EXHIBIT 10.1
EXECUTION COPY
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UNITED STATIONERS SUPPLY CO.
AND
UNITED STATIONERS INC.
______________________________
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 3, 1998
______________________________
$500,000,000
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
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Section 1. Definitions and Accounting Matters. . . . . . . . . . . . . . . . . . . . 2
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02 Accounting Terms and Determinations . . . . . . . . . . . . . . . . . . .24
1.03 Classes and Types of Loans. . . . . . . . . . . . . . . . . . . . . . . .25
Section 2. Commitments, Loans and Prepayments. . . . . . . . . . . . . . . . . . . .25
2.01 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
2.02 Borrowings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
2.03 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
2.04 Changes of Commitments. . . . . . . . . . . . . . . . . . . . . . . . . .32
2.05 Commitment Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
2.06 Lending Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
2.07 Several Obligations; Remedies Independent . . . . . . . . . . . . . . . .34
2.08 Evidence of Debt; Registered Loans. . . . . . . . . . . . . . . . . . . .34
2.09 Optional Prepayments and Conversions or Continuations of Loan . . . . . .35
2.10 Mandatory Prepayments and Reductions of Commitments . . . . . . . . . . .35
Section 3. Payments of Principal and Interest. . . . . . . . . . . . . . . . . . . .38
3.01 Repayment of Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . .38
3.02 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
Section 4. Payments; Pro Rata Treatment; Computations; Etc.. . . . . . . . . . . . .39
4.01 Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
4.02 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . .40
4.03 Computations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
4.04 Minimum Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
4.05 Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
4.06 Non-Receipt of Funds by the Administrative Agent. . . . . . . . . . . . .42
4.07 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . .43
Section 5. Yield Protection, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . .44
5.01 Additional Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
5.02 Limitation on Types of Loans. . . . . . . . . . . . . . . . . . . . . . .46
5.03 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
5.04 Treatment of Affected Loans . . . . . . . . . . . . . . . . . . . . . . .47
5.05 Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
(i)
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5.06 Additional Costs in Respect of Letters of Credit. . . . . . . . . . . . .48
5.07 U.S. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
5.08 Replacement of Lenders. . . . . . . . . . . . . . . . . . . . . . . . . .51
Section 6. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
6.01 The Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
6.02 Obligations Unconditional . . . . . . . . . . . . . . . . . . . . . . . .52
6.03 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
6.04 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
6.05 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
6.06 Continuing Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . .53
Section 7. Conditions Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . .53
7.01 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
7.02 Initial and Subsequent Extensions of Credit . . . . . . . . . . . . . . .56
Section 8. Representations and Warranties. . . . . . . . . . . . . . . . . . . . . .56
8.01 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . .56
8.02 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . .57
8.03 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
8.04 No Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
8.05 Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
8.06 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
8.07 Use of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
8.08 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
8.09 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
8.10 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . . . . .59
8.11 Public Utility Holding Company Act. . . . . . . . . . . . . . . . . . . .59
8.12 Material Agreements and Liens . . . . . . . . . . . . . . . . . . . . . .59
8.13 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . .60
8.14 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
8.15 Subsidiaries, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . .61
8.16 Title to Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
8.17 True and Complete Disclosure. . . . . . . . . . . . . . . . . . . . . . .62
8.18 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
8.19 Security Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . .62
8.20 Year 2000.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
Section 9. Covenants of the Obligors . . . . . . . . . . . . . . . . . . . . . . . .63
9.01 Financial Statements, Etc.. . . . . . . . . . . . . . . . . . . . . . . .63
9.02 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
9.03 Existence, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
9.04 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
9.05 Prohibition of Fundamental Changes. . . . . . . . . . . . . . . . . . . .68
(ii)
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9.06 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . .69
9.07 Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71
9.08 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
9.09 Dividend Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . .73
9.10 Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74
9.11 Leverage Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74
9.12 Fixed Charges Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . .74
9.13 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . .75
9.14 Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . .75
9.15 Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . .76
9.16 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . . . . .76
9.17 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76
9.18 Modifications of Certain Documents. . . . . . . . . . . . . . . . . . . .76
9.19 Ownership of the Company. . . . . . . . . . . . . . . . . . . . . . . . .77
9.20 Severance Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . .77
9.21 Taxes; Tax Sharing Agreement. . . . . . . . . . . . . . . . . . . . . . .77
9.22 Subsidiary Guarantors; Additional Mortgaged Property. . . . . . . . . . .77
9.23 Termination of ERISA Plans. . . . . . . . . . . . . . . . . . . . . . . .78
9.24 Limitations on Restrictions . . . . . . . . . . . . . . . . . . . . . . .78
9.25 Release of Security Interests. . . . . . . . . . . . . . . . . . . . . .78
Section 10. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . .79
Section 11. The Administrative Agent. . . . . . . . . . . . . . . . . . . . . . . . .82
11.01 Appointment, Powers and Immunities. . . . . . . . . . . . . . . . . . . .82
11.02 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . .83
11.03 Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83
11.04 Rights as a Lender. . . . . . . . . . . . . . . . . . . . . . . . . . . .83
11.05 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84
11.06 Non-Reliance on Agent and Other Lenders . . . . . . . . . . . . . . . . .84
11.07 Failure to Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85
11.08 Resignation or Removal of Administrative Agent. . . . . . . . . . . . . .85
11.09 Consents under Other Basic Documents. . . . . . . . . . . . . . . . . . .85
11.10 Collateral Sub-Agents . . . . . . . . . . . . . . . . . . . . . . . . . .86
Section 12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86
12.01 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86
12.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86
12.03 Expenses, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86
12.04 Amendments, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .87
12.05 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . .88
12.06 Assignments and Participations. . . . . . . . . . . . . . . . . . . . . .88
12.07 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91
12.08 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91
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12.09 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91
12.10 Governing Law; Submission to Jurisdiction . . . . . . . . . . . . . . . .91
12.11 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . . . . . .91
12.12 Treatment of Certain Information; Confidentiality . . . . . . . . . . . .92
12.13 Certain Tax Information . . . . . . . . . . . . . . . . . . . . . . . . .92
12.14 Acknowledgement and Consent . . . . . . . . . . . . . . . . . . . . . . .92
(iv)
ANNEX 1 - Lenders and Commitments
SCHEDULE I - Indebtedness and Liens
SCHEDULE II - Environmental Matters
SCHEDULE III - Subsidiaries and Investments
SCHEDULE IV - Real Property
SCHEDULE V - Litigation
SCHEDULE VI - Taxes
EXHIBIT A - Form of Security Agreement
EXHIBIT B - Form of Subsidiary Guarantee and Security
Agreement
EXHIBIT C - Form of Mortgage
EXHIBIT D-1 - Form of Opinion of General Counsel to the
- Guarantor
EXHIBIT D-2 - Form of Opinion of Weil, Gotshal & Xxxxxx LLP, special counsel
to the Obligors
EXHIBIT E - Form of Opinion of Special New York Counsel to
the Administrative Agent
EXHIBIT F - Form of Assignment and Acceptance
(v)
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 3, 1998
(this "AGREEMENT") among: UNITED STATIONERS SUPPLY CO., a corporation duly
organized and validly existing under the laws of the State of Illinois (together
with its successors and assigns, the "COMPANY"); UNITED STATIONERS INC., a
corporation duly organized and validly existing under the laws of the State of
Delaware (together with its successors and assigns, the "GUARANTOR" and,
together with the Company, the "OBLIGORS"); each of the lenders that is a
signatory hereto (together with its successors and assigns in such capacity, a
"LENDER" and, collectively with the Swingline Lender referred to below, the
"LENDERS"); and THE CHASE MANHATTAN BANK, as Swingline Lender hereunder (in such
capacity, together with its successors and assigns in such capacity, the
"SWINGLINE LENDER") and as agent for the Lenders (in such capacity, together
with its successors in such capacity, the "ADMINISTRATIVE AGENT").
WHEREAS, the Company, the Guarantor, the Administrative Agent, and
certain of the Lenders are parties to a Credit Agreement dated as of March 30,
1995 (as amended and restated as of October 31, 1996, as amended pursuant to
Amendment No. 1 to Amended and Restated Credit Agreement dated as of August 18,
1997 among the Obligors, the lenders party thereto and The Chase Manhattan Bank,
as agent, and Amendment No. 2 to Amended and Restated Credit Agreement dated as
of August 29, 1997 among the Obligors, the lenders party thereto and The Chase
Manhattan Bank, as agent, and as heretofore further amended and supplemented and
in effect on the date hereof, the "EXISTING CREDIT AGREEMENT"), providing,
subject to the terms and conditions thereof for extensions of credit (by the
making of loans and issuing letters of credit) to the Company in an aggregate
principal amount not exceeding $540,000,000;
WHEREAS, the Company has entered into an agreement dated February 10,
1998 (the "PURCHASE AGREEMENT") pursuant to which the Company has agreed to
acquire for cash 100% of the issued and outstanding shares of capital stock of
each of Azerty Incorporated, a Delaware corporation ("AZERTY"), Positive ID
Wholesale Inc., a Delaware corporation ("POSITIVE"), AP Support Services
Incorporated, a Delaware corporation ("AP SUPPORT") and Azerty de Mexico, S.A.
de C.V., a Mexican corporation ("AZERTY MEXICO", and together with Azerty,
Positive and AP Support, the "ACQUIRED BUSINESSES") for a purchase price of
approximately $110,000,000 (including fees and expenses) subject to adjustment
based upon the net tangible assets of the Acquired Businesses as of the closing
of such acquisition (the "AZERTY ACQUISITION");
WHEREAS, the Obligors have requested the Lenders to amend and restate
and refinance loans under the Existing Credit Agreement to provide for
extensions of credit to the Company in an aggregate principal amount not
exceeding as of the date hereof $500,000,000, the proceeds of which will be used
(i) to refinance the Loans outstanding under and as defined in the Existing
Credit Agreement, (ii) to finance the Azerty Acquisition and (iii) to finance
the ongoing working capital requirements and for other general corporate
purposes (including, without limitation, Permitted Acquisitions (as hereinafter
defined)) of the Company and its Subsidiaries;
CREDIT AGREEMENT
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NOW, THEREFORE, the parties hereto agree as follows:
Section 1. DEFINITIONS AND ACCOUNTING MATTERS.
1.01 CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and VICE VERSA):
"ACCRUED WARRANT LIABILITIES" shall mean any liabilities of the
Guarantor under Section 7.02(c) of the Warrant Agreement.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" shall mean, in respect of any Person (the "RELEVANT
PERSON"), any other Person that directly or indirectly controls, or is under
common control with, or is controlled by, the Relevant Person and, if such other
Person is an individual, any member of the immediate family (including parents,
spouse, children and siblings) of such individual and any trust whose principal
beneficiary is such individual or one or more members of such immediate family
and any Person who is controlled by any such member or trust. As used in this
definition, "CONTROL" (including, with its correlative meanings, "CONTROLLED BY"
and "UNDER COMMON CONTROL WITH") shall mean possession, directly or indirectly,
of power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise), PROVIDED that, in any event, any Person that owns
directly or indirectly securities having 5% or more of the voting power for the
election of directors or other governing body of a corporation or 5% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing, (a) no individual
shall be an Affiliate of any Relevant Person solely by reason of his or her
being a director, officer or employee of such Relevant Person or any of its
Subsidiaries, (b) none of the Subsidiaries of the Guarantor shall be Affiliates
of the Guarantor or of any other Subsidiary of the Guarantor, (c) the Guarantor
shall not be an Affiliate of any of its Subsidiaries and (d) neither the
Administrative Agent nor any Lender shall be an Affiliate of the Guarantor or of
any Subsidiary of the Guarantor.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the lending office designated by such Lender as such on its
Administrative Questionnaire or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Company for such purpose.
"APPLICABLE MARGIN" shall mean, as of any date:
(a) for Tranche A Term Loans and Revolving Credit Loans, 2.00% per
annum for Eurodollar Loans and 0.75% per annum for Base Rate Loans;
PROVIDED that the Applicable Margin for each Type of Tranche A Term Loan
and Revolving Credit Loan, for any period from and including the date on
which the Company shall have delivered a compliance certificate pursuant to
the last paragraph of Section 9.01 hereof
CREDIT AGREEMENT
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demonstrating in reasonable detail (based upon financial statements for the
fiscal period of the Guarantor most recently ended that have been delivered to
the Lenders pursuant to Section 9.01(a) or (b) hereof or, prior to the delivery
of financial statements pursuant to said Section, the financial statements of
the Guarantor referred to in Section 8.02(a) hereof) that the LEVERAGE RATIO, as
of the end of the respective quarterly fiscal period or fiscal year, is within
one of the ranges set forth below, to but excluding the date of delivery of the
next such certificate, shall equal the percentage per annum set forth below for
Tranche A Term Loans and Revolving Credit Loans of such Type:
Base Rate Eurodollar
Ratio Loans Loans
----- --------- ----------
Greater than 4.5 to 1 .75% 2.00%
Less than or equal
to 4.5 to 1 but greater
than 4.0 to 1 .50% 1.75%
Less than or equal
to 4.0 to 1 but greater
than 3.5 to 1 .25% 1.50%
Less than or equal
to 3.5 to 1 but greater
than 3.0 to 1 .00% 1.25%
Less than or equal
to 3.0 to 1 .00% 1.00%;
PROVIDED FURTHER, that for purposes of calculating the Applicable Margin at
any time prior to the delivery of the compliance certificate under the last
paragraph of Section 9.01(b) hereof for the fiscal quarter of the Guarantor
ending September 30, 1998, if the Leverage Ratio, as reflected on the then
most recent compliance certificate delivered under the last paragraph of
Section 9.01 hereof, is less than or equal to 4.0 to 1, the "Applicable
Margin" for the Revolving Credit Loans and Tranche A Loans shall be .25%
per annum (in the case of Base Rate Loans) and 1.50% per annum (in the case
of Eurodollar Loans).
(b) for Tranche B Term Loans, 2.00% per annum for Eurodollar Loans
and .75% per annum for Base Rate Loans.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BASE RATE" shall mean, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% and (b) the
Prime Rate for such day. Each change in any interest rate provided for herein
based upon the Base Rate resulting from a change in the Base Rate shall take
effect at the time of such change in the Base Rate.
CREDIT AGREEMENT
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"BASE RATE LOANS" shall mean Loans (other than Swingline Loans) that
bear interest at rates based upon the Base Rate.
"BASIC DOCUMENTS" shall mean, collectively, this Agreement, the
promissory notes (if any) delivered pursuant to Section 2.08(d) hereof, the
Letter of Credit Documents and the Security Documents.
"BUSINESS DAY" shall mean any day (a) on which commercial banks are
not authorized or required to close in New York City and (b) if such day relates
to a borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
by the Company with respect to any such borrowing, payment, prepayment,
Conversion or Interest Period, that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"CAPITAL EXPENDITURES" shall mean, without duplication, for any
period, expenditures (including, without limitation, the aggregate amount of
Capital Lease Obligations incurred during such period) made by the Guarantor or
any of its Subsidiaries to acquire or construct fixed assets, plant and
equipment (including renewals, improvements and replacements, but excluding
repairs) during such period computed in accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP (including Statement of Financial
Accounting Standards No. 13 of the Financial Accounting Standards Board); and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP (including such
Statement No. 13).
"CASH FLOW" shall mean, for any period, for the Guarantor and its
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), EBITDA for such period MINUS Capital Expenditures made
during such period (provided that Capital Lease Obligations shall be deducted
only to the extent of payments actually made during such period).
"CASUALTY EVENT" shall mean, with respect to any Property of any
Person, any loss of or damage to, or any condemnation or other taking of, such
Property for which such Person or any of its Subsidiaries receives insurance
proceeds, or proceeds of a condemnation award or other compensation.
"CHANGE OF CONTROL" shall mean (i) the Guarantor shall cease to own
and control, of record and beneficially, 100% of each class of outstanding
capital stock of the Company; (ii) any "person" or "group" (within the meaning
of Section 13(d) and 14(d) of the Exchange Act) other than one or more of the
Permitted Holders, shall become the ultimate "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more
than 30% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Guarantor; (iii) individuals who on the
Effective Date constituted the Board of Directors of the Guarantor or the
Company (together with any new directors whose election to
CREDIT AGREEMENT
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such Board of Directors or whose nomination for election by the shareholders of
the Guarantor or the Company (as the case may be), was either approved by a vote
of 66 2/3% of the directors then in office who were either directors on such
date or whose election or nomination for election was previously so approved)
shall cease for any reason to have a majority of the total voting power of such
Board of Directors then in office; or (iv) any Person or group other than the
Permitted Holders shall acquire directly or indirectly the power to direct or
cause the direction of the management or policies of the Guarantor, whether
through the ability to exercise voting power, by contract or otherwise. The
term "Permitted Holders" shall mean Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxx,
Xxxxxxxxx X. Xxxx, Xx., Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx or Xxxxxxx Partners,
L.P., a Delaware limited partnership, and Affiliates thereof.
"CHASE" shall mean The Chase Manhattan Bank.
"CLASS" shall have the meaning assigned to such term in Section 1.03
hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL ACCOUNT" shall have the meaning assigned to such term in
Section 4.01 of the Security Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission, or any
regulatory body that succeeds to the functions thereof.
"COMMITMENTS" shall mean the Revolving Credit Commitments and the Term
Loan Commitments.
"CONTINUE", "CONTINUATION" and "CONTINUED" shall refer to the
continuation pursuant to Section 2.09 hereof of a Eurodollar Loan from one
Interest Period to the next Interest Period.
"CONVERT", "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 2.09 hereof of one Type of Loans into another Type of Loans,
which may be accompanied by the transfer by a Lender (at its sole discretion) of
a Loan from one Applicable Lending Office to another.
"DATE HEREOF" and "DATE OF THIS AGREEMENT" shall mean April 3, 1998.
"DEBT ISSUANCE" shall mean any issuance or incurrence by the Guarantor
or any of its Subsidiaries after the Effective Date of Indebtedness under
Section 9.07(h) hereof.
"DEBT TO CASH FLOW RATIO" shall mean, as at any date, the ratio of (a)
the aggregate Indebtedness of the Guarantor and its Subsidiaries (determined on
a consolidated basis without duplication in accordance with GAAP) as of such
date to (b) Cash Flow for the Reporting Period as of such date; PROVIDED that
Indebtedness (as used in this definition of "Debt to Cash Flow Ratio") shall not
include any undrawn amount under any letter of credit issued for the account of
the Company or its Subsidiaries but shall include the funded portion of the
Receivables Financing; and PROVIDED, FURTHER, that (i) upon the consummation of
any Permitted
CREDIT AGREEMENT
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Acquisition (if the Person, line of business or division so acquired has audited
financial statements with respect to the applicable Reporting Period or, if such
audited financial statements are not available for the entire Reporting Period,
the Guarantor has delivered to the Administrative Agent an income statement and
cash flow statement for such Person, line of business or division for such
Reporting Period (which may be based in part on any audited financial statements
available for part of such Reporting Period) accompanied by a certificate of a
senior financial officer of the Guarantor stating that such officer has reviewed
the historical performance of such Person, line of business or division and
believes that such statements fairly represent in all material respects the
historical performance of such entity) or (ii) upon the consummation of the
Azerty Acquisition, the calculation of the Debt to Cash Flow Ratio (both with
respect to Cash Flow and Indebtedness) shall be calculated as if such Permitted
Acquisition or the Azerty Acquisition, as the case may be, had occurred, and any
Indebtedness incurred in connection therewith had been incurred, on the first
day of the Reporting Period during which such Permitted Acquisition or the
Azerty Acquisition, as the case may be, shall have been consummated.
"DEFAULT" shall mean an Event of Default or an event that with notice
or lapse of time or both would become an Event of Default.
