Adjusted Percentage of such
unreimbursed amount for any wrongful payment made by the Letter of Credit Issuer
under a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer. If
the Administrative Agent so notifies any Participant required to fund a payment
under a Letter of Credit prior to 11:00 A.M. (New York time) on any Business
Day, such Participant shall make available to the Administrative Agent for the
account of the Letter of Credit Issuer such Participant's Adjusted Percentage of
the amount of such payment on such Business Day in same day funds. If and to the
extent such Participant shall not have so made its Adjusted Percentage of the
amount of such payment available to the Administrative Agent for the account of
the Letter of Credit Issuer, such Participant agrees to pay to the
Administrative Agent for the account of the Letter of Credit Issuer, forthwith
on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Administrative Agent for the
account of the Letter of Credit Issuer at the overnight Federal Funds Effective
Rate. The failure of any Participant to make available to the Administrative
Agent for the account of the Letter of Credit Issuer its Adjusted Percentage of
any payment under any Letter of Credit shall not relieve any other Participant
of its obligation hereunder to make available to the Administrative Agent for
the account of the Letter of Credit Issuer its Adjusted Percentage of any
payment under any Letter of Credit on the date required, as specified above, but
no Participant shall be responsible for the failure of any other Participant to
make available to the Administrative Agent for the account of the Letter of
Credit Issuer such other Participant's Adjusted Percentage of any such payment.
Page 15
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of the Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, the Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its Adjusted Percentage thereof, in U.S. Dollars and
in same day funds, an amount equal to such Participant's Adjusted Percentage of
the principal amount thereof and interest thereon accruing after the purchase of
the respective participations.
(e) The obligations of the Participants to make payments to the
Administrative Agent for the account of the Letter of Credit Issuer with respect
to Letters of Credit shall be irrevocable and not subject to counterclaim,
set-off or other defense or any other qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against a beneficiary named in a
Letter of Credit, any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Administrative Agent, the
Letter of Credit Issuer, any Bank, or other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying transaction
between the Borrower and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.06 INCREASED COSTS. If at any time after the Effective Date, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Letter of Credit Issuer or any
Participant with any request or directive (whether or not having the force of
law) by any such authority, central bank or comparable agency shall either (i)
impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against Letters of Credit issued by the Letter of Credit
Issuer or such Participant's participation therein, or (ii) impose on the Letter
of Credit Issuer or any Participant any other conditions affecting this
Agreement, any Letter of Credit or such Participant's participation therein; and
the result of any of the foregoing
Page 16
is to increase the cost to the Letter of Credit Issuer or such Participant of
issuing, maintaining or participating in any Letter of Credit, or to reduce the
amount of any sum received or receivable by the Letter of Credit Issuer or such
Participant hereunder, then, upon demand to the Borrower by the Letter of Credit
Issuer or such Participant (a copy of which notice shall be sent by the Letter
of Credit Issuer or such Participant to the Administrative Agent), accompanied
by the certificate described in the last sentence of this Section 2.06, the
Borrower shall pay to the Letter of Credit Issuer or such Participant such
additional amount or amounts as will compensate the Letter of Credit Issuer or
such Participant for such increased cost or reduction. A certificate submitted
to the Borrower by the Letter of Credit Issuer or such Participant, as the case
may be (a copy of which certificate shall be sent by the Letter of Credit Issuer
or such Participant to the Administrative Agent), setting forth the basis for
the determination of such additional amount or amounts necessary to compensate
the Letter of Credit Issuer or such Participant as aforesaid shall be final and
conclusive and binding on the Borrower absent manifest error, although the
failure to deliver any such certificate shall not release or diminish the
Borrower's obligations to pay additional amounts pursuant to this Section 2.06.
SECTION 3. Fees; Commitments.
3.01 FEES. (a) The Borrower agrees to pay to the Administrative
Agent for distribution to each Non-Defaulting Bank with a Revolving Loan
Commitment a commitment fee (the "Commitment Fee") for the period from the
Effective Date to but not including the date the Total Revolving Loan Commitment
has been terminated, computed at a per annum rate equal to the Applicable
Commitment Fee Percentage on the daily average Aggregate Unutilized Revolving
Loan Commitment of such Non-Defaulting Bank. Accrued Commitment Fees shall be
due and payable quarterly in arrears on the last Business Day of March, June,
September and December of each year and the date upon which the Total Revolving
Loan Commitment is terminated.
(b) The Borrower shall pay to the Administrative Agent for the
account of each Non-Defaulting Bank with a Revolving Loan Commitment PRO RATA on
the basis of their respective Adjusted Percentages, a fee in respect of each
Letter of Credit (the "Letter of Credit Fee") computed at a rate equal to the
Applicable Letter of Credit Fee Percentage on the average daily Stated Amount of
such Letter of Credit. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December of each year and on the date upon which the Total Revolving Loan
Commitment shall be terminated.
(c) The Borrower shall pay to the Administrative Agent for the
account of the Letter of Credit Issuer a fee in respect of each Letter of Credit
issued by it (the "Facing Fee") computed at the rate of 1/4 of 1% per annum on
the average daily Stated Amount of such Letter of Credit. Accrued Facing Fees
shall be due and payable quarterly in arrears on the last Business Day of each
March, June, September and December of each year and on the date upon which the
Total Revolving Loan Commitment shall be terminated.
(d) The Borrower hereby agrees to pay directly to the Letter of
Credit Issuer upon each issuance of, drawing under, and/or amendment of, a
Letter of Credit issued by it such
Page 17
amount as shall at the time of such issuance, drawing or amendment be the
administrative charge which the Letter of Credit Issuer is customarily charging
for issuances of, drawings under or amendments of, letters of credit issued by
it.
(e) The Borrower shall pay to the Administrative Agent and the
Syndication Agent, for their own respective accounts, such other fees as have
been agreed to in writing by the Borrower and the Administrative Agent or the
Syndication Agent, respectively.
(f) All computations of Fees shall be made in accordance with
Section 12.07(b).
3.02 VOLUNTARY REDUCTION OF COMMITMENTS. Upon at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks), the Borrower
shall have the right, without premium or penalty, to terminate or partially
reduce the Total Unutilized Revolving Loan Commitment; PROVIDED that (w) any
such termination or partial reduction shall apply to proportionately and
permanently reduce the Revolving Loan Commitment of each of the Banks with a
Revolving Loan Commitment, (x) any partial reduction pursuant to this Section
3.02 shall be in the amount of at least $2,000,000, (y) the reduction to the
Total Unutilized Revolving Loan Commitment shall in no case be in an amount
which would cause the Revolving Loan Commitment of any Bank to be reduced (as
required by the preceding clause (w)) by an amount which exceeds the remainder
of (i) the Aggregate Unutilized Revolving Loan Commitment of such Bank as in
effect immediately before giving effect to such reduction minus (ii) such Bank's
Adjusted Percentage of the aggregate principal amount of Swingline Loans then
outstanding and (z) each reduction to the Total Revolving Loan Commitment
pursuant to this Section 3.02 shall reduce the then remaining Scheduled
Revolving Loan Commitment Reductions on a PRO RATA basis (based upon the then
remaining principal amount of each such Scheduled Revolving Loan Commitment
Reduction).
3.03 MANDATORY REDUCTION OF COMMITMENTS, ETC. (a) Subject to
Sections 3.02 and 3.03(d), the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Bank with such a Commitment) shall be
permanently reduced on each date set forth below (provided that if any date set
forth below is not a Business Day then the permanent reduction shall occur on
the first Business Day immediately succeeding such date set forth below) (each a
"Scheduled Revolving Loan Commitment Reduction Date"), in the amount set forth
below opposite such date (each such reduction, as such reduction may have been
reduced pursuant to Sections 3.02 and/or 3.03(d), a "Scheduled Revolving Loan
Commitment Reduction"):
Page 18
SCHEDULED REVOLVING LOAN
COMMITMENT
REDUCTION DATE AMOUNT
------------------------ ------------
December 31, 2004 $ 23,750,000
June 30, 2005 $ 23,750,000
December 31, 2005 $ 23,750,000
June 30, 2006 $ 23,750,000
December 31, 2006 $ 47,500,000
June 30, 2007 $ 47,500,000
December 31, 2007 $ 95,000,000
Revolving Loan Maturity Date $190,000,000
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Term Loan A Commitment (and the Term
Loan A Commitment of each Bank with such a Commitment) shall terminate on the
Initial Borrowing Date (after giving effect to the making of the Term Loans A on
such date). In addition to any other mandatory commitment reductions pursuant to
this Section 3.03, the Total Term Loan B Commitment (and the Term Loan B
Commitment of each Bank with such a Commitment) shall terminate on the Initial
Borrowing Date (after giving effect to the making of the Term Loans B on such
date).
(c) The Total Revolving Loan Commitment (and the Revolving Loan
Commitment of each Bank) shall terminate in its entirety on the earlier of (i)
the date which is the earlier of (x) 30 days after any date on which a Specified
Change of Control Event occurs and (y) the date on which any Senior Notes or any
other Indebtedness of the Borrower or its Restricted Subsidiaries are required
to be repurchased, redeemed or prepaid as a result of any such Specified Change
of Control Event, and (ii) the Revolving Loan Maturity Date.
(d) With respect to any Asset Sale, (i) on the earliest of (x) the
date occurring one year after the consummation of such Asset Sale, (y) the date,
if any, following the date of consummation of such Asset Sale upon which the
Administrative Agent, on behalf of the Required Banks, shall have delivered a
written reinvestment termination notice to the Borrower, provided that such
notice may only be given while an Event of Default exists, and (z) the date the
Borrower or any of its Subsidiaries shall be required to make an offer to
purchase Senior Notes or any other Indebtedness of the Borrower or its
Restricted Subsidiaries (other than Indebtedness
Page 19
specifically relating to the assets sold in such Asset Sale) with the proceeds
received in connection with such Asset Sale, and (ii) on any date after the
earliest of the dates referred to in clause (i) above of receipt by the Borrower
or any of its Restricted Subsidiaries of additional Net Cash Proceeds from such
Asset Sale, in each case, the Total Revolving Loan Commitment shall be reduced
and the aggregate principal amount of the Term Loans A and the Term Loans B
shall be repaid in an aggregate amount equal to 100% of the then Remaining Net
Cash Proceeds from such Asset Sale (with the Term Loan A Facility Percentage of
such Remaining Net Cash Proceeds to be applied as a repayment of the aggregate
principal amount of Term Loans A and Term Loan B Facility Percentage to be
applied as a repayment of the aggregate principal amount of Term Loans B, and
with all such Remaining Net Cash Proceeds to be applied as a reduction of the
Total Revolving Loan Commitment after all of the Term Loans A and Term Loans B
have been paid in full). Each reduction to the Total Revolving Loan Commitment
pursuant to this Section 3.03(d) shall reduce each of the remaining Scheduled
Revolving Loan Commitment Reductions on a PRO RATA basis (based upon the then
remaining amount of each such Scheduled Revolving Loan Commitment Reduction).
(e) Each reduction to the Total Term Loan A Commitment, the Total
Term Loan B Commitment and the Total Revolving Loan Commitment pursuant to this
Section 3.03 shall be applied proportionately to reduce the Term Loan A
Commitment, the Term Loan B Commitment or the Revolving Loan Commitment, as the
case may be, of each Bank with such a Commitment.
SECTION 4. PAYMENTS.
4.01 VOLUNTARY PREPAYMENTS. The Borrower shall have the right to
prepay the Loans incurred by it, in whole or in part, without premium or penalty
except as otherwise provided in this Agreement, from time to time on the
following terms and conditions: (i) the Borrower shall give the Administrative
Agent at the Notice Office written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay the Loans, whether such Loans are
Term Loans A, Term Loans B, Revolving Loans or Swingline Loans, the amount of
such prepayment and (in the case of Eurodollar Loans) the specific Borrowing(s)
pursuant to which made, which notice shall be given by the Borrower prior to
12:00 Noon (New York time) (x) at least two Business Days prior to the date of
such prepayment in the case of Term Loans A, Term Loans B, Revolving Loans or
(y) on the date of such prepayment in the case of Swingline Loans, which notice
shall promptly be transmitted by the Administrative Agent to each of the Banks;
(ii) (x) each partial prepayment of any Borrowing (other than a Borrowing of
Swingline Loans) shall be in an aggregate principal amount of at least
$1,000,000 and, if greater, in an integral multiple of $500,000, (y) each
partial prepayment of any Borrowing of Swingline Loans shall be in an aggregate
principal amount of at least $250,000 and, if greater, in an integral multiple
of $50,000, PROVIDED that no partial prepayment of Eurodollar Loans made
pursuant to a Borrowing shall reduce the aggregate principal amount of the Loans
outstanding pursuant to such Borrowing to an amount less than the Minimum
Borrowing Amount applicable thereto; (iii) each prepayment of Term Loans A or
Term Loans B pursuant to this Section 4.01 shall reduce the then remaining
Scheduled TLA Repayments or Scheduled TLB Repayments, as the case may be, on a
PRO RATA basis (based upon the then remaining principal amount of each such
Scheduled TLA Repayment or Scheduled TLB Repayment, as the case may be); and
(iv) each prepayment in respect of any
Page 20
Loans made pursuant to a Borrowing shall be applied PRO RATA among such Loans;
PROVIDED that at the Borrower's election in connection with any prepayment of
Revolving Loans pursuant to this Section 4.01, such prepayment shall not be
applied to any Revolving Loans of a Defaulting Bank.
4.02 MANDATORY REPAYMENTS. (a) (i) If on any date the sum of (x) the
aggregate outstanding principal amount of Revolving Loans made by Non-Defaulting
Banks and Swingline Loans (in each case after giving effect to all other
repayments thereof on such date), plus (y) the Letter of Credit Outstandings on
such date exceeds the Adjusted Total Revolving Loan Commitment as then in
effect, the Borrower shall repay on such date the principal of Swingline Loans,
and if no Swingline Loans are or remain outstanding, Revolving Loans of
Non-Defaulting Banks in an aggregate amount equal to such excess. If, after
giving effect to the repayment of all outstanding Swingline Loans and Revolving
Loans, the aggregate amount of Letter of Credit Outstandings exceeds the
Adjusted Total Revolving Loan Commitment then in effect, the Borrower agrees to
pay to the Administrative Agent an amount in cash and/or Cash Equivalents equal
to such excess (up to the aggregate amount of Letter of Credit Outstandings) and
the Administrative Agent shall hold such payment as security for the obligations
of the Borrower hereunder pursuant to a cash collateral agreement to be entered
into in form and substance satisfactory to the Administrative Agent (which shall
permit certain investments in Cash Equivalents satisfactory to the
Administrative Agent, until the proceeds are applied to the secured
obligations).
(ii) If on any date the aggregate outstanding principal amount of
Revolving Loans made by any Defaulting Bank exceeds the Revolving Loan
Commitment of such Defaulting Bank, the Borrower shall repay the Revolving Loans
of such Defaulting Bank in an amount equal to such excess.
(b) In addition to any other mandatory repayments pursuant to this
Section 4.02, the Borrower shall repay, on each date set forth below (PROVIDED
that if any date set forth below is not a Business Day then the repayment shall
occur on the first Business Day immediately succeeding such date set forth
below) (each a "Scheduled TLA Repayment Date"), the Term Loans A in an amount
equal to the amount set forth below opposite such date (each such repayment, as
the same may be reduced as provided in Sections 4.01, and 4.02(e), a "Scheduled
TLA Repayment"):
SCHEDULED TLA REPAYMENT DATE AMOUNT
----------------------------------- -----------
December 31, 2004 $12,500,000
June 30, 2005 $12,500,000
December 31, 2005 $12,500,000
June 30, 2006 $12,500,000
December 31, 2006 $12,500,000
June 30, 2007 $12,500,000
Page 21
SCHEDULED TLA REPAYMENT DATE AMOUNT
------------------------------------- -----------
December 31, 2007 $12,500,000
Term Loan A $12,500,000
Maturity Date
(c) In addition to any other mandatory repayments pursuant to this
Section 4.02, the Borrower shall repay, on each date set forth below (PROVIDED
that if any date set forth below is not a Business Day then the repayment shall
occur on the first Business Day immediately succeeding such date set forth
below) (each a "Scheduled TLB Repayment Date"), the Term Loans B in an amount
equal to the amount set forth below opposite such date (each such repayment, as
the same may be reduced as provided in Sections 4.01, and 4.02(e), a "Scheduled
TLB Repayment"):
SCHEDULED TLB REPAYMENT DATE AMOUNT
-------------------------------------- ------------
December 31, 2001 $ 2,125,000
June 30, 2002 $ 2,125,000
December 31, 2002 $ 2,125,000
June 30, 2003 $ 2,125,000
December 31, 2003 $ 2,125,000
June 30, 2004 $ 2,125,000
December 31, 2004 $ 2,125,000
June 30, 2005 $ 2,125,000
December 31, 2005 $ 2,125,000
June 30, 2006 $ 2,125,000
December 31, 2006 $ 2,125,000
June 30, 2007 $ 2,125,000
December 31, 2007 $ 2,125,000
June 30, 2008 $ 2,125,000
December 31, 2008 $ 2,125,000
Term Loan B $393,125,000
Maturity Date
(d) In the event that a Specified Change of Control Event occurs,
the Borrower shall repay all outstanding Term Loans A and Term Loans B in their
entirety on the date which is the earlier of (i) 30 days after any date on which
such Specified Change of Control Event occurs and (ii) the date on which any
Senior Notes or any other Indebtedness of the Borrower or its Restricted
Subsidiaries are required to be repurchased, redeemed or prepaid as a result of
any such Specified Change of Control Event.
(e) The aggregate principal amount of Term Loans A and Term
Loans B shall be repaid at the times, and in the amounts, provided in
Section 3.03(d). The amount of each principal repayment of Term Loans A or Term
Loans B pursuant to this Section 4.02(e) shall be
Page 22
applied to reduce each of the remaining Scheduled TLA Repayments or Scheduled
TLB Repayments, as the case may be, on a PRO RATA basis (based upon the then
remaining amount of each such Scheduled TLA Repayment or Scheduled TLB
Repayment, as the case may be).
(f) Notwithstanding anything to the contrary contained in this
Agreement, all then outstanding Loans under this Agreement shall be repaid in
full on the respective Maturity Date for such Loans.
(g) With respect to each repayment of Loans required by this
Section 4.02, the Borrower may designate the Types of Loans which are to be
repaid and the specific Borrowing(s) pursuant to which made; PROVIDED that
(i) Eurodollar Loans may be designated for repayment pursuant to this
Section 4.02 only on the last day of an Interest Period applicable thereto
unless all Eurodollar Loans under the respective Tranche with Interest Periods
ending on such date of required repayment and all Base Rate Loans under the
respective Tranche have been paid in full; (ii) each repayment of any Loans made
pursuant to a Borrowing shall be applied PRO RATA among such Loans;
(iii) notwithstanding the provisions of the preceding clause (ii), no repayment
of Revolving Loans pursuant to Section 4.02(a)(i) shall be applied to the
Revolving Loans of a Defaulting Bank; and (iv) repayments of Revolving Loans of
Defaulting Banks pursuant to Section 4.02(a)(ii) shall be applied PRO RATA among
such Revolving Loans. In the absence of a designation by the Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under Section 1.11. Notwithstanding
the foregoing provisions of this Section 4.02, if at any time the mandatory
repayment of Loans pursuant to Section 4.02(a) arising solely as a result of a
reduction to the Total Revolving Loan Commitment pursuant to Section 3.03(d)
would result, after giving effect to the procedures set forth above in this
clause (g), in the Borrower incurring breakage costs under Section 1.11 as a
result of Eurodollar Loans being repaid other than on the last day of an
Interest Period applicable thereto (the "Affected Eurodollar Loans"), then the
Borrower may in its sole discretion initially deposit a portion (up to 100%) of
the amounts that otherwise would have been paid in respect of the Affected
Eurodollar Loans with the Administrative Agent to be held as security for the
obligations of the Borrower hereunder pursuant to a cash collateral agreement to
be entered into in form and substance satisfactory to the Administrative Agent,
with such cash collateral to be released from such cash collateral account upon
the first occurrence (or occurrences) thereafter of the last day of an Interest
Period applicable to the relevant Loans that are Eurodollar Loans (or such
earlier date or dates as shall be requested by the Borrower), to repay an
aggregate principal amount of such Loans equal to the Affected Eurodollar Loans
not initially repaid pursuant to this sentence.
4.03 METHOD AND PLACE OF PAYMENT. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable account of the Banks entitled thereto
(based on each Bank's Pro Rata Share, if any), no later than 1:00 P.M. (New York
time) on the date when due and shall be made in immediately available funds and
in lawful money of the United States of America at the Payment Office. Any
payments under this Agreement which are made later than 1:00 P.M. (New York
time) shall be deemed to have been made on the next succeeding Business Day;
PROVIDED, HOWEVER, that to the extent that the Administrative Agent shall have
received any payment under this Agreement after
Page 23
1:00 P.M. (New York time) on a Business Day, the Administrative Agent shall use
its best efforts to distribute such payment as promptly as practicable on such
date to the Banks (other than any Bank that has consented in writing to waive
its PRO RATA share of such payment) PRO RATA based upon their respective shares,
if any, of the Obligations with respect to which such payment was received, and
to the extent that any such Bank receives its portion of such payment from the
Administrative Agent on such same date by a time satisfactory to such Bank, such
payment to such Bank shall be deemed to have been made on such date. Whenever
any payment to be made hereunder shall be stated to be due on a day which is not
a Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable during such extension at the applicable rate in effect immediately prior
to such extension.
4.04 NET PAYMENTS. (a) All payments made by the Borrower hereunder
will be made without setoff, counterclaim or other defense. Except as provided
in Section 4.04(b), the Borrower agrees to pay, prior to the date on which
penalties attach thereto, all present and future income, stamp and other taxes,
levies, imposts, fines, fees, assessments or costs and charges whatsoever now
and hereafter imposed, assessed, levied, withheld or collected on or in respect
of any payments of principal, interest or other amounts (all such taxes, levies,
costs, imposts, fines, fees, assessments and charges being herein collectively
called "Taxes"); provided that Taxes shall not include, except as provided in
the succeeding sentence, taxes imposed on or measured by the overall net income
or receipts of the Administrative Agent or any Bank pursuant to the laws of the
jurisdiction in which the Administrative Agent or such Bank is organized or the
jurisdiction in which the principal office or applicable lending office of such
Bank is located or any subdivision thereof or therein. The Borrower agrees to
also pay such additional amounts equal to increases in taxes payable by, or
withheld from, that Bank described in the foregoing proviso which increases
arise from the receipt by that Bank of payments so paid to or on behalf of such
Bank by the Borrower pursuant to the immediately preceding sentence of this
Section 4.04 and from the receipt of any amounts paid to or on behalf of such
Bank pursuant to this sentence. Promptly after the date on which payment of any
such Tax is due pursuant to applicable law, the Borrower will furnish to that
Bank evidence, in form and substance satisfactory to that Bank, that the
Borrower has met its obligation under this Section 4.04. The Borrower agrees to
indemnify each Bank against, and reimburse each Bank on demand for, any Taxes so
levied or imposed and paid by such Bank, as determined by that Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
agrees to deliver to the Borrower and the Administrative Agent on or prior to
the Effective Date, or in the case of a Bank that is an assignee or transferee
of an interest under this Agreement pursuant to Section 12.04 (unless the
respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such Bank
the Prescribed Forms certifying to the Bank's entitlement as of such date to a
complete exemption from United States withholding tax with respect to payments
to be made under this Agreement. In addition, each Bank agrees that from time to
time after the Effective Date, when a lapse in time or change in circumstances
renders the Prescribed Forms obsolete or inaccurate in any material respect, it
will deliver to the Borrower and the Agent new Prescribed Forms and such other
forms as may be required in order to confirm or establish the entitlement of
such Bank to a continued exemption
Page 24
from or reduction in United States withholding tax with respect to payments
under this Agreement, or it shall immediately notify the Borrower and the Agent
of its inability to deliver any such Form or Certificate, in which case such
Bank shall not be required to deliver any such Prescribed Form pursuant to this
Section 4.04(b). Notwithstanding the foregoing, but subject to Section 12.04(b)
and the immediately succeeding sentence, (x) the Borrower shall be entitled, to
the extent it is required to do so by law, to deduct or withhold and pay to the
appropriate taxing authority within the time prescribed by applicable law income
or other similar taxes imposed by the United States of America from interest,
fees or other amounts payable hereunder for the account of the Administrative
Agent or any Bank other than the Administrative Agent or any Bank (i) who is a
U.S. Person (as such term is defined in Section 7701(a)(30) of the Code for U.S.