"DISPOSITION" shall mean any sale, assignment, transfer or other
disposition of any Property (whether now owned or hereafter acquired) by the
Company or any of its Subsidiaries to any other Person excluding (i) any sale,
assignment, transfer or other disposition of any Property sold or disposed of in
the ordinary course of business and on ordinary business terms, (ii) the
licensing of general intangibles in the ordinary course of business, (iii) the
sale of overdue receivables in the ordinary course of business, (iv) the sale of
worn-out or obsolete equipment in the ordinary course of business and (v) any
Disposition of Property in connection with any Casualty Event.
"DIVIDEND PAYMENT" shall mean, with respect to any Person, dividends
(in cash, Property or obligations) on, or other payments or distributions on
account of, or the setting apart of money for a sinking or other analogous fund
for, or the purchase, redemption, retirement or other acquisition of, any shares
of any class of stock of such Person or of any warrants, options or other rights
to acquire the same (or to make any payments to any Person, such as "phantom
stock" payments, where the amount thereof is calculated with reference to the
fair market or equity value of such Person or any of its Subsidiaries), but
excluding (i) dividends payable solely in shares of common stock of such Person
or (ii) any cancellation of the Guarantor Note.
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" shall mean any Subsidiary of the Guarantor that
is organized or created under the laws of the United States of America, any
State thereof or the District of Columbia.
"EBITDA" shall mean, for any period, the sum, for the Guarantor and
its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following: (a) net income for such period PLUS
(b) Interest Expense for such period, together with any original issue discount
to the extent deducted in calculating net income PLUS
CREDIT AGREEMENT
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(c) income taxes for such period, PLUS (d) losses attributable to equity in
Affiliates for such period PLUS (e) depreciation and amortization (to the extent
deducted in computing net income) for such period MINUS (f) extraordinary or
nonrecurring, non-cash items of income or gain for such period PLUS (g) any
extraordinary or nonrecurring, non-cash items of expense or loss for such period
MINUS (h) gains attributable to equity in Affiliates for such period PLUS (i)
all non-cash charges related to employee compensation to the extent deducted in
calculating net profits.
"EFFECTIVE DATE" shall mean the date on which the conditions to the
effectiveness of this Agreement set forth in Section 7.01 hereof shall have been
satisfied or waived.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
written or oral notice, claim, demand or other communication (collectively, a
"CLAIM") by any other Person alleging or asserting such Person's liability for
investigatory costs, cleanup costs, governmental response costs, damages to
natural resources or other Property, personal injuries, fines or penalties
arising out of, based on or resulting from (i) the presence, or Release, of any
Hazardous Material at any location, whether or not owned by such Person, or
(ii) circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law. The term "Environmental Claim" shall include, without
limitation, any claim by any governmental authority for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment from Hazardous
Materials.
"ENVIRONMENTAL LAWS" shall mean any and all applicable Federal, state,
local and foreign laws, rules or regulations, and applicable and legally binding
orders or decrees, in each case as now or hereafter in effect, relating to the
regulation or protection of human health, safety or the environment or to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or toxic or hazardous substances or wastes into the
indoor or outdoor environment, including, without limitation, ambient air, soil,
surface water, ground water, wetlands, land or subsurface strata, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, chemicals or toxic
or hazardous substances or wastes.
"EQUITY ISSUANCE" shall mean (a) any issuance or sale by the Guarantor
or any of its Subsidiaries after the Effective Date of (i) any of its capital
stock, (ii) any warrants or options exercisable in respect of its capital stock
or (iii) any other security or instrument representing an equity interest (or
the right to obtain any equity interest) in the Guarantor or any of its
Subsidiaries or (b) the receipt by the Guarantor or any of its Subsidiaries
after the Effective Date of any capital contribution (whether or not evidenced
by any equity security issued by the recipient of such contribution); PROVIDED
that Equity Issuance shall not include (1) any such issuance or sale by any
Subsidiary of the Guarantor to the Guarantor or any Wholly-Owned Subsidiary of
the Guarantor, (2) any capital contribution by the Guarantor or any Wholly-Owned
Subsidiary of the Guarantor to any Subsidiary of the Guarantor, (3) any
cancellation of the Guarantor Note after the Effective Date or (4) any warrants
or options issued to directors, officers or employees of the Guarantor or any of
its Subsidiaries pursuant to employee benefit plans, incentive plans or similar
plans or programs established in the ordinary course of business
CREDIT AGREEMENT
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and any capital stock of the Guarantor issued upon the exercise of such warrants
or options or withheld by the Guarantor or the Company to satisfy its Federal or
state withholding tax obligations in connection with the exercise of such
warrants or options by any of its directors, officers or employees.
"EQUITY RIGHTS" shall mean, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" shall mean any corporation or trade or business that
is a member of any group of organizations (i) described in Section 414(b) or (c)
of the Code of which either Obligor is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which either
Obligor is a member.
"EURODOLLAR BASE RATE" means, with respect to any Eurodollar Loan for
any Interest Period therefor, the rate per annum appearing on Page 3750 of the
Dow Xxxxx Markets Service (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such Service,
as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to Dollar deposits in the
London interbank market) at approximately 11:00 a.m. London time on the date two
Business Days prior to the first day of such Interest Period as the rate for
Dollar deposits having a term comparable to such Interest Period.
"EURODOLLAR LOANS" shall mean Loans that bear interest at rates based
on rates referred to in the definition of "Eurodollar Base Rate" in this
Section 1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loan for any Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Administrative Agent to be equal to the
Eurodollar Base Rate for such Loan for such Interest Period divided by 1 minus
the Reserve Requirement (if any) for such Loan for such Interest Period.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Section 10 hereof.
"EXCESS CASH FLOW" shall mean, for any period, the excess of (a) Cash
Flow for such period MINUS (b) the aggregate amount of Fixed Charges for such
period MINUS (c) any severance payments incurred in connection with the Mergers
and paid in cash during such period.
CREDIT AGREEMENT
- 9 -
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, PROVIDED that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and (b) if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate charged to Chase on such Business Day on such
transactions as determined by the Administrative Agent.
"FIXED CHARGES" shall mean, for any Reporting Period, the sum, for the
Guarantor and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all payments of
principal of Indebtedness scheduled to be made during such Reporting Period PLUS
(b) all Interest Expense for such Reporting Period PLUS (c) income taxes paid in
cash during such Reporting Period PLUS (d) all dividends paid in cash by the
Guarantor during such Reporting Period.
"FIXED CHARGES RATIO" shall mean, as at any date, the ratio of (a)
Cash Flow for the Reporting Period as of such date to (b) Fixed Charges for such
Reporting Period
"GAAP" shall mean generally accepted accounting principles applied on
a basis consistent with those that, in accordance with the last sentence of
Section 1.02(a) hereof, are to be used in making the calculations for purposes
of determining compliance with this Agreement in accordance with the
requirements of the Commission and the Emerging Issues Task Force established by
the Financial Accounting Standards Board.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) Property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course of
business. The terms "GUARANTEE" and "GUARANTEED" used as a verb shall have a
correlative meaning.
"GUARANTOR NOTE" shall mean the promissory note executed by Associated
Holdings, Inc. (and subsequently assumed by the Guarantor upon the merger of
Associated Holdings, Inc. into the Guarantor) and delivered to the Company under
the Original Credit Agreement to evidence the loan made by Associated
Stationers, Inc. (which was subsequently merged into the Company) to Associated
Holdings, Inc. to finance the Mergers.
CREDIT AGREEMENT
- 10 -
"GUARANTEED OBLIGATIONS" shall have the meaning assigned to such term
in Section 6.01 hereof.
"HAZARDOUS MATERIAL" shall mean, collectively, (a) any petroleum or
petroleum products, explosives, radioactive materials, asbestos that is or could
become friable, urea formaldehyde foam insulation, and transformers or other
equipment that contain polychlorinated biphenyls in excess of 50 parts per
million ("PCB'S"), (b) any chemicals or other materials or substances that are
now or hereafter become defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials", "extremely hazardous
wastes", "restricted hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants", "pollutants" or words of similar import under any Environmental
Law and (c) any other chemical or other material or substance, exposure to which
is now or hereafter prohibited, limited or regulated under any Environmental
Law.
"INDEBTEDNESS" shall mean, for any Person (without duplication):
(a) obligations created, issued or incurred by such Person for borrowed money
(whether by loan, the issuance and sale of debt securities or the sale of
Property to another Person subject to an understanding or agreement, contingent
or otherwise, to repurchase such Property from such Person); (b) obligations of
such Person to pay the deferred purchase or acquisition price of Property or
services, other than trade accounts payable (other than for borrowed money)
arising, and accrued expenses incurred, in the ordinary course of business so
long as such trade accounts payable are payable within 90 days of the date the
respective goods are delivered or the respective services are rendered;
(c) Indebtedness of others secured by a Lien on the Property of such Person,
whether or not the respective Indebtedness so secured has been assumed by such
Person; (d) obligations of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other financial institutions
for account of such Person; (e) Capital Lease Obligations of such Person; (f)
Indebtedness of others Guaranteed by such Person and (g) any Redeemable Capital
Stock issued by the Guarantor or any of its Subsidiaries after the Effective
Date; PROVIDED that any Accrued Warrant Liabilities shall not constitute
"Indebtedness" hereunder. The amount of any Indebtedness of any Person
described in clause (c) above that is non-recourse to such Person shall, for
purposes of this Agreement, be deemed to be equal to the lesser of (i) the
aggregate unpaid amount of such Indebtedness and (ii) the fair market value of
the property or asset encumbered, as determined by such Person in good faith.
The amount of any Indebtedness of any Person described in clause (f) above
shall, for purposes of this Agreement, be deemed to be the aggregate amount of
Indebtedness Guaranteed by such Person (if a fixed amount) or the maximum
reasonably anticipated liability arising as a result of such Guarantee (if not a
fixed amount), determined by such Person in good faith. Notwithstanding
anything herein to the contrary, the funded portion of the sale of any
Receivables in connection with the Receivables Financing, together with any
obligation of the seller thereof to pay any discount, interest, fees,
indemnities, penalties, recourse, expenses or other amounts in connection
therewith, shall be treated as "Indebtedness" for purposes of the Agreement.
"INDENTURE (2005)" shall mean the Indenture dated as of May 3, 1995,
among the Company, the Guarantor and The Bank of New York, as Trustee, pursuant
to which the Senior Subordinated Notes Due 2005 were issued.
CREDIT AGREEMENT
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"INDENTURE (TAKE OUT)" shall mean the Indenture pursuant to which the
Take-Out Notes were issued.
"INDENTURES" means the Indenture (2005) and the Indenture (Take Out)
and any other indenture pursuant to which any Senior Subordinated Notes are
issued.
"INFORMATION MEMORANDUM" means the Confidential Information Memorandum
dated March 1998 with respect to the credit facilities provided for in this
Agreement.
"INTEREST COVERAGE RATIO" shall mean, as at any date, the ratio of (a)
EBITDA for the Reporting Period as of such date to (b) Interest Expense for such
Reporting Period.
"INTEREST EXPENSE" shall mean, for any period, the sum, for the
Guarantor and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following: (a) all cash interest in
respect of Indebtedness (including, without limitation, the interest component
of any payments in respect of Capital Lease Obligations) accrued during such
period (whether or not actually paid during such period) PLUS (b) the net amount
payable (or MINUS the net amount receivable) under Interest Rate Protection
Agreements during such period (whether or not actually paid or received during
such period) PLUS (c) all imputed interest, whether in the form of "yield",
"discount" or similar item, that accrues during such period in respect of the
funded portion of the Receivables Financing
"INTEREST PERIOD" shall mean, with respect to any Eurodollar Loan,
each period commencing on the date such Eurodollar Loan is made or Converted
from a Base Rate Loan or the last day of the next preceding Interest Period for
such Loan and ending on the numerically corresponding day in the first, second,
third or sixth calendar month thereafter, as the Company may select as provided
in Section 4.05 hereof, except that each Interest Period that commences on the
last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period for any Revolving Credit
Loan may end after the Revolving Credit Commitment Termination Date; (ii) no
Interest Period for any Term Loan of any Class may commence before and end after
any Principal Payment Date for the Loans of such Class unless, after giving
effect thereto, the aggregate principal amount of the Term Loans of such Class
having Interest Periods that end after such Principal Payment Date shall be
equal to or less than the aggregate principal amount of the Term Loans of such
Class scheduled to be outstanding after giving effect to the payments of
principal required to be made on such Principal Payment Date; (iii) each
Interest Period that would otherwise end on a day that is not a Business Day
shall end on the next succeeding Business Day (or, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next preceding
Business Day); and (iv) notwithstanding clauses (i) and (ii) above, no Interest
Period shall have a duration of less than one month and, if the Interest Period
for any Eurodollar Loan would otherwise be a shorter period, such Loan shall not
be available hereunder for such period.
"INTEREST RATE PROTECTION AGREEMENT" shall mean, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more
CREDIT AGREEMENT
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financial institutions providing for the transfer or mitigation of interest
risks either generally or under specific contingencies.
"INVENTORY" shall mean office products, office furniture, computer
accessories, catalogues, janitorial or sanitary maintenance and other readily
marketable goods (including specialty products) of a type sold by the Company or
a Subsidiary in the ordinary course of business.
"INVESTMENT" shall mean, for any Person: (a) the acquisition (whether
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
sale but excluding any agreement referred to above if the acquisition
contemplated thereunder is expressly conditioned upon the approval of the
Lenders hereunder); (b) the making of any deposit with, or advance, loan or
other extension of credit to, any other Person (including the purchase of
Property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such Property to such Person), but excluding
any such advance, loan or extension of credit having a term not exceeding 90
days arising in connection with the sale of inventory or supplies by such Person
in the ordinary course of business; (c) the entering into of any Interest Rate
Protection Agreement, foreign currency exchange agreement or currency exchange
rate hedging arrangement; (d) the making of any payment, on behalf of any other
Person, with respect to any obligation of such other Person or (e) the making of
any capital contribution to any other Person.
"ISSUING BANK" shall mean Chase, as the issuer of Letters of Credit
under Section 2.03 hereof, together with its successors and assigns in such
capacity.
"XXXXXXX" means Xxxxxxx Bros., Inc., a Louisiana corporation.
"LETTER OF CREDIT" shall have the meaning assigned to such term in
Section 2.03 hereof.
"LETTER OF CREDIT DOCUMENTS" shall mean, with respect to any Letter of
Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations,
each as the same may be modified and supplemented and in effect from time to
time.
"LETTER OF CREDIT FEE RATE" shall mean a rate per annum equal to
2.00%; PROVIDED that (i) the Letter of Credit Fee Rate for any period from and
including the date on which the Company shall have delivered to the
Administrative Agent a certificate pursuant to the last paragraph of Section
9.01 hereof, demonstrating in reasonable detail (based upon financial statements
for the fiscal period of the Guarantor most recently ended that have been
delivered to the Lenders pursuant to Section 9.01(a) or (b) hereof or, prior to
the delivery of financial statements pursuant to said Section, the financial
statements of the Guarantor referred to in
CREDIT AGREEMENT
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Section 8.02 hereof) that the Leverage Ratio, as of the end of the respective
quarterly fiscal period or fiscal year, is within one of the ranges set forth
below to but excluding the date of delivery of the next such certificate, shall
equal the percentage set forth below:
LEVERAGE RATIO RATE
-------------- ----
Greater than 4.5 to 1 2.00%
Less than or equal to 4.5 to 1
but greater than 4.0 to 1 1.75%
Less than or equal to 4.0 to 1
but greater than 3.5 to 1 1.50%
Less than or equal to 3.5 to 1
but greater than 3.0 to 1 1.25%
Less than or equal to 3.0 to 1 1.00%;
PROVIDED FURTHER, that (i) notwithstanding the foregoing, for purposes of
calculating the Letter of Credit Fee Rate at any time prior to the delivery of
the compliance certificate required under the last paragraph of Section 9.01
hereof for the fiscal quarter of the Guarantor ending September 30, 1998, if the
Leverage Ratio, as reflected on the then most recent compliance certificate
delivered under Section 9.01 hereof, is less than or equal to 4.0 to 1, the
"Letter of Credit Fee shall be 1.50% per annum, (ii) the "Letter of Credit Fee
Rate", during any period when an Event of Default or Default in delivery of the
certificate pursuant to the last paragraph of Section 9.01 hereof shall have
occurred and be continuing, shall be 2.00% per annum; and (iii) the Letter of
Credit Fee Rate for any Letter of Credit arising out of the purchase of goods
and requiring the presentation of a xxxx of lading or other transportation
document of title shall be the rate per annum set forth above MINUS 1.00%,
PROVIDED that the Letter of Credit Fee Rate with respect to any such Letter of
Credit shall at no time be less than .25% per annum.
"LETTER OF CREDIT INTEREST" shall mean, for each Revolving Credit
Lender, such Lender's participation interest (or, in the case of the Issuing
Bank, the Issuing Bank's retained interest) in the Issuing Bank's liability
under Letters of Credit and such Lender's rights and interests in Reimbursement
Obligations and fees, interest and other amounts payable in connection with
Letters of Credit and Reimbursement Obligations.
"LETTER OF CREDIT LIABILITY" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the undrawn amount
of such Letter of Credit PLUS (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Company at such time due and payable in respect
of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Revolving Credit Lender (other than the Issuing Bank) shall be
deemed to hold a Letter of Credit Liability in an amount equal to its
participation interest in the related Letter of Credit under Section 2.03
hereof, and the Issuing Bank shall be deemed to hold a Letter of Credit
Liability in an amount equal to its retained interest in the related Letter of
CREDIT AGREEMENT
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Credit after giving effect to the acquisition by the Revolving Credit Lenders
other than the Issuing Bank of their participation interests under said
Section 2.03.
"LEVERAGE RATIO" shall mean, as at any date, the ratio of (a) the
aggregate Indebtedness of the Guarantor and its Subsidiaries (determined on a
consolidated basis without duplication in accordance with GAAP) as of such date
to (b) EBITDA for the Reporting Period as of such date; PROVIDED that
Indebtedness (as used in this definition of "LEVERAGE RATIO") shall not include
any undrawn amount under any letter of credit issued for the account of the
Company or its Subsidiaries but shall include the funded portion of the
Receivables Financing; and PROVIDED, FURTHER, that (i) upon the consummation of
any Permitted Acquisition of a Person (if the Person, line of business or
division so acquired has audited financial statements with respect to the
applicable Reporting Period or, if such audited financial statements are not
available for the entire Reporting Period, the Guarantor has delivered to the
Administrative Agent an income statement and cash flow statement for such
Person, line of business or division for such Reporting Period (which may be
based in part on any audited financial statements available for part of such
Reporting Period) accompanied by a certificate of a senior financial officer of
the Guarantor stating that such officer has reviewed the historical performance
of such Person, line of business or division and believes that such statements
fairly represent in all material respects the historical performance of such
entity) or (ii) upon the consummation of the Azerty Acquisition, the calculation
of the LEVERAGE RATIO (both with respect to EBITDA and Indebtedness) shall be
calculated as if such Permitted Acquisition or the Azerty Acquisition, as the
case may be, had occurred, and any Indebtedness incurred in connection therewith
had been incurred, on the first day of the Reporting Period for the date of such
Permitted Acquisition or the Azerty Acquisition, as the case may be.
"LIEN" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Basic Documents, a
Person shall be deemed to own subject to a Lien any Property that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
(other than a lease evidencing an Operating Lease Obligation) relating to such
Property.
"LOANS" shall mean the Revolving Credit Loans, the Tranche A Term
Loans, the Tranche B Term Loans and the Swingline Loans.
"MAJORITY LENDERS" shall mean Lenders holding at least 51% of the sum
of (a) the aggregate unused Commitments, (b) the aggregate unpaid principal
amount of the Loans (other than the Swingline Loans) and (c) the aggregate
amount of all Letter of Credit Liabilities.