Federal income tax purposes or (ii) who has the Prescribed Forms on file with
the Borrower for the applicable year to the extent deduction or withholding of
such taxes is not required as a result of the filing of such Prescribed Forms,
and (y) the Borrower shall not be obligated pursuant to Section 4.04(a) hereof
to gross-up payments to be made to the Administrative Agent or a Bank in respect
of income or similar taxes imposed by the United States if (I) the
Administrative Agent or such Bank has not provided to the Borrower the
Prescribed Forms required to be provided to the Borrower pursuant to this
Section 4.04(b) or (II) in the case of a payment, other than interest, to a Bank
is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, to the
extent that the Prescribed Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this Section 4.04 and except as set forth
in Section 12.04(b), the Borrower agrees to pay any additional amounts and to
indemnify the Administrative Agent and each Bank in the manner set forth in
Section 4.04(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any Taxes deducted or withheld by it
as described in the immediately preceding sentence as a result of any changes
that are effective after the Effective Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of such Taxes.
SECTION 5. CONDITIONS PRECEDENT.
5.01 CONDITIONS PRECEDENT TO THE INITIAL BORROWING DATE. The
obligation of each Bank to make each Loan to the Borrower hereunder on the
Initial Borrowing Date, and the obligation of the Letter of Credit Issuer to
issue each Letter of Credit hereunder on the Initial Borrowing Date, are
subject, on the Initial Borrowing Date, to the satisfaction of the following
conditions:
(a) EFFECTIVE DATE. The Effective Date shall have occurred.
(b) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. (i) There shall
exist no Default or Event of Default and (ii) all representations and warranties
contained herein or in the other Credit Documents in effect at such time shall
be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of such date, unless
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date.
Page 25
(c) OPINIONS OF COUNSEL. The Administrative Agent shall have
received opinions, addressed to each of the Banks and the Collateral Agent,
dated as of the Initial Borrowing Date, (i) from Simpson, Thacher & Xxxxxxxx,
special counsel to the Credit Parties, which opinion shall cover the matters
contained in Exhibit C-1 and such other matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request, (ii)
from Xxxxxxx X. Xxxxx, Esq., counsel to the Credit Parties, which opinion shall
cover the matters contained in Exhibit C-2 and such other matters incident to
the transactions contemplated herein as the Administrative Agent may reasonably
request, and (iii) from White & Case LLP, special counsel to the Administrative
Agent, which opinion shall cover the matters contained in Exhibit C-3.
(d) CORPORATE PROCEEDINGS. (i) The Administrative Agent shall have
received from the Borrower and each Subsidiary Guarantor, a certificate, dated
the Initial Borrowing Date, signed by the chairman, a vice chairman, the
president, the chief financial officer or the treasurer of such Person, and
attested to by the secretary or any assistant secretary of such Person, in the
form of Exhibit D with appropriate insertions and, to the extent required,
together with copies of the Certificate of Incorporation, By-Laws and the
resolutions of such Person referred to in such certificate, and the foregoing
shall be satisfactory to the Administrative Agent.
(ii) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Credit Documents shall be reasonably satisfactory in form and
substance to the Administrative Agent, and the Administrative Agent shall have
received all information and copies of all certificates, documents and papers,
including good standing certificates and any other records of corporate
proceedings and governmental approvals, if any, which the Administrative Agent
reasonably may have requested in connection therewith, such documents and
papers, where appropriate, to be certified by proper corporate or governmental
authorities.
(e) GUARANTIES. Each Subsidiary Guarantor shall have duly
authorized, executed and delivered a guaranty in the form of Exhibit E hereto
(as amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof, the "Subsidiary Guaranty"), and the Subsidiary
Guaranty shall be in full force and effect.
(f) NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. The
Administrative Agent shall have received a Notice of Borrowing satisfying the
requirements of Section 1.03 with respect to all Borrowings of Loans on the
Initial Borrowing Date; and the Administrative Agent and the Letter of Credit
Issuer shall have received a Letter of Credit Request satisfying the
requirements of Section 2.03 with respect to the issuance of any Letter of
Credit (other than Existing Letters of Credit) on the Initial Borrowing Date.
(g) PAYMENT OF FEES, ETC. All costs, fees and expenses, and all
other compensation contemplated by this Agreement, due to the Administrative
Agent, the Letter of Credit Issuer or the Banks shall have been paid to the
extent due.
(h) CONTRIBUTION AGREEMENT. The Subsidiary Guarantors shall have
entered into a contribution agreement in the form of Exhibit F hereto (as
amended, modified or
Page 26
supplemented from time to time in accordance with the terms hereof and thereof,
the "Contribution Agreement"), and the Contribution Agreement shall be in full
force and effect.
(i) EXISTING INDEBTEDNESS AGREEMENTS. There shall have been
delivered to (or made available for review by) the Banks copies, certified (in
the case of those delivered) as true and correct by an appropriate officer of
the Borrower making such delivery, of all agreements evidencing or relating to
the Existing Debt or the Existing Contingent Obligations with respect to
Indebtedness for borrowed money (collectively, the "Existing Indebtedness
Agreements").
(j) EXISTING
CREDIT AGREEMENTS. The commitments under the Existing
Credit Agreements shall have been terminated, and all loans thereunder shall
have been paid in full and all guaranties with respect thereto shall have been
terminated (except as to indemnification provisions, which may survive) and be
of no further force or effect.
(k) INTERMEDIATE HOLDING REORGANIZATION. True and correct copies
of the Intermediate HoldCo Reorganization Documents shall have been delivered to
the Administrative Agent, and the Intermediate HoldCo Reorganization shall have
been completed in all material respects in accordance with the terms and
conditions of the Intermediate HoldCo Reorganization Documents and all
applicable laws.
(l) PLEDGE AGREEMENT. The Borrower shall have duly authorized,
executed and delivered the Pledge Agreement in the form of Exhibit B (as
amended, modified or supplemented from time to time, the "Pledge Agreement") and
shall have delivered to the Collateral Agent, as Pledgee thereunder, all of the
Collateral referred to therein along with executed and undated stock powers in
the case of capital stock and evidence that any Financing Statements (Form UCC-1
or the equivalent) necessary or, in the reasonable opinion of the Collateral
Agent, desirable, to perfect the security interests purported to be created by
the Pledge Agreement have been executed and delivered to the Collateral Agent
and the Pledge Agreement shall be in full force and effect.
The occurrence of the Initial Borrowing Date and the acceptance of
the benefits of each Credit Event on the Initial Borrowing Date shall constitute
a representation and warranty by the Borrower to each of the Banks that all of
the conditions specified above exist as of the Initial Borrowing Date. All of
the certificates, legal opinions and other documents and papers referred to in
this Section 5.01, unless otherwise specified, shall be delivered to the
Administrative Agent at its Notice Office for the account of each of the Banks
and in sufficient counterparts for each of the Banks and shall be reasonably
satisfactory in form and substance to the Administrative Agent.
5.02 CONDITIONS PRECEDENT TO EACH CREDIT EVENT. The obligation of
each Bank to make each Loan to the Borrower hereunder, and the obligation of the
Letter of Credit Issuer to issue each Letter of Credit hereunder, are subject,
at the time of each such Credit Event, to the satisfaction of the following
conditions:
(a) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time of each
Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and
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(ii) all representations and warranties contained herein or in the other Credit
Documents in effect at such time shall be true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date of such Credit Event, unless stated to relate to
a specific earlier date, in which case such representations and warranties shall
be true and correct in all material respects as of such earlier date.
(b) NOTICE OF BORROWING; LETTER OF CREDIT REQUEST. The
Administrative Agent shall have received a Notice of Borrowing satisfying the
requirements of Section 1.03 with respect to any Borrowing of Loans; and the
Administrative Agent and the Letter of Credit Issuer shall have received a
Letter of Credit Request satisfying the requirements of Section 2.03 with
respect to the issuance of any Letter of Credit.
The acceptance of the benefits of each Credit Event shall constitute
a representation and warranty by the Borrower to each of the Banks that all of
the conditions specified above exist as of the date of such Credit Event. All of
the documents and papers referred to in this Section 5.02, unless otherwise
specified, shall be delivered to the Administrative Agent at its Notice Office
for the account of each of the Banks and in sufficient counterparts for each of
the Banks and shall be reasonably satisfactory in form and substance to the
Administrative Agent.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to
induce the Banks to enter into this Agreement and to make the Loans and issue
and/or participate in the Letters of Credit provided for herein, the Borrower
makes the following representations and warranties to, and agreements with, the
Banks, all of which shall survive the execution and delivery of this Agreement,
the making of the Loans and the issuance of the Letters of Credit (with the
occurrence of each Credit Event on and after the Initial Borrowing Date being
deemed to constitute a representation and warranty that the matters specified in
this Section 6 are true and correct in all material respects on and as of the
Initial Borrowing Date and as of the date of each such Credit Event, unless
stated to relate to a specific earlier date):
6.01 CORPORATE STATUS. The Borrower and each of its Restricted
Subsidiaries (i) is a duly organized and validly existing corporation under the
laws of the jurisdiction of its organization and has the corporate power and
authority to own its property and assets and to transact the business in which
it is engaged and presently proposes to engage, (ii) is in good standing under
the laws of the jurisdiction of its organization and (iii) is duly qualified and
is authorized to do business and is in good standing in all jurisdictions where
it is required to be so qualified, except, in the cases of clauses (ii) and
(iii) above, for such failures to be in good standing and failures to be so
qualified which, in the aggregate, would not have a material adverse effect on
the condition (financial or otherwise), operations, assets, liabilities or
prospects of the Borrower and its Restricted Subsidiaries taken as a whole.
6.02 CORPORATE POWER AND AUTHORITY. The Borrower and each of its
Restricted Subsidiaries has the corporate power and authority to execute,
deliver and carry out the terms and provisions of the Credit Documents to which
it is a party and has taken all necessary corporate action to authorize the
execution, delivery and performance of the Credit Documents to which it is a
party. The Borrower and each of its Restricted Subsidiaries has duly executed
and delivered
Page 28
each Credit Document to which it is a party and each such Credit Document
constitutes the legal, valid and binding obligation of such Person enforceable
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
6.03 NO VIOLATION. Neither the execution, delivery or performance by
the Borrower or any of its Restricted Subsidiaries of the Credit Documents to
which it is a party nor compliance by them with the terms and provisions
thereof, nor the consummation of the transactions contemplated therein (i) will
contravene in any material respect any applicable provision of any law, statute,
rule or regulation, or any order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict or be inconsistent with or
result in any breach of, any of the terms, covenants, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
(or the obligation to create or impose) any Lien (except Liens created pursuant
to the Pledge Agreement) upon any of the property or assets of the Borrower or
any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed
of trust,
credit agreement, loan agreement or other material agreement or
instrument to which the Borrower or any of its Subsidiaries is a party or by
which any of them or any of their respective property or assets is bound or to
which it may be subject or (iii) will violate any provision of the Certificate
of Incorporation or By-Laws of the Borrower or any of its Subsidiaries.
6.04 LITIGATION. There are no actions, suits or proceedings pending,
or, to the best knowledge of the Borrower, threatened, with respect to the
Borrower or any of its Subsidiaries (i) that are likely to have a material
adverse effect on the condition (financial or otherwise), operations, assets,
liabilities or prospects of the Borrower and its Restricted Subsidiaries taken
as a whole or (ii) that could reasonably be expected to have a material adverse
effect on the rights or remedies of the Banks, the Letter of Credit Issuer or
the Administrative Agent or on the ability of the Borrower or of the Subsidiary
Guarantors, taken as a whole, in either case, to perform its or their respective
obligations hereunder and under the other Credit Documents to which it is or
they are, or will be, a party.
6.05 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of all
Terms Loans shall be utilized (i) to refinance the loans outstanding on the
Initial Borrowing Date under the Existing
Credit Agreements, and (ii) to pay
certain fees and expenses arising in connection with such refinancing.
(b) The proceeds of all Revolving Loans, and Swingline Loans shall
be used for the purposes referred to in Section 6.05(a) above and for general
corporate and working capital purposes of the Borrower and its Subsidiaries
(including, without limitation, to finance Permitted Acquisitions and refinance
Senior Notes).
(c) Neither the making of any Loan hereunder, nor the use of the
proceeds thereof, will violate the provisions of Regulation T, U or X of the
Board of Governors of the Federal Reserve System and no part of the proceeds of
any Loan will be used to purchase or carry any Margin Stock or to extend credit
for the purpose of purchasing or carrying any Margin Stock, PROVIDED that the
Borrower may use the proceeds of Loans to purchase Margin Stock in
Page 29
compliance with Regulations T, U and X, so long as at the time of the making of
such Loan, and after giving effect thereto, not more than 25% of the value of
the assets subject to the provisions of Section 8 of the Borrower, or of the
Borrower and its Restricted Subsidiaries on a consolidated basis, shall
constitute Margin Stock.
6.06 GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required in
connection with (i) the execution, delivery and performance of any Credit
Document or (ii) the legality, validity, binding effect or enforceability of any
Credit Document, except those which have been obtained or made or those the
absence of which, individually or in the aggregate, could not reasonably be
expected to have a material adverse effect on either (x) the condition
(financial or otherwise), operations, assets, liabilities or prospects of the
Borrower and its Restricted Subsidiaries taken as a whole or (y) the rights or
remedies of the Banks, the Letter of Credit Issuer or the Administrative Agent
or on the ability of the Borrower or of the Subsidiary Guarantors, taken as a
whole, in either case, to perform its or their respective obligations hereunder
and under the other Credit Documents to which it is or they are, or will be, a
party.
6.07 INVESTMENT COMPANY ACT. Neither the Borrower nor any of its
Restricted Subsidiaries is an "investment company" or a company "controlled" by
an "investment company," within the meaning of the Investment Company Act of
1940, as amended.
6.08 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor
any of its Restricted Subsidiaries is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
6.09 TRUE AND COMPLETE DISCLOSURE. (a) All factual information
(taken as a whole) heretofore or contemporaneously furnished by the Borrower or
any of its Subsidiaries in writing to the Administrative Agent and/or any Bank
on or before the Effective Date (including, without limitation, (i) the
Information Memorandum and (ii) all information contained in the Credit
Documents) for purposes of or in connection with this Agreement or any
transaction contemplated herein is true and complete in all material respects on
the date as of which such information is dated or certified and not incomplete
by omitting to state any material fact necessary to make such information (taken
as a whole) not misleading at such time in light of the circumstances under
which such information was provided, it being understood and agreed that for
purposes of this Section 6.09(a), such factual information shall not include
projections and pro forma financial information.
(b) The projections and pro forma financial information contained
in the factual information referred to in paragraph (a) above were based on good
faith estimates and assumptions believed by such Persons to be reasonable at the
time made, it being recognized by the Banks 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.
Page 30
6.10 FINANCIAL STATEMENTS; FINANCIAL CONDITION. (a) The consolidated
balance sheets of the Borrower and its Subsidiaries as at December 31, 2000 and
March 31, 2001 and the related consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the fiscal year or three month period,
as the case may be, ended as of said dates, which, in the case of the December
31, 2000 statements, have been examined by Deloitte & Touche, independent
certified public accountants, who delivered an unqualified opinion in respect
thereof, present fairly the financial position of the Borrower and its
Subsidiaries at the dates of said statements and the results for the period
covered thereby. All such financial statements have been prepared in accordance
with GAAP consistently applied except to the extent provided in the notes to
said financial statements (subject, in the case of the March 31, 2001
statements, to normal year and audit adjustments).
(b) Since December 31, 2000 and after giving effect to the
incurrence of Indebtedness hereunder and the other transactions contemplated
hereby, there has been no material adverse change in the condition (financial or
otherwise), operations, assets, liabilities or prospects of the Borrower and its
Restricted Subsidiaries taken as a whole (other than any change in general
economic conditions or any change in conditions affecting the Business
generally).
6.11 TAX RETURNS AND PAYMENTS. The Borrower and each of its
Restricted Subsidiaries has filed all Federal income tax returns and all other
material tax returns, domestic and foreign, required to be filed by it and has
paid all Federal taxes and assessments shown to be due on such returns and all
other material taxes and assessments, domestic and foreign, in each case payable
by it which have become due, other than those not yet delinquent and except for
those contested in good faith and adequately disclosed and fully provided for on
the financial statements of the Borrower and its Restricted Subsidiaries in
accordance with GAAP. The Borrower and each of its Restricted Subsidiaries have
at all times paid, or have provided adequate reserves (in the good faith
judgment of the management of the Borrower) for the payment of, all federal,
state and foreign income taxes applicable for all prior fiscal years and for the
current fiscal year to date, except to the extent that the failure to make such
payments or provide such reserves would not have a material adverse effect on
the condition (financial or otherwise), operations, assets, liabilities or
prospects of the Borrower and its Restricted Subsidiaries taken as a whole.
There is no action, suit, proceeding, investigation, audit, or claim now pending
or, to the knowledge of the Borrower or any of its Restricted Subsidiaries,
threatened by any authority regarding any taxes relating to the Borrower or any
of its Restricted Subsidiaries, except to the extent that any such action,
proceeding, investigation, audit or claim would not have a material adverse
effect on the condition (financial or otherwise), operations, assets,
liabilities or prospects of the Borrower and its Restricted Subsidiaries taken
as a whole. Neither the Borrower nor any of its Restricted Subsidiaries has
entered into an agreement or waiver or been requested to enter into an agreement
or waiver extending any statute of limitations relating to the payment or
collection of taxes of the Borrower or any of its Restricted Subsidiaries, or is
aware of any circumstances that would cause the taxable years or other taxable
periods of the Borrower or any of its Restricted Subsidiaries not to be subject
to the normally applicable statute of limitations, except to the extent that any
such agreement, wavier, request or circumstance would not have a material
adverse effect on the condition (financial or otherwise), operations, assets,
liabilities or prospects of the Borrower and its Restricted Subsidiaries taken
as a whole.
Page 31
6.12 COMPLIANCE WITH ERISA. As of the Initial Borrowing Date, there
are no Plans and neither the Borrower nor any of its Restricted Subsidiaries nor
any ERISA Affiliate has incurred any unpaid material liability or reasonably
expects to incur any material liability with respect to any "employee pension
benefit plan" (as defined in Section 3(2) of ERISA) covered by Title IV of
ERISA. As of the date of each subsequent Credit Event, (a) each Plan is in
substantial compliance with ERISA and the Code; no Reportable Event has occurred
with respect to a Plan; no Plan is insolvent or in reorganization; no Plan has
an accumulated or waived funding deficiency, has permitted decreases in its
funding standard account or has applied for an extension of any amortization
period within the meaning of Section 412 of the Code; neither the Borrower nor
any of its Restricted Subsidiaries nor any ERISA Affiliate has incurred or
reasonably expects to incur any liability to or on account of a Plan pursuant to
ERISA or the Code; no proceedings have been instituted by the PBGC to terminate
any Plan; no condition exists which presents a material risk to the Borrower,
any of its Restricted Subsidiaries or any ERISA Affiliate of incurring a
liability to or on account of a Plan pursuant to ERISA or the Code; no lien
imposed under the Code or ERISA on the assets of the Borrower, any of its
Restricted Subsidiaries or any ERISA Affiliate exists or is likely to arise on
account of any Plan; and the Borrower and its Restricted Subsidiaries do not
maintain or contribute to any "employee welfare benefit plan" (as defined in
Section 3(1) of ERISA), which provides benefits to retired employees (other than
as required by Section 601 of ERISA), (b) where, with respect to any of the
foregoing representations in this Section 6.12, the liability for or the lien
which could arise as a result of, the particular circumstance or event which is
the subject of the representation, would be reasonably likely to result in a
material adverse effect on the condition (financial or otherwise), operations,
assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries
taken as a whole. Using actuarial assumptions and computation methods consistent
with subpart 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of
the Borrower, its Restricted Subsidiaries and ERISA Affiliates to all Plans
which are "multiemployer plans" (as defined in Section 4001(a)(3) of ERISA)
(each a "Multiemployer Plan") in the event of a complete withdrawal therefrom,
as of the close of the most recent fiscal year of each such Plan would not be
reasonably likely to be an amount that could result in a material adverse effect
on the condition (financial or otherwise), operations, assets, liabilities or
prospects of the Borrower and its Restricted Subsidiaries taken as a whole.
Notwithstanding anything in this Section 6.12 to the contrary, all
representations and warranties made with respect to any Plan which is a
Multiemployer Plan shall be made to the best knowledge of the Borrower.
6.13 SUBSIDIARIES. On the Initial Borrowing Date, the corporations
listed on Annex III under the name of the Borrower are the only Subsidiaries of
the Borrower. Annex III correctly sets forth, as of the Initial Borrowing Date,
the percentage ownership (direct and indirect) of the Borrower in each class of
capital stock of each of its Subsidiaries and also identifies the direct owner
thereof.
6.14 INTELLECTUAL PROPERTY. (a) The Borrower and each of its
Restricted Subsidiaries owns, or is licensed or otherwise authorized to sell,
distribute, use or exploit, all material copyrights, literary works, texts and
other works of authorship fixed in any tangible medium of expression necessary
for the present conduct of its business ("Copyrights"), except to the extent
that the failure to own or obtain licenses or authorizations with respect to any
of the foregoing, individually or in the aggregate, would not have a material
adverse effect on the
Page 32
condition (financial or otherwise), operations, assets, liabilities or prospects
of the Borrower and its Restricted Subsidiaries taken as a whole.
(b) The Borrower and each of its Restricted Subsidiaries owns or
is licensed to use all the patents, trademarks, permits, service marks, trade
names, technology, know-how and formulas, or rights with respect to the
foregoing, necessary for the present conduct of its business, except to the
extent that the failure to own or obtain licenses with respect to any of the
foregoing, individually or in the aggregate, would not have a material adverse
effect on the condition (financial or otherwise), operations, assets,
liabilities or prospects of the Borrower and its Restricted Subsidiaries taken
as a whole (together with the Copyrights, "Intellectual Property").
(c) All Intellectual Property is protected in all material
respects under the laws of the United States relating to such Intellectual
Property and has been duly and properly registered or filed with or issued by
the appropriate governmental offices and jurisdictions for such registrations,
filings or issuances, except to the extent that the failure to make or obtain
such registrations, filings or issuances would not have a material adverse
effect on the condition (financial or otherwise), operations, assets,
liabilities or prospects of the Borrower and its Restricted Subsidiaries taken
as a whole.
(d) No material claim has been asserted by any Person challenging
or questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property. The use of such Intellectual
Property by the Borrower or its Restricted Subsidiaries does not infringe on the
rights of any Person, except for such claims and infringements as do not,
individually or in the aggregate, give rise to any liabilities on the part of
the Borrower and its Restricted Subsidiaries that are material to the Borrower
and its Restricted Subsidiaries taken as a whole.
6.15 COMPLIANCE WITH STATUTES, ETC. The Borrower and each of its
Restricted Subsidiaries is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including compliance with all
applicable Environmental Laws with respect to any Real Property and the
requirements of any permits issued under such Environmental Laws with respect to
any such Real Property or the operations of the Borrower or any of its
Subsidiaries), except such noncompliances as would not, in the aggregate, have a
material adverse effect on the condition (financial or otherwise), operations,
assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries
taken as a whole.
6.16 THE PLEDGE AGREEMENT. The security interests created in favor
of the Collateral Agent, as Pledgee, for the benefit of the Secured Creditors,
under the Pledge Agreement constitute first priority perfected security
interests in the Collateral described in the Pledge Agreement, subject to no
security interests of any other Person. No filings or recordings are required in
order to perfect (or maintain the perfection or priority of) the security
interests created in the Pledge Agreement Collateral under the Pledge Agreement.
Page 33
SECTION 7. AFFIRMATIVE COVENANTS. The Borrower hereby covenants and
agrees that on the Effective Date and thereafter for so long as this Agreement
is in effect and until the Commitments have terminated, no Letters of Credit or
Notes are outstanding and the Loans together with interest, Fees and all other
Obligations are paid in full:
7.01 INFORMATION COVENANTS. The Borrower will furnish to each Bank
(subject to the final paragraph of this Section 7.01):
(a) ANNUAL FINANCIAL STATEMENTS. Within 100 days after the close
of each fiscal year of the Borrower, the consolidated balance sheets of each of
(A) the Borrower and its Subsidiaries and of (B) the Borrower and its Restricted
Subsidiaries, as at the end of such fiscal year and, in each case, the related
consolidated statements of income and retained earnings and of cash flows for
such fiscal year, setting forth for such fiscal year, in comparative form, the
corresponding figures for the preceding fiscal year and, in the case of the
figures with respect to the Borrower and its Restricted Subsidiaries the
corresponding figures from the budget for such fiscal year delivered pursuant to
Section 7.01(c); all of which shall be examined by Deloitte & Touche or such
other independent certified public accountants of recognized national standing
as shall be acceptable to the Administrative Agent, whose opinion shall not be
qualified as to the scope of audit or as to the status of the Borrower and its
Subsidiaries or of the Borrower and its Restricted Subsidiaries, as the case may
be, as a going concern, together with a certificate of such accounting firm
stating that in the course of its regular audit of the business of the Borrower
and its Subsidiaries, which audit was conducted in accordance with generally
accepted auditing standards, no Default or Event of Default which has occurred
and is continuing has come to its attention or, if such a Default or Event of
Default has come to its attention a statement as to the nature thereof (provided
that in no event shall such accountants be liable as a result of this Agreement
by reason of any failure to obtain knowledge of any Default or Event of Default
that would not be disclosed in the course of their audit examination).
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in
any event within 50 days after the close of each of the first three quarterly
accounting periods in each fiscal year of the Borrower (beginning with the
quarterly accounting period ending June 30, 2001) and, at the sole option of the
Borrower, at any time prior to 100 days after the close of the fourth quarterly
accounting period in each fiscal year, the consolidated balance sheet of each of
(A) the Borrower and its Subsidiaries and of (B) the Borrower and its Restricted
Subsidiaries, as at the end of such quarterly period and the related
consolidated statements of income and retained earnings and of cash flows for
such quarterly period and for the elapsed portion of the fiscal year ended with
the last day of such quarterly period; all of which shall be in reasonable
detail and certified by the chief financial officer or other Authorized Officer
of the Borrower that they fairly present the financial condition of the Borrower
and its Subsidiaries or of the Borrower and its Restricted Subsidiaries, as the
case may be, as of the dates indicated and the results of their operations and
changes in their cash flows for the periods indicated, subject to changes
resulting from audit and normal year-end audit adjustments.
(c) BUDGETS; ETC. Not more than 90 days after the commencement of
each fiscal year of the Borrower, budgets of the Borrower and its Restricted
Subsidiaries in reasonable detail for each of the four fiscal quarters of such
fiscal year setting forth Consolidated EBITDA
Page 34
and consolidated sales and setting forth, with appropriate discussion, the
principal assumptions upon which such budgets are based.
(d) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Section 7.01(a) and (b), a certificate of
the chief financial officer, treasurer, controller or chief accounting officer
of the Borrower (i) to the effect that no Default or Event of Default exists or,
if any Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate shall set forth the calculations required to
establish whether the Borrower and its Subsidiaries were in compliance with the
provisions of Sections 8.04(c), 8.05(d), 8.07 and Sections 8.09 through and
including 8.11, as at the end of such fiscal quarter or year, as the case may be
and (ii) setting forth the calculations demonstrating (A) with respect to each
Affected Transaction consummated during the most recently ended fiscal quarter,
that the Borrower was in compliance, on a PRO FORMA Basis, with Sections 8.09,
8.10 and 8.11 and (B) with respect to each business sold (or deemed sold)
pursuant to Section 8.02(c) hereof, compliance by the Borrower with clause (iii)
of such Section 8.02(c). In addition, at the time of the delivery of the
financial statements provided for in Section 7.01(a) and (b), a certificate of
the chief financial officer, treasurer, controller or chief accounting officer
of the Borrower setting forth the amount of, and calculations required to
establish the amount of, Excess Cash Flow for the respective fiscal year or
quarter.
(e) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any event
within three Business Days after any officer of the Borrower obtains knowledge
thereof, notice of (x) the occurrence of any event which constitutes a Default
or Event of Default, which notice shall specify the nature thereof, the period
of existence thereof and what action the Borrower proposes to take with respect
thereto and (y) the commencement of, or threat of, or any significant
development in, any litigation or governmental proceeding pending against the
Borrower or any of its Subsidiaries which is likely to have a material adverse
effect on the condition (financial or otherwise), operations, assets,
liabilities or prospects of the Borrower and its Restricted Subsidiaries taken
as a whole, or the ability of the Borrower or of the Subsidiary Guarantors,
taken as a whole, in either case, to perform its or their respective obligations
hereunder or under any other Credit Document.
(f) AUDITORS' REPORTS. Promptly upon receipt thereof, a copy of
each report or "management letter" submitted to the Borrower or any of its
Subsidiaries by its independent accountants in connection with any annual,
interim or special audit made by them of the books of the Borrower or any of its
Subsidiaries.
(g) OTHER INFORMATION. Promptly upon transmission thereof, copies
of any filings and registrations with, and reports to, the SEC by the Borrower
or any of its Subsidiaries and, with reasonable promptness, such other
information or documents (financial or otherwise) as the Administrative Agent on
its own behalf or on behalf of the Required Banks may reasonably request from
time to time.
Unless expressly requested by a Bank, the financial statements and
other documents that are required to be delivered under this Section 7.01 shall
not be required to be
Page 35
physically delivered to any Bank to the extent that such financial statements
and other documents are available on the XXXXX database.
7.02 BOOKS, RECORDS AND INSPECTIONS. The Borrower will, and will
cause each of its Restricted Subsidiaries to, permit, upon notice to the chief
financial officer or other Authorized Officer of the Borrower, officers and
designated representatives of the Administrative Agent or the Required Banks to
visit and inspect any of the properties or assets of the Borrower and any of its
Restricted Subsidiaries in whomsoever's possession, and to examine the books of
account of the Borrower and any of its Restricted Subsidiaries and discuss the
affairs, finances and accounts of the Borrower and of any of its Restricted
Subsidiaries with, and be advised as to the same by, their officers and
independent accountants, all at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or the Required Banks may desire.
7.03 PAYMENT OF TAXES. The Borrower will pay and discharge, and will
cause each of its Restricted Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which material penalties attach thereto, and all lawful claims for sums that
have become due and payable which, if unpaid, might become a Lien not otherwise
permitted under Section 8.03(a) or charge upon any properties of the Borrower or
any of its Restricted Subsidiaries; PROVIDED that neither the Borrower nor any
of its Restricted Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim which is being contested in good faith and by
proper proceedings if it has maintained adequate reserves with respect thereto
in accordance with GAAP.
7.04 CORPORATE FRANCHISES. The Borrower will do, and will cause each
of its Restricted Subsidiaries to do, or cause to be done, all things necessary
to preserve and keep in full force and effect its existence and its rights,
franchises, licenses, permits and Intellectual Property rights except to the
extent its failures to do so would not, in the aggregate, have a material
adverse effect on the condition (financial or otherwise), operations, assets,
liabilities or prospects of the Borrower and its Restricted Subsidiaries taken
as a whole; PROVIDED, HOWEVER, that any transaction permitted by Section 8.02
will not constitute a breach of this Section 7.04.
7.05 COMPLIANCE WITH STATUTES, ETC. The Borrower will, and will
cause each of its Restricted Subsidiaries to, comply with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed by,
all governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property (including applicable statutes,
regulations, orders and restrictions relating to environmental standards and
controls) other than those the non-compliance with which would not have a
material adverse effect on the condition (financial or otherwise), operations,
assets, liabilities or prospects of the Borrower and its Restricted Subsidiaries
taken as a whole or on the ability of the Borrower or of the Subsidiary
Guarantors, taken as a whole, in either case, to perform its or their
obligations hereunder or under any other Credit Document.
7.06 ERISA. As soon as possible and, in any event, within 30 days
after the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate
knows or could reasonably be expected to know of the occurrence of any of the
following and where it could reasonably be
Page 36
expected that a material liability of the Borrower and its Restricted
Subsidiaries and ERISA Affiliates, taken as a whole, could result in connection
therewith, the Borrower will deliver to each of the Banks a certificate of the
chief financial officer or other Authorized Officer of the Borrower setting
forth details as to such occurrence and such action, if any, which the Borrower,
such Restricted Subsidiary or such ERISA Affiliate is required or proposes to
take, together with any notices required or proposed to be given to or filed
with or by the Borrower, such Restricted Subsidiary, such ERISA Affiliate, the
PBGC, a Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred that a contributing sponsor (as defined in Section
4001(a)(13) of ERISA of a Plan subject to Title IV of ERISA in subject to the
advance reporting requirements of PBGC of Regulation Section 4043.61 (without
regard to subparagraph (b)(1) thereof), and an event described in subsection
..62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is
reasonably expected to occur with respect to such Plan within the following 30
days; that an accumulated funding deficiency has been incurred or an application
is reasonably likely to be or has been made to the Secretary of the Treasury for
a waiver or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section
412 of the Code with respect to a Plan; that a Plan has been or is reasonably
likely to be terminated, reorganized, partitioned or declared insolvent under
Title IV of ERISA; that a Plan has an Unfunded Current Liability giving rise to
a lien under ERISA or the Code; that proceedings are reasonably likely to be or
have been instituted to terminate a Plan; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan;
or that the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate
will or is reasonably likely to incur any liability (including any contingent or
secondary liability) to or on account of the termination of or withdrawal from a
Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409 or 502(i) or 502(1) of ERISA. At the request of any Bank, the
Borrower will deliver to such Bank a complete copy of the annual report (Form
5500) of each Plan required to be filed with the Internal Revenue Service.
7.07 END OF FISCAL YEARS; FISCAL QUARTERS. The Borrower will, for
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
7.08 USE OF PROCEEDS. All proceeds of the Loans shall be used as
provided in Section 6.05.
7.09 OWNERSHIP OF SUBSIDIARIES. The Borrower will, at all times,
maintain, directly or indirectly, ownership of at least a majority of the
capital stock of its Restricted Subsidiaries, except to the extent 100% of the
capital stock owned by the Borrower or any Restricted Subsidiary of any such
Restricted Subsidiary is sold, transferred or disposed of in a transaction
permitted by Section 8.02(c) or (j) or any such Restricted Subsidiary is merged,
consolidated or liquidated in a transaction permitted by Section 8.02(e).
7.10 MAINTENANCE OF CORPORATE SEPARATENESS. The Borrower will, and
will cause each of its Subsidiaries to, satisfy customary corporate formalities,
including the holding of
Page 37
regular board of directors' and shareholders' meetings and the maintenance of
corporate offices and records. Neither the Borrower nor any Restricted
Subsidiary shall make any payment to a creditor of any Unrestricted Subsidiary
in respect of any liability of such Unrestricted Subsidiary, and no bank account
of an Unrestricted Subsidiary shall be commingled with any bank account of the
Borrower or any of its Restricted Subsidiaries. Any financial statements
distributed to any creditors of an Unrestricted Subsidiary shall clearly
establish the separateness of such Unrestricted Subsidiary from the Borrower and
its Restricted Subsidiaries. Finally, neither the Borrower nor any of its
Subsidiaries shall take any action, or conduct its affairs in a manner, which is
likely to result in the corporate existence of any Unrestricted Subsidiary which
is a direct Subsidiary of the Borrower or any Restricted Subsidiary being
ignored by any court of competent jurisdiction, or in the assets and liabilities
of the Borrower or any Restricted Subsidiary being substantively consolidated
with those of any Unrestricted Subsidiary in a bankruptcy, reorganization or
other insolvency proceeding.
SECTION 8. NEGATIVE COVENANTS. The Borrower hereby covenants and
agrees that as of the Effective Date, and thereafter for so long as this
Agreement is in effect and until the Commitments have terminated, no Letters of
Credit or Notes are outstanding and the Loans, together with interest, Fees and
all other Obligations are paid in full:
8.01 CHANGES IN BUSINESS. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, engage in any businesses other than
Businesses, PROVIDED that the Borrower and its Restricted Subsidiaries may
engage in businesses other than a Business so long as the businesses engaged in
by the Borrower and its Restricted Subsidiaries, taken as a whole, consist
substantially of Businesses.
8.02 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC. The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
wind up, liquidate or dissolve its affairs or enter into any transaction of
merger or consolidation, or convey, sell, lease or otherwise dispose of (or
agree to do any of the foregoing at any future time) all or any part of its
property or assets, or enter into any partnerships, joint ventures or
sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials and equipment (and, to
the extent consistent with industry practices, other tangible and intangible
assets) in the ordinary course of business) of any Person, except that the
following shall be permitted:
(a) any sale, transfer or other disposition of (x) inventory in
the ordinary course of business or (y) any other tangible or intangible
asset in the ordinary course of business of the Borrower and/or its
Restricted Subsidiaries;
(b) the advances, investments and loans permitted pursuant to
Section 8.05;
(c) the disposition of a business (including, without limitation,
to the extent permitted in this Section 8.02(c), sales of the capital
stock of a Restricted Subsidiary but excluding sales of the stock of an
Unrestricted Subsidiary); PROVIDED that (i) no Default or Event of Default
exists at such time or would exist immediately after giving effect
thereto; (ii) such sale, transfer or disposition (or deemed sale, transfer
or disposition
Page 38
pursuant to any Permitted Restricted Subsidiary Conversion) (x) is for
fair market value, as determined in good faith by management of the
Borrower (or, in the case of any Permitted Restricted Subsidiary
Conversion or Permitted Restricted Asset Sale, to the extent requested by
the Administrative Agent or the Required Banks, as determined by a written
opinion of value reasonably satisfactory to the Administrative Agent by an
Appraisal Firm) and (y) except in the case of a Permitted Restricted
Subsidiary Conversion otherwise permitted pursuant to the terms hereof,
results in consideration in the form of cash, promissory notes issued by
the respective purchaser and/or other assets, PROVIDED that, to the extent
any such other assets are received by the Borrower and/or its Restricted
Subsidiaries in connection with any such Asset Sale, (I) the market value
of such other assets, when added to the aggregate amount of other
consideration received in connection with such Asset Sale, shall equal or
exceed the market value of the assets so sold (such value to be set forth,
to the extent requested by the Administrative Agent or the Required Banks,
in a written opinion of value reasonably satisfactory to the
Administrative Agent by an Appraisal Firm) and (II) such assets are
permitted to be acquired by the Borrower or any of its Restricted
Subsidiaries pursuant to Section 8.02(g) at the time of consummation of
such Asset Sale (both before and after giving effect to such Asset Sale);
(iii) the businesses sold (or deemed sold pursuant to any Permitted
Restricted Subsidiary Conversion) by the Borrower and/or its Restricted
Subsidiaries pursuant to this Section 8.02(c) in any fiscal year of the
Borrower shall not, in the aggregate, have EBITDA in the immediately
preceding fiscal year in an amount in excess of 25% of the Consolidated
EBITDA of the Borrower and its Restricted Subsidiaries for such preceding
fiscal year, determined on a PRO FORMA basis as if (A) any dispositions
(or deemed dispositions pursuant to any Permitted Restricted Subsidiary
Conversion) consummated during such preceding fiscal year had been
consummated on the first day of such preceding fiscal year and (B) any
acquisitions consummated after the beginning of such preceding fiscal year
but prior to the date of any proposed Asset Sale pursuant to this Section
8.02(c) had been consummated on the first day of such preceding fiscal
year; and (iv) to the extent such sale, transfer or disposition
constitutes a sale, transfer or disposition of less than 100% of the
capital stock of any Restricted Subsidiary of the Borrower, after giving
effect to such sale, transfer or disposition, the Borrower shall own at
least a majority of the capital stock of such Restricted Subsidiary;
PROVIDED that, notwithstanding the foregoing provisions of this clause
(iv), but only to the extent such sale, transfer or disposition is
structured as a leveraged recapitalization, the Borrower shall be
permitted to structure any sale, transfer or disposition of the capital
stock of a Restricted Subsidiary as a leveraged recapitalization in which
up to 15% of the capital stock of the Restricted Subsidiary being
recapitalized is retained (directly or indirectly) by the Borrower;
(d) Asset Sales constituting the disposition of the capital stock
owned by the Borrower and its Restricted Subsidiaries or Unrestricted
Subsidiaries;
(e) any Restricted Subsidiary may be merged or consolidated with
or into, or be liquidated into, the Borrower or any other Restricted
Subsidiary of the Borrower, or all or any part of its business, properties
and assets may be conveyed, leased, sold or otherwise transferred to the
Borrower or any other Restricted Subsidiary, PROVIDED that
Page 39
(v) in any such merger or consolidation involving the Borrower, the
Borrower shall be the surviving corporation, (w) no Default or Event of
Default exists or would exist after giving effect thereto, (x) no Excluded
Foreign Restricted Subsidiary or Excluded Domestic Restricted Subsidiary
may be the surviving corporation of any such merger or consolidation
(other than, in the case of an Excluded Foreign Restricted Subsidiary, a
merger or consolidation with another Excluded Foreign Restricted
Subsidiary and other than, in the case of an Excluded Domestic Restricted
Subsidiary, a merger or consolidation with another Excluded Domestic
Restricted Subsidiary), (y) no businesses, properties or assets may be
transferred to Excluded Foreign Restricted Subsidiaries (other than by
other Excluded Foreign Restricted Subsidiaries) if after giving effect to
such transfer the Net Investments in Excluded Foreign Restricted
Subsidiaries would exceed $50,000,000 and (z) to the extent any business,
properties or assets are transferred to Excluded Domestic Restricted
Subsidiaries in connection with any such merger or consolidation the
Borrower shall have determined, with respect to such transaction, that the
Borrower and its Restricted Subsidiaries would have been in compliance, on
a PRO FORMA Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement;
(f) the Borrower and/or its Restricted Subsidiaries may lease real
or personal property (so long as such lease does not create Capitalized
Lease Obligations except as otherwise permitted by Section 8.04);
(g) so long as no Default or Event of Default exists or would
result therefrom, the Borrower and its Restricted Subsidiaries may acquire
assets, the capital stock of, or other ownership interests in, any Person
(any such acquisition permitted by this clause (g), a "Permitted
Acquisition"); PROVIDED that (A) after giving effect to any such
acquisition, the Borrower and its Restricted Subsidiaries shall be in
compliance with Section 8.01 hereof; (B) the Borrower shall have
determined, with respect to such acquisition, that, on a PRO FORMA Basis,
the Borrower and its Restricted Subsidiaries would have been in compliance
with Sections 8.09, 8.10 and 8.11 of this Agreement; and (C) to the extent
that such acquisition is of the capital stock of or other ownership
interest in another Person (such Person, the "Acquired Entity"), (I) such
acquisition must be of at least a majority of such capital stock or of
such ownership interests, such Person shall be or become a Restricted
Subsidiary and all of the applicable provisions of Section 8.14 shall have
been complied with in respect of such Restricted Subsidiary and (II) the
Board of Directors or other governing body of the Acquired Entity shall
not have indicated, either publicly or privately to the Borrower or any of
its Restricted Subsidiaries, its opposition to the consummation by the
Borrower or such Subsidiary of such acquisition;
(h) the Borrower and its Restricted Subsidiaries may sell or
discount, in each case without recourse, accounts receivable arising in
the ordinary course of business, but only in connection with the
compromise or collection thereof;
(i) Capital Expenditures by the Borrower and/or its Restricted
Subsidiaries made in the ordinary course of business; and
Page 40
(j) the Borrower and its Restricted Subsidiaries may sell assets
(and may effect Permitted Restricted Subsidiary Conversions) other than in
the ordinary course of business, so long as (x) each such asset is sold
(or deemed sold pursuant to any Permitted Restricted Subsidiary
Conversion) at fair market value, as determined in good faith by
management of the Borrower; (y) each such sale (or deemed sale pursuant to
any Permitted Restricted Subsidiary Conversion) results in consideration
in the form of cash, promissory notes issued by the respective purchaser
and/or other assets, PROVIDED that, to the extent any such other assets
are received by the Borrower and/or its Restricted Subsidiaries in
connection with any such asset sale, (I) the market value of such other
assets, when added to the aggregate amount of other consideration received
in connection with such asset sale, shall equal or exceed the market value
of the assets so sold and (II) such assets are permitted to be acquired by
the Borrower or any of its Restricted Subsidiaries pursuant to Section
8.02(g) at the time of consummation of such asset sale (both before and
after giving effect to such asset sale); and (z) the aggregate value of
all assets so sold (or deemed sold pursuant to any Permitted Restricted
Subsidiary Conversion) by the Borrower and its Restricted Subsidiaries in
any fiscal year shall not exceed $30,000,000.
8.03 LIENS. The Borrower will not, and will not permit any of its
Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon or with respect to any property or assets of any kind (real or personal,
tangible or intangible) of the Borrower or its Restricted Subsidiaries, whether
now owned or hereafter acquired, or sell any such property or assets subject to
an understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with
recourse to the Borrower or any of its Restricted Subsidiaries) or assign any
right to receive income, except:
(a) Liens for taxes not yet due or Liens for taxes being contested
in good faith and by appropriate proceedings for which adequate reserves
have been established in accordance with GAAP;
(b) Liens in respect of property or assets of the Borrower or any
of its Restricted Subsidiaries imposed by law which were incurred in the
ordinary course of business and which have not arisen to secure
Indebtedness for borrowed money, such as carriers', warehousemen's and
mechanics' Liens, statutory landlord's Liens, and other similar Liens
arising in the ordinary course of business, and which either (x) do not in
the aggregate materially detract from the value of such property or assets
or materially impair the use thereof in the operation of the business of
the Borrower or its Restricted Subsidiaries or (y) are being contested in
good faith by appropriate proceedings, which proceedings have the effect
of preventing the forfeiture or sale of the property or asset subject to
such Lien;
(c) Liens in existence on the Effective Date which are listed, and
the property subject thereto described, in Annex IV, without giving effect
to any extensions or renewal thereof ("Permitted Liens");
Page 41
(d) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 9.09;
(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business (exclusive
of obligations in respect of the payment for borrowed money);
(f) leases or subleases granted to third Persons not interfering
in any material respect with the business of the Borrower or any of its
Restricted Subsidiaries;
(g) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Restricted Subsidiaries;
(h) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(i) purchase money Liens securing payables arising from the
purchase by the Borrower or any of its Restricted Subsidiaries of any
equipment or goods in the normal course of business;
(j) any interest or title of a lessor or sublessor under any lease
permitted by this Agreement;
(k) Liens created pursuant to Capital Leases permitted pursuant to
Section 8.04(c);
(l) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods so long as such Liens attach only to the imported
goods;
(m) Liens on assets acquired (or owned by a Restricted Subsidiary
acquired) after the Effective Date securing Indebtedness permitted under
Section 8.04(g), PROVIDED that at the time of such acquisition the value
of the assets subject to such Liens does not exceed 10% of the total value
of the assets so acquired, or of the assets of the Restricted Subsidiary
so acquired, as the case may be;
(n) Liens arising out of consignment or similar arrangements for
the sale of goods entered into by the Borrower or any of its Restricted
Subsidiaries in the ordinary course of business;
(o) Liens created under this Agreement and/or the other Credit
Documents; and;
Page 42
(p) Liens not otherwise permitted hereunder which secure
Indebtedness, Contingent Obligations or other obligations (in each case
permitted hereunder) not exceeding (as to the Borrower and its Restricted
Subsidiaries) $40,000,000 in the aggregate at any time outstanding.