"MAJORITY REVOLVING CREDIT LENDERS" shall mean Revolving Credit
Lenders holding at least 51% of the aggregate amount of the Revolving Credit
Commitments or, if the Revolving Credit Commitments shall have terminated,
Lenders holding at least 51% of the sum of (a) the aggregate unpaid principal
amount of the Revolving Credit Loans PLUS (b) the aggregate amount of all Letter
of Credit Liabilities.
"MAJORITY TERM LOAN LENDERS" shall mean Majority Tranche A Term Loan
Lenders and Majority Tranche B Term Loan Lenders.
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"MAJORITY TRANCHE A TERM LOAN LENDERS" shall mean Tranche A Term Loan
Lenders holding at least 51% of the aggregate outstanding principal amount of
the Tranche A Term Loans or, if the Tranche A Term Loans shall not have been
made, at least 51% of the Tranche A Term Loan Commitments.
"MAJORITY TRANCHE B TERM LOAN LENDERS" shall mean Tranche B Term Loan
Lenders holding at least 51% of the aggregate outstanding principal amount of
the Tranche B Term Loans or, if the Tranche B Term Loans shall not have been
made, at least 51% of the Tranche B Term Loan Commitments.
"MARGIN STOCK" shall mean "margin stock" within the meaning of
Regulations U and X.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
(a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of the Guarantor and its Subsidiaries taken as a
whole or the Company and its Subsidiaries taken as a whole, (b) the ability of
any Obligor to perform its obligations under any of the Basic Documents to which
it is a party, (c) the validity or enforceability of any of the Basic Documents,
(d) the rights and remedies of the Lenders and the Administrative Agent under
any of the Basic Documents, (e) the consummation of the Azerty Acquisition or
the other transactions contemplated hereby or (f) the timely payment of the
principal of or interest on the Loans or the Reimbursement Obligations or other
amounts payable in connection therewith.
"MERGERS" shall mean the merger of Associated Holdings, Inc. with and
into the Guarantor and the merger of Associated Stationers, Inc. with and into
the Company, each of which was effected on March 30, 1995.
"MORTGAGES" shall mean, collectively, one or more instruments of
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing or Deed of
Trust, Assignment of Rents, Security Agreement and Fixture Filing executed by
the Company in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders (or, in the case of a Deed of Trust, to the
Deed of Trust trustee in favor of the Administrative Agent for the benefit of
the Lenders), substantially in the form of Exhibit C hereto (conformed to local
lending practices in the jurisdiction in which the relevant real Property is
located including, without limitation, additional remedies available to lenders
in such jurisdiction and, if applicable, conformed to the extent necessary to
secure a tenant's interest in a ground lease) and covering the respective owned
and leasehold real Properties identified under the heading "Mortgages" in
Schedule IV hereto, as said instruments of Mortgage, Assignment of Rents,
Security Agreement and Fixture Filing and Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing shall be modified, amended, extended and
supplemented and in effect from time to time.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been made by the Guarantor
or the Company or any ERISA Affiliate and that is covered by Title IV of ERISA.
"NET AVAILABLE PROCEEDS" shall mean:
CREDIT AGREEMENT
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(i) in the case of any Disposition, the amount of Net Cash Payments
received in connection with such Disposition;
(ii) in the case of any Equity Issuance, the aggregate amount of all
cash received by the Guarantor and its Subsidiaries in respect of such
Equity Issuance net of reasonable expenses incurred in connection therewith
(including, without limitation, any underwriting, brokerage or other
customary selling commissions, all due diligence costs or expenses paid
for, or reimbursed by the Guarantor or any of its Subsidiaries, attorneys
fees and expenses paid for or reimbursed by the Guarantor or any of its
Subsidiaries and other direct costs associated therewith);
(iii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received
by the Company and its Subsidiaries in respect of such Casualty Event net
of (A) reasonable expenses incurred by the Company and its Subsidiaries in
connection therewith (including, without limitation, any legal, accounting,
appraisal or expert fees or expenses paid for by the Company or its
Subsidiaries and other direct costs associated therewith),
(B) contractually required repayments of Indebtedness to the extent secured
by a Lien on such Property, (C) any income and transfer taxes payable by
the Company or any of its Subsidiaries in respect of such Casualty Event
and (D) other payments contractually required to be paid to lessors,
sublessors, lessees and sublessees and other holders (other than
Affiliates) of interests in the Property subject to such Casualty Event;
and
(iv) in the case of any Debt Issuance, the aggregate amount of all
cash received by the Guarantor and its Subsidiaries in respect of such Debt
Issuance net of reasonable expenses incurred in connection therewith
(including, without limitation, any underwriting, brokerage or other
customary selling commissions, all due diligence costs or expenses paid
for, or reimbursed by the Guarantor or any of its Subsidiaries, attorneys
fees and expenses paid for or reimbursed by the Guarantor or any of its
Subsidiaries and other direct costs associated therewith).
"NET CASH PAYMENTS" shall mean, with respect to any Disposition, the
aggregate amount of all cash payments (including any cash payments with respect
to non-cash consideration as received and any purchase price adjustments with
respect to such Disposition received by the Guarantor or its Subsidiaries in
connection therewith) received by the Guarantor and its Subsidiaries directly or
indirectly in connection with such Disposition; PROVIDED that (a) Net Cash
Payments shall be net of (i) the amount of any legal, title and recording tax
expenses, commissions and other fees and expenses paid by the Guarantor and its
Subsidiaries in connection with such Disposition, (ii) any Federal, state and
local income or other taxes estimated to be payable by the Guarantor and its
Subsidiaries as a result of such Disposition (but only to the extent that such
estimated taxes (other than income taxes) are in fact paid to the relevant
Federal, state or local governmental authority within three months of the date
of such Disposition), (iii) brokerage or other customary selling commissions,
(iv) expenses incurred in preparing such asset for sale and (v) purchase price
adjustments with respect to any Disposition payable by the Guarantor or any of
its Subsidiaries in connection therewith and (b) Net Cash Payments shall be net
of any repayments by the Guarantor or any of its Subsidiaries of Indebtedness
(other than Indebtedness to the Lenders hereunder) to the extent that (i) such
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Indebtedness is secured by a Lien on the Property that is the subject of such
Disposition and (ii) the transferee of (or holder of a Lien on) such Property
requires that such Indebtedness be repaid as a condition to the purchase of such
Property.
"NET INCOME" shall mean, for any period, the consolidated net income
of the Guarantor and its Subsidiaries determined in accordance with GAAP.
"NET WORTH" shall mean, as at any date, the consolidated net worth of
the Guarantor and its Subsidiaries (determined in accordance with GAAP) MINUS
any write-up in the book value of assets resulting from a revaluation thereof
except any such write-up relating to the Mergers.
"OBLIGORS" shall mean the Company, the Guarantor and the Subsidiary
Guarantors.
"OPERATING LEASE OBLIGATIONS" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property other than a Capital Lease
Obligation.
"ORIGINAL CREDIT AGREEMENT" shall mean the "Existing Credit Agreement"
as defined in the Existing Credit Agreement.
"PART A PROPERTY" shall mean any of the Property described in Part A
of Schedule IV hereto under the heading "Dispositions".
"PART B PROPERTY" shall mean any of the Property described in Part B
of Schedule IV hereto under the heading "Dispositions".
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERMITTED ACQUISITION" shall mean any acquisition after the date
hereof by either Obligor of a Person, line of business or division engaged in
the same or substantially similar line of business as the Company and its
Subsidiaries is engaged in on the date hereof, the purchase price of which
acquisition, together with the purchase price of all other Permitted
Acquisitions, does not exceed $75,000,000; PROVIDED that no such acquisition
effected pursuant to a tender offer under Section 14(d) of the Exchange Act
shall qualify as a Permitted Acquisition unless such tender offer has been
authorized by the Board of Directors of the Person to be acquired.
"PERMITTED INVESTMENTS" shall mean: (a) direct obligations of the
United States of America, or of any agency thereof, or obligations guaranteed as
to principal and interest by the United States of America, or of any agency
thereof, in either case maturing not more than 90 days from the date of
acquisition thereof; (b) certificates of deposit issued by any bank or trust
company organized under the laws of the United States of America or any state
thereof and having capital, surplus and undivided profits of at least
$500,000,000, maturing not more than 90 days from the date of acquisition
thereof; and (c) commercial paper rated A-1 or better or P-1 by Standard &
Poor's Ratings Group or Xxxxx'x Investors Services, Inc., respectively, maturing
not
CREDIT AGREEMENT
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more than 90 days from the date of acquisition thereof; in each case so long as
the same (x) provide for the payment of principal and interest (and not
principal alone or interest alone) and (y) are not subject to any contingency
regarding the payment of principal or interest.
"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"PLAN" shall mean an employee benefit or other plan established or
maintained by the Company or any ERISA Affiliate and that is covered by Title IV
of ERISA, other than a Multiemployer Plan.
"PLEDGE AGREEMENT" shall mean the Amended and Restated Pledge
Agreement, dated as of October 31, 1996, between the Guarantor and the
Administrative Agent, as the same shall be modified and supplemented and in
effect from time to time.
"POST-DEFAULT RATE" shall mean, in respect of any principal of any
Loan, any Reimbursement Obligation or any other amount under this Agreement or
any other Basic Document that is not paid when due (whether at stated maturity,
by acceleration, by optional or mandatory prepayment or otherwise), a rate per
annum during the period from and including the due date to but excluding the
date on which such amount is paid in full equal to (a) in the case of any
principal of any Loan or any interest thereon, 2% PLUS the Applicable Margin
with respect to such Loan PLUS the Base Rate as in effect from time to time or
(b) in the case of any other such amount, 4.00% PLUS the Base Rate as in effect
from time to time (PROVIDED that, if the amount so in default is principal of a
Eurodollar Loan and the due date thereof is a day other than the last day of the
Interest Period therefor, the "Post-Default Rate" for such principal shall be,
for the period from and including such due date to but excluding the last day of
such Interest Period, 2% PLUS the interest rate for such Loan as provided in
Section 3.02(b) hereof and, thereafter, the rate provided for above in this
definition).
"PRIME RATE" shall mean the rate of interest from time to time
announced by Chase at the Principal Office as its prime commercial lending rate.
"PRINCIPAL OFFICE" shall mean the principal office of Chase, located
on the date hereof at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"PRINCIPAL PAYMENT DATE" shall mean each Quarterly Date on which a
principal payment in respect of the Term Loans is required to be made pursuant
to Section 3.01 hereof.
"PRO FORMA EFFECT" shall mean, for any event, to calculate the
operating results for the Reporting Period in respect of the date of such event
as if such event had occurred on the first day of such Reporting Period after
giving effect to any changes in the capital structure or Indebtedness (and
otherwise based upon the actual operating results for such Reporting Period).
"PROPERTY" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
CREDIT AGREEMENT
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"QUARTERLY DATES" shall mean March 31, June 30, September 30 and
December 31 of each year, beginning with the first such date occurring after the
Effective Date; PROVIDED that, if any such date is not a Business Day, the
relevant Quarterly Date shall be the next succeeding Business Day.
"RECEIVABLES" shall mean, as at any date, the unpaid portion of the
obligation, as stated on the respective billing statement, of a customer of the
Company or any Subsidiary Guarantor in respect of Inventory sold and shipped by
(or services performed by) the Company or any Subsidiary Guarantor, as the case
may be, to such customer.
"RECEIVABLES AND RELATED ASSETS" shall mean Receivables and any
instruments, documents, chattel paper, obligations, general intangibles and
other similar assets, in each case, relating to such Receivables.
"RECEIVABLES COMPANY" shall mean USS Receivables Company, Ltd., a
Wholly-Owned Subsidiary of the Company organized as a limited liability company
under the laws of the Cayman Islands or any other Wholly-Owned Subsidiary of the
Company established for the limited purpose of acquiring and financing
Receivables and Related Assets pursuant to the Receivables Financing..
"RECEIVABLES FINANCING" shall mean the sale of Receivables and
Related Assets pursuant to the Receivables Financing Documents.
"RECEIVABLES FINANCING DOCUMENTS" shall mean the Receivables Sale
Agreement dated as of the date hereof among the Receivables Company and the
Company, as seller and servicer, the Pooling Agreement dated as of the date
hereof among the Receivables Company, and the Company, as servicer, and Chase,
as trustee and the Servicing Agreement dated as of the date hereof among the
Receivables Company, the Company, as servicer, and Chase, as trustee, and any
amendment, modification, supplement, extension or renewal of or to any such
agreement, including any supplement to the Pooling Agreement delivered
thereunder in compliance therewith, provided (i) the board of directors of the
Company shall have determined in good faith that such amendment, extension,
modification, supplement or renewal is economically fair and reasonable to the
Company and the Receivables Subsidiary, (ii) the sale of any Receivables or
Related Assets pursuant thereto is made at fair market value (as determined in
good faith by the board of directors of the Company), (iii) the financing terms,
covenants and other material provisions of such amendment, extension,
modification, renewal or supplement are market terms (as determined in good
faith by the board of directors of the Company), (iv) no portion of any
Indebtedness created thereunder is guaranteed by or is recourse to the Guarantor
or any other Subsidiary of the Guarantor (other than recourse for customary
representations, warranties, covenants and indemnities, none of which shall
relate to the collectability of the Receivables transferred thereunder) and (v)
neither the Guarantor nor any Subsidiaries of the Guarantor have any obligation
thereunder to maintain or preserve the financial condition of the Receivables
Company.
"REDEEMABLE CAPITAL STOCK" shall mean, with respect to any Person, any
capital stock of such Person that, either by its terms or by the terms of any
security into which it is convertible or exchangeable or otherwise, is or upon
the happening of an event or passage of
CREDIT AGREEMENT
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time would be, required to be redeemed or is redeemable at the option of the
holder thereof prior to April 1, 2005, or is exchangeable for debt securities at
any time at the option of the holder thereof.
"REGISTERED HOLDER" shall have the meaning assigned to such term in
Section 5.07(a)(ii) hereof.
"REGISTERED LOAN" shall have the meaning assigned to such term in
Section 2.08(e) hereof.
"REGULATIONS A, D, U AND X" shall mean, respectively, Regulations A,
D, U and X of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time
to time.
"REGULATORY CHANGE" shall mean, with respect to any Lender, any change
after the date hereof in applicable Federal, state or foreign law or regulations
(including, without limitation, Regulation D) or the adoption or making after
such date of any interpretation, directive or request applying to a class of
banks including such Lender of or under any Federal, state or foreign law or
regulations (whether or not having the force of law and whether or not failure
to comply therewith would be unlawful) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"REIMBURSEMENT OBLIGATIONS" shall mean, at any time, the obligations
of the Company then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by the Issuing
Bank in respect of any drawings under a Letter of Credit.
"RELEASE" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment.
"REPORTING PERIOD" shall mean, for any date, the period of four
consecutive fiscal quarters of the Guarantor ending (at the close of business)
on or most recently ended prior to such date.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for any
Eurodollar Loan, the average maximum rate at which reserves (including, without
limitation, any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding one billion
Dollars against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the Reserve Requirement shall
include any other reserves required to be maintained by such member banks by
reason of any Regulatory Change with respect to (i) any category of liabilities
that includes deposits by reference to which the Eurodollar Base Rate is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (ii) any category of extensions of credit or other assets that
includes Eurodollar Loans.
CREDIT AGREEMENT
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"RESPONSIBLE OFFICER" shall mean, with respect to any Person, the
President, the Treasurer, Chief Financial Officer and Controller of such Person
and such other officer or officers of such Person as the Administrative Agent
may from time to time agree.
"REVOLVING CREDIT COMMITMENT" shall mean, for each Revolving Credit
Lender, the obligation of such Lender to make Revolving Credit Loans in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount set forth opposite the name of such Lender on Annex 1 hereto under
the caption "Revolving Credit Commitment" (as the same may be reduced from time
to time pursuant to Section 2.04 or 2.10 hereof or reduced or increased from
time to time pursuant to assignments by or to such Revolving Credit Lender
pursuant to Section 12.06 hereof). The aggregate principal amount of the
Revolving Credit Commitments under this Agreement on the date hereof is
$250,000,000.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" shall mean, with respect to
any Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" shall mean the
Quarterly Date falling on or nearest to March 31, 2004.
"REVOLVING CREDIT LENDERS" shall mean (a) on the date hereof, the
Lenders having Revolving Credit Commitments and (b) thereafter, the Lenders from
time to time holding Revolving Credit Loans and Revolving Credit Commitments
after giving effect to any assignments thereof permitted by Section 12.06(b)
hereof.
"REVOLVING CREDIT LOANS" shall mean the loans provided for in
Section 2.01(a) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"SECURITY AGREEMENT" shall mean the Second Amended and Restated
Security Agreement, substantially in the form of Exhibit A, between the Company
and the Administrative Agent, as the same shall be modified and supplemented and
in effect from time to time.
"SECURITY DOCUMENTS" shall mean, collectively, the Security Agreement,
the Subsidiary Guarantee and Security Agreement, the Mortgages and the Pledge
Agreement.
"SENIOR SUBORDINATED DEBT DOCUMENTS" shall mean the Senior
Subordinated Notes and the Indentures, as the same shall, subject to Section
9.18 hereof, be modified and supplemented and in effect from time to time.
"SENIOR SUBORDINATED NOTES" shall mean the Senior Subordinated Notes
Due 2005, the Take Out Notes and any other senior subordinated notes issued
pursuant to Section 9.07 hereof (including any exchange notes issued in
accordance with the Indenture under which such Senior Subordinated Notes were
issued).
"SENIOR SUBORDINATED NOTES DUE 2005" shall mean the 12-3/4% Senior
Subordinated Notes due May 1, 2005 issued by the Company pursuant to the
Indenture (2005).
CREDIT AGREEMENT
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"SUBORDINATED INDEBTEDNESS" shall mean, collectively, (a) Senior
Subordinated Notes and (b) other Indebtedness (i) for which the Company is
directly and primarily liable, (ii) in respect of which none of its Subsidiaries
is contingently or otherwise obligated and (iii) that is subordinated to the
obligations of the Company to pay principal of and interest on the Loans and
Reimbursement Obligations hereunder on terms, and pursuant to documentation
containing other terms (including interest, amortization, covenants and events
of default), in form and substance satisfactory to the Majority Lenders.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT" shall mean the
Subsidiary Guarantee and Security Agreement, substantially in the form of the
Subsidiary Guarantee and Security Agreement attached hereto as Exhibit B, among
the Subsidiary Guarantors and the Administrative Agent, as the same may be
modified and supplemented and in effect from time to time.
"SUBSIDIARY GUARANTORS" shall mean Xxxxxxx, Azerty, Positive, AP
Support and each other Domestic Subsidiary of the Guarantor (other than the
Company) that shall become a "Subsidiary Guarantor" pursuant to Section 9.22
hereof.
"SWINGLINE COMMITMENT" shall mean the obligation of the Swingline
Lender to make Swingline Loans pursuant to Section 2.01(d) hereof in an
aggregate amount at any one time outstanding up to but not exceeding $25,000,000
(as the same may be reduced at any time or from time to time pursuant to Section
2.04 or 2.10 hereof).
"SWINGLINE LOANS" shall mean the loans provided for by Section 2.01(d)
hereof.
"SWINGLINE RATE" shall mean, for any day, the Base Rate in effect for
such date. Each change in any interest rate provided for herein based upon the
Swingline Rate resulting from a change to the Swingline Rate shall take effect
at the time of such change in the Swingline Rate.
"TAKE OUT NOTES" shall mean senior subordinated debentures or notes
issued by the Company after the date hereof (i) having terms (other than as to
pricing and subordination) not materially more restrictive with respect to the
Guarantor and its Subsidiaries than those terms contained in the Indenture
(2005), (ii) having subordination terms not materially less favorable to the
Lenders than those contained in the Indenture (2005), (iii) in an aggregate
principal amount not exceeding $150,000,000 at any one time outstanding, (iv)
maturing not earlier than ten years from the date hereof and (v) having a cash
interest rate or coupon of not more than 10% per
CREDIT AGREEMENT
- 23 -
annum; the proceeds of which shall be used to prepay the Loans in accordance
with Section 2.10(c) hereof.