8.04 INDEBTEDNESS. The Borrower will not, and will not permit any of
its Restricted Subsidiaries to, contract, create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement (including,
without limitation, any indebtedness incurred pursuant to a supplement or
amendment hereto entered into pursuant to Section 1.13);
(b) Indebtedness incurred pursuant to the other Credit Documents;
(c) Capitalized Lease Obligations of the Borrower and its
Restricted Subsidiaries; PROVIDED that the aggregate Capitalized Lease
Obligations under all Capital Leases outstanding at any one time shall not
exceed $75,000,000;
(d) Existing Indebtedness of the Borrower and its Restricted
Subsidiaries outstanding on the Effective Date and listed on Part A of
Annex V hereto ("Existing Debt"), without giving effect to any subsequent
extension, renewal or refinancing thereof except pursuant to Section
8.04(i);
(e) Indebtedness to the extent permitted pursuant to Section
8.05(c);
(f) Indebtedness evidenced by the Subordinated Exchange Debentures
after the issuance thereof in an aggregate principal amount not to exceed
$575,000,000 at any time outstanding;
(g) Indebtedness of a Restricted Subsidiary acquired after the
Effective Date (or Indebtedness assumed at the time of an acquisition of
an asset securing such Indebtedness), PROVIDED that (i) such Indebtedness
was not incurred in connection with or in anticipation of such acquisition
and (ii) at the time of such acquisition such Indebtedness does not exceed
10% of the total value of the assets of the Restricted Subsidiary so
acquired, or of the asset so acquired, as the case may be;
(h) additional Indebtedness of the Borrower and its Restricted
Subsidiaries not otherwise permitted hereunder; PROVIDED that (A) in no
event shall the final maturity of such Indebtedness occur prior to the
Term Loan B Maturity Date, (B) in no event shall such Indebtedness have a
shorter average life than the Loans hereunder, (C) in no event shall such
Indebtedness contain terms and conditions (including, without limitation,
with respect to the obligor and guarantors, if any, in respect of such
Indebtedness, prepayment and redemption provisions, covenants, defaults,
security, remedies and, if applicable, subordination provisions)
materially less favorable to the Borrower and its Restricted Subsidiaries
or to the Banks than the terms and conditions of (I) in the case of
Indebtedness issued to the public or in accordance with Rule 144A or
similar rule under
Page 43
the Securities Act of 1933, as amended (the "Securities Act"), the Senior
Notes, (II) in the case of other senior Indebtedness, this Agreement and
the other Credit Documents, and (III) in the case of other Indebtedness,
similar Indebtedness of the Borrower then outstanding or if no similar
Indebtedness of the Borrower is then outstanding, the Senior Notes (in
each case excluding the impact of market conditions on the interest rate
and other economic terms) and (D) the Borrower shall have determined, with
respect to the incurrence of such Indebtedness, that the Borrower and its
Restricted Subsidiaries would have been in compliance, on PRO FORMA Basis,
with Sections 8.09, 8.10 and 8.11 of this Agreement (any Indebtedness
issued pursuant to this Section 8.04(h), "Additional Indebtedness"),
PROVIDED FURTHER, that, the aggregate principal amount of any such
Additional Indebtedness incurred directly by the Subsidiary Guarantors
(taken as a whole), when added to the aggregate principal amount of
Indebtedness incurred directly by the Subsidiary Guarantors (taken as a
whole) pursuant to Section 8.04(j) shall not exceed $300,000,000 at any
time outstanding;
(i) Indebtedness of the Borrower and its Restricted Subsidiaries
constituting Permitted Refinancing Debt; and
(j) additional Indebtedness of the Borrower and its Restricted
Subsidiaries (including, but not limited to, Non-Facility Letter of Credit
Outstandings) not exceeding in an aggregate principal amount at any one
time outstanding an amount equal to $250,000,000, PROVIDED that the
aggregate principal amount of such Indebtedness incurred directly by the
Subsidiary Guarantors (taken as a whole), when added to the aggregate
principal amount of Additional Indebtedness incurred directly by the
Subsidiary Guarantors (taken as a whole) pursuant to Section 8.04(h),
shall not exceed $300,000,000 at any time outstanding.
8.05 ADVANCES, INVESTMENTS AND LOANS. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, lend money or credit or
make advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any Person, except (collectively, "Investments"):
(a) the Borrower and its Restricted Subsidiaries may invest in
cash and Cash Equivalents;
(b) the Borrower or any of its Restricted Subsidiaries may acquire
and hold receivables owing to it, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms of the Borrower or such Restricted Subsidiary, as
the case may be;
(c) the Borrower may make intercompany loans and advances to any
Restricted Subsidiary, and any Restricted Subsidiary may make intercompany
loans and advances to any other Restricted Subsidiary or the Borrower
(collectively, "Intercompany Loans"), PROVIDED that (i) no Intercompany
Loan may be made to an Excluded Foreign Restricted Subsidiary at any time
if after giving effect to such Intercompany Loan the Net Investments in
Excluded Foreign Restricted Subsidiaries would exceed $50,000,000, and
Page 44
(ii) no such Intercompany Loan may be made by the Borrower or a
Wholly-Owned Restricted Subsidiary to an Excluded Domestic Restricted
Subsidiary;
(d) so long as no Default or Event of Default exists or would
result therefrom, the Borrower and its Restricted Subsidiaries may make
loans and advances of cash to, or cash capital contributions in, any
Unrestricted Subsidiary of the Borrower; PROVIDED that (i) the sum of (A)
the aggregate amount of capital contributions made in, plus the aggregate
principal amount of loans or advances outstanding at any one time made to,
Unrestricted Subsidiaries after the Effective Date pursuant to this clause
(d) (such amount, the "Unrestricted Subsidiary Investment Amount") plus
(B) the Aggregate Conversion Amount at such time, shall not exceed the
Unrestricted Subsidiary Investment Limit then in effect, and (ii) the
Unrestricted Subsidiary receiving cash proceeds from such loan, advance or
contribution shall utilize the entire amount of cash so received to
effectuate an acquisition of assets or capital stock of a Person not an
affiliate of the Borrower and its Subsidiaries (other than pursuant to a
Permitted Restricted Subsidiary Conversion or a Permitted Restricted Asset
Sale) or to develop the Business and to finance the working capital needs
of such Unrestricted Subsidiary;
(e) the Borrower and its Restricted Subsidiaries shall be
permitted to (i) make Permitted Acquisitions, (ii) engage in any
transaction to the extent permitted by Section 8.02(e) and (iii) acquire
and hold promissory notes issued by the purchasers of assets sold in
accordance with Section 8.02(c) or 8.02(j);
(f) the Borrower and any of its Restricted Subsidiaries may
acquire and own investments (including debt obligations) received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business;
(g) (i) the Borrower or any Subsidiary Guarantor may acquire
capital stock or other equity securities (or warrants, rights or options
with respect thereto) issued by any other Restricted Subsidiary and (ii)
any Excluded Foreign Restricted Subsidiary may acquire capital stock or
other equity securities (or warrants, rights or options with respect
thereto) issued by any other Excluded Foreign Restricted Subsidiaries;
(h) Interest Rate Protection Agreements permitted by
Section 8.06(d) shall be permitted;
(i) Investments by the Borrower or Restricted Subsidiaries in (x)
Subsidiary Guarantors, PROVIDED that if the Subsidiary Guarantor in which
such investment is made is a newly-formed Subsidiary or a Partially-Owned
Restricted Subsidiary newly designated as a Subsidiary Guarantor pursuant
to Section 8.14(b)(x), all of the applicable provisions of Section 8.14
shall have been satisfied with respect to such Restricted Subsidiary, (y)
Excluded Domestic Restricted Subsidiaries, PROVIDED that, the Borrower
shall have determined, in connection with any such investment, that the
Borrower and its Restricted Subsidiaries would have been in compliance, on
a PRO FORMA Basis, with
Page 45
Sections 8.09, 8.10 and 8.11 of this Agreement and (z) in Excluded Foreign
Restricted Subsidiaries, PROVIDED that no investment in an Excluded
Foreign Restricted Subsidiary may be made at any time if after giving
effect to such investment the Net Investments in Excluded Foreign
Restricted Subsidiaries would exceed $50,000,000;
(j) the Borrower and its Restricted Subsidiaries may make loans
and advances to officers, employees and agents (i) in the ordinary course
of business constituting travel advances or (ii) otherwise equal in the
aggregate for the Borrower and its Restricted Subsidiaries, in the case of
all loans and advances pursuant to this clause (ii), to no more than
$45,000,000 at any one time outstanding less the principal amount of all
Contingent Obligations then outstanding pursuant to Section 8.06(h);
(k) the Borrower may acquire obligations of, or make loans or
advances to, one or more management investors in connection with such
management investors' acquisition of shares of capital stock of the
Borrower so long as the proceeds thereof are used to purchase from the
Borrower the capital stock of the Borrower; and
(l) Investments not otherwise permitted hereunder with an
aggregate cost or principal amount, as the case may be, not to exceed
$200,000,000 at any time outstanding.
8.06 CONTINGENT OBLIGATIONS. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, contract, create, incur, assume or
suffer to exist any Contingent Obligations, except:
(a) any Subsidiary Guarantor may become liable as guarantor with
respect to any Indebtedness, obligation or liability of the Borrower or
any other Subsidiary Guarantor to the extent that such Indebtedness,
obligation or liability is otherwise permitted by this Agreement, PROVIDED
that a Subsidiary Guarantor (x) may not guaranty any Subordinated Exchange
Debentures and (y) may only guaranty Permitted Refinancing Debt if and to
the extent either (A) it guarantied the indebtedness refinanced thereby or
(B) such Subsidiary Guarantor would have guarantied the indebtedness
refinanced thereby if it had been a Subsidiary of the Borrower while such
indebtedness was outstanding;
(b) Contingent Obligations pursuant to the Guaranties;
(c) Contingent Obligations in respect of the Letters of Credit;
(d) Contingent Obligations under Interest Rate Protection
Agreements with respect to the Loans or any other Indebtedness of the
Borrower and its Restricted Subsidiaries otherwise permitted by this
Agreement;
(e) Contingent Obligations pursuant to the Contribution Agreement;
Page 46
(f) Contingent Obligations of the Borrower outstanding on the
Effective Date and listed on Part B of Annex V hereto ("Existing
Contingent Obligations"), without giving effect to any subsequent
extension, renewal or refinancing thereof;
(g) (i) the Borrower may become liable as guarantor with respect
to any Indebtedness, obligation or liability of any Subsidiary Guarantor
and (ii) any Excluded Foreign Restricted Subsidiary may become liable as a
guarantor with respect to any Indebtedness, obligation or liability of any
other Excluded Foreign Restricted Subsidiary, in each case to the extent
that such Indebtedness, obligation or liability is otherwise permitted by
this Agreement;
(h) the Borrower and its Restricted Subsidiaries may guaranty in
the ordinary course of business loans and advances to officers, employees
and agents so long as the aggregate principal amount of the loans and
advances so guaranteed does not exceed $45,000,000 less the principal
amount of all loans and advances outstanding pursuant to Section 8.05(j);
and
(i) additional Contingent Obligations (including, without
limitation, Contingent Obligations consisting of Non-Facility Letters of
Credit and reimbursement obligations with respect thereto) not otherwise
permitted hereunder not exceeding (for the Borrower and all of its
Restricted Subsidiaries) in aggregate principal amount at any time
outstanding an amount equal to the lesser of (x) $50,000,000 and (y) when
added to the aggregate principal amount of Indebtedness outstanding under
Section 8.04(j) at such time, $250,000,000.
8.07 DIVIDENDS, ETC. The Borrower will not, and will not permit any
of its Restricted Subsidiaries to, declare or pay any dividends (other than
dividends payable solely in capital stock of such Person) or return any capital
to, its stockholders or authorize or make any other distribution, payment or
delivery of property or cash to its stockholders as such, or redeem, retire,
purchase or otherwise acquire, directly or indirectly, for a consideration, any
shares of any class of its capital stock now or hereafter outstanding (or any
warrants for or options or stock appreciation rights in respect of any of such
shares), or set aside any funds for any of the foregoing purposes, and the
Borrower will not permit any of its Restricted Subsidiaries to purchase or
otherwise acquire for consideration any shares of any class of the capital stock
of the Borrower or any other Subsidiary, as the case may be, now or hereafter
outstanding (or any options or warrants or stock appreciation rights issued by
such Person with respect to its capital stock) (all of the foregoing
"Dividends"), except that:
(a) the Borrower may pay regularly accruing dividends on each
issuance of Preferred Stock through the issuance of additional shares of
such Preferred Stock, PROVIDED that the Borrower may pay such regularly
accruing dividends on its Preferred Stock in cash so long as no Default or
Event of Default exists at such time or would result therefrom;
(b) any Subsidiary of the Borrower may pay Dividends to the
Borrower or to any Wholly-Owned Restricted Subsidiary of the Borrower;
Page 47
(c) any Partially-Owned Restricted Subsidiary may pay cash
Dividends to its stockholders, PROVIDED that the Borrower and its
Restricted Subsidiaries must receive at least their proportionate share of
any Dividends paid by such Subsidiary;
(d) so long as no Default or Event of Default exists at such time
or would result therefrom the Borrower may issue its Subordinated Exchange
Debentures in exchange for its Series D Preferred Stock in accordance with
the terms thereof, (y) the Borrower may issue its Subordinated Exchange
Debentures in exchange for its Series F Preferred Stock in accordance with
the terms thereof and (z) the Borrower may issue its Subordinated Exchange
Debentures in exchange for its Series H Preferred Stock in accordance with
the terms thereof, PROVIDED that in each such case, the Borrower shall
have determined, with respect to such issuance, that the Borrower and its
Restricted Subsidiaries would have been in compliance, on a PRO FORMA
Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement;
(e) the Borrower may exchange shares of its common stock in
replacement for shares of outstanding Preferred Stock;
(f) the Borrower may issue Permitted Replacement Preferred Stock
so long as either (x) such stock is issued in exchange for or (y) all of
the proceeds from such issuance are used to redeem or repurchase, shares
of outstanding Preferred Stock;
(g) the Borrower may redeem or repurchase shares of its common
stock from management investors; PROVIDED that (x) no Default or Event of
Default is then in existence or would arise therefrom and (y) the
aggregate amount of all cash paid in respect of all such shares and equity
interests so redeemed or repurchased does not exceed the sum of (i)
$10,000,000 in any fiscal year or $25,000,000 in the aggregate after the
Effective Date and (ii) the amount of cash proceeds received by the
Borrower in respect of the issuance of common equity to management
investors on or after the Effective Date;
(h) the Borrower and its Subsidiaries may enter into transactions
permitted under Section 8.05(g);
(i) the Borrower and its Restricted Subsidiaries may acquire the
capital stock of Unrestricted Subsidiaries in accordance with the
provisions of this Agreement;
(j) so long as no Default or Event of Default exists at such time
or would result therefrom, the Borrower may redeem or repurchase shares of
its Preferred Stock at a price equal to the liquidation preference thereof
plus accrued but unpaid dividends thereon and any applicable premium with
respect thereto in exchange for, or with the proceeds of, Additional
Preferred Stock and/or Indebtedness incurred under Sections 8.04(h) and/or
8.04(j) (it being understood and agreed that such redemption and/or
repurchase need not occur contemporaneously with the issuance of such
Additional Preferred Stock or Indebtedness);
Page 48
(k) so long as no Default or Event of Default exists at such time
or would result therefrom, the Borrower may declare and pay cash Dividends
to the holders of its common stock (including, without limitation,
repurchases of shares of its common stock), PROVIDED that (x) the
aggregate amount of cash Dividends paid pursuant to this clause (k) during
any fiscal year of the Borrower does not exceed $75,000,000 and (y) the
Borrower shall have determined, in connection with such Dividend, that the
Borrower and its Restricted Subsidiaries would have been in compliance, on
a PRO FORMA Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement;
and
(l) the Borrower may pay additional cash Dividends to the holders
of its common stock so long as (x) no Default or Event of Default exists
at such time or would result therefrom, (y) the Leverage Ratio at such
time is less than 4.00:1.00 and (z) the Borrower shall have determined, in
connection with such Dividend, that the Borrower and its Restricted
Subsidiaries would have been in compliance, on a PRO FORMA Basis, with
Sections 8.09, 8.10 and 8.11 of this Agreement.
8.08 TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, enter into any transaction or
series of transactions, whether or not in the ordinary course of business, with
any Affiliate (other than the Borrower or any Restricted Subsidiary) other than
on terms and conditions substantially as favorable to the Borrower or such
Restricted Subsidiary as would be obtainable by the Borrower or such Restricted
Subsidiary at the time in a comparable arm's-length transaction with a Person
other than an Affiliate; PROVIDED that (i) the Borrower may pay management and
transaction fees to KKR or its affiliates which have been disclosed in writing
to the Banks prior to the Effective Date; (ii) the payment of transaction fees
to KKR for the rendering of financial advice and services in connection with
acquisitions, dispositions and financings by the Borrower and its Restricted
Subsidiaries in amounts which are in accordance with past practices shall be
permitted; (iii) loans and advances to officers, employees and agents in the
ordinary course of business shall be permitted; (iv) customary fees may be paid
to non-officer directors of the Borrower and/or its Restricted Subsidiaries; (v)
the loans, advances and contributions made (or deemed made) in Unrestricted
Subsidiaries in compliance with Section 8.05(d) shall be permitted; and (vi)
transactions specifically permitted by the provisions of this Agreement to occur
between the Borrower, its Restricted Subsidiaries and their respective
Affiliates shall be permitted to the extent so otherwise specifically permitted.
8.09 FIXED CHARGE COVERAGE RATIO. The Borrower will not permit the
ratio of (i) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries
to (ii) Consolidated Fixed Charges of the Borrower and its Restricted
Subsidiaries, for any Test Period to be less than 1.05 to 1.0.
8.10 INTEREST COVERAGE RATIO. The Borrower will not permit the ratio
of (i) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries to
(ii) Consolidated Interest Expense of the Borrower and its Restricted
Subsidiaries for any Test Period ending during a period listed below to be less
than the ratio set forth opposite such period below:
Page 49
PERIOD RATIO
----------------------------------- ------------
Effective Date to and including 1.80 to 1.00
June 30, 2003
July 1, 2003 to and including 2.00 to 1.00
December 31, 2003
January 1, 2004 to and including 2.25 to 1.00
December 31, 2004
January 1, 2005 and thereafter 2.50 to 1.00
8.11 LEVERAGE RATIO. The Borrower will not permit the ratio (the
"Leverage Ratio") of (i) Consolidated Debt of the Borrower and its Restricted
Subsidiaries at any date of determination thereof (net of cash and Cash
Equivalents held by the Borrower and its Restricted Subsidiaries at such time in
excess of $5,000,000) to (ii) Consolidated EBITDA of the Borrower and its
Restricted Subsidiaries for the Test Period then last ended, to exceed, at any
time during a period set forth below, the ratio set forth opposite such period
below:
PERIOD RATIO
---------------------------------- ------------
Effective Date to and including 6.00 to 1.00
June 30, 2003
July 1, 2003 to and including 5.75 to 1.00
December 31, 2003
January 1, 2004 to and including 5.50 to 1.00
December 31, 2004
January 1, 2005 to and including 5:00 to 1:00
December 31, 2005
January 1, 2006 and thereafter 4.50 to 1.00
8.12 ISSUANCE OF STOCK. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, issue, sell,
assign, pledge or otherwise encumber or dispose of any shares of its or such
Restricted Subsidiary's preferred or preference stock or other redeemable equity
securities (or warrants, rights or options to acquire shares of any of the
foregoing) except:
(a) in the case of shares of capital stock of the Borrower and its
Restricted Subsidiaries, to the extent permitted by Section 8.02, 8.03,
8.05, 8.07 or 8.13(b);
Page 50
(b) issuances by Restricted Subsidiaries to the Borrower or to
Wholly-Owned Restricted Subsidiaries; and
(c) issuances by the Borrower of additional preferred stock not
otherwise permitted hereunder; PROVIDED that (A) in no event shall such
preferred stock contain any provision requiring mandatory redemption or
permitting any put with respect to all or any portion of such stock prior
to the Term Loan B Maturity Date, (B) in no event shall such preferred
stock contain terms and conditions (including, without limitation,
liquidation preferences, voting rights and exchange rights) materially
less favorable to the Borrower and its Restricted Subsidiaries or to the
Banks than the terms and conditions of the Existing Preferred Stock
(excluding the impact of market conditions on the dividend rate and other
economic terms) and (C) the Borrower shall have determined, in connection
with such issuance, that the Borrower and its Restricted Subsidiaries
would have been in compliance, on a PRO FORMA Basis, with Sections 8.09,
8.10 and 8.11 of this Agreement, PROVIDED that, for purposes of the
calculation of compliance with Section 8.09, the ratio set forth in
Section 8.09 shall be deemed to equal 1.25 to 1.0 (any Preferred Stock
issued pursuant to this Section 8.12(c), "Additional Preferred Stock").
8.13 MODIFICATIONS OF CERTAIN AGREEMENTS, ETC. The Borrower will
not, and will not permit any of its Subsidiaries to: (a) after the issuance
thereof, amend or modify (or permit the amendment or modification of) any of the
terms or provisions of the Senior Notes, the Preferred Stock, the Subordinated
Exchange Debentures or any agreement related to any of the foregoing, PROVIDED
that Permitted Amendments may be made to the Senior Notes, the Preferred Stock,
any Subordinated Exchange Debenture, and the documents governing the terms of
any of the foregoing; or (b) make (or give any notice in respect thereof) any
voluntary or optional payment or prepayment or redemption or acquisition for
value of (including, without limitation, by way of depositing with the trustee
with respect thereto money or securities before due for the purpose of paying
when due) or exchange of any Subordinated Exchange Debentures, or any Permitted
Refinancing Debt (to the extent issued to refinance Subordinated Exchange
Debentures), PROVIDED that (i) the Subordinated Exchange Debentures and any
Permitted Refinancing Debt previously issued to refinance same may be (A)
refinanced with (I) Additional Indebtedness (to the extent that such Additional
Indebtedness would have qualified as Permitted Refinancing Debt in respect
thereof if it had been issued contemporaneously with such refinancing) and/or
Permitted Refinancing Debt or (II) the proceeds from a common equity issuance by
the Borrower or an issuance by the Borrower of Additional Preferred Stock, in
each case, after the Effective Date or (B) exchanged for Additional Preferred
Stock or non-redeemable common equity of the Borrower (it being understood and
agreed that any refinancing of such Indebtedness need not occur
contemporaneously with the issuance of such Additional Indebtedness, Additional
Preferred Stock and/or common equity) and (ii) the Borrower's 10-1/4% Senior
Notes due 2004 may be prepaid, redeemed or acquired for value, in whole or in
part (including, without limitation, by way of depositing with the trustee with
respect thereto, money or securities before due for the purpose of paying when
due). In addition, the Borrower will not, and will not permit any of its
Restricted Subsidiaries to, agree to modify, supplement, amend, rescind or
otherwise alter the terms, conditions or provisions of its Certificate of
Incorporation (including, without limitation, by the filing of any certificate
of designation) or its By-Laws in any material respect, other than such
modifications, supplements or amendments that would not
Page 51
materially adversely affect the interests of the Banks under this Agreement or
the other Credit Documents.
8.14 LIMITATION ON THE CREATION OF SUBSIDIARIES; REDESIGNATION OF
PARTIALLY-OWNED RESTRICTED SUBSIDIARIES. (a) Notwithstanding anything to the
contrary contained in this Agreement, the Borrower shall not, and shall not
permit any Subsidiary to, establish, create or acquire after the Effective Date
any Subsidiary unless (w) such Subsidiary is an Unrestricted Subsidiary; (x)
such Subsidiary is an Excluded Foreign Restricted Subsidiary; (y) such
Subsidiary is a Partially-Owned Restricted Subsidiary and at the time of
creation or acquisition thereof, the Borrower shall have made a Non-Guarantor
Designation with respect to such Partially-Owned Restricted Subsidiary in
accordance with the terms hereof or (z) such Subsidiary is a Restricted
Subsidiary (other than a Restricted Subsidiary of the type described in clauses
(x) or (y) above) and each such new Restricted Subsidiary becomes a party to the
Subsidiary Guaranty by executing a Subsidiary Assumption Agreement in the form
of Exhibit H hereto.
(b) At any time and from time to time, (x) the Borrower may
redesignate any Excluded Domestic Restricted Subsidiary as a Subsidiary
Guarantor by giving notice thereof to the Administrative Agent and by causing
such Subsidiary to become a party to the Subsidiary Guaranty by executing a
Subsidiary Assumption Agreement in the form of Exhibit H hereto, and (y) the
Borrower may redesignate any Subsidiary Guarantor which is a Partially-Owned
Restricted Subsidiary as an Excluded Domestic Restricted Subsidiary by making a
Non-Guarantor Designation with respect to such Subsidiary in accordance with the
terms hereof.
(c) At the time of the creation of any Subsidiary described in
clause (z) of Section 8.14(a) and at the time of any redesignation pursuant to
clause (x) of Section 8.14(b), each such new Subsidiary Guarantor shall execute
and deliver, or cause to be executed and delivered, in each case to the extent
not previously executed and delivered, all other relevant documentation of the
type described in Section 5 as such new Subsidiary Guarantor would have had to
deliver if such new Restricted Subsidiary had been a Restricted Subsidiary and a
Subsidiary Guarantor on the Initial Borrowing Date.
(d) Notwithstanding anything to the contrary contained in this
Section 8.14 or elsewhere in this Agreement, in no event shall any Subsidiary of
the Borrower guaranty any Indebtedness of the Borrower or any Wholly-Owned
Subsidiary unless such Subsidiary is a party to the Subsidiary Guaranty;
PROVIDED that, to the extent not prohibited by Section 8.04 hereof, (x) Excluded
Foreign Restricted Subsidiaries may guaranty Indebtedness of other Excluded
Foreign Restricted Subsidiaries and (y) Unrestricted Subsidiaries may guaranty
Indebtedness of other Unrestricted Subsidiaries.