"TAX SHARING AGREEMENT" shall have the meaning assigned to such term
in Section 9.21 hereof.
"TERM LOAN COMMITMENTS" shall mean the Tranche A Term Loan Commitments
and the Tranche B Term Loan Commitments.
"TERM LOAN LENDERS" shall mean Tranche A Term Loan Lenders and Tranche
B Term Loan Lenders.
"TERM LOANS" shall mean the Tranche A Term Loans and the Tranche B
Term Loans.
"TRANCHE A TERM LOAN COMMITMENT" shall mean, for each Tranche A Term
Loan Lender, the obligation of such Lender to make a Tranche A Term Loan in the
amount set forth opposite the name of such Lender on Annex 1 hereto under the
caption "Tranche A Term Loan Commitment" (as the same may be reduced from time
to time pursuant to Section 2.04 or 2.10 hereof or reduced or increased from
time to time pursuant to assignments by or to such Term Loan Lender pursuant to
Section 12.06 hereof). The aggregate principal amount of the Tranche A Term
Loan Commitments under this Agreement on the date hereof is $150,000,000.
"TRANCHE A TERM LOAN LENDERS" shall mean (a) on the date hereof, the
Lenders having Tranche A Term Loan Commitments and (b) thereafter, the Lenders
from time to time holding Tranche A Term Loans after giving effect to any
assignments thereof permitted by Section 12.06(b) hereof.
"TRANCHE A TERM LOANS" shall mean the loans provided for by Section
2.01(b) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
"TRANCHE B TERM LOAN COMMITMENT" shall mean, for each Tranche B Term
Loan Lender, the obligation of such Lender to make a Tranche B Term Loan in the
amount set forth opposite the name of such Lender on Annex 1 hereto under the
caption "Tranche B Term Loan Commitment" (as the same may be reduced from time
to time pursuant to Section 2.04 or 2.10 hereof or reduced or increased from
time to time pursuant to assignments by or to such Term Loan Lender pursuant to
Section 12.06 hereof). The aggregate principal amount of the Tranche B Term
Loan Commitments under this Agreement on the date hereof is $100,000,000.
"TRANCHE B TERM LOAN LENDERS" shall mean (a) on the date hereof, the
Lenders having Tranche B Term Loan Commitments and (b) thereafter, the Lenders
from time to time holding Tranche B Term Loans after giving effect to any
assignments thereof permitted by Section 12.06(b) hereof.
"TRANCHE B TERM LOANS" shall mean the loans provided for by Section
2.01(c) hereof, which may be Base Rate Loans and/or Eurodollar Loans.
CREDIT AGREEMENT
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"TRANSACTION DOCUMENTS" shall mean the Basic Documents and the
Purchase Agreement.
"TYPE" shall have the meaning assigned to such term in Section 1.03
hereof.
"U.S. PERSON" shall mean a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or
under any laws of the United States of America or any State thereof, or any
estate or trust the income of which is subject to Federal income taxation
regardless of its source.
"U.S. TAXES" shall mean any present or future tax, assessment or other
charge or levy imposed by or on behalf of the United States of America or any
taxing authority thereof.
"WARRANT AGREEMENT" shall mean the Warrant Agreement dated as of
January 31, 1992 among the Guarantor and the Holders party thereto, as amended
by Amendment No. 1 thereto, dated as of March 30, 1995, as the same shall be
further modified and supplemented and in effect from time to time.
"WHOLLY-OWNED SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly-Owned Subsidiaries of such Person or by such
Person and one or more Wholly-Owned Subsidiaries of such Person.
1.02 ACCOUNTING TERMS AND DETERMINATIONS.
(a) Except as otherwise expressly provided herein, all accounting
terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the
Lenders hereunder shall (unless otherwise disclosed to the Lenders in writing at
the time of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with generally accepted accounting principles applied on
a basis consistent with those used in the preparation of the latest financial
statements furnished to the Lenders hereunder (which, prior to the delivery of
the first financial statements under Section 9.01 hereof, shall mean the audited
consolidated financial statements of the Guarantor as at December 31, 1997
referred to in Section 8.02(a)(ii) hereof except for immaterial variations
thereto). All calculations made for the purposes of determining compliance with
this Agreement shall (except as otherwise expressly provided herein) be made by
application of generally accepted accounting principles applied on a basis
consistent with those used in the preparation of the latest annual or quarterly
financial statements furnished to the Lenders pursuant to Section 9.01 hereof
(or, prior to the delivery of the first financial statements under Section 9.01
hereof, used in the preparation of the audited consolidated financial statements
of the Guarantor as at December 31, 1997 referred to in Section 8.02(a)(ii)
hereof) unless (i) the Company shall have objected to determining such
compliance on such basis at the time of delivery of such financial statements or
(ii) the Majority Lenders shall so object in writing within 30 days after
delivery of such financial statements, in either of which events such
calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 9.01 hereof, shall mean the audited
consolidated
CREDIT AGREEMENT
- 25 -
financial statements of the Guarantor as at December 31, 1997 referred to in
Section 8.02(a)(ii) hereof). Notwithstanding the foregoing, all financial
statements delivered to the Lenders hereunder shall be prepared utilizing the
last-in-first-out basis of inventory valuation but all calculations made for the
purpose of determining compliance with this Agreement shall be prepared
utilizing the first-in-first-out basis of inventory valuation.
(b) The Company shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 9.01
hereof (i) a description in reasonable detail of any material variation between
the application of accounting principles employed in the preparation of such
statement and the application of accounting principles employed in the
preparation of the next preceding annual or quarterly financial statements as to
which no objection has been made in accordance with the last sentence of
subsection (a) above and (ii) reasonable estimates of the difference between
such statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance
with the covenants set forth in Section 9 hereof, the Company will not change
the last day of its fiscal year from December 31, or the last days of the first
three fiscal quarters in each of its fiscal years from March 31, June 30 and
September 30 of each year, respectively.
1.03 CLASSES AND TYPES OF LOANS. Loans hereunder are distinguished
by "Class" and by "Type". The "Class" of a Loan (or of a Commitment to make a
Loan) refers to whether such Loan is a Revolving Credit Loan, a Tranche A Term
Loan, a Tranche B Term Loan or a Swingline Loan, each of which constitutes a
Class. The "Type" of a Loan refers to whether such Loan is a Base Rate Loan or
a Eurodollar Loan, each of which constitutes a Type. Loans may be identified by
both Class and Type.
Section 2. COMMITMENTS, LOANS AND PREPAYMENTS.
2.01 LOANS.
(a) REVOLVING CREDIT LOANS. Each Revolving Credit Lender severally
agrees, on the terms and conditions of this Agreement, to make loans to the
Company in Dollars during the period from and including the Effective Date to
but not including the Revolving Credit Commitment Termination Date in an
aggregate principal amount at any one time outstanding up to but not exceeding
the amount of the Revolving Credit Commitment of such Lender as in effect from
time to time; PROVIDED that in no event shall the aggregate outstanding
principal amount of all Revolving Credit Loans, together with the aggregate
outstanding principal amount of all Swingline Loans and the aggregate amount of
all Letter of Credit Liabilities, exceed the aggregate amount of the Revolving
Credit Commitments as in effect from time to time. Subject to the terms and
conditions of this Agreement, during such period the Company may borrow, repay
and reborrow the amount of the Revolving Credit Commitments by means of Base
Rate Loans and Eurodollar Loans and may Convert Revolving Credit Loans of one
Type into Revolving Credit Loans of another Type (as provided in Section 2.09
hereof) or Continue Revolving Credit Loans of one Type as Revolving Credit Loans
of the same Type (as provided in Section 2.09 hereof).
CREDIT AGREEMENT
- 26 -
(b) TRANCHE A TERM LOANS. Each Tranche A Term Loan Lender severally
agrees, on the terms and conditions of this Agreement, to make a term loan to
the Company in Dollars on the Effective Date in an aggregate principal amount
equal to the amount of the Tranche A Term Loan Commitment of such Lender.
Thereafter the Company may Convert Tranche A Term Loans of one Type into Tranche
A Term Loans of another Type (as provided in Section 2.09 hereof) or Continue
Tranche A Term Loans of one Type as Tranche A Term Loans of the same Type (as
provided in Section 2.09 hereof).
(c) TRANCHE B TERM LOANS. Each Tranche B Term Loan Lender severally
agrees, on the terms and conditions of this Agreement, to make a term loan to
the Company in Dollars on the Effective Date in an aggregate principal amount
equal to the amount of the Tranche B Term Loan Commitment of such Lender.
Thereafter the Company may Convert Tranche B Term Loans of one Type into Tranche
B Term Loans of another Type (as provided in Section 2.09 hereof) or Continue
Tranche B Term Loans of one Type as Tranche B Term Loans of the same Type (as
provided in Section 2.09 hereof).
(d) SWINGLINE LOANS. The Swingline Lender agrees, on the terms and
conditions of this Agreement, to make loans ("SWINGLINE LOANS") to the Company
during the period from the Effective Date to but excluding the date five
Business Days prior to the Revolving Credit Commitment Termination Date in an
aggregate amount at any one time outstanding up to but not exceeding its
Swingline Commitment; PROVIDED that the aggregate principal amount of all
Revolving Credit Loans and Swingline Loans together with all Letter of Credit
Liabilities shall not at any time outstanding exceed the aggregate amount of the
Revolving Credit Commitments, as in effect from time to time. Subject to the
terms of this Agreement, the Company may borrow, repay and reborrow the amount
of the Swingline Commitment by means of Loans that bear interest at the
Swingline Rate; PROVIDED that no Swingline Loan may be borrowed to repay an
outstanding Swingline Loan.
(e) LIMIT ON EURODOLLAR LOANS. No more than seven separate Interest
Periods in respect of Eurodollar Loans of any Class from each Lender may be
outstanding at any one time.
(f) LOANS UNDER EXISTING CREDIT AGREEMENT. The principal of,
interest on and all other amounts owing in respect of any outstanding "Loan" (as
defined in the Existing Credit Agreement) under the Existing Credit Agreement
shall be repaid in full on the Effective Date, and the Loans made under this
Credit Agreement shall be substituted under the Liens of the Mortgages.
2.02 BORROWINGS.
(a) GENERAL. The Company shall give the Administrative Agent (which
shall promptly notify the relevant Lenders) or, in the case of Swingline Loans,
the Swingline Lender, notice of each borrowing hereunder as provided in
Section 4.05 hereof, which notice may be delivered by telephone if followed
promptly by notice in writing. Not later than 2:00 p.m. New York time on the
date specified for each borrowing hereunder, each relevant Lender shall make
available the amount of the Loan or Loans to be made by it on such date to the
Administrative Agent, at any account designated by the Administrative Agent with
Chase at the Principal Office, in immediately available funds, for account of
the Company. The amount so received by the
CREDIT AGREEMENT
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Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Company by depositing the same, in
immediately available funds, in an account of the Company maintained with Chase
at the Principal Office designated by the Company or by repaying any then
outstanding Swingline Loan, as set forth in Section 2.02(b).
(b) BORROWINGS TO REPAY SWINGLINE LOANS. Unless the Company has
already given a notice of borrowing of Revolving Credit Loans to repay a
Swingline Loan, if any Swingline Loan remains outstanding, at any time until the
unpaid principal amount of such Swingline Loan shall have been paid in full, the
Swingline Lender may, and the Company hereby irrevocably authorizes and empowers
(which power is coupled with an interest) the Swingline Lender to, deliver, on
behalf of the Company, to the Administrative Agent under Section 2.02(a) hereof
a notice of borrowing of Revolving Credit Loans that are Base Rate Loans in an
amount equal to the then unpaid principal amount of such Swingline Loan. In the
event that the power of the Swingline Lender to give such notice of borrowing on
behalf of the Company is terminated for any reason whatsoever (including,
without limitation, a termination resulting from the occurrence of an event
specified in clause (f) or (g) of Section 10 hereof with respect to the
Company), or the Swingline Lender is otherwise precluded for any reason
whatsoever from giving a notice of borrowing on behalf of the Company as
provided in the preceding sentence, each Lender shall, upon notice from the
Swingline Lender, promptly purchase from the Swingline Lender a participation in
(or, if and to the extent specified by the Swingline Lender, an assignment of)
such Swingline Loan in the amount of the Base Rate Loan it would have been
obligated to make pursuant to such notice of borrowing. Each Lender shall, not
later than 4:00 p.m. New York time on the Business Day on which such notice is
given (if such notice is given by 12:00 noon New York time) or 11:00 a.m. New
York time on the next succeeding Business Day (if such notice is given after
12:00 p.m., but before 5:00 p.m., New York time), make available the amount of
the Base Rate Loan to be made by it (or the amount of the participation or
assignment to be purchased by it, as the case may be) to the Administrative
Agent at the account specified in Section 2.02(a) hereof and the amount so
received by the Administrative Agent shall promptly be made available to the
Swingline Lender by remitting the same, in immediately available funds, to the
Swingline Lender. Promptly following its receipt of any payment in respect of
such Swingline Loans, the Swingline Lender shall pay to each Lender that has
acquired a participation in such Swingline Loan such Lender's proportionate
share of such payment. Anything in this Agreement to the contrary
notwithstanding (including, without limitation, in Section 7.02 hereof), the
obligation of each Lender to make its Base Rate Loan (or purchase its
participation in or assignment of such Swingline Loan, as the case may be)
pursuant to this Section 2.02(b) is unconditional under any and all
circumstances whatsoever and shall not be subject to set-off, counterclaim or
defense to payment that such Lender may have or have had against the Company,
the Guarantor, the Administrative Agent, the Swingline Lender or any other
Lender and, without limiting any of the foregoing, shall be unconditional
irrespective of (i) the occurrence of any Default, (ii) the financial condition
of the Company, any Subsidiary, the Guarantor, the Administrative Agent, the
Swingline Lender or any other Lender or (iii) the termination or cancellation of
the Commitments; PROVIDED that no Lender shall be obligated to make any such
Base Rate Loan (or to purchase any such participation or direct interest in the
Swingline Loan) if (i) before the making of such Swingline Loan, such Lender had
notified the Swingline Lender that a Default had occurred and was continuing and
that such Lender would not refinance such Swingline Loan or (ii) to the extent
(and only to the extent) that such
CREDIT AGREEMENT
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Swingline Loan, together with all Revolving Credit Loans then outstanding at the
time of the making of such Swingline Loan together with the aggregate amount of
all outstanding Letter of Credit Liabilities exceeds the then aggregate amount
of the Revolving Credit Commitments at the time of the making of such Swingline
Loan. The Company agrees that any Lender so purchasing a participation (or
assignment) in such Swingline Loan may exercise all rights of set-off, bankers'
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of a Swingline Loan in the amount of such
participation. The Company hereby promises to pay the Administrative Agent for
account of the Swingline Lender the entire outstanding principal amount of the
Swingline Loans, and each such Swingline Loan shall mature, on the Revolving
Credit Commitment Termination Date.
2.03 LETTERS OF CREDIT. Subject to the terms and conditions of this
Agreement, the Revolving Credit Commitments may be utilized, upon the request of
the Company, in addition to the Revolving Credit Loans provided for by
Section 2.01(a) hereof, by the issuance by the Issuing Bank of letters of credit
(collectively, "Letters of Credit") for account of the Company or any of its
Subsidiaries (as specified by the Company) and payable in Dollars, PROVIDED that
in no event shall (i) the aggregate amount of all Letter of Credit Liabilities
PLUS the aggregate outstanding principal amount of the Revolving Credit Loans
and the aggregate outstanding principal amount of the Swingline Loans, exceed
the aggregate amount of the Revolving Credit Commitments as in effect from time
to time, (ii) the outstanding aggregate amount of all Letter of Credit
Liabilities exceed $90,000,000 and (iii) the expiration date of any Letter of
Credit extend beyond the earlier of (I) the Revolving Credit Commitment
Termination Date and (II) the date twelve months following the issuance of such
Letter of Credit (or in the case of any renewal or extension thereof, twelve
months after such renewal or extension). The following additional provisions
shall apply to Letters of Credit:
(a) The Company shall give the Administrative Agent at least
three Business Days' irrevocable prior notice (effective upon receipt)
specifying the Business Day (which shall be no later than thirty days
preceding the Revolving Credit Commitment Termination Date) each Letter of
Credit is to be issued and the account party or parties therefor and
describing in reasonable detail the proposed terms of such Letter of Credit
(including the beneficiary thereof) and the nature of the transactions or
obligations proposed to be supported thereby (including whether such Letter
of Credit is to be a commercial letter of credit or a standby letter of
credit). Upon receipt of any such notice, the Administrative Agent shall
advise the Issuing Bank of the contents thereof.
(b) On each day during the period commencing with the issuance by the
Issuing Bank of any Letter of Credit and until such Letter of Credit shall
have expired or been terminated, the Revolving Credit Commitment of each
Revolving Credit Lender shall be deemed to be utilized for all purposes of
this Agreement in an amount equal to such Lender's Revolving Credit
Commitment Percentage of the then undrawn amount of such Letter of Credit.
Each Revolving Credit Lender (other than the Issuing Bank) agrees that,
upon the issuance of any Letter of Credit hereunder, it shall automatically
acquire a participation in the Issuing Bank's liability under such Letter
of Credit in an amount equal to such Lender's Revolving Credit Commitment
Percentage of such liability, and each Revolving Credit Lender (other than
the Issuing Bank) thereby shall absolutely,
CREDIT AGREEMENT
- 29 -
unconditionally and irrevocably assume, as primary obligor and not as
surety, and shall be unconditionally obligated to the Issuing Bank to pay
and discharge when due, its Revolving Credit Commitment Percentage of the
Issuing Bank's liability under such Letter of Credit.
(c) Upon receipt from the beneficiary of any Letter of Credit of any
demand for payment under such Letter of Credit, the Issuing Bank shall
promptly notify the Company (through the Administrative Agent) of the
amount to be paid by the Issuing Bank as a result of such demand and the
date on which payment is to be made by the Issuing Bank to such beneficiary
in respect of such demand. Notwithstanding the identity of the account
party of any Letter of Credit, the Company hereby unconditionally agrees to
pay and reimburse the Administrative Agent for account of the Issuing Bank
for the amount of each demand for payment under such Letter of Credit that
is in substantial compliance with the provisions of such Letter of Credit
at or prior to the date on which payment is to be made by the Issuing Bank
to the beneficiary thereunder, without presentment, demand, protest or
other formalities of any kind.
(d) Forthwith upon its receipt of a notice referred to in
paragraph (c) of this Section 2.03, the Company shall advise the
Administrative Agent whether or not the Company intends to borrow hereunder
to finance its obligation to reimburse the Issuing Bank for the amount of
the related demand for payment and, if it does, submit a notice of such
borrowing as provided in Section 4.05 hereof. In the event that the
Company fails to so advise the Administrative Agent, or if the Company
fails to reimburse the Issuing Bank for a demand for payment under a Letter
of Credit by the date of such payment, the Administrative Agent shall give
each Revolving Credit Lender prompt notice of the demand for payment,
specifying such Lender's Revolving Credit Commitment Percentage of the
amount of the related demand for payment.
(e) Each Revolving Credit Lender (other than the Issuing Bank) shall
pay to the Administrative Agent for account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds, the amount
of such Lender's Revolving Credit Commitment Percentage of any payment
under a Letter of Credit upon notice by the Issuing Bank (through the
Administrative Agent) to such Revolving Credit Lender requesting such
payment and specifying such amount, unless such payment under such Letter
of Credit would not have been made but for the gross negligence or willful
misconduct of the Issuing Bank. Each such Revolving Credit Lender's
obligation to make such payment to the Administrative Agent for account of
the Issuing Bank under this paragraph (e), and the Issuing Bank's right to
receive the same, shall, subject to the preceding sentence, be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the failure of any other Revolving Credit
Lender to make its payment under this paragraph (e), the financial
condition of any Obligor (or any other account party), the existence of any
Default or the termination of the Commitments. Each such payment to the
Issuing Bank shall be made without any offset, abatement, withholding or
reduction whatsoever. If any Revolving Credit Lender shall default in its
obligation to make any such payment to the Administrative Agent for account
of the Issuing Bank, for so long as such default shall
CREDIT AGREEMENT
- 30 -
continue the Administrative Agent may, at the request of the Issuing Bank,
withhold from any payments received by the Administrative Agent under this
Agreement for account of such Revolving Credit Lender the amount so in
default and, to the extent so withheld, pay the same to the Issuing Bank in
satisfaction of such defaulted obligation.
(f) Upon the making of each payment by a Revolving Credit Lender to
the Issuing Bank pursuant to paragraph (e) above in respect of any Letter
of Credit, such Lender shall, automatically and without any further action
on the part of the Administrative Agent, the Issuing Bank or such Lender,
acquire (i) a participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Issuing Bank by the Company hereunder
and under the Letter of Credit Documents relating to such Letter of Credit
and (ii) a participation in a percentage equal to such Lender's Revolving
Credit Commitment Percentage in any interest or other amounts payable by
the Company hereunder and under such Letter of Credit Documents in respect
of such Reimbursement Obligation (other than the commissions, charges,
costs and expenses payable to the Issuing Bank pursuant to paragraph (g) of
this Section 2.03). Upon receipt by the Issuing Bank from or for account
of the Company of any payment in respect of any Reimbursement Obligation or
any such interest or other amount (including by way of setoff or
application of proceeds of any collateral security) the Issuing Bank shall
promptly pay to the Administrative Agent for account of each Revolving
Credit Lender entitled thereto, such Revolving Credit Lender's Revolving
Credit Commitment Percentage of such payment, each such payment by the
Issuing Bank to be made in the same money and funds in which received by
the Issuing Bank. In the event any payment received by the Issuing Bank
and so paid to the Revolving Credit Lenders hereunder is rescinded or must
otherwise be returned by the Issuing Bank, each Revolving Credit Lender
shall, upon the request of the Issuing Bank (through the Administrative
Agent), repay to the Issuing Bank (through the Administrative Agent) the
amount of such payment paid to such Lender, with interest at the rate
specified in paragraph (j) of this Section 2.03.
(g) The Company shall pay to the Administrative Agent for account of
each Revolving Credit Lender (ratably in accordance with their respective
Revolving Credit Commitment Percentages) a letter of credit fee in respect
of each Letter of Credit in an amount equal to a rate per annum equal to
the Letter of Credit Fee Rate of the daily average undrawn amount of such
Letter of Credit for the period from and including the date of issuance of
such Letter of Credit (i) in the case of a Letter of Credit that expires in
accordance with its terms, to and including such expiration date and (ii)
in the case of a Letter of Credit that is drawn in full or is otherwise
terminated other than on the stated expiration date of such Letter of
Credit, to but excluding the date such Letter of Credit is drawn in full or
is terminated (such fee to be non-refundable, to be paid in arrears on each
Quarterly Date and on the Revolving Credit Commitment Termination Date and
to be calculated for any day after giving effect to any payments made under
such Letter of Credit on such day). In addition, the Company shall pay to
the Administrative Agent for account of the Issuing Bank a fronting fee in
respect of each Letter of Credit in an amount equal to 1/4 of 1% per annum
of the daily average undrawn amount of such Letter of Credit for the period
from and including the date of issuance of such Letter of
CREDIT AGREEMENT
- 31 -
Credit (i) in the case of a Letter of Credit that expires in accordance
with its terms, to and including such expiration date and (ii) in the case
of a Letter of Credit that is drawn in full or is otherwise terminated
other than on the stated expiration date of such Letter of Credit, to but
excluding the date such Letter of Credit is drawn in full or is terminated
(such fee to be non-refundable, to be paid in arrears on each Quarterly
Date and on the Revolving Credit Commitment Termination Date and to be
calculated for any day after giving effect to any payments made under such
Letter of Credit on such day) plus all commissions, charges, costs and
expenses in the amounts customarily charged by the Issuing Bank from time
to time in like circumstances with respect to the issuance of each Letter
of Credit and drawings and other transactions relating thereto and as shown
in fee schedules provided by the Issuing Bank to the Company.
(h) Promptly following the end of each calendar month, the Issuing
Bank shall deliver (through the Administrative Agent) to each Revolving
Credit Lender and the Company a notice describing the aggregate amount of
all Letters of Credit outstanding at the end of the month. Upon the
request of any Revolving Credit Lender from time to time, the Issuing Bank
shall deliver any information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
(i) The issuance by the Issuing Bank of each Letter of Credit shall,
in addition to the conditions precedent set forth in Section 7 hereof, be
subject to the conditions precedent that (i) such Letter of Credit shall be
in such form, contain such terms and support such transactions as shall be
satisfactory to the Issuing Bank consistent with its then current practices
and procedures with respect to letters of credit of the same type and
(ii) the Company shall have executed and delivered such applications,
agreements and other instruments relating to such Letter of Credit as the
Issuing Bank shall have reasonably requested consistent with its then
current practices and procedures with respect to letters of credit of the
same type, PROVIDED that in the event of any conflict between any such
application, agreement or other instrument and the provisions of this
Agreement or any Security Document, the provisions of this Agreement and
the Security Documents shall control.
(j) To the extent that any Revolving Credit Lender shall fail to pay
any amount required to be paid pursuant to paragraph (e) or (f) of this
Section 2.03 on the due date therefor, such Lender shall pay interest to
the Issuing Bank (through the Administrative Agent) on such amount from and
including such due date to but excluding the date such payment is made at a
rate per annum equal to the Federal Funds Rate, PROVIDED that if such
Lender shall fail to make such payment to the Issuing Bank within three
Business Days of such due date, then, retroactively to the due date, such
Lender shall be obligated to pay interest on such amount at the
Post-Default Rate.
(k) The issuance by the Issuing Bank of any modification or
supplement to any Letter of Credit hereunder shall be subject to the same
conditions applicable under this Section 2.03 to the issuance of new
Letters of Credit, and no such modification or supplement shall be issued
hereunder unless either (i) the respective Letter of Credit affected
thereby would have complied with such conditions had it originally been
issued hereunder in such modified or supplemented form or (ii) the Majority
Revolving Credit
CREDIT AGREEMENT
- 32 -
Lenders (if such conditions could have been amended with the consent of the
Majority Revolving Credit Lenders) or all of the Revolving Credit Lenders
(if such conditions could only have been amended with the consent of all
Revolving Credit Lenders) shall have consented thereto.
(l) Concurrently with the satisfaction of the conditions precedent
set forth in Section 7.01 hereof, all letters of credit outstanding on the
Effective Date under the Existing Credit Agreement shall be deemed to be
Letters of Credit outstanding hereunder and the Revolving Credit Lenders
shall, automatically and without further action on the part of the Agent,
the Issuing Bank or such Revolving Credit Lenders, acquire a participation
interest in each such letter of credit as if such letter of credit shall
have been issued hereunder. From and after the Effective Date, the Letter
of Credit Fee Rate with respect to any such Letter of Credit shall be
determined in accordance with the definition of "Letter of Credit Fee Rate"
as set forth in Section 1 hereof.
The Company hereby indemnifies and holds harmless each Revolving Credit Lender
and the Administrative Agent from and against any and all claims, damages,
losses, liabilities, costs or expenses that such Lender or the Administrative
Agent may incur (or that may be claimed against such Lender or the
Administrative Agent by any Person whatsoever) by reason of or in connection
with the execution and delivery or transfer of or payment or refusal to pay by
the Issuing Bank under any Letter of Credit; PROVIDED that the Company shall not
be required to indemnify any Lender or the Administrative Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (x) the willful misconduct or gross negligence of the Issuing
Bank in determining whether a request presented under any Letter of Credit
complied with the terms of such Letter of Credit or (y) the Issuing Bank's
failure to pay under any Letter of Credit after the presentation to it of a
request strictly complying with the terms and conditions of such Letter of
Credit. Nothing in this Section 2.03 is intended to limit the other obligations
of the Company, any Lender, the Issuing Bank or the Administrative Agent under
this Agreement.
2.04 CHANGES OF COMMITMENTS.
(a) The Company shall have the right at any time or from time to time
(i) to terminate or reduce the aggregate unused amount of the Term Loan
Commitments, (ii) so long as no Revolving Credit Loans, Swingline Loans or
Letter of Credit Liabilities are outstanding, to terminate the Revolving Credit
Commitments and (iii) to reduce the aggregate unused amount of the Revolving
Credit Commitments (for which purpose use of the Revolving Credit Commitments
shall be deemed to include the aggregate amount of Letter of Credit
Liabilities); PROVIDED that (x) the Company shall give notice of each such
termination or reduction as provided in Section 4.05 hereof, (y) each partial
reduction shall be in an aggregate amount at least equal to $5,000,000 (or a
larger multiple of $1,000,000) and (z) the aggregate amount of the Revolving
Credit Commitments shall at no time be less than the aggregate outstanding
principal amount of all Revolving Credit Loans, Swingline Loans and Letter of
Credit Liabilities.
(b) Any portion of the Term Loan Commitments not used on the
Effective Date shall terminate automatically at the close of business on the
Effective Date.
CREDIT AGREEMENT
- 33 -
(c) The Company shall have the right to terminate or reduce the
unused amount of the Swingline Commitment at any time or from time to time on
not less than three Business Days' prior notice to the Administrative Agent
(which shall promptly notify the Swingline Lender and each Lender) of each such
termination or reduction, which notice shall specify the effective date thereof
and the amount of any such reduction (which shall be in integral multiples of
$100,000) and shall be irrevocable and effective only upon receipt by the
Administrative Agent.
(d) The Commitments of any Class (including the Swingline Commitment)
once terminated or reduced may not be reinstated.
2.05 COMMITMENT FEE. The Company shall pay to the Administrative
Agent for account of each Revolving Credit Lender a commitment fee on the daily
average unused amount of the Revolving Credit Commitment of such Lender (solely
for which purpose the aggregate amount of any Letter of Credit Liabilities shall
be deemed to be a pro rata (based on the Revolving Credit Commitments) Use of
each Revolving Credit Lender's Revolving Credit Commitment and outstanding
Swingline Loans shall not constitute the use of any Revolving Credit Lender's
Revolving Credit Commitment other than the Swingline Lender), for the period
from and including the date of this Agreement to but Not including the earlier
of the date such Revolving Credit Commitment terminates or is terminated, at a
rate per annum for any period from and including the date on which the Company
shall have delivered a certificate pursuant to the last paragraph of Section
9.01 hereof demonstrating in reasonable detail (based upon financial statements
for the fiscal period of the Guarantor most recently ended that have been
delivered to the Lenders pursuant to Section 9.01(a) or (b) Hereof or, prior to
the delivery of financial statements pursuant to said section, the financial
statements of the Guarantor referred to in Section 8.02(a) hereof) that the
LEVERAGE RATIO, as of the end of the respective quarterly fiscal period or
fiscal year, is within one of the ranges set forth below, to but excluding the
date of delivery of the next such certificate, shall equal the percentage per
annum set forth below:
Ratio Commitment Fee
----- --------------
Greater than 4.5 to 1 .500%
Less than or equal 4.5 to 1 .375%
but greater than 3.5 to 1
Less than or equal
to 3.5 to 1 .250%
PROVIDED that (i) notwithstanding the foregoing, for purposes of determining the
commitment fee at any time prior to the delivery of the compliance certificate
required under the last paragraph of Section 9.01 hereof for the fiscal quarter
of the Guarantor ending September 30, 1998, if the Leverage Ratio, as reflected
on the then most recent compliance certificate delivered under the last
paragraph of Section 9.01 hereof, is less than or equal to 4.0 to 1, the
commitment fee shall be .375% per annum and (ii) during any period when an Event
of Default or Default in delivery of the certificate pursuant to clause (ii) of
the last paragraph of Section 9.01 hereof shall have occurred and be continuing,
such rate per annum shall be .50%. Accrued commitment fees on
CREDIT AGREEMENT
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each Commitment shall be payable monthly on the last Business Day of each month
and on the date such Commitment terminates or is terminated.
2.06 LENDING OFFICES. The Loans of each Class and Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending Office
for loans of such Class and Type.
2.07 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Lender to make any Loan to be made by it on the date specified therefor shall
not relieve any other Lender of its obligation to make its Loan on such date,
but neither any Lender nor the Administrative Agent shall be responsible for the
failure of any other Lender to make a Loan to be made by such other Lender, and
(except as otherwise provided in Section 4.06 hereof) no Lender shall have any
obligation to the Administrative Agent or any other Lender for the failure by
such Lender to make any Loan required to be made by such Lender; PROVIDED that
nothing in this sentence shall limit the recourse of the Company against such
Lender. The amounts payable by the Company at any time hereunder to each Lender
shall be a separate and independent debt and each Lender shall be entitled,
subject to Section 10 hereof in the case of any acceleration of Indebtedness
hereunder or termination of any Commitments, to protect and enforce its rights
arising out of this Agreement, and it shall not be necessary for any other
Lender or the Administrative Agent to consent to, or be joined as an additional
party in, any proceedings for such purposes.
2.08 EVIDENCE OF DEBT; REGISTERED LOANS.
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such Lender
resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(b) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period (if any) applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(c) The entries made in the accounts maintained pursuant to paragraph
(a) or (b) of this Section shall (absent manifest error) be PRIMA FACIE evidence
of the existence and amounts of the obligations recorded therein; PROVIDED that
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Company to repay the Loans in accordance with the terms of this Agreement.
(d) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Company shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form reasonably approved by the Administrative Agent, the Lender and the
Company. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section
12.06) be represented by one or
CREDIT AGREEMENT
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more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
(e) Notwithstanding the foregoing, any Term Loan Lender that is not a
U.S. Person and is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code may request the Company (through the Administrative Agent), and the
Company agrees thereupon, to record on the Register referred to in
Section 12.06(g) hereof any Term Loans ("REGISTERED LOANS") held by such Lender
under this Agreement. A Term Loan once recorded on the Register may not be
removed from the Register so long as it remains outstanding.
(f) Each "Lender" under the Existing Credit Agreement shall, as soon
as practicable after the Effective Date, surrender to the Company for
cancellation any "Notes" (as defined in the Existing Credit Agreement).
2.09 OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF LOAN.
Subject to Section 4.04 hereof, the Company shall have the right to prepay
Loans, or to Convert Revolving Credit Loans and Term Loans of one Type into
Loans of another Type or continue Revolving Credit Loans and Term Loans of one
Type as Loans of the same Type, at any time or from time to time, PROVIDED that:
(a) the Company shall give the Administrative Agent (or, in the case of the
Swingline Loans, the Swingline Lender) notice of each such prepayment,
Conversion or Continuation as provided in Section 4.05 hereof (and, upon the
date specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder); (b) Eurodollar Loans may be Converted only on
the last day of an Interest Period for such Loans; (c) prepayments by the
Company of the Term Loans shall be applied PRO RATA to the Tranche A Term Loans
and the Tranche B Term Loans; (d) prepayments by the Company of any Class of
Term Loans shall be applied to the remaining installments of such Term Loans pro
rata; (e) if any Swingline Loan is outstanding, the Revolving Credit Loans may
not be prepaid or converted; and (f) Swingline Loans may not be Continued.
Notwithstanding the foregoing, and without limiting the rights and remedies of
the Lenders under Section 10 hereof, in the event that any Event of Default
shall have occurred and be continuing, the Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of the Company to
Convert any Loan into a Eurodollar Loan, or to Continue any Loan as a Eurodollar
Loan, in which event all Loans shall be Converted (on the last day(s) of the
respective Interest Periods therefor) or Continued, as the case may be, as Base
Rate Loans.
2.10 MANDATORY PREPAYMENTS AND REDUCTIONS OF COMMITMENTS.
(a) EXCESS CASH FLOW. Not later than the date 90 days after the end
of each fiscal year of the Company ending after the date hereof (commencing with
the fiscal year ending December 31, 1998), the Company shall prepay Loans
(and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (g) below), and the Commitments shall be subject to automatic
reduction, without prepayment or commitment reduction premium other than any
amounts payable pursuant to Section 5.05 hereof, in an aggregate amount equal to
the excess of (A) the Required Percentage (as defined below) of Excess Cash Flow
for such fiscal year over (B) the aggregate amount of prepayments of Term Loans
made during such fiscal year pursuant to Section 2.09 hereof and, after the
payment in full of the Term Loans, the aggregate amount of voluntary reductions
of Revolving Credit Commitments made during such fiscal year pursuant to
CREDIT AGREEMENT
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Section 2.04(c) hereof, such prepayment and reduction to be effected in each
case in the manner and to the extent specified in paragraph (f) of this
Section 2.10. "REQUIRED PERCENTAGE" of Excess Cash Flow for any fiscal year
shall mean (i) if the Debt to Cash Flow Ratio as of the last day of such fiscal
year is greater than 3.75 to 1, 50% and (ii) otherwise, 0%.
(b) EQUITY ISSUANCE. If, at any time after the Effective Date, the
Guarantor or any of its Subsidiaries shall receive Net Available Proceeds from
one or more Equity Issuances, including all prior Equity Issuances as to which a
prepayment has not yet been made under this Section 2.10(b), the Company shall,
within three Business Days of receipt of such Net Available Proceeds, prepay
Loans (and/or provide cover for Letter of Credit Liabilities as specified in
paragraph (g) below), and the Commitments shall be subject to automatic
reduction, in an aggregate amount equal to 75% of the aggregate amount of such
Net Available Proceeds, such prepayment to be effected in each case in the
manner and to the extent specified in paragraph (f) of this Section 2.10;
PROVIDED that, notwithstanding the foregoing, without having to prepay Loans (x)
the Guarantor may apply, or cause to be applied, within 90 days from the receipt
thereof, up to $75,000,000 of the Net Available Proceeds received from one or
more Equity Issuances to finance Permitted Acquisitions, and (y) the Guarantor
and the Company may prepay Senior Subordinated Notes (to the extent permitted
under Section 9.14 hereof) and/or satisfy its obligations under vested
management warrants and stock options (to the extent permitted under Section
9.09 hereof) from the proceeds of one or more Equity Issuance within 60 days
after the receipt thereof.
(c) DEBT ISSUANCE. The Company shall apply the proceeds from the
Take Out Notes to the prepayment of the Loans in accordance with paragraph (f)
of this Section 2.10. In addition to the foregoing, but without limiting the
obligation of the Obligors to obtain the consent of the Majority Lenders
pursuant to Section 9.07 hereof, if, at any time after the Effective Date, the
Guarantor or any of its Subsidiaries shall receive Net Available Proceeds from
any Debt Issuance, the Company shall, within three Business Days of receipt of
such Net Available Proceeds, prepay Loans (and/or provide cover for Letter of
Credit Liabilities as specified in paragraph (g) below), and the Commitments
shall be subject to automatic reduction, in an aggregate amount equal to the
aggregate amount of such Net Available Proceeds, such prepayment to be effected
in each case in the manner and to the extent specified in paragraph (f) of this
Section 2.10; PROVIDED that, notwithstanding the foregoing, after the Tranche B
Term Loans have been repaid or prepaid in full, the Guarantor may apply, or
cause to be applied, the proceeds from any Debt Issuance (other than the Take
Out Notes) to the prepayment of the Senior Subordinated Notes without having to
prepay Loans, provided that (x) such prepayment is permitted under Section 9.14
hereof and (y) after giving effect to such prepayment not less than $100,000,000
aggregate principal amount of Senior Subordinated Notes remains outstanding.