(e) Notwithstanding anything to the contrary contained in this
Section 8.14 or elsewhere in this Agreement, the Borrower will not have any
direct Subsidiaries other than Intermediate HoldCo, unless all of the capital
stock of such Subsidiary owned directly or indirectly by the Borrower shall have
been pledged pursuant to a supplement to the Pledge Agreement satisfactory to
the Administrative Agent.
Page 52
SECTION 9. EVENTS OF DEFAULT. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01 PAYMENTS. (a) The Borrower shall (i) default in the payment
when due of any principal of the Loans or (ii) default, and such default shall
continue for five or more days, in the payment when due of any Unpaid Drawing,
any interest on the Loans or any Fees or any other amounts owing hereunder or
under any other Credit Document or (b) any Guarantor shall default in the
payment when due of any amount in respect of any payment of the type described
in clause (a)(ii) above pursuant to its Guaranty, and such default shall
continue for five or more days; or
9.02 REPRESENTATIONS, ETC. Any representation, warranty or statement
made by the Borrower or any Subsidiary Guarantor herein or in any other Credit
Document or in any statement or certificate delivered pursuant hereto or thereto
shall prove to be untrue in any material respect on the date as of which made or
deemed made; or
9.03 COVENANTS. The Borrower shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 7.08, or 8, or (b) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in Section 9.01,
9.02 or clause (a) of this Section 9.03) contained in this Agreement and such
default shall continue unremedied for a period of at least 30 days after notice
to the defaulting party by the Administrative Agent or the Required Banks; or
9.04 DEFAULT UNDER OTHER AGREEMENTS. (a) The Borrower or any of its
Restricted Subsidiaries shall (i) default in any payment with respect to any
Indebtedness or Contingent Obligation (other than the Obligations) beyond the
period of grace, if any, provided in the instrument or agreement under which
such Indebtedness or Contingent Obligation was created or (ii) default in the
observance or performance of any agreement or condition relating to any such
Indebtedness or Contingent Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or Contingent Obligation (or a trustee or agent on behalf of such holder or
holders) to cause any such Indebtedness or Contingent Obligation to become due
prior to its stated maturity; or (b) any Indebtedness or Contingent Obligation
(other than the Obligations) of the Borrower or any of its Restricted
Subsidiaries shall be declared to be due and payable, or shall be required to be
prepaid other than by a regularly scheduled required prepayment or as a
mandatory prepayment (unless such required prepayment or mandatory prepayment
results from a default thereunder or an event of the type that constitutes an
Event of Default), prior to the stated maturity thereof, PROVIDED that it shall
not constitute an Event of Default pursuant to clause (a) or (b) of this Section
9.04 unless the aggregate amount of all such Indebtedness and Contingent
Obligations referred to in clauses (a) and (b) above exceeds $20,000,000 at any
one time; or
9.05 BANKRUPTCY, ETC. The Borrower or any of its Material
Subsidiaries shall commence a voluntary case concerning itself under Title 11 of
the United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against the Borrower or any of its Material Subsidiaries and the
petition is not controverted within 10 days, or is not dismissed within 60 days,
after
Page 53
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower or any of its Material Subsidiaries; or the Borrower or any of its
Material Subsidiaries commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower or any of its Material Subsidiaries; or there is
commenced against the Borrower or any of its Material Subsidiaries any such
proceeding which remains undismissed for a period of 60 days; or the Borrower or
any of its Material Subsidiaries is adjudicated insolvent or bankrupt; or any
order of relief or other order approving any such case or proceeding is entered;
or the Borrower or any of its Material Subsidiaries suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or the Borrower or
any of its Material Subsidiaries makes a general assignment for the benefit of
creditors; or any corporate action is taken by the Borrower or any of its
Material Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof or a waiver of such standard
or extension of any amortization period is sought or granted under Section 412
of the Code; any Plan is, shall have been or is likely to be terminated or the
subject of termination proceedings under ERISA; any Plan shall have an Unfunded
Current Liability; or the Borrower, any Restricted Subsidiary or any ERISA
Affiliate has incurred or is likely to incur a liability to or on account of a
Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code; or the
Borrower or any Restricted Subsidiary has incurred or is likely to incur
liabilities pursuant to one or more employee welfare benefit plans (as defined
in Section 3(1) of ERISA) which provide benefits to retired employees (other
than as required by Section 601 of ERISA); and (b) there shall result from any
such event or events the imposition of a lien, the granting of a security
interest, or a liability or a material risk of incurring a liability, on the
part of the Borrower, any of its Restricted Subsidiaries or any ERISA Affiliate,
which lien, security interest or liability will have a material adverse effect
on the condition (financial or otherwise), operations, assets, liabilities or
prospects of the Borrower and its Restricted Subsidiaries taken as a whole; or
9.07 GUARANTY. (a) Any Guaranty or any provision thereof shall cease
to be in full force and effect, or any Guarantor thereunder or any Person acting
on behalf of such Guarantor shall deny or disaffirm such Guarantor's obligations
under such Guaranty or (b) except as otherwise provided in Section 9.01(b), any
Guarantor shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to the
respective Guaranty, PROVIDED that in the case of Section 13 of the Subsidiary
Guaranty, if the default constitutes a failure to perform or comply with any
provision, covenant or agreement contained in Section 7 (other than Section
7.08) of this Agreement, such default shall continue unremedied for a period of
at least 30 days after notice to the defaulting Guarantor by the Administrative
Agent or the Required Banks; or
9.08 PLEDGE AGREEMENT. (a) The Pledge Agreement shall cease to be in
full force and effect, or shall cease to give the Collateral Agent for the
benefit of the Secured Creditors the
Page 54
Liens, rights, powers and privileges purported to be created thereby, except as
a result of the negligent or willful failure of the Collateral Agent to maintain
possession of the certificated Collateral, or (b) the Borrower shall default in
any material respect in the due performance or observance of any term, covenant
or agreement on its part to be performed or observed pursuant to the Pledge
Agreement; or
9.09 JUDGMENTS. One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving a liability of
$15,000,000 or more in the case of any one such judgment or decree or
$25,000,000 or more in the aggregate for all such judgments and decrees for the
Borrower and its Subsidiaries (not paid or to the extent not covered by
insurance) and any such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 60 days from the entry
thereof; or
9.10 OWNERSHIP. A Change of Control Event shall have occurred;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Banks, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent, the Letter of Credit Issuer or any Bank to enforce its
claims against the Borrower, except as otherwise specifically provided for in
this Agreement (PROVIDED that if an Event of Default specified in Section 9.05
shall occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent as specified in clauses (i)
and (ii) below shall occur automatically without the giving of any such notice):
(i) declare the Total Commitment (or the unutilized portion thereof) terminated,
whereupon the Commitment of each Bank (or the unutilized portion thereof) shall
forthwith terminate immediately and any Commitment Fees shall forthwith become
due and payable without any other notice of any kind; (ii) declare the principal
of and any accrued interest in respect of all Loans and all obligations owing
hereunder (including Unpaid Drawings) to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; (iii) enforce, as
Collateral Agent (or direct the Collateral Agent to enforce), any or all of the
Liens and security interests created pursuant to the Pledge Agreement; (iv)
terminate any Letter of Credit which may be terminated in accordance with its
terms; and (v) direct the Borrower to pay (and the Borrower hereby agrees upon
receipt of such notice, or upon the occurrence of any Event of Default specified
in Section 9.05, to pay) to the Administrative Agent at the Payment Office such
additional amounts of cash, to be held as security for the Borrower's
reimbursement obligations in respect of Letters of Credit then outstanding,
equal to the aggregate Stated Amount of all Letters of Credit then outstanding.
SECTION 10. DEFINITIONS. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acquired Entity" shall have the meaning provided in Section
8.02(g).
"Additional Indebtedness" shall have the meaning provided in Section
8.04(h).
Page 55
"Additional Preferred Stock" shall have the meaning provided in
Section 8.12(c).
"Adjusted Percentage" shall mean (x) at a time when no Bank Default
exists, for each Bank such Bank's Revolving Loan Percentage and (y) at a time
when a Bank Default exists (i) for each Bank that is a Defaulting Bank, zero and
(ii) for each Bank that is a Non-Defaulting Bank, the percentage determined by
dividing such Bank's Revolving Loan Commitment at such time by the Adjusted
Total Revolving Loan Commitment at such time, it being understood that all
references herein to Revolving Loan Commitments and the Adjusted Total Revolving
Loan Commitment at a time when the Total Revolving Loan Commitment or Adjusted
Total Revolving Loan Commitment, as the case may be, has been terminated shall
be references to the Revolving Loan Commitments or Adjusted Total Revolving Loan
Commitment, as the case may be, in effect immediately prior to such termination,
PROVIDED that (A) no Bank's Adjusted Percentage shall change upon the occurrence
of a Bank Default from that in effect immediately prior to such Bank Default if,
after giving effect to such Bank Default and any repayment of Revolving Loans
and Swingline Loans at such time pursuant to Section 4.02(a) or otherwise, the
sum of (i) the aggregate outstanding principal amount of Revolving Loans of all
Non-Defaulting Banks plus (ii) the aggregate outstanding principal amount of
Swingline Loans plus (iii) the Letter of Credit Outstandings, exceeds the
Adjusted Total Revolving Loan Commitment; (B) the changes to the Adjusted
Percentage that would have become effective upon the occurrence of a Bank
Default but that did not become effective as a result of the preceding clause
(A) shall become effective on the first date after the occurrence of the
relevant Bank Default on which the sum of (i) the aggregate outstanding
principal amount of the Revolving Loans of all Non-Defaulting Banks plus (ii)
the aggregate outstanding principal amount of Swingline Loans plus (iii) the
Letter of Credit Outstandings is equal to or less than the Adjusted Total
Revolving Loan Commitment; and (C) if (i) a Non-Defaulting Bank's Adjusted
Percentage is changed pursuant to the preceding clause (B) and (ii) any
repayment of such Bank's Revolving Loans, or of Unpaid Drawings with respect to
Letters of Credit or of Swingline Loans, that was made during the period
commencing after the date of the relevant Bank Default and ending on the date of
such change to its Adjusted Percentage must be returned to the Borrower as a
preferential or similar payment in any bankruptcy or similar proceeding of the
Borrower, then the change to such Non-Defaulting Bank's Adjusted Percentage
effected pursuant to said clause (B) shall be reduced to that positive change,
if any, as would have been made to its Adjusted Percentage if (x) such
repayments had not been made and (y) the maximum change to its Adjusted
Percentage would have resulted in the sum of the outstanding principal of
Revolving Loans made by such Bank plus such Bank's new Adjusted Percentage of
the outstanding principal amount of Swingline Loans and of Letter of Credit
Outstandings equaling such Bank's Revolving Loan Commitment at such time.
"Adjusted Revolving Loan Commitment" for each Non-Defaulting Bank
shall mean at any time the product of such Bank's Adjusted Percentage and the
Adjusted Total Revolving Loan Commitment.
"Adjusted Total Revolving Loan Commitment" shall mean at any time
the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Banks.
Page 56
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.10.
"Affected Eurodollar Loan" shall have the meaning provided in
Section 4.02(g).
"Affected Period" shall mean, with respect to each Affected
Transaction, the period commencing on the date occurring twelve months prior to
the last day of the then most recently ended fiscal quarter of the Borrower and
ending on the date such Affected Transaction is consummated.
"Affected Transaction" shall mean and include each of the following:
(i) any transfer of assets to an Excluded Domestic Restricted Subsidiary in
connection with a transaction permitted pursuant to Section 8.02(e), (ii) any
Permitted Acquisition, (iii) any incurrence of Additional Indebtedness, (iv) any
investment in an Excluded Domestic Restricted Subsidiary pursuant to Section
8.05(d), (v) any issuance of Subordinated Exchange Debentures, (vi) the payment
of any Dividend as permitted by Section 8.07(k) or (l), (vii) any issuance of
Additional Preferred Stock, (viii) any Permitted Restricted Subsidiary
Conversion or Non-Guarantor Designation and (ix) any designation of an
Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the definition of
"Restricted Subsidiaries."
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation if
such Person possesses, directly or indirectly, the power (i) to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation or (ii) to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Aggregate Conversion Amount" shall mean, at any time, the sum of
the Conversion Value Amount with respect to each Permitted Restricted Subsidiary
Conversion consummated after the Effective Date but on or prior to the date of
determination thereof.
"Aggregate Unutilized Revolving Loan Commitment" with respect to any
Bank at any time shall mean such Bank's Revolving Loan Commitment at such time
less the sum of (i) the aggregate outstanding principal amount of all Revolving
Loans made by such Bank and (ii) such Bank's Adjusted Percentage of the Letter
of Credit Outstandings at such time.
"Agreement" shall mean this
Credit Agreement, as the same may be
from time to time modified, amended and/or supplemented.
"Applicable Commitment Fee Percentage" shall mean the percentage set
forth below under the heading Applicable Commitment Fee Percentage opposite the
ratio of (i) Consolidated Debt as of the last day of the most recent fiscal year
or fiscal quarter in respect of which the Banks shall have received Section 7.01
Financials to (ii) Consolidated EBITDA for the Test Period ending on the last
day of such fiscal year or fiscal quarter (it being understood that
Page 57
each Applicable Commitment Fee Percentage shall be in effect from the date the
respective Section 7.01 Financials are required to be delivered to the Banks
until the date the next such Section 7.01 Financials are required to be
delivered to the Banks at which time the Applicable Margin shall be reset in
accordance with the foregoing provisions of this definition):
APPLICABLE COMMITMENT FEE
DEBT/EBITDA RATIO PERCENTAGE
------------------------ --------------------------
5.25:1 or Greater .500%
Less than 5.25:1 .375%
; PROVIDED that if (A) if Late Section 7.01 Financials are delivered and such
Late Section 7.01 Financials establish that any Applicable Commitment Fee
Percentage would have been increased or reduced to an amount set forth in the
table above on the Required Delivery Date and (B) the Borrower shall have made
any payment of Commitment Fees during the period from the Required Delivery Date
to the actual date of delivery of such Late Section 7.01 Financials based upon
any such lower or higher Applicable Commitment Fee Percentage, then (x) in the
case of actual payments based on any such lower Applicable Commitment Fee
Percentage, the Borrower shall pay in the form of a supplemental Commitment Fee
payment, an amount which equals the difference between the amount of Commitment
Fees which would otherwise have been paid determined as if the Late Section 7.01
Financials were delivered on the Required Delivery Date and the amount of such
Commitment Fees so paid, which supplemental Commitment Fee payment shall be due
and payable on the date of delivery of the Late Section 7.01 Financials and (y)
in the case of actual payments made based on such higher Applicable Commitment
Fee Percentage, the Banks shall retain all such amounts so paid.
"Applicable Letter of Credit Fee Percentage" shall mean at any time,
the Applicable Margin then in effect for Eurodollar Loans that are Revolving
Loans less 1/4 of 1%.
"Applicable Margin" shall mean, at any time, (a) with respect to
Base Rate Loans, the margin set forth below under the heading Applicable Base
Rate Margin and (b) with respect to Eurodollar Loans, the margin set forth below
under the heading Applicable Eurodollar Margin, in each case, opposite the ratio
of (i) Consolidated Debt as of the last day of the most recent fiscal year or
fiscal quarter in respect of which the Banks shall have received Section 7.01
Financials to (ii) Consolidated EBITDA for the Test Period ending on the last
day of such fiscal year or fiscal quarter (it being understood that each
Applicable Margin shall be in effect from the date the respective Section 7.01
Financials are required to be delivered to the Banks until the date the next
such Section 7.01 Financials are required to be delivered to the Banks at which
time the Applicable Margin shall be reset in accordance with the foregoing
provisions of this definition):
Page 58
APPLICABLE
EURODOLLAR APPLICABLE BASE RATE
DEBT/EBITDA RATIO MARGIN MARGIN
--------------------------------- ----------- --------------------
5.75:1 or Greater 2.500% 1.500%
Less than 5.75:1 but equal 2.125% 1.125%
to or greater than 5.25:1
Less than 5.25:1 but equal to or 1.750% .750%
greater than 4.75:1
Less than 4.75:1 but equal to or 1.500% .500%
greater than 4.25:1
Less than 4.25:1 but equal to or 1.250% .250%
greater than 3.75:1
Less than 3.75:1 1.125% .125%
; PROVIDED that if (A) any Section 7.01 Financials are not delivered when
required (the "Late Section 7.01 Financials") and such Late Section 7.01
Financials establish that any Applicable Margin would have been increased or
reduced to an amount set forth in the table above on the date that such Late
Section 7.01 Financials were required to have been delivered (the "Required
Delivery Date") and (B) the Borrower shall have made any interest payment during
the period from the Required Delivery Date to the actual date of delivery of
such Late Section 7.01 Financials based upon any such lower or higher Applicable
Margin, then (x) in the case of actual payments based on any such lower
Applicable Margin, the Borrower shall pay in the form of a supplemental interest
payment, an amount which equals the difference between the amount of interest
which would otherwise have been paid determined as if the Late Section 7.01
Financials were delivered on the Required Delivery Date and the amount of such
interest so paid, which supplemental interest payment shall be due and payable
on the date of delivery of the Late Section 7.01 Financials and (y) in the case
of actual payments made based on such higher Applicable Margin, the Banks shall
retain all such amounts so paid. Notwithstanding anything to the contrary
contained above, the Applicable Margin for the period from the Effective Date
to, but not including, the date that the Borrower's financial statements are
delivered pursuant to Section 7.01(a) of this Agreement for the fiscal year
ending December 31, 2001 shall be the greater of (i) the Applicable Margin set
forth opposite the Borrower's actual Consolidated Debt/EBITDA Ratio for the
applicable Test Period and (ii) the Applicable Margin determined as if the
Borrower's Consolidated Debt/EBITDA ratio was less than 5.25:1, but equal to or
greater than 4.75:1 for the applicable Test Period.
"Applicable Term Loan B Margin" shall mean, at any time, (a) with
respect to Base Rate Loans, 1.750% and (b) with respect to Eurodollar Loans,
2.750%.
"Appraisal Firm" shall mean an independent appraisal firm (which may
be an investment banking firm of national recognition) selected by, and at the
expense of, the Borrower and reasonably satisfactory to the Administrative
Agent.
Page 59
"Approved Bank" shall have the meaning provided in the definition of
Cash Equivalents.
"Approved Fund" shall mean, with respect to any Bank, any fund or
commingled investment vehicle that invests in loans and is managed or advised by
the same investment advisor (or an affiliate of such investment advisor) as such
Bank or an affiliate of such Bank.
"Asset Sale" shall mean any sale, transfer or other disposition by
the Borrower or any of its Restricted Subsidiaries to any Person other than the
Borrower or any Restricted Subsidiary of any asset (including, without
limitation, any capital stock or other securities of another Person, but
excluding any sale, transfer or other disposition by the Borrower of its capital
stock) of the Borrower or such Restricted Subsidiary, including, without
limitation, a Permitted Restricted Asset Sale and any sale, transfer or other
disposition deemed made pursuant to a Permitted Restricted Subsidiary Conversion
(other than (x) any sale, transfer or disposition of Cash Equivalents; (y) any
sale, transfer or disposition permitted by Section 8.02(a), (e) or (h); and (z)
for purposes of Sections 3.03(d), any sale, transfer or disposition of assets
(other than capital stock or other securities of any Subsidiary) that results in
Available Cash Proceeds (including Available Cash Proceeds of any related sale,
transfer or disposition) of not in excess of $2,500,000).
"Authorized Officer" shall mean any officer of the Borrower
designated as such in writing to the Administrative Agent by the Borrower, in
each case to the extent reasonably acceptable to the Administrative Agent.
"Available Cash Proceeds" shall mean, with respect to any sale,
lease, transfer or other disposition of assets, the aggregate cash payments
(including any cash received by way of deferred payment pursuant to a note
receivable issued in connection with such sale, lease, transfer or other
disposition, other than the portion of such deferred payment constituting
interest, and including any amounts received as disbursement or withdrawals from
any escrow or similar account established in connection with any such sale,
lease, transfer or other disposition, but, in either such case, only as and when
so received; but excluding any portion of cash payments which the Borrower
determines in good faith (x) should be reserved for post-closing adjustments (to
the extent the Borrower delivers to the Administrative Agent a certificate
signed by its chief financial officer, treasurer, controller or chief accounting
officer as to such determination) or (y) must be applied to repurchase Senior
Notes pursuant to the Senior Note Documents (to the extent the Borrower delivers
to the Administrative Agent a certificate signed by its chief financial officer,
treasurer, controller or chief accounting officer as to such determination), it
being understood and agreed that on the date that all such post-closing
adjustments have been determined and/or the date such repurchases shall be
required to be effected, as the case may be, the amount (if any) by which the
reserved amount in respect of such sale or disposition exceeds the actual
post-closing adjustments payable by the Borrower or any of its Subsidiaries or
actual amount expended in connection with such repurchases, as the case may be,
shall constitute Available Cash Proceeds on such date) received by the Borrower
and/or any of its Subsidiaries from such sale, lease, transfer or other
disposition.
"Bank" shall have the meaning provided in the first paragraph of
this Agreement.
Page 60
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.05(c) or (ii) a Bank
having notified the Administrative Agent and/or the Borrower that it does not
intend to comply with the obligations under Section 1.01(c), 1.01(d) or 2.05(c),
in the case of either (i) or (ii) as a result of the appointment of a receiver
or conservator with respect to such Bank at the direction or request of any
regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher of (x) the rate which
is 1/2 of 1% in excess of the Federal Funds Effective Rate and (y) the Prime
Lending Rate as in effect from time to time.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean a borrowing of Loans under a single Tranche
from all Banks having Commitments with respect to such Tranche (or from Chase in
the case of Swingline Loans) on a given date (or resulting from conversions on a
given date), in each case, as required by the provisions of this Agreement,
being of a single Type of Loans and having, in the case of Eurodollar Loans, the
same Interest Period, provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of any related Borrowing of Eurodollar Loans.
"Business" shall mean and include the communications, information,
education, publishing and/or media businesses.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions to close, (ii)
with respect to all notices and determinations in connection with, and payments
of principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) and which is also a day for trading by and between banks
in U.S. dollar deposits in the interbank Eurodollar market.
"Capital Expenditures" shall mean, for any period, any expenditures
(whether paid in cash or accrued as liabilities and including in all events all
amounts expended or capitalized under Capital Leases) by any Person during that
period that, in conformity with GAAP, are or are required to be included in the
property, plant or equipment reflected in the balance sheet of such Person.
"Capital Lease," as applied to any Person, shall mean any lease of
any property (whether real, personal or mixed) by that Person as lessee which,
in conformity with GAAP, is accounted for as a capital lease on the balance
sheet of that Person.
Page 61
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Restricted Subsidiaries in each
case taken at the amount thereof accounted for as liabilities in accordance with
GAAP.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than one year from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers acceptances of (x) any Bank,
(y) any commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (z) any bank whose short-term commercial paper rating
from Standard & Poor's Ratings Group ("S&P") is at least A-2 or the equivalent
thereof or from Xxxxx'x Investors Service, Inc. ("Xxxxx'x") is at least P-2 or
the equivalent thereof (any such bank or Bank, an "Approved Bank"), in each case
with maturities of not more than one year from the date of acquisition,
(iii) commercial paper issued by any Approved Bank or by the parent company of
any Approved Bank and commercial paper issued by, or guaranteed by, any
industrial or financial company with a short-term commercial paper rating of at
least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent
thereof by Moody's, or guaranteed by any industrial company with a long term
unsecured debt rating of at least A or A2, or the equivalent of each thereof,
from S&P or Moody's, as the case may be, and in each case maturing within one
year after the date of acquisition, (iv) 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 maturing within one year from
the date of acquisition thereof and, at the time of acquisition, having one of
the two highest ratings obtainable from either S&P or Moody's and
(v) investments in money market funds substantially all the assets of which are
comprised of securities of the types described in clauses (i) through
(iv) above.