(d) SALE OF ASSETS. Without limiting the obligation of the Company
to obtain the consent of the Majority Lenders pursuant to Section 9.05 hereof to
any Disposition not otherwise permitted hereunder, in the event that the Net
Available Proceeds of any Disposition (herein, the "CURRENT DISPOSITION"), and
of all prior Dispositions as to which a prepayment has not yet been made under
this Section 2.10(d), shall exceed $15,000,000 then, no later than five Business
Days prior to the occurrence of the Current Disposition, the Company will
deliver to the Lenders a statement, certified by a Responsible Officer of the
Company, in form and detail reasonably
CREDIT AGREEMENT
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satisfactory to the Administrative Agent, of the amount of the anticipated Net
Available Proceeds of the Current Disposition and of all such prior Dispositions
as to which a prepayment has not yet been made under this Section 2.10(d) and
will prepay, upon receipt of such Net Available Proceeds, Loans (and/or provide
cover for Letter of Credit Liabilities as specified in paragraph (g) below), and
the Commitments shall be subject to automatic reduction, in an aggregate amount
equal to 100% of the Net Available Proceeds of the Current Disposition and such
prior Dispositions as to which a prepayment has not been made under this
Section 2.10(d) in excess of $15,000,000, such prepayment and reduction to be
effected in each case in the manner and to the extent specified in paragraph (f)
of this Section 2.10. Notwithstanding the foregoing, neither the Disposition of
Receivables by the Company or any of its Subsidiaries to the Receivables Company
or to the United Stationers Receivables Master Trust in connection with the
Receivables Financing nor the Disposition for fair value of any Part A Property
shall be a "Disposition" for purposes of the preceding sentence. If, however,
any Part B Property is disposed of within one year prior to or after the
Disposition of Part A Property located in the same geographical area, the
Company shall, within one year of the last of such Dispositions, apply the Net
Available Proceeds of such Dispositions to (i) the purchase or construction of a
replacement facility or (ii) the prepayment of the Loans (and/or the provision
of cover for Letter of Credit Liabilities as specified in paragraph (g) below)
and the reduction of Commitments as provided above.
(e) CASUALTY EVENTS. After the occurrence of any Casualty Event
(other than any Casualty Event with respect only to Property covered by the
Mortgages) resulting in a loss in excess of $500,000, the Company shall give
prompt notice thereof to the Administrative Agent and the Lenders. If no
Default has occurred and is continuing, the Company may, at its option, to be
exercised by delivery of notice to the Administrative Agent and the Lenders
within four months of such Casualty Event, elect to apply the Net Available
Proceeds of such Casualty Event to either (i) the repair or replacement of the
Property affected thereby or (ii) the prepayment of the Loans (and/or the
provision of cover for Letter of Credit Liabilities as specified in paragraph
(g) of this Section 2.10) in the manner and to the extent specified in paragraph
(f) of this Section 2.10. If a Default has occurred and is continuing, or if
the Company fails to make such an election within four months from the date of
any such Casualty Event, such Net Available Proceeds shall automatically be
applied to the prepayment of the Loans in the manner and to the extent specified
in paragraph (f) of this Section 2.10 (and/or the provision of cover for Letter
of Credit Liabilities as specified in paragraph (g) of this Section 2.10). If
the Company elects to so repair or replace the Property subject to such Casualty
Event, the Net Available Proceeds of such Casualty Event in excess of $500,000
shall be held by the Administrative Agent to be applied to such repair or
replacement and advanced to the Company in periodic installments upon compliance
by the Company with such reasonable conditions as may be imposed by the
Administrative Agent, including, but not limited to, reasonable retentions and
lien releases. Interest, if any, actually earned on any Net Available Proceeds
held by the Administrative Agent shall be credited to such Net Available
Proceeds, for the benefit of the Company.
(f) APPLICATION. Prepayments and reductions of Commitments described
in the above paragraphs of this Section 2.10 shall be effected as follows:
CREDIT AGREEMENT
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(i) first, the amount of the prepayment specified in such paragraphs
shall be applied to the Term Loans, pro rata between each Class of Term
Loans and, as to each Class, pro rata to the remaining installments
thereof; PROVIDED that with respect to prepayments pursuant to Section
2.10(c) hereof from the gross cash proceeds of Take Out Notes, such
prepayments shall be applied first to the Tranche B Term Loans and then,
after the payment in full of the Tranche B Term Loans, to the Tranche A
Term Loans (in each case, pro rata to the remaining installments thereof);
and
(ii) second, the Revolving Credit Commitments shall be automatically
reduced in an amount equal to the amount by which the aggregate amount of
the prepayments and reductions of Commitments provided for above exceed any
excess over the amount referred to in the foregoing clause (i) (and to the
extent that, after giving effect to such reduction of Commitments, the
aggregate principal amount of Revolving Credit Loans, together with the
aggregate principal amount of the Swingline Loans and the aggregate amount
of all Letter of Credit Liabilities, would exceed the Revolving Credit
Commitments, the Company shall, first, prepay Swingline Loans, second,
prepay Revolving Credit Loans and, third, provide cover for Letter of
Credit Liabilities as specified in paragraph (g) below, in an aggregate
amount equal to such excess).
(g) COVER FOR LETTER OF CREDIT LIABILITIES. In the event that the
Company shall be required pursuant to this Section 2.10, or pursuant to
Section 10 hereof, to provide cover for Letter of Credit Liabilities, the
Company shall effect the same by paying to the Administrative Agent immediately
available funds in an amount equal to the required amount, which funds shall be
retained by the Administrative Agent in the Collateral Account (as provided
therein as collateral security in the first instance for the Letter of Credit
Liabilities) until such time as the Letters of Credit shall have been terminated
and all of the Letter of Credit Liabilities paid in full.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 REPAYMENT OF LOANS.
(a) REVOLVING CREDIT LOANS. The Company hereby promises to pay to
the Administrative Agent for account of each Revolving Credit Lender the entire
outstanding principal amount of such Lender's Revolving Credit Loans, and each
Revolving Credit Loan shall mature, on the Revolving Credit Commitment
Termination Date.
(b) TRANCHE A TERM LOANS. The Company hereby promises to pay to the
Administrative Agent for account of the Tranche A Term Loan Lenders the
aggregate principal amount of the Tranche A Term Loans in twenty-four (24)
consecutive installments payable on each Quarterly Date, beginning with the
Quarterly Date ending or nearest to June 30, 1998, the first four (4) of which
shall each be in the aggregate amount of $2,500,000, the next four (4) of which
shall each be in the aggregate amount of $3,750,000, the next four (4) of which
shall each be in the aggregate amount of $6,250,000, the next four (4) of which
shall each be in the aggregate amount of $7,500,000 and the last eight (8) of
which shall each be in the aggregate amount of $8,750,000.
CREDIT AGREEMENT
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(c) TRANCHE B TERM LOANS. The Company hereby promises to pay to the
Administrative Agent for account of the Tranche B Term Loan Lenders the
aggregate principal amount of the Tranche B Term Loans in twenty-seven (27)
consecutive quarterly installments payable on each Quarterly Date, beginning
with the Quarterly Date ending on or nearest to June 30, 1998, the first twenty
(20) of which shall each be in the aggregate amount of $250,000 and the last
seven (7) of which shall each be in the aggregate amount of $13,571,428.57.
3.02 INTEREST. The Company hereby promises to pay to the
Administrative Agent for account of each Lender interest on the unpaid principal
amount of each Loan (including any Swingline Loan) made by such Lender for the
period from and including the date of such Loan to but excluding the date such
Loan shall be paid in full, at the following rates per annum:
(a) During such periods as such Loan is a Base Rate Loan (other than
a Swingline Loan), the Base Rate (as in effect from time to time) PLUS the
Applicable Margin,
(b) during such periods as such Loan is a Eurodollar Loan, for each
Interest Period relating thereto, the Eurodollar Rate for such Loan for
such Interest Period PLUS the Applicable Margin, and
(c) if such Loan is a Swingline Loan, the Swingline Rate (as in effect
from time to time) PLUS the Applicable Margin (determined as if such
Swingline Loans were Revolving Credit Loans that were Base Rate Loans).
Notwithstanding the foregoing, the Company hereby promises to pay to the
Administrative Agent for account of each Lender interest at the applicable
Post-Default Rate on any principal of any Loan made by such Lender, on any
Reimbursement Obligation owed to such Lender and on any other amount payable by
the Company hereunder to or for account of such Lender, that shall not be paid
in full when due (whether at stated maturity, by acceleration, by mandatory
prepayment or otherwise), for the period from and including the due date thereof
to but excluding the date the same is paid in full. Accrued interest on each
Loan shall be payable (i) in the case of a Base Rate Loan, quarterly on the
Quarterly Dates, (ii) in the case of a Eurodollar Loan, on the last day of each
Interest Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such Interest
Period, (iii) in the case of a Swingline Loan, on the last day of each calendar
month during which such Swingline Loan shall be outstanding, and (iv) in the
case of any Loan (including any Swingline Loan), upon the payment or prepayment
thereof or the Conversion of such Loan to a Loan of another Type (but only on
the principal amount so paid, prepaid or Converted), except that interest
payable at the Post-Default Rate shall be payable from time to time on demand.
Promptly after the determination of any interest rate provided for herein or any
change therein, the Administrative Agent shall give notice thereof to the
Lenders to which such interest is payable and to the Company.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01 PAYMENTS.
CREDIT AGREEMENT
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(a) Except to the extent otherwise provided herein, all payments of
principal, interest, Reimbursement Obligations and other amounts to be made by
the Obligors under this Agreement, and, except to the extent otherwise provided
therein, all payments to be made by the Obligors under any other Basic Document,
shall be made in Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to the Administrative Agent at an account designated by
the Administrative Agent with Chase at the Principal Office, not later than
1:00 p.m. New York time on the date on which such payment shall become due (each
such payment made after such time on such due date to be deemed to have been
made on the next succeeding Business Day).
(b) Any Lender for whose account any such payment is to be made may
(but shall not be obligated to) debit the amount of any such payment that is not
made by such time to any ordinary deposit account of either Obligor with such
Lender (with notice to such Obligor and the Administrative Agent).
(c) Each Obligor shall, at the time of making each payment under this
Agreement for account of any Lender, specify to the Administrative Agent (which
shall so notify the intended recipient(s) thereof) the Loans, Reimbursement
Obligations or other amounts payable hereunder to which such payment is to be
applied (and in the event that such Obligor fails to so specify, or if an Event
of Default has occurred and is continuing, such payment shall be, subject to
Section 4.02 hereof, applied first to the Swingline Lender (to the extent any
amounts are then due and payable to the Swingline Lender on account of any
Swingline Loan) and then in payment of amounts due under this Agreement in such
manner as the Administrative Agent or the Majority Lenders, subject to
Section 4.02 hereof, may determine to be appropriate).
(d) Except to the extent otherwise provided in the last sentence of
Section 2.03(e) hereof, each payment received by the Administrative Agent under
this Agreement for account of any Lender shall be paid by the Administrative
Agent promptly to such Lender, in immediately available funds, for account of
such Lender's Applicable Lending Office for the Loan or other obligation in
respect of which such payment is made.
(e) Except to the extent otherwise provided herein, if the due date
of any payment under this Agreement would otherwise fall on a day that is not a
Business Day, such date shall be extended to the next succeeding Business Day,
and interest shall be payable for any principal so extended for the period of
such extension.
4.02 PRO RATA TREATMENT. Except to the extent otherwise provided
herein: (A) each borrowing of Loans of a particular Class from the Lenders
under Section 2.01 hereof shall be made from the relevant Lenders, each payment
of commitment fee under Section 2.05 hereof in respect of the commitments of a
particular Class shall be made for account of the relevant lenders, and each
termination or reduction of the amount of the commitments of a particular Class
under Section 2.04 hereof shall be applied to the respective commitments of such
Class of the relevant Lenders, pro rata according to the amounts of their
respective Commitments of such Class; (b) except as otherwise provided in
Section 5.04 hereof, Eurodollar Loans of any Class having the same Interest
Period shall be allocated pro rata among the relevant Lenders according to the
amounts of their respective Revolving Credit and Term Loan Commitments (in the
case of the making of Loans and Revolving Credit Loans made to
CREDIT AGREEMENT
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refinance Swingline Loans) or their respective Revolving Credit and Term Loans
(in the case of Conversions and Continuations of Loans); (c) each payment or
prepayment of principal of Loans of a particular Class shall be made for account
of the relevant Lenders pro rata in accordance with the respective unpaid
principal amounts of the Loans of such Class held by them; and (d) each payment
of interest on Loans of a particular Class shall be made for account of the
relevant Lenders pro rata in accordance with the amounts of interest on such
Loans then due and payable to the respective Lenders. Notwithstanding the
foregoing, borrowings, payments and prepayments of Swingline Loans shall be made
without regard to the foregoing provisions of this Section 4.02.
4.03 COMPUTATIONS. Interest on Eurodollar Loans and Reimbursement
Obligations and commitment fees and letter of credit fees shall be computed on
the basis of a year of 360 days and actual days elapsed (including the first day
but, except as otherwise provided in section 2.03(g) hereof, excluding the last
day) occurring in the period for which payable and interest on base rate Loans
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable. Notwithstanding the foregoing, for
each day that the base rate is calculated by reference to the federal funds
rate, interest on base rate Loans shall be computed on the basis of a year of
360 days and actual days elapsed.
4.04 MINIMUM AMOUNTS. Except for mandatory prepayments made
pursuant to section 2.10 hereof and conversions or prepayments made pursuant to
section 5.04 hereof, and each borrowing, conversion and partial prepayment of
principal of Loans (other than swingline Loans and revolving credit Loans made
to refinance swingline Loans) shall be in an aggregate amount at least equal to
$5,000,000 or a larger multiple of $1,000,000 (borrowings, conversions or
prepayments of or into Loans of different types or, in the case of eurodollar
Loans, having different interest periods at the same time hereunder to be deemed
separate borrowings, conversions and prepayments for purposes of the foregoing,
one for each type or interest period), PROVIDED that the aggregate principal
amount of Eurodollar Loans having the same Interest Period shall be in an amount
at least equal to $10,000,000 or a larger multiple of $1,000,000 and, if any
Eurodollar Loans would otherwise be in a lesser principal amount for any period,
such Loans shall be Base Rate Loans during such period. Each borrowing of
Swingline Loans pursuant to Section 2.01(d) hereof shall be in an aggregate
amount at least equal to $500,000 or in multiples of $100,000 in excess thereof
and each partial prepayment of Swingline Loans shall be in an aggregate amount
at least equal to $100,000 or in multiples of $100,000 in excess thereof.
4.05 CERTAIN NOTICES. Notices by the Company to the Administrative
Agent of terminations or reductions of the Commitments, of borrowings,
Conversions, Continuations and optional prepayments of Loans and of Classes of
Loans, of Types of Loans and of the duration of Interest Periods shall be
irrevocable and shall be effective only if received by the Administrative Agent
(or the Swingline Lender, as the case may be) not later than 11:00 a.m. (In the
case of notices in respect of Eurodollar Loans), 12:00 noon (in the case of
notices in respect of Base Rate Loans) and 2:00 p.m. (In the case of notices in
respect of Swingline Loans), New York time, on the number of Business Days prior
to the date of the relevant termination, reduction,
CREDIT AGREEMENT
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borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
Number of
Business
Notice Days Prior
------ ----------
Termination or reduction
of Commitments 3
Borrowing or prepayment of,
or Conversions into,
Base Rate Loans same day
Borrowing or prepayment of,
Conversions into, Continuations
as, or duration of Interest
Period for, Eurodollar Loans 3
Borrowing or prepayment of
Swingline Loans or termination
or reduction of Swingline
Commitment same day
Each such notice of termination or reduction shall specify the amount and the
Class of the Commitments to be terminated or reduced. Each such notice of
borrowing, Conversion, Continuation or optional prepayment shall specify the
Class of Loans to be borrowed, Converted, Continued or prepaid and the amount
(subject to Section 4.04 hereof) and Type of each Loan to be borrowed,
Converted, Continued or prepaid and the date of borrowing, Conversion,
Continuation or optional prepayment (which shall be a Business Day). Each such
notice of the duration of an Interest Period shall specify the Loans to which
such Interest Period is to relate. The Administrative Agent shall promptly
notify the Lenders of the contents of each such notice. In the event that the
Company fails to select the Type of Loan, or the duration of any Interest Period
for any Eurodollar Loan, within the time period and otherwise as provided in
this Section 4.05, such Loan (if outstanding as a Eurodollar Loan) will be
automatically Converted into a Base Rate Loan on the last day of the then
current Interest Period for such Loan or (if outstanding as a Base Rate Loan)
will remain as, or (if not then outstanding) will be made as, a Base Rate Loan.
4.06 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have been notified by a Lender or the Company (the
"PAYOR") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Lender) the proceeds of a Loan to be
made by such Lender hereunder or (in the case of the Company) a payment to the
Administrative Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "REQUIRED PAYMENT"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has
CREDIT AGREEMENT
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been made and may, in reliance upon such assumption (but shall not be required
to), make the amount thereof available to the intended recipient(s) on such
date; and, if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"ADVANCE DATE") such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate for such day and, if such recipient(s) shall
fail promptly to make such payment, the Administrative Agent shall be entitled
to recover such amount, on demand, from the Payor, together with interest as
aforesaid, PROVIDED that if neither the recipient(s) nor the Payor shall return
the Required Payment to the Administrative Agent within three Business Days of
the Advance Date, then, retroactively to the Advance Date, the Payor and the
recipient(s) shall each be obligated to pay interest on the Required Payment as
follows:
(i) if the Required Payment shall represent a payment to be made by
the Company to the Lenders, the Company and the recipient(s) shall each be
obligated retroactively to the Advance Date to pay interest in respect of
the Required Payment at the Post-Default Rate (without duplication of the
obligation of the Company under Section 3.02 hereof to pay interest on the
Required Payment at the Post-Default Rate), it being understood that the
return by the recipient(s) of the Required Payment to the Administrative
Agent shall not limit such obligation of the Company under said
Section 3.02 to pay interest at the Post-Default Rate in respect of the
Required Payment and
(ii) if the Required Payment shall represent proceeds of a Loan to be
made by the Lenders to the Company, the Payor and the Company shall each be
obligated retroactively to the Advance Date to pay interest in respect of
the Required Payment pursuant to Section 3.02 hereof, it being understood
that the return by the Company of the Required Payment to the
Administrative Agent shall not limit any claim the Company may have against
the Payor in respect of such Required Payment.
4.07 SHARING OF PAYMENTS, ETC.
(a) Each Obligor agrees that, in addition to (and without limitation
of) any right of set-off, banker's lien or counterclaim a Lender may otherwise
have, each Lender shall be entitled, at its option (to the fullest extent
permitted by law), to set off and apply any deposit (general or special, time or
demand, provisional or final), or other indebtedness, held by it for the credit
or account of such Obligor at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Lender's Loans,
Reimbursement Obligations or any other amount payable to such Lender hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness are then due to such Obligor), in which case it shall promptly
notify such Obligor and the Administrative Agent thereof, PROVIDED that such
Lender's failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from any Obligor payment of any
principal of or interest on any Loan of any Class or Letter of Credit Liability
owing to it or in respect of its interest in any Swingline Loan or payment of
any other amount under this Agreement or any other Basic Document through the
exercise of any right of set-off, banker's lien or counterclaim
CREDIT AGREEMENT
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or similar right or otherwise (other than from the Administrative Agent as
provided herein), and, as a result of such payment, such Lender shall have
received a greater percentage of the principal of or interest on the Loans of
such Class or Letter of Credit Liabilities or in respect of its interest in any
Swingline Loan or such other amounts then due hereunder or thereunder by such
Obligor to such Lender than the percentage received by any other Lender, it
shall promptly purchase from such other Lenders participations in (or, if and to
the extent specified by such Lender, direct interests in) the Loans of such
Class or Letter of Credit Liabilities or such other amounts, respectively, owing
to such other Lenders (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses that may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans of such Class, interest in the
Swingline Loans or Letter of Credit Liabilities or such other amounts,
respectively, owing to each of the Lenders. To such end all the Lenders shall
make appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Obligor agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker's
lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of any Obligor. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. YIELD PROTECTION, ETC.