"Change of Control Event" shall mean (a) any "Change of Control" or
similar term as defined in the indentures governing the terms of the Senior
Notes as in effect on the Initial Borrowing Date or in any agreement governing
any Indebtedness incurred pursuant to Section 8.04(f), (h), (i) or (j); (b) any
Person or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended), other than KKR and/or one or more
Affiliates of KKR, becomes the "beneficial owner" (as defined in Rule 13d-3 of
the Securities Exchange Act of 1934, as amended) of a percentage of the voting
common stock of the Borrower equal to or greater than the greater of (i) 35% and
(ii) the percentage of such voting common stock then held (directly or
indirectly) by KKR and its Affiliates; (c) during any period of two consecutive
calendar years, directors who at the beginning of such period (together with any
new directors whose election by the Borrower's Board of Directors or whose
nomination for election by the Borrower's shareholders was approved by vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the directors then in office; (d) the Borrower shall cease to own,
directly, 100% of the capital stock of Intermediate HoldCo; or (e) Intermediate
HoldCo shall cease to own, directly or indirectly, each Subsidiary of the
Borrower other than (x) Intermediate HoldCo, (y) Subsidiaries the capital stock
of which is pledged to the Collateral Agent in accordance with
Page 62
Section 8.14(e) and (z) Subsidiaries that cease to be Subsidiaries in accordance
with Section 8.02.
"Chase" shall mean The Chase Manhattan Bank or any successor thereto
by merger.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in the
Pledge Agreement.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Pledge Agreement.
"Commitment" shall mean, at any time, for any Bank the sum of the
Term Loan A Commitment, Term Loan B Commitment and Revolving Loan Commitment of
such Bank at such time.
"Commitment Fee" shall have the meaning provided in Section 3.01(a).
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all Capital Expenditures by the Borrower and its Restricted
Subsidiaries at such time determined on a consolidated basis.
"Consolidated Current Assets" shall mean, at any time, the current
assets (other than cash and Cash Equivalents, and deferred income taxes to the
extent included in current assets) of the Borrower and its Restricted
Subsidiaries at such time determined on a consolidated basis.
"Consolidated Current Liabilities" shall mean, at any time, the
current liabilities of the Borrower and its Restricted Subsidiaries determined
on a consolidated basis, but excluding (i) all short-term Indebtedness for
borrowed money, (ii) the current portion of any long-term Indebtedness of the
Borrower or its Restricted Subsidiaries, (iii) deferred income taxes, (iv)
liabilities arising from cash overdrafts, and (v) liabilities arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument inadvertently (except in the case of daylight overdrafts) drawn
against insufficient funds in the ordinary course of business, provided that
such liabilities are extinguished within three Business Days of their
incurrence; in each case to the extent included in current liabilities.
"Consolidated Debt" shall mean all Indebtedness of the Borrower and
its Restricted Subsidiaries, determined on a consolidated basis, other than
Indebtedness owing by the Borrower to any of its Restricted Subsidiaries or by
any of the Borrower's Restricted Subsidiaries to the Borrower or any other
Restricted Subsidiary of the Borrower, provided that, for purposes of this
definition, Indebtedness of any Partially-Owned Restricted Subsidiary shall be
included in Consolidated Debt in an aggregate amount equal to the percentage
equity
Page 63
ownership of the Borrower in such Partially-Owned Restricted Subsidiary
multiplied by the aggregate Indebtedness of such Partially-Owned Restricted
Subsidiary.
"Consolidated EBITDA" shall mean, for any period, (A) the sum
(without duplication) of the amounts for such period of (i) the net income (or
loss) of the Borrower and its Restricted Subsidiaries on a consolidated basis
for such period taken as a single accounting period, provided that, except as
provided in clauses (I) through (III) below, there shall be excluded from
Consolidated EBITDA (x) the net income (or loss) of all Unrestricted
Subsidiaries and all Partially-Owned Restricted Subsidiaries for such period and
(y) all cash or other payments received during such period by the Borrower and
its Restricted Subsidiaries from any Unrestricted Subsidiaries from dividends or
distributions (including tax sharing payments), in each case to the extent
otherwise included, (ii) provisions for taxes based on income, (iii)
Consolidated Interest Expense, (iv) amortization or write-off of deferred
financing costs, (v) losses on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary losses, (vi) non-cash amounts
charged as compensation for "phantom stock" arrangements, (vii) all non-cash
interest expense not included in the foregoing clause (iii), (viii) depreciation
expense, (ix) other non-cash charges, (x) restructuring charges taken by the
Borrower and/or its Subsidiaries in accordance with SEC Staff Accounting
Bulletin No. 100, entitled "Restructuring and Impairment Charges", (xi) charges
resulting from premiums paid in connection with the refinancing of Indebtedness
and (xii) amortization expense, in the case of each of clauses (ii) through
(xii) above to the extent deducted in determining net income (or loss) pursuant
to clause (i) above for such period, less (B) the amount for such period of
gains on sales of assets (excluding sales in the ordinary course of business)
and other extraordinary gains, in each case, to the extent included in
determining net income (or loss) pursuant to clause (A)(i) above for such
period, all as determined on a consolidated basis; provided, however, that (I)
for purposes of Section 8.11 and the definitions of Applicable Margin and
Applicable Commitment Fee Percentage, (1) there shall be included in determining
Consolidated EBITDA for any period (x) the EBITDA of any person, business,
property or asset (other than an Unrestricted Subsidiary) acquired and not
subsequently sold or otherwise disposed of (but not including the EBITDA of any
related person, business, property or assets to the extent not so acquired) by
the Borrower or one of its Restricted Subsidiaries during such period (each such
person, business, property or asset acquired and not subsequently disposed of,
an "Acquired Entity or Business"), and the EBITDA of any Unrestricted Subsidiary
that is converted into a Restricted Subsidiary during such period (each, a
"Converted Restricted Subsidiary"), in each case based on the actual EBITDA of
such Acquired Entity or Business or Converted Restricted Subsidiary for the
entire period (including the portion thereof occurring prior to such acquisition
or conversion) and (y) an increase in respect of each Acquired Entity or
Business acquired during such period equal to the cost adjustment amount
applicable to the relevant period determined by the Borrower to represent the
savings secured by the Borrower in connection with its reduction of salary and
other employment expenses and lease and other contractual expenses with respect
to such Acquired Entity or Business and (2) there shall be excluded in
determining Consolidated EBITDA for any period the EBITDA of any person,
business, property or asset (other than an Unrestricted Subsidiary) sold or
disposed of by the Borrower or one of its Restricted Subsidiaries during such
period (each such person, business, property or asset so sold or disposed of, a
"Sold Entity or Business"), and the EBITDA of any Restricted Subsidiary that is
converted into an Unrestricted
Page 64
Subsidiary during such period (each, a "Converted Unrestricted Subsidiary"), in
each case based on the actual EBITDA of such Sold Entity or Business or
Converted Unrestricted Subsidiary for the entire period (including the portion
thereof occurring prior to such sale, disposition or conversion), (II) for
purposes of this definition, subject to clause (III) below, there shall be
included or excluded any of the items described in the above clauses (A) and (B)
attributable to a Partially-Owned Restricted Subsidiary (other than a Subsidiary
Guarantor), but only to the extent of the equity percentage ownership of the
Borrower in such Partially-Owned Restricted Subsidiary and (III) in the event
the aggregate portion of Consolidated EBITDA for any period attributable to
Partially-Owned Restricted Subsidiaries (other than Subsidiary Guarantors) (the
"Limited EBITDA Component") exceeds an amount equal to 15% of the aggregate
amount of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries
for such period, the Limited EBITDA Component (and accordingly Consolidated
EBITDA), in each case, for such period, shall be reduced such that the Limited
EBITDA Component for such period equals 15% of the aggregate amount of such
Consolidated EBITDA for such period.
"Consolidated Fixed Charges" shall mean, for any period, the sum,
without duplication, of the amounts for such period of (i) Consolidated Interest
Expense, plus consolidated cash Dividend expense payable in respect of all
Preferred Stock and common stock of the Borrower, (ii) provisions for taxes
based on income other than (x) changes in deferred taxes, (y) taxes on gains
resulting from sales of assets (other than sales in the ordinary course of
business) and (z) taxes on gains on extraordinary items, (iii) Consolidated
Capital Expenditures paid in cash, (iv) scheduled payments on Indebtedness for
borrowed money (including the Term Loans A and the Term Loans B, but excluding
(i) the Revolving Loans and (ii) the term loans pursuant to the Existing Credit
Agreements) (other than, in the case of any payments referred to in this clause
(iv), any interest payments to the extent included in Consolidated Interest
Expense), and (v) the Net Maximum Exposure Reduction, if positive, for such
period; all as determined on a consolidated basis for the Borrower and its
Restricted Subsidiaries; provided that for purposes of this definition, fixed
charges of the type referred to in clauses (i)-(v) above of any Partially-Owned
Restricted Subsidiary shall be included in Consolidated Fixed Charges in an
aggregate amount equal to the percentage equity ownership of the Borrower in
such Partially-Owned Restricted Subsidiary multiplied by the fixed charges of
the type referred to above of such Partially-Owned Restricted Subsidiary for the
respective period.
"Consolidated Interest Expense" shall mean, for any period, total
interest expense (including that attributable to Capital Leases in accordance
with GAAP but excluding non-cash interest expenses) of the Borrower and its
Restricted Subsidiaries determined on a consolidated basis with respect to all
outstanding Indebtedness of the Borrower and its Restricted Subsidiaries,
including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs (i.e., costs minus benefits) under Interest Rate Protection
Agreements, but excluding, however, amortization of deferred financing costs to
the extent included in total interest expense, all as determined on a
consolidated basis; provided that for purposes of this definition, interest
expense of the type referred to above of any Partially-Owned Restricted
Subsidiary shall be included in Consolidated Interest Expense in an aggregate
amount equal to the percentage equity ownership of the Borrower in such
Partially-Owned Restricted Subsidiary multiplied by the interest expense of the
type referred to above of such Partially-Owned Restricted Subsidiary for the
respective period.
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"Contingent Obligations" shall mean as to any Person (i) any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (a) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (b) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (d) otherwise to assure or hold
harmless the owner of such primary obligation against loss in respect thereof
and (ii) any Interest Rate Protection Agreement; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Contribution Agreement" shall have the meaning provided in
Section 5.01(h).
"Conversion Value Amount" shall have the meaning provided in the
definition of Permitted Restricted Subsidiary Conversion.
"Converted Restricted Subsidiary" shall have the meaning provided in
the definition of Consolidated EBITDA.
"Converted Unrestricted Subsidiary" shall have the meaning provided
in the definition of Consolidated EBITDA.
"Copyrights" shall have the meaning provided in Section 6.14(a).
"Credit Documents" shall mean this Agreement, any Notes to the
extent issued, the Guaranties, the Pledge Agreement and the Contribution
Agreement.
"Credit Event" shall mean the making of a Loan or the issuance of a
Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary
Guarantor.
"Default" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
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"Dividends" shall have the meaning provided in Section 8.
"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Early Maturity Date" shall mean (i) November 1, 2005, to the extent
that the Borrower's $300,000,000 8-1/2% Senior Notes due 2006 have not been paid
in full or defeased by such time and (ii) January 1, 2008, to the extent that
the Borrower's $250,000,000 7-5/8% Senior Notes due 2008 have not been paid in
full or defeased by such time.
"EBITDA" shall mean, for any Restricted Subsidiary person, business,
property or asset, for any period, the portion of Consolidated EBITDA
attributable to such Restricted Subsidiary person, business, property or asset.
"Effective Date" shall have the meaning provided in Section 12.10.
"Environmental Law" shall mean any federal, state, provincial or
local statute, law, rule, regulation, ordinance, code, policy or rule of common
law now or hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to the environment, health, safety
or Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and the
rulings issued thereunder. Section references to ERISA are to ERISA as in effect
at the date of this Agreement and any subsequent provisions of ERISA amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or any Subsidiary of the Borrower
would be deemed to be a "single employer" within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Eurodollar Loans" shall mean each Loan bearing interest at the
rates provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period
for a Eurodollar Loan, (i) the per annum rate of interest determined on the
basis of the rate for deposits in dollars for a period equal to such Interest
period appearing on Dow Xxxxx Markets Page 3750 as of 11:00 A.M., London time,
two Business Days prior to the commencement of such Interest Period, divided
(and rounded upward to the next whole multiple of 1/16 of 1%) by (ii) a
percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D). In
the event that the rate refined to in clause (i) above does not appear on Dow
Xxxxx Markets Page 3750 (or otherwise on such Dow Xxxxx Markets service), the
"Eurodollar Rate" for the purposes of this paragraph shall be determined by
reference to such other publicly available service for displaying
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eurodollar rates as may be agreed upon by the Administrative Agent and the
Borrower or, in the absence of such agreement, the "Eurodollar Rate" for the
purposes of this paragraph shall instead be the rate per annum notified to the
Administrative Agent by Chase as the rate at which Chase is offered Dollar
deposits at or about 10:00 A.M., New York time, two Business Days prior to the
beginning of such Interest Period, in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of its
Eurodollar Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during such
Interest Period.
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any period, the remainder of (x)
the sum of (i) Consolidated EBITDA for such period and (ii) the decrease, if
any, in Working Capital from the first day to the last day of such period, minus
(y) the sum of (i) the amount of Consolidated Fixed Charges for such period (but
in the case of Consolidated Capital Expenditures included therein, only to the
extent such expenditures are not financed by Indebtedness (other than Loans
hereunder)) and (ii) the increase, if any, in Working Capital from the first day
to the last day of such period, provided that in calculating the amount referred
to in clause (x)(ii) or (y)(ii) above, as the case may be, (A) for any period
during which the Borrower and/or any of its Restricted Subsidiaries have
consummated an Asset Sale pursuant to Section 8.02(c) or a Permitted
Acquisition, the portion of the change in Working Capital for such period
attributable to the entity or business sold or purchased shall be based (x) in
the case of an Asset Sale, on the change in Working Capital attributable to the
entity or business sold from the first day of such period to the date of the
consummation of such sale and (y) in the case of an acquisition, on the change
in Working Capital attributable to the entity or business acquired from the date
of consummation of such acquisition to the last day of such period and (B)
Working Capital shall only include the assets and liabilities of a
Partially-Owned Restricted Subsidiary to the extent of the percentage equity
interest of the Borrower in such Partially-Owned Restricted Subsidiary.
"Excess Cash Flow Amount" shall mean an amount which initially shall
be zero and which shall be (i) increased on the date of delivery of Section 7.01
Financials in respect of the first three fiscal quarters in each year of the
Borrower (commencing with the fiscal quarter ended June 30, 2001) by an amount
(if positive) equal to 75% of Excess Cash Flow for the fiscal quarter in respect
of which such Section 7.01 Financials are delivered, provided that in the event
that Excess Cash Flow for the first and/or second fiscal quarter in any fiscal
year is negative, then for purposes of this clause (i) the Excess Cash Flow for
the third fiscal quarter in such fiscal year shall be deemed to be reduced by
the amount of such negative Excess Cash Flow for such first and/or second
quarter, and (ii) increased on the date of delivery of Section 7.01 Financials
in respect of each fiscal year of the Borrower by an amount (if positive) equal
to 75% of the Excess Cash Flow for such fiscal year less an amount (if any)
equal to the aggregate amount by which the Excess Cash Flow Amount was increased
pursuant to clause (i) above in respect of the first, second and third quarters
in such fiscal year.
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"Excluded Domestic Restricted Subsidiary" shall mean any
Partially-Owned Restricted Subsidiary with respect to which the Borrower shall
have made a Non-Guarantor Designation in accordance with the provisions hereof.
"Excluded Foreign Restricted Subsidiaries" shall mean (i) Intertec
Publishing (UK) Limited, a U.K. corporation, (ii) Canadian Red Book, Inc., a
Canada corporation, (iii) each Restricted Subsidiary of the Borrower
established, created or acquired after the Effective Date which is incorporated
in a jurisdiction outside the United States, except to the extent the
requirements set forth in clause (z) of Section 8.14(a), and Section 8.14(c),
are satisfied with respect to such Subsidiary.
"Existing Contingent Obligations" shall have the meaning provided in
Section 8.06(f).
"Existing Credit Agreements" shall mean and include each of the
Existing Revolving Credit Facility and the Existing Revolving Credit and Term
Loan Facility.
"Existing Debt" shall have the meaning provided in Section 8.04(d).
"Existing Indebtedness Agreements" shall have the meaning provided
in Section 5.01(i).
"Existing Letter of Credit" shall have the meaning provided in
Section 2.01(c).
"Existing Preferred Stock" shall include preferred stock of the
Borrower issued prior to the Effective Date and listed on Annex VI hereto,
without giving effect to any extension or replacement thereof, as the same may
be modified, supplemented or amended from time to time pursuant to the terms
hereof and thereof.
"Existing Revolving Credit and Term Loan Facility" shall mean the
Amended and Restated Credit Agreement, dated as of May 24, 1996 and amended and
restated as of March 11, 1999, among the Borrower, various lending institutions
and The Chase Manhattan Bank, as Administrative Agent, as same may have been
modified, supplemented or amended from time to time to and including the
Effective Date.
"Existing Revolving Credit Facility" shall mean the Credit
Agreement, dated as of May 24, 1996, among the Borrower, and various lending
institutions and The Chase Manhattan Bank, as Administrative Agent, as same may
have been modified, supplemented or amended from time to time to and including
the Effective Date.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal Funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so
Page 69
published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by the Administrative Agent from three
Federal Funds brokers of recognized standing selected by the Administrative
Agent.
"Fees" shall mean (i) all amounts payable pursuant to, or referred
to in, Section 3.01 and (ii) all other fees payable to the Administrative Agent
or any Bank as may be agreed to from time to time between the Borrower and the
Administrative Agent or such Bank, as the case may be.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of Section 8,
including defined terms as used therein, are subject (to the extent provided
therein) to Section 12.07(a).
"Guarantor" shall mean each Subsidiary Guarantor.
"Guaranty" shall mean each Subsidiary Guaranty.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar import, under any applicable
Environmental Law.
"Incremental Loan Commitment" shall have the meaning provided in
Section 1.13.
"Incremental Loan Lending Institution" shall have the meaning
provided in Section 1.13.
"Indebtedness" of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services payable to the sellers thereof or any of such seller's
assignees which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person, (iii) the face amount of all letters of credit
issued for the account of such Person and, without duplication, all drafts drawn
thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any
property owned by such first Person, whether or not such Indebtedness has been
assumed, (v) all Capitalized Lease Obligations of such Person and (vi) all
obligations of such Person to pay a specified purchase price for goods or
services whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, provided that Indebtedness shall not include (x) trade payables and
accrued expenses, in each case arising in the ordinary course of business and
(y) any obligations under Interest Rate Protection Agreements.
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"Information Memorandum" shall mean the Confidential Information
Memorandum dated April 2001 and distributed to the Banks prior to the Effective
Date.
"Initial Borrowing Date" shall mean the date of the occurrence of
the first Credit Event hereunder.
"Intellectual Property" shall have the meaning provided in Section
6.14(b).
"Intercompany Loan" shall have the meaning provided in Section
8.05(c).
"Interest Period" with respect to any Eurodollar Loan, shall mean
the interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Intermediate HoldCo" shall mean PRIMEDIA Companies Inc., a Delaware
corporation that is directly owned by the Borrower and is a Wholly-Owned
Restricted Subsidiary.
"Intermediate HoldCo Reorganization" shall mean the transfer
directly or indirectly of all of the Capital Stock of all of the Subsidiaries of
the Borrower as of the Effective Date to Intermediate HoldCo pursuant to and in
accordance with the terms of the Intermediate HoldCo Reorganization Documents.
"Intermediate HoldCo Reorganization Documents" shall mean and
include all agreements and documents relating to the Intermediate HoldCo
Reorganization.
"Investments" shall have the meaning provided in Section 8.05.
"KKR" shall mean Kohlberg Kravis Xxxxxxx & Co., a Delaware limited
partnership.
"Late Section 7.01 Financials" shall have the meaning provided in
the definition of Applicable Margin.
"Leasehold" of any Person means all of the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean Chase.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
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"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Leverage Ratio" shall have the meaning provided in Section 8.11.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute, and any lease having substantially the same effect
as the foregoing).
"Loan" shall mean each and every Loan made by any Bank hereunder,
including Term Loans A, Term Loans B, Revolving Loans, Incremental Loans and
Swingline Loans.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(e).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Subsidiary" shall mean, at any time, (a) any Restricted
Subsidiary (i) having assets (valued at fair market value) equal to or greater
than 3% of the assets (valued at fair market value) of the Borrower and its
Restricted Subsidiaries taken as a whole or (ii) having revenues for the then
most recently ended fiscal year equal to or greater than 3% of the revenues for
such fiscal year of the Borrower and its Restricted Subsidiaries taken as a
whole, (b) any group of Restricted Subsidiaries (i) having aggregate assets
(valued at fair market value) equal to or greater than 10% of the assets (valued
at fair market value) of the Borrower and its Restricted Subsidiaries taken as a
whole or (ii) having aggregate revenues for the then most recently ended fiscal
year equal to or greater than 10% of the revenues for such fiscal year of the
Borrower and its Restricted Subsidiaries taken as a whole and (c) any
Unrestricted Subsidiary that would be a "significant subsidiary" as defined in
Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities
Act of 1933, as amended, as such Regulation is in effect on the Effective Date.
"Maximum Swingline Amount" shall mean $40,000,000.
"Minimum Borrowing Amount" shall mean (i) for Term Loans A,
$2,000,000; (ii) for Term Loans B, $2,000,000; (iii) for Revolving Loans,
$2,000,000; and (iv) for Swingline Loans, $500,000.
"Minimum Retention Amount" shall mean, at any time, (A) with respect
to Term Loans A and the Revolving Loan Commitments, $5,000,000 multiplied by a
fraction (i) the numerator of which shall be the sum of the outstanding Term
Loans A plus the Total Revolving Loan Commitment at such time and (ii) the
denominator of which shall be $575,000,000 and (B) with respect to Term Loans B,
$1,000,000 multiplied by a fraction (i) the numerator of which shall be the sum
of the outstanding Term Loans B at such time and (ii) the denominator of which
shall be $425,000,000.
"Xxxxx'x" shall have the definition provided in the definition of
Cash Equivalents.
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"Multiemployer Plan" shall have the meaning provided in
Section 6.12.
"Net Cash Proceeds" shall mean, with respect to any Asset Sale, the
Available Cash Proceeds resulting therefrom net of (a) cash expenses of sale
(including payment of principal, premium and interest of Indebtedness
specifically relating to the assets sold in such Asset Sale, relocation expenses
and severance and shutdown costs) and (b) taxes paid or payable as a result
thereof over and above the taxes which would otherwise have been payable in the
absence of such Asset Sale, provided that in the case of an Asset Sale by a
Partially-Owned Restricted Subsidiary, "Net Cash Proceeds" shall be the amount
as determined above in this definition multiplied by the percentage of the
capital stock of such Subsidiary owned, directly or indirectly, by the Borrower.
"Net Investments in Excluded Foreign Restricted Subsidiaries" shall
mean the remainder of (i) the sum of (x) the aggregate value of all businesses,
properties and assets transferred by the Borrower and/or its Restricted
Subsidiaries (other than Excluded Foreign Restricted Subsidiaries) to Excluded
Foreign Restricted Subsidiaries after the Effective Date, (y) the aggregate
outstanding principal amount of all Intercompany Loans made to Excluded Foreign
Restricted Subsidiaries by the Borrower and/or its Restricted Subsidiaries
(other than Excluded Foreign Restricted Subsidiaries) after the Effective Date
and (z) the aggregate amount of all investments by the Borrower and its
Restricted Subsidiaries (other than Excluded Foreign Restricted Subsidiaries) in
Excluded Foreign Restricted Subsidiaries after the Effective Date, minus (ii)
the sum of (x) the aggregate value of all businesses, properties and assets
transferred by Excluded Foreign Restricted Subsidiaries to the Borrower and/or
its Restricted Subsidiaries (other than Excluded Foreign Restricted
Subsidiaries) after the Effective Date and (y) the aggregate amount of all cash
dividends and other cash distributions on common stock paid by Excluded Foreign
Restricted Subsidiaries to the Borrower and its Restricted Subsidiaries (other
than Excluded Foreign Restricted Subsidiaries) after the Effective Date.
"Net Maximum Exposure Reduction" shall mean, for any period, the
Maximum Exposure during such period less the sum of (i) the Total Revolving Loan
Commitment on the last day of such period and (ii) an amount equal to the
aggregate amount of reductions to the Total Revolving Loan Commitment during
such period pursuant to Section 3.03(d).
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Non-Facility Letter of Credit Outstandings" shall mean, at any
time, the sum of (i) the aggregate maximum amount available to be drawn
(regardless of whether any conditions for drawing could then be met) under all
outstanding Non-Facility Letters of Credit and (ii) the aggregate amount of all
Non-Facility Unpaid Drawings.
"Non-Facility Letters of Credit" shall mean each letter of credit
(other than any Letter of Credit issued pursuant to this Agreement) issued for
the account of the Borrower or any of its Restricted Subsidiaries, provided that
the reimbursement obligations of the Borrower or such Restricted Subsidiary with
respect to such letter of credit may be secured only to the extent permitted by
Section 8.03(p).
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"Non-Facility Unpaid Drawings" shall mean all amounts paid or
disbursed by the issuers of Non-Facility Letters of Credit which have not been
reimbursed.
"Non-Guarantor Designation" shall mean and include each of (x) the
designation by the Borrower of any newly created or acquired Partially-Owned
Restricted Subsidiary and (y) the redesignation of any existing Partially-Owned
Restricted Subsidiary which is a Subsidiary Guarantor, in each case, as an
Excluded Domestic Restricted Subsidiary by delivery of a written notice to the
Administrative Agent of such designation or redesignation, as the case may be;
provided that the Borrower may only make a Non-Guarantor Designation hereunder
if, at the time of such designation (i) no Default or Event of Default exists or
would result therefrom and (ii) the Borrower shall have determined, with respect
to such designation, that the Borrower and its Restricted Subsidiaries would
have been in compliance, on a Pro Forma Basis, with Sections 8.09, 8.10 and 8.11
of this Agreement.
"Note" shall mean and include each promissory note, in the form
agreed by the Borrower and the Administrative Agent prior to the Effective Date,
to the extent issued pursuant to Section 1.05(b) hereof.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office as the
Administrative Agent may designate to the Borrower and the Banks from time to
time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
the Administrative Agent or any Bank pursuant to the terms of this Agreement or
any other Credit Document.
"Partially-Owned Restricted Subsidiary" shall mean any Restricted
Subsidiary of the Borrower to the extent that the Borrower and its Wholly-Owned
Restricted Subsidiaries shall own less than 100% of the capital stock of such
Restricted Subsidiary.
"Participant" shall have the meaning provided in Section 2.05(a).
"Payment Office" shall mean the office of the Administrative Agent
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office as the
Administrative Agent may designate to the Borrower and the Banks from time to
time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall have the meaning provided in Section
8.02(g).
"Permitted Amendments" shall mean, to any amendment or supplement to
or waiver of the documents governing or evidencing (x) any issue of Indebtedness
which does not
Page 74
(i) add, directly or indirectly, any new covenant, event of default, collateral
requirement or repayment requirement (including pursuant to any put
arrangement), (ii) modify in any manner materially adverse to the issuer or
guarantors thereof any existing covenant, event of default, collateral
requirement or repayment requirement (including any shortening or any
amortization requirements), (iii) increase the interest rate thereon or modify
in any manner the time or manner of payment of such interest (including any
option or right to pay such interest in kind), (iv) modify any of the
subordination provisions or (v) contain any provision which, in the opinion of
the Administrative Agent, is materially adverse to the interests of the Banks,
(y) any issue of Preferred Stock which does not (i) add, directly or indirectly,
any new covenant, default, voting, redemption, exchange or put provision, (ii)
modify in any manner adverse to the issuer thereof any existing covenant,
default, voting, redemption, exchange or put provision, (iii) increase the
dividend rate thereon or modify in any manner the time or manner of payment of
such dividends (including any option or right to pay such dividends in kind) or
(iv) contain any provision which, in the opinion of the Administrative Agent, is
materially adverse to the interests of the Banks or (z) the sole effect of which
is to (i) delete covenants or events of default and/or (ii) add to, or increase
existing, exceptions to the covenants contained therein, or waive any of the
covenants contained therein or any rights of the holders of such Indebtedness or
Preferred Stock, as the case may be, set forth therein.
"Permitted Liens" shall have the meaning provided in Section
8.03(c).
"Permitted Refinancing Debt" shall mean Indebtedness issued in
connection with a refinancing of any or all of the Existing Debt, the
Subordinated Exchange Debentures, any Additional Indebtedness or any other
Permitted Refinancing Debt; provided that (i) such Indebtedness has a longer
average life than the Indebtedness being refinanced and (ii) such Indebtedness,
and the agreements and other documents entered into by the Borrower and/or any
of its Restricted Subsidiaries in connection therewith shall contain terms and
conditions (including, without limitation, with respect to the obligor and
guarantors, if any, in respect of such Indebtedness, amortization schedules,
interest rates, redemption provisions, covenants, defaults, security, remedies
and, if the Indebtedness so refinanced is subordinated to any other Indebtedness
of the Borrower or its Restricted Subsidiaries, subordination provisions) not
materially less favorable to the Borrower and its Restricted Subsidiaries or to
the Banks than the terms and conditions of the Indebtedness so refinanced
(excluding, for purposes of this clause (ii), the impact of market conditions on
the interest rate and other economic terms).
"Permitted Replacement Preferred Stock" shall mean preferred stock
of the Borrower issued in connection with the replacement and cancellation of
any outstanding Preferred Stock; provided that such preferred stock and the
agreements, certificates of designation and other documents entered into by the
Borrower in connection therewith shall contain terms and conditions (including,
without limitation, dividend rates, pay-in-kind features, redemption provisions,
put rights, liquidation preferences, voting rights and exchange rights) not
materially less favorable to the Borrower or to the Banks than the terms and
conditions of the preferred stock being replaced (excluding the impact of market
conditions on the dividend rate and other economic terms), as such preferred
stock may be amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof.
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"Permitted Restricted Asset Sale" shall mean any sale, transfer or
other disposition by the Borrower or any of its Restricted Subsidiaries to any
Unrestricted Subsidiary of any asset (including, without limitation, any capital
stock or other securities of another Person, but excluding any sale, transfer or
other disposition by the Borrower of its capital stock) of the Borrower or such
Restricted Subsidiary; provided that the Borrower or such Restricted Subsidiary
shall only be permitted to effectuate a Permitted Restricted Asset Sale so long
as (i) no Default or Event of Default exists or would result therefrom, (ii) the
Borrower shall have delivered to the Administrative Agent the opinion of value
of an Appraisal Firm to the extent required by Section 8.02(c) and (iii) the
Borrower shall have, or shall have caused such Restricted Subsidiary to have,
complied with the other terms and conditions of Section 8.02(c) or (j), as the
case may be.
"Permitted Restricted Subsidiary Conversion" shall mean the
redesignation by the Borrower of a Restricted Subsidiary of the Borrower as an
Unrestricted Subsidiary of the Borrower pursuant to a written notice to the
Administrative Agent and the Banks; provided that any such redesignation of a
Restricted Subsidiary as an Unrestricted Subsidiary shall be deemed to
constitute a sale of all of the assets of the respective Restricted Subsidiary
for all purposes of this Agreement; provided further, that the Borrower shall
only be permitted to effectuate a Permitted Restricted Subsidiary Conversion so
long as (i) no Default or Event of Default exists or would result therefrom,
(ii) the Borrower shall have delivered to the Administrative Agent the opinion
of value of management of the Borrower or, to the extent required by Section
8.02(c), the Appraisal Firm required by such Section (the value set forth in any
such opinion, the "Conversion Value Amount"), (iii) the Borrower shall have
complied with the other terms and conditions of Section 8.02(c) or (j), as the
case may be, (iv) the Aggregate Conversion Amount at such time, when added to
the Unrestricted Subsidiary Investment Amount at such time shall not exceed the
Unrestricted Subsidiary Investment Limit then in effect, and (v) the Borrower
shall have determined, with respect to such conversion, that the Borrower and
its Restricted Subsidiaries would have been in compliance, on a Pro Forma Basis,
with Sections 8.09, 8.10 and 8.11 of this Agreement.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan, as
defined in Section 4001 of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute of) the Borrower, any Restricted
Subsidiary or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Borrower, any Restricted
Subsidiary or an ERISA Affiliate maintained, contributed to or had an obligation
to contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section
5.01(l).
"Preferred Stock" shall mean and include the Existing Preferred
Stock and, once issued, any Additional Preferred Stock and any Permitted
Replacement Preferred Stock.
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"Prescribed Forms" shall mean (i) two accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to the benefits of any income tax treaty) (or successor forms), or (ii)
if the Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, (x) a certificate substantially in the form of Exhibit C (any such
certificate, a "Section 4.04(b) Certificate") and (y) two accurate and complete
original signed copies of Internal Revenue Service Form W-8BEN (with respect to
the portfolio interest exemption)(or successor form).
"Prime Lending Rate" shall mean the rate which the Administrative
Agent announces from time to time as its prime commercial lending rate, the
Prime Lending Rate to change when and as such prime commercial lending rate
changes. The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Pro Forma Basis" shall mean, with respect to each Affected
Transaction in connection with which any calculation of compliance with any
financial covenant or financial term is required, the calculation thereof on a
pro forma basis, for the Test Period ended on the last day of the most recently
ended fiscal quarter, determined as if (x) such Affected Transaction, each other
Affected Transaction effected by Borrower during the Affected Period and any
reduction of Consolidated Debt during such Affected Period effected with the
proceeds received by the Borrower and/or its Restricted Subsidiaries of (A) the
issuance of common equity by the Borrower or (B) the sale of the capital stock
or other ownership interest of the Borrower in an Unrestricted Subsidiary (to
the extent not otherwise included in Consolidated EBITDA), in each case, had
occurred on the first day of such Affected Period, and (y) with respect to any
Affected Transaction involving the issuance of Indebtedness or Preferred Stock,
such Indebtedness and/or Preferred Stock had remained outstanding at all times
during such Affected Period.
"Pro Rata Share" shall mean, for each Bank, (i) with respect to Term
Loans A, the percentage obtained by dividing such Bank's outstanding Term Loans
A (if any) by the aggregate of all outstanding Term Loans A, (ii) with respect
to Term Loans B, the percentage obtained by dividing such Bank's outstanding
Term Loans B (if any) by the aggregate of all outstanding Term Loans B and (iii)
with respect to Revolving Loans, the percentage obtained by dividing such Bank's
Revolving Loan Commitment (if any) by the Total Revolving Loan Commitment;
provided that, if at any time of the determination of a Bank's "Pro Rata Share,"
any Commitments under a Tranche under this Agreement shall have been terminated,
Pro Rata Share shall be calculated with reference to the amount of Loans
outstanding under such Tranche rather than such Commitments.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Register" shall have the meaning provided in Section 1.05(a).
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"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing Margin requirements.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
"Remaining Net Cash Proceeds" shall mean, with respect to any Asset
Sale, at any time, an amount equal to the Net Cash Proceeds from such Asset Sale
theretofore received by the Borrower and/or its Restricted Subsidiaries minus
the portion, if any, of such Net Cash Proceeds theretofore expended by the
Borrower or any of its Restricted Subsidiaries in furtherance of the purchase,
construction or other acquisition of assets to be employed in, and/or the
capital stock of any Person engaged in, the Business.
"Replaced Bank" shall have the meaning provided in Section
1.10(c)(ii).
"Replacement Bank" shall have the meaning provided in Section
1.10(c)(ii).
"Reportable Event" shall mean an event described in Section 4043(c)
of ERISA with respect to a Plan other than those events as to which the 30-day
notice is waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation
Section 4043.
"Required Banks" shall mean Non-Defaulting Banks whose outstanding
(a) Term Loans A (or, if prior to the Initial Borrowing Date, Term Loan A
Commitments), (b) Term Loans B and (c) outstanding Revolving Loan Commitments
(or, if after the Total Revolving Loan Commitment has been terminated,
outstanding Revolving Loans and Adjusted Percentages of Swingline Loans and
Letter of Credit Outstandings) constitute more than 50% of the sum of (i) all
outstanding Term Loans A (or, if prior to the Initial Borrowing Date, Term Loan
A Commitments) of Non-Defaulting Banks plus (ii) all outstanding Term Loans B of
Non-Defaulting Banks plus (iii) the Adjusted Total Revolving Loan Commitment
(or, if after the Total Revolving Loan Commitment has been terminated, the total
outstanding Revolving Loans of Non-Defaulting Banks and the aggregate Adjusted
Percentages of all Non-Defaulting Banks of the total outstanding Swingline Loans
and Letter of Credit Outstandings at such time).
"Required Delivery Date" shall have the meaning provided in the
definition of Applicable Margin.
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"Restricted Subsidiaries" shall mean (x) all of the Subsidiaries of
the Borrower in existence on the Effective Date (other than those listed on
Annex VIII), (y) any Subsidiary owned (directly or indirectly) by the Borrower
that is created, established or acquired after the Effective Date and which does
not constitute an Unrestricted Subsidiary on the date of the creation,
establishment and/or acquisition thereof and (z) any Unrestricted Subsidiary of
the Borrower to the extent designated by the Borrower as a Restricted Subsidiary
hereunder by written notice to the Administrative Agent; provided that the
Borrower shall only be permitted to so designate a new Restricted Subsidiary so
long as (i) no Default or Event of Default exists or would result therefrom,
(ii) more than 50% of the capital stock of such newly-designated Restricted
Subsidiary is owned by the Borrower or one or more Wholly-Owned Restricted
Subsidiaries and all of the applicable provisions of Section 8.14 shall have
been complied with in respect of such newly-designated Restricted Subsidiary,
(iii) the Borrower shall have determined, with respect to such designation, that
the Borrower and its Restricted Subsidiaries would have been in compliance, on a
Pro Forma Basis, with Sections 8.09, 8.10 and 8.11 of this Agreement and (iv)
such Unrestricted Subsidiary is permitted to be designated a Restricted
Subsidiary pursuant to the Senior Note Documents; provided further, that, at the
time of any Permitted Restricted Subsidiary Conversion or the sale of 100% of
the capital stock owned by the Borrower or any Restricted Subsidiary of a
Restricted Subsidiary to an Unrestricted Subsidiary pursuant to a Permitted
Restricted Asset Sale, the Restricted Subsidiary so converted or sold shall no
longer constitute a Restricted Subsidiary hereunder.
"Revolving Loan" shall have the meaning provided in Section 1.01(c).
"Revolving Loan Commitment" shall mean, with respect to each Bank,
the amount set forth opposite such Bank's name in Annex I hereto directly below
the column entitled "Revolving Loan Commitment", as same may be reduced from
time to time pursuant to Sections 3.02, 3.03 and/or 9.
"Revolving Loan Maturity Date" shall mean the earlier of (a) June
30, 2008 and (b) the Early Maturity Date.
"Revolving Loan Percentage" shall mean at any time for each Bank the
percentage obtained by dividing such Bank's Revolving Loan Commitment (if any)
by the Total Revolving Loan Commitment; PROVIDED that at any time when the Total
Revolving Loan Commitment shall have been terminated, each Bank's Revolving Loan
Percentage shall be the percentage obtained by dividing such Bank's Revolving
Loan Commitment (if any) immediately prior to such termination by the Total
Revolving Loan Commitment immediately prior to such termination.
"S&P" shall have the meaning provided in the definition of Cash
Equivalents.
"Scheduled Revolving Loan Commitment Reduction" shall have the
meaning provided in Section 3.03(a).
"Scheduled Revolving Loan Commitment Reduction Date" shall have the
meaning provided in Section 3.03(a).
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"Scheduled TLA Repayment" shall have the meaning provided in Section
4.02(b).
"Scheduled TLA Repayment Date" shall have the meaning provided in
Section 4.02(b).
"Scheduled TLB Repayment" shall have the meaning provided in Section
4.02(c).
"Scheduled TLB Repayment Date" shall have the meaning provided in
Section 4.02(c).
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 7.01 Financials" shall mean the financial statements
delivered, or to be delivered, pursuant to Section 7.01(a) or (b).
"Secured Creditors" shall have the meaning assigned that term in the
Pledge Agreement.
"Securities Act" shall have the meaning provided in Section 8.04(h).
"Senior Note Documents" shall mean and include each of the documents
and other agreements entered into by the Borrower or any of its Subsidiaries
(including, without limitation, the indentures pursuant to which each issuance
of the Senior Notes are issued and any guaranty or guaranties relating thereto)
relating to the issuance by the Borrower of any Senior Notes, as in effect on
the Initial Borrowing Date and as the same may be modified, supplemented or
amended from time to time pursuant to the terms hereof and thereof.
"Senior Notes" shall mean and include the Borrower's (a) 7-5/8%
Senior Secured Notes due 2008, (b) 10-1/4% Senior Notes due 2004, (c) 8-1/2%
Senior Notes due 2006, and (d) the 8-7/8% Senior Notes due 2011, in each case,
as in effect on the Effective Date and as the same may be modified, supplemented
or amended from time to time pursuant to the terms hereof and thereof.
"Series D Preferred Stock" shall mean the Borrower's $10.00 Series D
Exchangeable Preferred Stock, as in effect on the Initial Borrowing Date and as
the same may be modified, supplemented or amended from time to time pursuant to
the terms hereof and thereof.
"Series F Preferred Stock" shall mean the Borrower's $9.20 Series F
Exchangeable Preferred Stock, as in effect on the Initial Borrowing Date and as
the same may be modified, supplemented or amended from time to time pursuant to
the terms hereof and thereof.
"Series H Preferred Stock" shall mean the Borrower's $8.625 Series H
Exchangeable Preferred Stock, as in effect on the Initial Borrowing Date and as
the same may be modified, supplemented or amended from time to time pursuant to
the terms hereof and thereof.
Page 80
"Specified Change of Control Event" shall mean a Change of Control
Event of the type described in clause (a) of the definition thereof.
"Stated Amount" of each Letter of Credit shall mean the maximum
amount available to be drawn thereunder (regardless of whether any conditions
for drawing could then be met).
"Subordinated Exchange Debentures" shall mean and include the
Borrower's (x) 10% Class D Subordinated Exchange Debentures due 2008, (y) 9.20%
Class F Subordinated Exchange Debentures due 2009 and (z) 8-5/8% Class H
Subordinated Exchange Debentures due 2010, in each case, in the form delivered
to the Banks on the Initial Borrowing Date and as the same may be modified,
supplemented or amended from time to time pursuant to the terms hereof and
thereof.
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such Person directly
or indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean (i) each Restricted Subsidiary in
existence on the Initial Borrowing Date (other than Excluded Foreign Restricted
Subsidiaries) and (ii) each Restricted Subsidiary of the Borrower formed after
the Initial Borrowing Date and each Excluded Domestic Restricted Subsidiary
designated as such by the Borrower, in each case, which has executed and
delivered a counterpart of the Subsidiary Guaranty to the Administrative Agent
on behalf of the Banks, provided that any such Restricted Subsidiary which is a
Partially-Owned Restricted Subsidiary shall cease to constitute a Subsidiary
Guarantor to the extent the Borrower shall have made a Non-Guarantor Designation
with respect to such Subsidiary in accordance with the terms hereof.
"Subsidiary Guaranty" shall have the meaning provided in Section
5.01(e).
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(d).
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Taxes" shall have the meaning provided in Section 4.04.
"Term Loan A" shall have the meaning provided in Section 1.01(a).
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"Term Loan A Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I hereto directly below the
column entitled "Term Loan A Commitment," as same may be reduced from time to
time pursuant to Sections 3.03 and/or 9.
"Term Loan A Facility Percentage" shall mean, at any time, a
fraction (expressed as a percentage) the numerator of which is equal to the
aggregate principal amount of all Term Loans A outstanding at such time and the
denominator of which is equal to the sum of (x) the aggregate principal amount
of Term Loans A outstanding at such time, and (y) the aggregate principal amount
of Term Loans B then outstanding at such time.
"Term Loan B Facility Percentage" shall mean, at any time, a
fraction (expressed as a percentage) the numerator of which is equal to the
aggregate principal amount of all Term Loans B outstanding at such time and the
denominator of which is equal to the sum of (x) the aggregate principal amount
of Term Loans A outstanding at such time, and (y) the aggregate principal amount
of Term Loans B outstanding at such time.
"Term Loan A Maturity Date" shall mean the earlier of (a) June 30,
2008 and (b) the Early Maturity Date.
"Term Loan B" shall have the meaning provided in Section 1.01(b).
"Term Loan B Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Annex I hereto directly below the
column entitled " Term Loan B Commitment," as same may be reduced from time to
time pursuant to Sections 3.03 and/or 9.
"Term Loan B Maturity Date" shall mean the earlier of (a) June 30,
2009 and (b) the Early Maturity Date.
"Test Period" shall mean the four consecutive fiscal quarters of the
Borrower then last ended.
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Revolving Loan Commitment" shall mean, at any time, the sum
of the Revolving Loan Commitments of each of the Banks.
"Total Term Loan A Commitment" shall mean, at any time, the sum of
the Term Loan A Commitments of each of the Banks.
"Total Term Loan B Commitment" shall mean, at any time, the sum of
the Term Loan B Commitments of each of the Banks.
"Total Unutilized Revolving Loan Commitment" shall mean, at any
time, (i) the Total Revolving Loan Commitment at such time less (ii) the sum of
the aggregate principal
Page 82
amount of all Revolving Loans and Swingline Loans at such time, plus the Letter
of Credit Outstandings at such time.
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being four separate Tranches,
i.e., the Term Loans A, the Term Loans B, the Revolving Loans and the Swingline
Loans.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as in effect in the
State of New York.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
such Plan as of the close of its most recent plan year exceeds the fair market
value of the assets allocable thereto, each determined in accordance with
Statement of Financial Accounting Standards No. 87, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan.
"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
"Unrestricted Subsidiary" shall mean (i) each Subsidiary of the
Borrower listed on Annex VIII hereto, (ii) any Subsidiary of the Borrower that
is formed or acquired after Effective Date, which is funded through loans,
advances and/ or capital contributions as permitted by, and in compliance with,
Section 8.05(d), provided that at the time of the initial loan, advance or
capital contribution by the Borrower or any Restricted Subsidiary to such
Subsidiary (x) the Borrower designates such Subsidiary as an Unrestricted
Subsidiary in a written notice to the Administrative Agent and (y) such
Subsidiary and the Borrower shall have entered into a tax sharing agreement in
form and substance reasonably satisfactory to the Administrative Agent, (ii) any
Restricted Subsidiary of the Borrower redesignated as an Unrestricted Subsidiary
pursuant to a Permitted Restricted Subsidiary Conversion and any Restricted
Subsidiary sold to an Unrestricted Subsidiary pursuant to a Permitted Restricted
Asset Sale, in each case to the extent consummated in accordance with the terms
of the respective definitions thereof and Section 8.02(c) or 8.02(j), as the
case may be, and (iii) each Subsidiary of an Unrestricted Subsidiary; provided
that, at the time of any designation of the type described in clause (z) of the
definition of "Restricted Subsidiary," the Subsidiary so designated shall no
longer constitute an Unrestricted Subsidiary hereunder.
"Unrestricted Subsidiary Investment Amount" shall have the meaning
provided in Section 8.05(d).
"Unrestricted Subsidiary Investment Limit" shall mean, at any time,
the sum of (i) $350,000,000, (ii) the Excess Cash Flow Amount at such time,
(iii) an amount equal to all cash or other payments received by the Borrower and
its Restricted Subsidiaries from Unrestricted Subsidiaries from dividends or
distributions after the Effective Date (provided that for purposes
Page 83
of this clause (iii), cash and other payments received by a Partially-Owned
Restricted Subsidiary shall be added to the Unrestricted Subsidiary Investment
Limit only to the extent of the equity percentage ownership of the Borrower in
such Partially-Owned Restricted Subsidiary), plus (iv) an amount equal to the
aggregate net proceeds received by the Borrower from the issuance of equity
securities of the Borrower after the Effective Date, provided that if the net
proceeds from any such equity issuance are not utilized to make a loan or
advance to, or a cash capital contribution in, an Unrestricted Subsidiary
pursuant to Section 8.05(d) within 90 days following the date of such equity
issuance, then the net proceeds from such equity issuance shall no longer be
added to the Unrestricted Subsidiary Investment Limit.
"U.S. Dollars" and "$" shall mean freely transferable lawful money
of the United States of America.
"Wholly-Owned Restricted Subsidiary" shall mean any Restricted
Subsidiary of the Borrower which is not a Partially-Owned Restricted Subsidiary.
"Working Capital" shall mean the excess of Consolidated Current
Assets over Consolidated Current Liabilities.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, telecopier device, telegraph
or cable.
SECTION 11. The Administrative Agent.
11.01 APPOINTMENT. Each Bank hereby irrevocably designates and
appoints Chase as Administrative Agent of such Bank (such term to include for
purposes of this Section 11, Chase acting as Collateral Agent) and to act as
specified herein and in the other Credit Documents, and each such Bank hereby
irrevocably authorizes Chase as the Administrative Agent for such Bank, to take
such action on its behalf under the provisions of this Agreement and the other
Credit Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. The Administrative Agent agrees to act as such
upon the express conditions contained in this Section 11. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein or in the other Credit Documents, or any fiduciary relationship with any
Bank, and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent. The provisions of this Section 11 are solely for the
benefit of the Administrative Agent and the Banks, and neither the Borrower nor
any of its Subsidiaries shall have any rights as a third party beneficiary of
any of the provisions hereof. In performing its functions and duties under this
Agreement, the Administrative Agent shall act solely as agent of the Banks and
the Administrative Agent neither assumes and nor shall it be deemed to have
assumed any obligation or relationship of agency or trust with or for the
Borrower or any of its Subsidiaries.