5.01 ADDITIONAL COSTS
(a) The Company shall pay directly to each Lender from time to time
such amounts as such Lender may determine to be reasonably necessary to
compensate such Lender for any costs that such Lender determines, in good faith,
are attributable to its making or maintaining of any Eurodollar Loans or its
obligation to make any Eurodollar Loans hereunder, or any reduction in any
amount receivable by such Lender hereunder in respect of any of such Eurodollar
Loans or such obligation (such increases in costs and reductions in amounts
receivable being herein called "ADDITIONAL COSTS"), resulting from any
Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office for
any of such Loans) to any tax, duty or other charge in respect of such
Loans or changes the basis of taxation of any amounts payable to such
Lender under this Agreement in respect of any of such Loans (excluding
changes in the rate of tax on the overall net income of such
CREDIT AGREEMENT
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Lender or of such Applicable Lending Office by the jurisdiction in which
such Lender has its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (including, without limitation, any of such
Loans or any deposits referred to in the definition of "Eurodollar Base
Rate" in Section 1.01 hereof), or any commitment of such Lender (including,
without limitation, the Commitments of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement (or any of
such extensions of credit or liabilities) or its Commitments.
If any Lender requests compensation from the Company under this Section 5.01(a),
the Company may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or Continue
Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar Loans, until the
Regulatory Change giving rise to such request ceases to be in effect (in which
case the provisions of Section 5.04 hereof shall be applicable), PROVIDED that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) Without limiting the effect of the provisions of paragraph (a) of
this Section 5.01 (but without duplication), in the event that, by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on Eurodollar Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes Eurodollar Loans or (ii) becomes subject to restrictions on the
amount of such a category of liabilities or assets that it may hold, then, if
such Lender so elects by notice to the Company (with a copy to the
Administrative Agent), the obligation of such Lender to make or Continue, or to
Convert Base Rate Loans into, Eurodollar Loans hereunder shall be suspended
until such Regulatory Change ceases to be in effect (in which case the
provisions of Section 5.04 hereof shall be applicable).
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Company shall pay directly to each
Lender from time to time on request such amounts as such Lender may determine to
be necessary to compensate such Lender (or, without duplication, the bank
holding company of which such Lender is a subsidiary) for any costs that it
determines are attributable to the maintenance by such Lender (or any Applicable
Lending Office or such bank holding company), pursuant to any law or regulation
or any interpretation, directive or request (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) of any
court or governmental or monetary authority (i) following any Regulatory Change
or (ii) implementing any risk-based capital guideline or other requirement
(whether or not having the force of law and whether or not the failure to comply
therewith would be unlawful) hereafter issued by any government or governmental
or supervisory authority implementing at the national level the Basle Accord
CREDIT AGREEMENT
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(including, without limitation, the Final Risk-Based Capital Guidelines of the
Board of Governors of the Federal Reserve System (12 C.F.R. Part 208,
Appendix A; 00 X.X.X. Xxxx 000, Xxxxxxxx X) and the Final Risk-Based Capital
Guidelines of the Office of the Comptroller of the Currency (12 C.F.R. Part 3,
Appendix A)), of capital in respect of its Commitments or Loans (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Lender (or any Applicable Lending
Office or such bank holding company) to a level below that which such Lender (or
any Applicable Lending Office or such bank holding company) could have achieved
but for such law, regulation, interpretation, directive or request). For
purposes of this Section 5.01(c) and Section 5.06 hereof, "BASLE ACCORD" shall
mean the proposals for risk-based capital framework described by the Basle
Committee on Banking Regulations and Supervisory Practices in its paper entitled
"International Convergence of Capital Measurement and Capital Standards" dated
July 1988, as amended, modified and supplemented and in effect from time to time
or any replacement thereof.
(d) Each Lender shall notify the Company of any event occurring after
the date hereof entitling such Lender to compensation under paragraph (a) or (c)
of this Section 5.01 as promptly as practicable, but in any event within 45
days, after such Lender obtains actual knowledge thereof; PROVIDED that (i) if
any Lender fails to give such notice within 45 days after it obtains actual
knowledge of such an event, such Lender shall, with respect to compensation
payable pursuant to this Section 5.01 in respect of any costs resulting from
such event, only be entitled to payment under this Section 5.01 for costs
incurred from and after the date 45 days prior to the date that such Lender does
give such notice and (ii) each Lender will designate a different Applicable
Lending Office for the Loans of such Lender affected by such event if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender, except that such Lender shall have no obligation to designate an
Applicable Lending Office located in the United States of America. Each Lender
will furnish to the Company a certificate setting forth the basis and amount of
each request by such Lender for compensation under paragraph (a) or (c) of this
Section 5.01. Determinations and allocations by any Lender for purposes of this
Section 5.01 of the effect of any Regulatory Change pursuant to paragraph (a) or
(b) of this Section 5.01, or of the effect of capital maintained pursuant to
paragraph (c) of this Section 5.01, on its costs or rate of return of
maintaining Loans or its obligation to make Loans, or on amounts receivable by
it in respect of Loans, and of the amounts required to compensate such Lender
under this Section 5.01, shall be conclusive, PROVIDED that such determinations
and allocations are made on a good faith reasonable basis.
5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Eurodollar Base
Rate for any Interest Period:
(a) the Administrative Agent determines, which determination shall be
conclusive if made in good faith, that quotations of interest rates for the
relevant deposits referred to in the definition of "Eurodollar Base Rate"
in Section 1.01 hereof are not being provided in the relevant amounts or
for the relevant maturities for purposes of determining rates of interest
for Eurodollar Loans as provided herein; or
CREDIT AGREEMENT
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(b) if the related Loans are Revolving Credit Loans, the Majority
Revolving Credit Lenders or, if the related Loans are Term Loans, the
Majority Term Loan Lenders determine, which determination shall be
conclusive if made in good faith, and notify the Administrative Agent that
the relevant rates of interest referred to in the definition of "Eurodollar
Base Rate" in Section 1.01 hereof upon the basis of which the rate of
interest for Eurodollar Loans for such Interest Period is to be determined
are not likely adequately to cover the cost to such Lenders of making or
maintaining Eurodollar Loans for such Interest Period;
then the Administrative Agent shall give the Company and each Lender prompt
notice thereof and, so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar Loans, to Continue
Eurodollar Loans or to Convert Base Rate Loans into Eurodollar Loans, and the
Company shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Eurodollar Loans, either prepay such Loans or Convert such Loans
into Base Rate Loans in accordance with Section 2.09 hereof. The Administrative
Agent shall upon notice from the Majority Lenders that any such conditions are
no longer in effect promptly withdraw any such notice delivered in connection
with this Section 5.02.
5.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder (and, in the sole opinion of such Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender), then such Lender shall promptly notify
the Company thereof (with a copy to the Administrative Agent) and such Lender's
obligation to make or Continue, or to Convert Loans of any other Type into,
Eurodollar Loans shall be suspended until such time as such Lender may again
make and maintain Eurodollar Loans (in which case the provisions of Section 5.04
hereof shall be applicable).
5.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender
to make Eurodollar Loans or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 5.01 or 5.03 hereof,
such Lender's Eurodollar Loans shall be automatically Converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion required by Section 5.01(b) or 5.03
hereof, on such earlier date as such Lender may specify to the Company with a
copy to the Administrative Agent) and, unless and until such Lender gives notice
as provided below that the circumstances specified in Section 5.01 or 5.03
hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Loans shall be applied instead to
its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall remain as Base Rate Loans.
CREDIT AGREEMENT
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If such Lender gives notice to the Company with a copy to the Administrative
Agent that the circumstances specified in Section 5.01 or 5.03 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
Section 5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Loans held by the Lenders holding Eurodollar Loans and by
such Lender are held pro rata (as to principal amounts, Types and Interest
Periods) in accordance with their respective Commitments.
5.05 COMPENSATION. The Company shall pay to the Administrative
Agent for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, mandatory or optional prepayment or Conversion of a
Eurodollar Loan made by such Lender for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 10 hereof) on
a date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Company for any reason (including, without
limitation, the failure of any of the conditions precedent specified in
Section 7 hereof to be satisfied) to borrow a Eurodollar Loan from such
Lender on the date for such borrowing specified in the relevant notice of
borrowing given pursuant to Section 2.02 hereof.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender).
5.06 ADDITIONAL COSTS IN RESPECT OF LETTERS OF CREDIT. Without
limiting the obligations of the Company under Section 5.01 hereof (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any government
or governmental or supervisory authority implementing at the national level the
Basle Accord there shall be imposed, modified or deemed applicable any tax,
reserve, special deposit, capital adequacy or similar requirement against or
with respect to or measured by reference to Letters of Credit issued or to be
issued hereunder and the result shall be to increase the cost to any Lender or
Lenders of issuing (or purchasing participations in) or maintaining its
obligation hereunder to issue (or purchase participations in) any Letter of
Credit
CREDIT AGREEMENT
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hereunder or reduce any amount receivable by any Lender hereunder in respect of
any Letter of Credit (which increases in cost, or reductions in amount
receivable, shall be the result of such Lender's or Lenders' reasonable
allocation of the aggregate of such increases or reductions resulting from such
event), then, upon demand by such Lender or Lenders (through the Administrative
Agent), the Company shall pay immediately to the Administrative Agent for
account of such Lender or Lenders, from time to time as specified by such Lender
or Lenders (through the Administrative Agent), such additional amounts as shall
be sufficient to compensate such Lender or Lenders (through the Administrative
Agent) for such increased costs or reductions in amount. A statement as to such
increased costs or reductions in amount incurred by any such Lender or Lenders,
submitted by such Lender or Lenders to the Company shall be conclusive if made
in good faith and in the absence of manifest error as to the amount thereof.
5.07 U.S. TAXES.
(a) The Company agrees to pay to each Lender that is not a
U.S. Person such additional amounts as are necessary in order that the net
payment of any amount due to such non-U.S. Person hereunder after deduction for
or withholding in respect of any U.S. Taxes (other than U.S. Taxes attributable
to payments that are effectively connected with the conduct of a trade or
business within the United States of America, within the meaning of Section 864
of the Code as in effect on the date hereof, provided that the mere
participation in the transactions contemplated hereby by a foreign office of a
Lender shall not alone be deemed to result in income so connected) imposed with
respect to such payment (or, upon the failure of the Company properly to make
any such deduction or withholding required by applicable law, payment by each
Lender that is not a U.S. Person of such U.S. Taxes that should have been
deducted or withheld), will not be less than the amount stated herein to be then
due and payable, PROVIDED that the foregoing obligation to pay such additional
amounts shall not apply:
(i) to any payment to any Lender hereunder (other than in respect of
any Registered Loan) unless such Lender is, on the date hereof (or on the
date it becomes a Lender hereunder as provided in Section 12.06(b) hereof),
on the date of each payment hereunder and on the day after any change in
the Applicable Lending Office of such Lender, entitled to submit either a
Form 1001 (relating to such Lender and entitling it to a complete exemption
from withholding on all interest to be received by it hereunder in respect
of the Loans) or a Form 4224 (relating to all interest to be received by
such Lender hereunder in respect of the Loans), unless such inability is
due to a change of law (including but not limited to any change in any
applicable treaty, statute, regulation or ruling or judicial or
administrative interpretation of any of the foregoing) after the date
hereof (or the date it became a Lender hereunder as provided in Section
12.06(b) hereof),
(ii) to any payment to any Lender hereunder in respect of a
Registered Loan (a "REGISTERED HOLDER"), unless such Registered Holder (or,
if such Registered Holder is not the beneficial owner of such Registered
Loan, the beneficial owner thereof) is, on the date hereof (or on the date
such Registered Holder becomes a Lender as provided in Section 12.06(b)
hereof), on the date of each payment hereunder and on the day after any
change in the Applicable Lending Office of such Lender, entitled to submit
a Form W-8, together with an annual certificate stating that (x) such
Registered Holder (or beneficial owner, as the case may be) is not a "bank"
within the meaning of Section 881(c)(3)(A) of
CREDIT AGREEMENT
- 50 -
the Code, is not a resident in a foreign country specified in a notice
published under Sections 871(h)(6) or 881(c)(6) of the Code and is not a
10% shareholder of the Company within the meaning of Section 881(c)(3)(B)
of the Code, unless such Registered Holder, or beneficial owner as the case
may be, is not so entitled by reason of a change of law (including but not
limited to any change in any applicable treaty, statute, regulation or
ruling, or judicial or administrative interpretation of any of the
foregoing) occurring after the date hereof (or the date the Registered
Holder or beneficial owner, as the case may be, became a Registered Holder
or beneficial owner) and (y) such Registered Holder (or beneficial owner,
as the case may be) shall promptly notify the Company if at any time, such
Registered Holder (or beneficial owner, as the case may be) determines that
it is no longer in a position to provide such certificate to the Company
(or any other form of certification adopted by the relevant taxing
authorities of the United States of America for such purposes), or
(iii) to any U.S. Taxes imposed solely by reason of the failure by such
non-U.S. Person (or, if such non-U.S. Person is not the beneficial owner of
the relevant Loan, such beneficial owner) to comply with (x) applicable
certification, information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections with the
United States of America of such non-U.S. Person (or beneficial owner, as
the case may be) if such compliance is required by statute or regulation of
the United States of America as a precondition to relief or exemption from
such U.S. Taxes and (y) this Section 5.07(a).
For the purposes of this Section 5.07(a), (A) "FORM 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America, (B) "FORM 4224" shall mean Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States) of the Department of the
Treasury of the United States of America and (C) "FORM W-8" shall mean Form W-8
(Certificate of Foreign Status of the Department of Treasury of the United
States of America). Each of the Forms referred to in the foregoing clauses (A),
(B) and (C) shall include such successor and related forms as may from time to
time be adopted by the relevant taxing authorities of the United States of
America to document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing or other authority, the Company
shall deliver to the Administrative Agent for delivery to such non-U.S. Person
evidence reasonably satisfactory to such Person of such deduction, withholding
or payment (as the case may be).
(c) If any Lender shall be entitled to compensation under this
Section 5.07, such Lender, within a reasonable time after becoming entitled to
such compensation, shall (unless otherwise required by a governmental authority
or as a result of any law, rule, regulation, order or similar directive
applicable to such Lender) designate a different Applicable Lending Office from
that initially selected by such Lender to which payments are to be made under
the Basic Documents, if such designation would avoid the need for (or reduce the
amount of) such
CREDIT AGREEMENT
- 51 -
compensation and would not, in the sole opinion of such Lender, be otherwise
disadvantageous to such Lender.
5.08 REPLACEMENT OF LENDERS. If any Lender defaults in its
obligation to make Loans under Section 2.01 hereof or requests compensation
pursuant to Section 5.01, 5.06 or 5.07 hereof, or any Lender's obligation to
make or Continue, or to Convert Loans of any Type into, any other Type of Loan
shall be suspended pursuant to Section 5.01 or 5.03 hereof (any such Lender so
defaulting or requesting such compensation or whose obligations are so
suspended, being herein called a "RELEVANT LENDER"), the Company, upon three
Business Days notice given when no Default shall have occurred and be
continuing, may require that such Relevant Lender transfer all of its right,
title and interest under this Agreement to any bank or other financial
institution identified by the Company that is satisfactory to the Administrative
Agent, in its discretion reasonably exercised (a "PROPOSED LENDER") if (i) such
Proposed Lender agrees to assume all of the obligations of such Relevant Lender
hereunder, and to purchase all of such Relevant Lender's Loans hereunder for
consideration equal to the aggregate outstanding principal amount of such
Relevant Lender's Loans, together with interest thereon to the date of such
purchase, and satisfactory arrangements are made for payment to such Relevant
Lender of all other amounts payable hereunder to such Relevant Lender on or
prior to the date of such transfer (including any fees accrued hereunder and any
amounts that would be payable under Section 5.05 hereof as if all of such
Relevant Lender's Loans were being prepaid in full on such date) and (ii) such
Relevant Lender has requested compensation pursuant to Section 5.01, 5.06 or
5.07 hereof, such Proposed Lender's aggregate requested compensation, if any,
paid pursuant to Section 5.01, 5.06 or 5.07 hereof with respect to such Relevant
Lender's Loans is lower than that of the Relevant Lender. Subject to the
provisions of Section 12.06(b) hereof, such Proposed Lender shall be a "Lender"
for all purposes hereunder. Without prejudice to the survival of any other
agreement of the Company hereunder, the agreements of the Company contained in
Sections 5.01, 5.06, 5.07 and 12 hereof (without duplication of any payments
made to such Relevant Lender by the company or the Proposed Lender) shall
survive for the benefit of such Relevant Lender under this Section 5.08 with
respect to the time prior to such replacement.
Section 6. GUARANTEE.
6.01 THE GUARANTEE. The Guarantor hereby guarantees to each Lender
and the Administrative Agent and their respective successors and assigns the
prompt payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Loans made by the Lenders to
the Company and all other amounts from time to time owing to the Lenders or the
Agent by the Company under this Agreement and by the Company under any of the
other Basic Documents, and all obligations of the Company to any Lender in
respect of any Interest Rate Protection Agreement, in each case strictly in
accordance with the terms thereof (such obligations being herein collectively
called the "GUARANTEED OBLIGATIONS"). The Guarantor hereby further agrees that
if the Company shall fail to pay in full when due (whether at stated maturity,
by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantor
will promptly pay the same, without any demand or notice whatsoever, and that in
the case of any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended
CREDIT AGREEMENT
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maturity, by acceleration or otherwise) in accordance with the terms of such
extension or renewal.
6.02 OBLIGATIONS UNCONDITIONAL. The obligations of the Guarantor
under Section 6.01 hereof are absolute and unconditional irrespective of the
value, genuineness, validity, regularity or enforceability of the obligations of
the Company under this Agreement or any other agreement or instrument referred
to herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor (other than payment in full of the
Guaranteed Obligations), it being the intent of this Section 6.02 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances. Without limiting the generality of the foregoing, it
is agreed that the occurrence of any one or more of the following shall not
alter or impair the liability of the Guarantor hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantor, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or any other agreement or instrument referred to herein or
therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or any other agreement or instrument referred to herein or therein shall be
waived or any other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Guarantor hereby expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against the
Company under this Agreement or any other agreement or instrument referred to
herein or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
6.03 REINSTATEMENT. The obligations of the Guarantor under this
Section 6 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Obligor in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise and the Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, fees of counsel) incurred by the
Administrative Agent or
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such Lender in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
6.04 SUBROGATION. The Guarantor hereby waives, until payment in
full of the Guaranteed Obligations, all rights of subrogation or contribution,
whether arising by contract or operation of law (including, without limitation,
any such right arising under the Bankruptcy Code) or otherwise by reason of any
payment by it pursuant to the provisions of this Section 6.
6.05 REMEDIES. The Guarantor agrees that, as between the Guarantor
and the Lenders, the obligations of the Company under this Agreement may be
declared to be forthwith due and payable as provided in Section 10 hereof (and
shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 10) for purposes of Section 6.01 hereof
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Company and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Company) shall forthwith
become due and payable by the Guarantor for purposes of said Section 6.01.
6.06 CONTINUING GUARANTEE. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
Section 7. CONDITIONS PRECEDENT.