Page 84
11.02 DELEGATION OF DUTIES. The Administrative Agent may execute any
of its duties under this Agreement or any other Credit Document by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to the extent
otherwise required by Section 11.03.
11.03 EXCULPATORY PROVISIONS. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or the
other Credit Documents (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Banks for
any recitals, statements, representations or warranties made by the Borrower,
any of its Subsidiaries or any of their respective officers contained in this
Agreement or the other Credit Documents or in any certificate, report, statement
or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Credit Document or for any failure of the Borrower or any of its Subsidiaries or
any of their respective officers to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or the other
Credit Documents, or to inspect the properties, books or records of the Borrower
or any of its Subsidiaries. The Administrative Agent shall not be responsible to
any Bank for the effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any other Credit Document or
for any representations, warranties, recitals or statements made herein or
therein or made in any written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other documents in
connection herewith or therewith furnished or made by the Administrative Agent
to the Banks or by or on behalf of the Borrower to the Administrative Agent, or
any Bank or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the proceeds of the Loans or of
the existence or possible existence of any Default or Event of Default.
11.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required Banks as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance
Page 85
with a request of the Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Banks.
11.05 NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has actually received notice
from a Bank or the Borrower referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a "notice of default." In
the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Banks. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Banks; PROVIDED
that, unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Banks.
11.06 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS. Each
Bank expressly acknowledges that neither the Administrative Agent nor any of its
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Borrower or any of its Subsidiaries, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Bank. Each Bank
represents to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, assets, operations, property, financial
and other condition, prospects and creditworthiness of the Borrower and its
Subsidiaries and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Administrative Agent or any other Bank, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement, and to make such investigation as it
deems necessary to inform itself as to the business, assets, operations,
property, financial and other condition, prospects and creditworthiness of the
Borrower and its Subsidiaries. The Administrative Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the business, operations, assets, property, financial and other
condition, prospects or creditworthiness of the Borrower or any of its
Subsidiaries which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
11.07 INDEMNIFICATION. The Banks agree to indemnify the
Administrative Agent in its capacity as such ratably according to their
respective "percentages" (which shall equal, for each Non-Defaulting Bank, that
percentage determined by dividing (i) the sum of (x) such Bank's Revolving Loan
Commitment and (y) the outstanding principal amount of such Bank's Term Loans A
and Term Loans B by (ii) the sum of (x) the Adjusted Total Revolving Loan
Commitment and (y) the total aggregate principal amount of Term Loans A and Term
Loans B LESS any outstanding Term Loans A and Term Loans B of Defaulting Banks,
it being understood and agreed that references herein to Revolving Loan
Commitments (as well as to the Adjusted
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Total Revolving Loan Commitment) at a time when any such Commitment has been
terminated shall be references to such terminated Commitment as in effect
immediately prior to such termination), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, reasonable expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment of
the Obligations) be imposed on, incurred by or asserted against the
Administrative Agent in its capacity as such in any way relating to or arising
out of this Agreement or any other Credit Document, or any documents
contemplated by or referred to herein or the transactions contemplated hereby or
any action taken or omitted to be taken by the Administrative Agent under or in
connection with any of the foregoing, but only to the extent that any of the
foregoing is not paid by the Borrower or any of its Subsidiaries; PROVIDED that
no Bank shall be liable to the Administrative Agent for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent. If and to the
extent any amount paid to the Administrative Agent is subsequently recovered by
the Administrative Agent against the Borrower or any of its Subsidiaries, the
Administrative Agent shall promptly pay to each Bank to the extent such Bank
paid the Administrative Agent, its "percentage" of the amount so recovered. If
any indemnity furnished to the Administrative Agent for any purpose shall, in
the opinion of the Administrative Agent be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section 11.07 shall survive the payment of all
Obligations.
11.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its respective affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower and
its Subsidiaries as though the Administrative Agent were not the Administrative
Agent hereunder. With respect to the Loans made by it and all Obligations owing
to it, the Administrative Agent shall have the same rights and powers under this
Agreement as any Bank and may exercise the same as though it were not the
Administrative Agent, and the terms "Bank" and "Banks" shall include the
Administrative Agent in its individual capacity.
11.09 HOLDERS. The Administrative Agent may deem and treat the payee
of any Note which has been issued hereunder as the owner thereof for all
purposes hereof unless and until a written notice of the assignment, transfer or
endorsement thereof, as the case may be, shall have been filed with the
Administrative Agent. Any request, authority or consent of any Person or entity
who, at the time of making such request or giving such authority or consent, is
the holder of any such Note shall be conclusive and binding on any subsequent
holder, transferee, assignee or indorsee, as the case may be, of such Note or of
any Note or Notes issued in exchange therefor.
11.10 RESIGNATION OF THE ADMINISTRATIVE AGENT; SUCCESSOR AGENT. The
Administrative Agent may resign as the Administrative Agent upon 20 days' notice
to the Banks. Upon the resignation of the Administrative Agent, the Required
Banks shall appoint from among the Banks a successor Administrative Agent for
the Banks subject to prior approval by the Borrower (such approval not to be
unreasonably withheld), whereupon such successor agent shall
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succeed to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall include such successor agent effective upon
its appointment, and the resigning Administrative Agent's rights, powers and
duties as the Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement. After the resignation of the Administrative Agent
hereunder, the provisions of this Section 11 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.
SECTION 12. MISCELLANEOUS.
12.01 PAYMENT OF EXPENSES, ETC. The Borrower agrees to: (i) whether
or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent (including, without
limitation, the reasonable fees and disbursements of White & Case LLP) in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto and in connection with the
Administrative Agent's syndication efforts with respect to this Agreement; (ii)
pay all reasonable out-of-pocket costs and expenses of the Administrative Agent,
the Letter of Credit Issuer and each of the Banks in connection with the
enforcement of the Credit Documents and the documents and instruments referred
to therein and, after an Event of Default shall have occurred and be continuing,
the protection of the rights of the Administrative Agent, the Letter of Credit
Issuer and each of the Banks thereunder (including, without limitation, the
reasonable fees and disbursements of counsel (including in-house counsel) for
the Administrative Agent, the Letter of Credit Issuer and for each of the
Banks); (iii) pay and hold each of the Banks harmless from and against any and
all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such taxes; and (iv)
indemnify the Administrative Agent, the Letter of Credit Issuer and each Bank,
its officers, directors, employees, representatives and agents from and hold
each of them harmless against any and all losses, liabilities, claims, damages
or expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, any investigation, litigation or other
proceeding (whether or not the Administrative Agent, the Letter of Credit Issuer
or any Bank is a party thereto) related to the entering into and/or performance
of any Credit Document or the use of the proceeds of any Loans or Letter of
Credit hereunder or the consummation of any other transactions contemplated in
any Credit Document including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified).
12.02 RIGHT OF SETOFF. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Bank (including to
the extent such Bank is, or is deemed to be, the holder of a funded
participation in any Swingline Loan, and/or Letter of Credit) is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice
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of any kind to the Borrower or any of its Subsidiaries or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by such Bank (including, without limitation, by branches
and agencies of such Bank wherever located) to or for the credit or the account
of any Credit Party against and on account of the Obligations and liabilities of
such Credit Party to such Bank under this Agreement or under any of the other
Credit Documents, including, without limitation, all interests in Obligations of
such Credit Party purchased by such Bank pursuant to Section 12.06(b), and all
other claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such Bank
shall have made any demand hereunder and although said Obligations, liabilities
or claims, or any of them, shall be contingent or unmatured.
12.03 NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including facsimile communication) and mailed, facsimilied or delivered, if to
the Borrower, at the address specified opposite its signature below or in the
other relevant Credit Documents, as the case may be; if to any Bank, at its
address specified for such Bank on Annex II hereto; or, at such other address as
shall be designated by any party in a written notice to the other parties
hereto. All such notices and communications shall be mailed, facsimilied or
cabled or sent by overnight courier, and shall be effective when received.
12.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; PROVIDED that the Borrower may not assign or
transfer any of its respective rights or obligations hereunder without the prior
written consent of the Banks. Each Bank may at any time grant participations in
any of its rights hereunder to another financial institution; PROVIDED FURTHER,
that, in the case of any such participation, the participant shall not have any
rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation, except that
the participant shall be entitled to receive the additional amounts under
Sections 1.10, 1.11, 2.06 and 4.04 of this Agreement to, and only to, the extent
that such Bank would be entitled to such benefits if the participation had not
been entered into or sold; and PROVIDED FURTHER, that no Bank shall transfer,
grant or assign any participation under which the participant shall have rights
to approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend the
final scheduled maturity of any Loan in which such participant is participating
(it being understood that any waiver of an installment on, or the application of
any prepayment or the method of application of any prepayment to the
amortization of the Loans shall not constitute an extension of the final
scheduled maturity date), or reduce the rate or extend the time of payment of
interest or Fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating interest
in any Commitment over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default or of a mandatory reduction in
the Total Commitment shall not constitute a change in the terms of any
Commitment and that an increase in any Commitment shall be permitted
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without the consent of any participant if such participant's participation is
not increased as a result thereof), (ii) release the Borrower from the Borrower
Guaranty or release all or substantially all of the Subsidiary Guarantors from
the Subsidiary Guaranty (in each case except as expressly provided in the Credit
Documents) or (iii) in each case consent to the assignment or transfer by the
Borrower or any other Subsidiaries of the Borrower of any of its rights and
obligations under this Agreement or any other Credit Document except in
accordance with the terms hereof and thereof.
(b) Notwithstanding the foregoing, (x) any Bank may assign all or
a portion of its Loans and/or Commitment and its rights and obligations
hereunder to (i) any affiliate of such Bank, (ii) any other Bank and/or its
affiliates or (iii) any Approved Fund and (y) with the consent of the
Administrative Agent and the Borrower, and, in the case of any assignment of
Revolving Loans and/or Revolving Loan Commitments, of the Letter of Credit
Issuer (which consent in each case shall not be unreasonably withheld or
delayed), any Bank may assign all or a portion of its Loans and/or Commitments
and its rights and obligations hereunder to one or more commercial banks, other
Persons who invest in commercial loan facilities or other financial
institutions. No assignment pursuant to the immediately preceding sentence shall
(x) to the extent such transaction represents an assignment pursuant to clause
(y) of the preceding sentence (other than an assignment to a Bank), be in an
aggregate amount less than the minimum of (I) $5,000,000 (in the case of an
assignment of a portion of a Bank's Revolving Loan Commitment or outstanding
principal amount of Term Loans A), and (II) $1,000,000 (in the case of an
assignment of a portion of a Bank's outstanding Term Loans B) (or such lesser
amount as constitutes the assigning Bank's entire Commitment and outstanding
Loans or such lesser amount as may be approved by the Administrative Agent and
the Borrower) so long as no Default or Event of Default then exists, reduce the
Loans and Commitments of the assigning Bank to an aggregate amount less than the
Minimum Retention Amount unless the same are reduced to $0. If any Bank so sells
or assigns all or a part of its rights hereunder, any reference in this
Agreement or the other Credit Documents to such assigning Bank shall thereafter
refer to such Bank and to the respective assignee Bank to the extent of their
respective interests and the respective assignee Bank shall have, to the extent
of such assignment (unless otherwise provided therein), the same rights and
benefits as it would if it were such assigning Bank. Each assignment pursuant to
this Section 12.04(b) shall be effected by the assigning Bank and the assignee
Bank executing an Assignment and Assumption Agreement substantially in the form
of Exhibit G (appropriately completed). At the time of any such assignment, (i)
Annex I shall be deemed to be amended to reflect the Commitments and outstanding
Loans of the respective assignee Bank (which shall result in a direct reduction
to the respective Commitments of the assigning Bank) and of the other Banks,
(ii) the Administrative Agent as agent for the Borrower shall record such
assignment and the resultant effects thereof on the Loans and/or Commitments of
the assigning Bank and the assignee Bank in the Register and (iii) the
Administrative Agent shall receive from the assigning Bank and/or the assignee
Bank at the time of each assignment (other than an assignment pursuant to clause
(x) of the first sentence of this Section 12.04(b)) the payment of a
nonrefundable assignment fee in an aggregate amount of $3,500 with respect to
each such assignment. Each Bank and the Borrower agree to execute such documents
(including, without limitation, amendments to this Agreement and the other
Credit Documents) as shall be necessary to effect the foregoing. Promptly
following any assignment pursuant to this Section
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12.04(b), the assigning Bank shall promptly notify the Borrower thereof. Nothing
in this Section 12.04(b) shall prevent or prohibit any Bank from pledging its
Loans or, if issued, Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Bank from such Federal Reserve Bank or prevent any Bank
which is an Approved Fund from, at any time, pledging all or any portion of its
Loans to its trustee or representative or other creditor; PROVIDED, HOWEVER,
that no such pledge shall release any Bank from its obligations hereunder or
substitute such Federal Reserve Bank, trustee or representative or other
creditor for such Bank as a party hereto.
(c) Notwithstanding any other provisions of this Section 12.04, no
transfer or assignment of the interests or obligations of any Bank hereunder or
any grant of participations therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration statement
with the SEC or to qualify the Loans under the "Blue Sky" laws of any State.
12.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the
part of the Administrative Agent, the Letter of Credit Issuer or any Bank in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower and the Administrative
Agent, the Letter of Credit Issuer or any Bank shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Administrative
Agent, the Letter of Credit Issuer or any Bank would otherwise have. No notice
to or demand on the Borrower in any case shall entitle the Borrower to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent, the Letter of Credit Issuer or
the Banks to any other or further action in any circumstances without notice or
demand.
12.06 PAYMENTS PRO RATA. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of the Borrower in
respect of any Obligations of the Borrower hereunder, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Banks
(other than any Bank that has consented in writing to waive its PRO RATA share
of such payment) PRO RATA based upon their respective shares, if any, of the
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
of the Borrower to such Banks in such amount as shall result in a proportional
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participation by all of the Banks in such amount; PROVIDED that if all or any
portion of such excess amount is thereafter recovered from such Bank, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 12.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
12.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with GAAP consistently applied throughout the periods involved (except as set
forth in the notes thereto or as otherwise disclosed in writing by the Borrower
to the Banks); PROVIDED that except as otherwise specifically provided herein,
all computations determining compliance with Section 8, including definitions
used therein, shall utilize accounting principles and policies in effect at the
time of the preparation of, and in conformity with those used to prepare, the
December 31, 2000 historical financial statements delivered to the Banks
pursuant to Section 6.10(a).
(b) All computations of interest (other than interest on Base Rate
Loans) and Fees hereunder shall be made on the actual number of days elapsed
over a year of 360 days. All computations of interest on Base Rate Loans
hereunder shall be made on the actual number of days elapsed over a year of 365
days.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. (a) THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Agreement or any other Credit Document may be brought in
the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, the
Borrower hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. The
Borrower hereby further irrevocably waives any claim that any such courts lack
jurisdiction over the Borrower, and agrees not to plead or claim, in any legal
action or proceeding with respect to this Agreement or any other Credit Document
brought in any of the aforesaid courts, that any such court lacks jurisdiction
over the Borrower. The Borrower irrevocably consents to the service of process
in any such action or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the Borrower, at its address for notices
pursuant to Section 12.03, such service to become effective 30 days after such
mailing. The Borrower hereby irrevocably waives and agrees not to plead or claim
in any action or proceeding commenced hereunder or under any other Credit
Document that service of process was in any way invalid or ineffective. The
Borrower hereby represents and warrants that its chief executive office is
located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the Borrower hereby
further agrees that it shall not move its chief executive office unless it shall
give the Administrative Agent not less than 30 days' prior written notice of its
intention so to do. The Borrower agrees that (x) prior to moving its chief
executive office outside New York City and (y) and if for any reason any
designee, appointee and agent previously appointed pursuant to this sentence
shall cease to be available to act as such, the Borrower shall designate a
designee,
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appointee and agent or replacement designee, appointee and agent, as the case
may be, in New York City on the terms and for the purposes of this provision
satisfactory to the Administrative Agent. Nothing herein shall affect the right
of the Administrative Agent, any Bank or the holder of any Note to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
12.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
12.10 EFFECTIVENESS. This Agreement shall become effective on the
date (the "Effective Date") on which the Borrower, the Administrative Agent and
each Bank shall have signed a copy hereof (whether the same or different copies)
and shall have delivered the same to the Administrative Agent at its Notice
Office or, in the case of the Banks, shall have given to the Administrative
Agent telephonic (confirmed in writing), written or facsimile notice (actually
received) at such office that the same has been signed and mailed to it. The
Administrative Agent will give the Borrower and each Bank prompt written notice
of the occurrence of the Effective Date.
12.11 HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 AMENDMENT OR WAIVER. (a) Except as provided in Section
12.12(b) below, neither this Agreement nor any other Credit Document nor any
terms hereof or thereof may be changed, waived, discharged or terminated unless
such change, waiver, discharge or termination is in writing signed by the
Borrower and the Required Banks; PROVIDED that no such change, waiver, discharge
or termination shall, without the consent of each Bank (other than a Defaulting
Bank) affected thereby, (i) extend any Scheduled Revolving Loan Commitment
Reduction Date, any Scheduled TLA Repayment Date, any Scheduled TLB Repayment
Date or reduce the amount of any Scheduled Revolving Loan Commitment Reduction,
any Scheduled TLA Repayment or Scheduled TLB Repayment (or any mandatory
repayment arising as a result of any such Scheduled Revolving Loan Commitment
Reduction) or extend the final scheduled maturity of any Loan (it being
understood that any waiver of the application of any prepayment of or the method
of application of any prepayment to the amortization of the Loans shall not
constitute any
Page 93
such extension), or reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any post-default
increase in interest rates) or Fees thereon, or reduce the principal amount
thereof, or increase the Commitments of any Bank over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or
of a mandatory repayment or reduction in the Total Commitment shall not
constitute a change in the terms of any Commitment of any Bank), (ii) release
all or substantially all of the Subsidiary Guarantors from the Subsidiary
Guaranty (in each case except as expressly provided in the Credit Documents),
(iii) release all or substantially all of the Collateral, (iv) amend, modify or
waive any provision of this Section, or Section 1.10, 1.11, 2.06, 4.04, 9.01,
11.07, 12.01, 12.02, 12.04, 12.06 or 12.07(b), (v) reduce the percentage
specified in, or otherwise modify, the definition of, Required Banks, or (vi)
consent to the assignment or transfer by any Credit Party of any of its rights
and obligations under this Agreement or any other Credit Document except in
accordance with the terms hereof or thereof. No provision of Section 2 or 11 may
be amended without the consent of the Letter of Credit Issuer or the
Administrative Agent.
(b) Notwithstanding anything to the contrary contained in
Section 12.12(a) above, the Administrative Agent, the Borrower and the
respective Incremental Loan Lending Institutions are hereby authorized to enter
into a supplement or amendment to or amendment and restatement of this Agreement
to give effect to any Incremental Loan Commitment (as if such Incremental Loan
Commitment were part of this Agreement as of the Effective Date), in each case
as set forth in Section 1.13.
12.13 SURVIVAL. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.06, 4.04, 11.07 or 12.01, shall survive
the execution and delivery of this Agreement and the making and repayment of the
Loans and the satisfaction of all other Obligations.
12.14 DOMICILE OF LOANS. Each Bank may transfer and carry its Loans
at, to or for the account of any branch office, subsidiary or affiliate of such
Bank, provided, that the Borrower shall not be responsible for costs arising
under Sections 1.10, 1.11, 2.06 or 4.04 resulting from any such transfer (other
than a transfer pursuant to Section 1.12) to the extent such costs would not
otherwise be applicable to such Bank in the absence of such transfer.
12.15 CONFIDENTIALITY. Each of the Banks agrees that it will use its
best efforts not to disclose without the prior consent of the Borrower (other
than to (i) its employees, auditors, counsel or other professional advisors, to
affiliates or to another Bank if the Bank or such Bank's holding or parent
company in its sole discretion determines that any such party should have access
to such information or (ii) any contractual counterparty in any swap agreement
to which a Bank is a party, or any professional advisor to any such contractual
counterparty, so long as such parties agree to be bound by the provisions of
this Section) any information with respect to the Borrower or any of its
Subsidiaries which is furnished pursuant to this Agreement and which is
designated by the Borrower to the Banks in writing as confidential, PROVIDED
that any Bank may disclose any such information (a) as has become generally
available to the public, (b) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state, provincial or Federal
regulatory body having or claiming to have jurisdiction over such Bank or to the
Federal Reserve Board or the Federal Deposit Insurance Corporation, the National
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Association of Insurance Commissioners or similar organizations (whether in the
United States or elsewhere) or their successors, (c) as may be required or
appropriate in response to any summons or subpoena or in connection with any
litigation, (d) in order to comply with any law, order, regulation or ruling
applicable to such Bank, and (e) to any prospective transferee in connection
with any contemplated transfer of any of the Loans and/or Commitments or any
interest herein by such Bank, PROVIDED that such prospective transferee agrees
to be bound by the provisions of this Section.
12.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
* * *
Page 95
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
Address:
000 Xxxxx Xxxxxx
PRIMEDIA INC.
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000 ------------------------------
Attention: Xxxxxxx Xxxxx, Esq. Title: Vice Chairman, General
Counsel and Secretary
THE CHASE MANHATTAN BANK,
Individually and as
Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Title: Vice President
BANK OF AMERICA, N.A.
Individually and as
Syndication Agent
By: /s/ Xxxxxx Xxxx
------------------------------
Title: Principal
THE BANK OF NEW YORK
Individually and as
Co-Documentation Agent
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Title: Assistant Vice
President
THE BANK OF NOVA SCOTIA
Individually and as
Co-Documentation Agent
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
------------------------------
Title: Authorized Signatory
Page 96
CITIBANK, N.A.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Title: Assistant Vice President
XXXXXXX XXXXX CAPITAL
CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------
Title: Managing Director
THE DAI-ICHI KANGYO BANK, LTD.
(d.b.a. Mizuho Financial Group)
By: /s/ Xxxxxx-Xxxxx Xxxxx
------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Title: Assistant Vice President
Page 97
KZH CRESCENT LLC
By: /s/ Xxxxx Xxx
------------------------------
Title: Authorized Agent
KZH CRESCENT-2 LLC
By: /s/ Xxxxx Xxx
------------------------------
Title: Authorized Agent
KZH CRESCENT-3 LLC
By: /s/ Xxxxx Xxx
------------------------------
Title: Authorized Agent
METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Title: Director
RIVIERA FUNDING LLC
By: /s/ Xxx X. Xxxxxx
------------------------------
Title: Assistant Vice President
Page 98
XXXXXX XXXXXXX PRIME INCOME
TRUST
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Title: Senior Vice President
XXX XXXXXX PRIME RATE INCOME
TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Title: Manager Operations &
Compliance
XXX XXXXXX SENIOR FLOATING RATE
FUND
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Title: Manager Operations &
Compliance
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Title: Manager Operations &
Compliance
KZH CNC LLC
By: /s/ Xxxxx Xxx
------------------------------
Title: Authorized Agent
Page 99
WINGED FOOT FUNDING TRUST
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Authorized Agent
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------
Title: Assistant Vice President
By: /s/ Xxxxxxx Xxxxx
------------------------------
Title: Vice President, Group
Manager
KZH LANGDALE LLC
By: /s/ Xxxxx Xxx
------------------------------
Title: Authorized Agent
STANWICH LOAN FUNDING LLC
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxx Xxxxxx
------------------------------
Title: Vice President
Page 100
NUVEEN SENIOR INCOME FUND
By: Nuveen Senior Loan Asset
Management Inc.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------
Title: Managing Director
NUVEEN FLOATING RATE FUND
By: Nuveen Senior Loan Asset
Management Inc.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------
Title: Managing Director
OLYMPIC FUNDING TRUST, SERIES
1999-1
By: /s/ Xxxx X. Xxxxxx
------------------------------
Title: Authorized Agent
SEQUILS-CUMBERLAND I, LTD.
By: Deerfield Capital Management
LLC, as its Collateral Manager
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------
Title: Senior Vice President
Page 101
MUIRFIELD TRADING LLC
By: /s/ Xxxx X. Xxxxxx
------------------------------
Title: Assistant Vice President