7.01 EFFECTIVENESS. The effectiveness of this Agreement (and the
amendment and restatement of the Existing Credit Agreement to be effected
hereby) is subject to the receipt by the Administrative Agent of the following
documents, each of which shall be satisfactory to the Administrative Agent (and
to the extent specified below, to each Lender) in form and substance:
(a) CORPORATE DOCUMENTS. The following documents, each certified as
indicated below:
(i) for each of the Obligors, a copy of the charter (or
equivalent documents) certified as of a date reasonably close to the
Effective Date by the Secretary of State of such Obligor's
jurisdiction of incorporation (or, in the case of the Company, the
Guarantor or Xxxxxxx, certified copies of any amendments to such
charter since the date of the Existing Credit Agreement) and a
certificate from such Secretary of State dated as of a date reasonably
close to the Effective Date as to the good standing of and charter
documents filed by such Person;
(ii) for each of the Obligors, a certificate of the Secretary
or an Assistant Secretary of such Person, dated the Effective Date and
certifying (A) that attached thereto is a true and complete copy of
the by-laws of such Person as amended and in effect at all times from
the date on which the resolutions referred to in
CREDIT AGREEMENT
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clause (B) were adopted (or, in the case of the Company, the
Guarantor and Xxxxxxx, that there have not been any amendments to
their respective by-laws since the date of the Existing Credit
Agreement), (B) that attached thereto is a true and complete copy of
resolutions duly adopted by the board of directors of such Person
authorizing the execution, delivery and performance of such of the
Basic Documents to which such Person is or is intended to be a party
and the extensions of credit hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and
effect, (C) that the charter of such Person had not been amended since
the date of the certification thereto furnished pursuant to clause (i)
above, and (D) as to the incumbency and specimen signature of each
officer of such Person executing such of the Basic Documents to which
such Person is intended to be a party and each other document to be
delivered by such Person from time to time in connection therewith
(and the Administrative Agent and each Lender may conclusively rely on
such certificate until it receives notice in writing from such
Person); and
(iii) for each of the Obligors, a certificate of another
officer of such Person, dated the Effective Date, as to the incumbency
and specimen signature of the Secretary or Assistant Secretary, as the
case may be, of such Person at the time of execution of the
certificate referred to in clause (ii) above.
(b) OFFICER'S CERTIFICATE. A certificate of a senior officer or
Responsible Officer of the Guarantor, dated the Effective Date, to the
effect set forth in clauses (a) and (b) of Section 7.02 hereof.
(c) OPINIONS OF COUNSEL TO THE OBLIGORS. Opinions, dated the
Effective Date, of (i) the General Counsel of the Guarantor, substantially
in the form of Exhibit D-1 hereto and covering such other matters as the
Administrative Agent or any Lender may reasonably request (and each Obligor
hereby instructs such counsel to deliver such opinion to the Lenders and
the Administrative Agent) and (ii) Weil, Gotshal & Xxxxxx LLP, special New
York counsel to the Obligors, substantially in the form of Exhibit D-2
hereto and covering such other matters as the Administrative Agent or any
Lender may reasonably request (and each Obligor hereby instructs such
counsel to deliver such opinion to the Lenders and the Administrative
Agent).
(d) OPINION OF SPECIAL NEW YORK COUNSEL TO THE ADMINISTRATIVE AGENT.
An opinion, dated the Effective Date, of Milbank, Tweed, Xxxxxx & XxXxxx,
special New York counsel to the Administrative Agent, substantially in the
form of Exhibit E hereto.
(e) AZERTY ACQUISITION. Certified copies of the Purchase Agreement
and evidence that (i) the Purchase Agreement shall have been duly
authorized, executed and delivered by the parties thereto and remains in
full force and effect and has not been amended as of the Effective Date,
(ii) all material governmental approvals and material third-party consents
and approvals (if any) in connection with the Azerty Acquisition have been
obtained and remain in effect and all applicable waiting periods have
expired without any action being taken by any competent authority that
restricts, prevents or imposes materially adverse conditions upon the
making or consummation of the Azerty
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Acquisition and (iii) the Azerty Acquisition shall have been consummated in
accordance with the Purchase Agreement. In addition, the Administrative
Agent shall have received a copy of each agreement, certificate, opinion of
counsel and other material writing delivered by or on behalf of each party
to the Purchase Agreement in connection with the closing of the Azerty
Acquisition, and a letter from the Person delivering such opinion
authorizing reliance thereon by the Administrative Agent and the Lenders.
In addition, with respect to the Subsidiary Guarantors acquired in the
Azerty Acquisition, reports satisfactory to the Lenders listing the results
of filing, tax lien and judgment searches prepared by one or more firms
satisfactory to the Administrative Agent in each jurisdiction deemed
relevant by the Administrative Agent.
(f) SUBSIDIARY GUARANTEE AND SECURITY AGREEMENT. The Subsidiary
Guarantee and Security Agreement, duly executed and delivered by the
Subsidiary Guarantors. In addition, the Company shall have taken such
other action (including, without limitation, delivering to the
Administrative Agent, (i) Uniform Commercial Code (or equivalent Louisiana
statute) searches for each Subsidiary Guarantor for each jurisdiction in
which such Subsidiary Guarantor conducts its business or in which any of
its respective Properties are located (or otherwise as the Administrative
Agent may reasonably request) and (ii) for filing, appropriately completed
and duly executed copies of Uniform Commercial Code financing statements
(or equivalent Louisiana filings)) as the Administrative Agent shall have
requested in order to perfect the security interests created pursuant to
the Subsidiary Guarantee and Security Agreement.
(g) SECURITY AGREEMENT; PLEDGE OF SUBSIDIARY SHARES. The Security
Agreement, duly executed and delivered by the Company and the
Administrative Agent. In addition, the Company shall have delivered the
certificates representing 100% of the issued and outstanding shares of
capital stock of the Subsidiary Guarantors and 65% of the issued and
outstanding shares of capital stock of Azerty Mexico (in the case of each
of the Acquired Businesses, as purchased by the Company under the Purchase
Agreement) accompanied by undated stock powers executed in blank.
(h) ENVIRONMENTAL ASSESSMENT. An environmental assessment of all real Property
owned or leased by the Subsidiary Guarantors which will be covered by the
Mortgage referred to in Section 7.01(k) hereof in form and substance reasonably
satisfactory to the Majority Lenders.
(i) LITIGATION. A certificate of a senior officer of each of the
Company and each of the Acquired Businesses (or, in the case of Azerty
Mexico, from a senior officer of the Company on behalf of Azerty Mexico) to
the effect that there exists (i) no judgment, order, injunction or other
restraint issued or filed which prohibits the making of the Loans or the
consummation of the Azerty Acquisition, (ii) no action, suit, litigation,
or similar proceeding at law or in equity or by or before any court or
governmental or regulatory authority with respect to the Azerty Acquisition
or the financing thereof and (iii) no actions, suits or proceedings pending
or threatened with respect to any such party that could reasonably be
expected to have a Material Adverse Effect.
CREDIT AGREEMENT
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(j) FINANCINGS. Copies of the Receivables Financing Documents, as
executed and delivered by the parties thereto, and evidence that the
initial purchase of receivables thereunder shall have been consummated in
accordance with the terms thereof. In addition, the Administrative Agent
shall have received a copy of each agreement, certificate, opinion of
counsel and any other material writing delivered in by or on behalf of each
party to the Receivables Financing Documents and a letter from the Person
delivering such opinion authorizing reliance thereon by the Administrative
Agent and the Lenders.
(k) OTHER DOCUMENTS. Such other documents as the Administrative
Agent or any Lender or special New York counsel to the Administrative Agent
reasonably request.
7.02 INITIAL AND SUBSEQUENT EXTENSIONS OF CREDIT. The obligation of
the Lenders to make any Loan or otherwise extend any credit to either Obligor
upon the occasion of each borrowing or other extension of credit hereunder
(including the initial borrowings and continuation of the Term Loans and the
Revolving Credit Loans contemplated to occur on the Effective Date) is subject
to the further conditions precedent that, both immediately prior to the making
of such Loan or other extension of credit and also after giving effect thereto
and to the intended use thereof:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by each Obligor in
Section 8 hereof and in each other Basic Document to which such Obligor is
a party, shall be true and complete in all material respects on and as of
the date of the making of such Loan or other extension of credit (and after
giving effect thereto) with the same force and effect as if made on and as
of such date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date).
Each notice of borrowing or request for the issuance of a Letter of Credit by
the Company hereunder shall constitute a certification by the Company to the
effect set forth in the preceding sentence (both as of the date of such notice
or request and, unless the Company otherwise notifies the Administrative Agent
prior to the date of such borrowing or issuance, as of the date of such
borrowing or issuance).
Section 8. REPRESENTATIONS AND WARRANTIES. Each Obligor
represents and warrants to the Administrative Agent and the Lenders that:
8.01 CORPORATE EXISTENCE. Each Obligor and its Subsidiaries
(including, for purposes of this Section 8.01, the Acquired Businesses): (a) is
a corporation, partnership or other entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization; (b) has
all requisite corporate or other power, and has all material governmental
licenses, authorizations, consents and approvals necessary to own its assets and
carry on its business as now being or as proposed to be conducted; and (c) is
qualified to do business and is in good standing in all jurisdictions in which
the nature of the business conducted by it makes
CREDIT AGREEMENT
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such qualification necessary and where failure so to qualify could (either
individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect.
8.02 FINANCIAL CONDITION. (a) The Obligors have heretofore
furnished to each of the Lenders the following:
(i) a consolidated pro forma balance sheet of the Guarantor and its
Subsidiaries (giving effect to the Azerty Acquisition) and the related pro
forma statements of income, retained earnings and cash flows of the
Guarantor and its Subsidiaries (giving effect to the Azerty Acquisition) as
at December 31, 1997 and
(ii) the consolidated balance sheet of the Guarantor and its
Subsidiaries as at December 31, 1997 and the related consolidated
statements of income, changes in stockholders' investment and cash flows of
the Guarantor and its Subsidiaries for the fiscal year ended on said date,
with the opinion thereon of Ernst & Young LLP.
(b) The financial statements referred to in clause (a)(i), including
the projections contained therein fairly present, in all material respects, the
Company's expectations as to the matters covered thereby as of their respective
dates, were prepared in good faith and based on reasonable assumptions as to all
factual and legal matters material to the estimates therein. The financial
statements referred to in clause (a)(ii) above fairly present, in all material
respects the consolidated financial position of the Guarantor and its
Subsidiaries as at said dates and the consolidated results of their respective
operations for the fiscal years and periods ended on said dates, in accordance
with generally accepted accounting principles and practices applied on a
consistent basis. None of the Guarantor or its Subsidiaries or any of the
Acquired Businesses has on the date hereof any material contingent liabilities,
liabilities for taxes, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments, except as referred to or
reflected or provided for in said balance sheets as at said dates. Since
December 31, 1997, there has been no material adverse change in the consolidated
financial condition, operations, business or prospects taken as a whole of the
Guarantor and its Subsidiaries from that set forth in said financial statements
as at said respective dates other than the Azerty Acquisition.
8.03 LITIGATION. Except as disclosed to the Lenders in Schedule V
hereto, there are no legal or arbitral proceedings, or any proceedings by or
before any governmental or regulatory authority or agency, now pending or (to
the knowledge of any Obligor) threatened against either Obligor or any of its
Subsidiaries that, if adversely determined, could (either individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect.
8.04 NO BREACH. None of the making or performance of this Agreement
and the other Transaction Documents, the consummation of the transactions herein
and therein contemplated or compliance with the terms and provisions hereof and
thereof will conflict with or result in a breach of, or require any consent not
already obtained under, the charter or by-laws of either Obligor or any of its
Subsidiaries, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
material agreement or instrument to which either Obligor or any such Subsidiary
is a party or by which any of them or any of their Property is bound or to which
any of them is subject, or constitute a
CREDIT AGREEMENT
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default under any such agreement or instrument, or (except for the Liens created
pursuant to the Security Documents) result in the creation or imposition of any
Lien upon any Property of either Obligor or any such Subsidiary pursuant to the
terms of any such agreement or instrument.
8.05 ACTION. Each Obligor and each of its Subsidiaries has all
necessary corporate power, authority and legal right to execute, deliver and
perform its obligations hereunder and under each of the other Transaction
Documents to which it is a party; the execution, delivery and performance by
each Obligor and each such Subsidiary of each of the Transaction Documents to
which it is a party have been duly authorized by all necessary corporate action
on its part (including, without limitation, any required shareholder approvals);
and this Agreement has been duly and validly executed and delivered by such
Obligor and (assuming the due authorization, execution and delivery thereof by
the Administrative Agent, the Lenders and the other parties (other than an
Obligor) thereto) constitutes, and each of the other Transaction Documents to
which it is a party when executed and delivered by such Obligor or such
Subsidiary will constitute, its legal, valid and binding obligation, enforceable
against such Obligor and/or such Subsidiary, as the case may be, in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the rights
of creditors generally and except as such enforceability may be limited by the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
8.06 APPROVALS. Other than the Notification and Report Form in
respect of the Azerty Acquisition furnished to the Department of Justice and the
Federal Trade Commission pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 (which Notification and Report Form has been duly given
and all applicable waiting periods have been terminated without any action
having been taken by any competent authority that restricts, prevents or imposes
conditions upon the Azerty Acquisition), no authorizations, approvals or
consents not already duly obtained of, and no filings or registrations with, any
governmental or regulatory authority or agency, or any securities exchange, are
necessary for the execution, delivery or performance by either Obligor or any of
its Subsidiaries of the Transaction Documents to which it is a party or for the
legality, validity or enforceability hereof or thereof, except for (i) filings
and recordings in respect of the Liens created pursuant to the Security
Documents and (ii) immaterial state and municipal licenses such as business
licenses, food sales establishment licenses, required registrations with state
revenue departments and other similar ministerial licenses.
8.07 USE OF CREDIT. Neither Obligor nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock. Neither the making of any of the Loans
hereunder nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulation U or X.
8.08 ERISA. Each Plan and, to the knowledge of the Company, each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no event
or condition has occurred and is continuing as to which either Obligor would be
under an obligation to furnish a report to the Lenders under
CREDIT AGREEMENT
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Section 9.01(e) hereof. As of the date of this Agreement, and for the year
preceding the date of this Agreement, neither Obligor nor, prior to the Azerty
Acquisition, any Acquired Business has contributed to any Multiemployer Plan.
8.09 TAXES. Except as set forth on Schedule VI hereto, the
Guarantor and its Subsidiaries are members of an affiliated group of
corporations filing consolidated returns for Federal income tax purposes, of
which the Guarantor is the "common parent" (within the meaning of Section 1504
of the Code) of such group. Except as set forth on Schedule VI hereto, the
Guarantor and its Subsidiaries have filed all Federal income tax returns and all
other material tax returns that are required to be filed by them and have paid
all taxes due pursuant to such returns or pursuant to any assessment received by
the Guarantor or any such Subsidiary, except for any such tax the payment of
which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained, provided that except to the extent
set forth in Schedule VI hereto no such tax is being contested on the Effective
Date. The charges, accruals and reserves on the books of the Guarantor and its
Subsidiaries in respect of taxes and other governmental charges are, in the
opinion of the Guarantors, adequate. Except as set forth in Schedule VI hereto,
neither the Guarantor nor any of its Subsidiaries has given or been requested to
give a waiver of the statute of limitations relating to the payment of any
Federal, state, local and foreign taxes or other impositions.
8.10 INVESTMENT COMPANY ACT. Neither the Guarantor nor any of its
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.
8.11 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Guarantor nor
any of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8.12 MATERIAL AGREEMENTS AND LIENS.
(a) Part A of Schedule I hereto are a complete and correct list of
each credit agreement, loan agreement, indenture, purchase agreement, guarantee,
letter of credit or other arrangement providing for or otherwise relating to
Indebtedness of the Guarantor and its Subsidiaries outstanding on the date
hereof, or that after giving effect to the Azerty Acquisition will be
outstanding on the Effective Date, and the aggregate principal or face amount
outstanding or that may become outstanding under each such arrangement is
correctly described in Part A of said Schedule I.
(b) Part B of Schedule I hereto is a complete and correct list of
each Lien securing Indebtedness of any Person outstanding on the date hereof, or
that (after giving effect to the transactions contemplated to occur on or before
the Effective Date) will be outstanding on the Effective Date (other than the
Liens created in connection with this Agreement), the aggregate principal or
face amount of which equals or exceeds (or may equal or exceed) $10,000 and
covering any Property of the Guarantor or any of its Subsidiaries, and the
aggregate Indebtedness secured (or which may be secured) by each such Lien and
the Property covered by each such Lien is correctly described in Part B of said
Schedule I.
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8.13 ENVIRONMENTAL MATTERS. Except as set forth on Schedule II
hereto,
(a) Each of the Guarantor and its Subsidiaries (including for all
purposes of this Section 8.13, the Acquired Businesses) has obtained all
environmental, health and safety permits, licenses and other authorizations
required under all Environmental Laws (collectively, "ENVIRONMENTAL
PERMITS") to carry on its business as now being or as proposed to be
conducted, except to the extent failure to have any such Environmental
Permit would not (either individually or in the aggregate) have a Material
Adverse Effect. Each of such Environmental Permits is in full force and
effect and each of the Guarantor and its Subsidiaries is in compliance with
the terms and conditions thereof, and is also in compliance with all other
applicable Environmental Laws, decrees, judgments, and injunctions, except
to the extent failure to comply therewith would not (either individually or
in the aggregate) have a Material Adverse Effect.
(b) No notice, notification, demand, request for information,
citation, summons or order is pending, no complaint is pending, no penalty
has been assessed and is outstanding and no investigation or review is
pending or, to the Guarantor's knowledge, threatened by any governmental or
other entity with respect to any alleged failure by the Guarantor or any of
its Subsidiaries to have any Environmental Permit or with respect to any
generation, treatment, storage, recycling, transportation or any Release of
any Hazardous Materials generated by the Guarantor or any of its
Subsidiaries that could reasonably be expected to result in a liability in
excess of $10,000.
(c) Neither the Guarantor nor any of its respective Subsidiaries
owns, operates or leases a treatment, storage or disposal facility
requiring a permit under the Resource Conservation and Recovery Act of
1976, as amended, or under any comparable state or local statute.
(d) There is not now nor, to the Guarantor's knowledge, has there
been in the past any PCBs, asbestos containing materials ("ACMS"), surface
impoundments or underground storage tanks at any real Property now or, to
the Guarantor's knowledge, previously owned, operated or leased by the
Guarantor or any of its Subsidiaries, the presence of which could
reasonably be expected to result in a liability in excess of $10,000.
(e) No Hazardous Materials have been otherwise Released at, on or
under any site or facility now or previously owned, operated or leased by
the Guarantor or any of its Subsidiaries that would (either individually or
in the aggregate) have a Material Adverse Effect.
(f) Neither the Guarantor nor any of its Subsidiaries has received a
notice alleging that it is a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), listed for possible inclusion on the National
Priorities List ("NPL") by the Environmental Protection Agency in the
Comprehensive Environmental Response and Liability Information System, as
provided for by 40 C.F.R. Section 300.5 ("CERCLIS"), or on any similar
state or local list.
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(g) No written notification of a Release of a Hazardous Material has
been filed by or on behalf of the Guarantor or any of its Subsidiaries and
no site or facility now or, to the Guarantor's knowledge, previously owned,
operated or leased by the Guarantor or any of its Subsidiaries is listed or
proposed for listing on the NPL, CERCLIS or any similar state list of sites
requiring investigation or clean-up.
(h) No Liens exist under or pursuant to any Environmental Laws on any
real Property owned or operated by the Guarantor or any of its
Subsidiaries, and no government action has been taken or is in process that
could subject any such site or facility to such Liens and, to the best
knowledge of the Guarantor, neither the Guarantor nor any of its
Subsidiaries would be required to place any notice or restriction relating
to the presence of Hazardous Materials at any site or facility owned by it
in any deed to the real Property on which such site or facility is located.
(i) All environmental investigations, studies, audits, tests, reviews
or other analyses conducted by or that are in the possession of the
Guarantor or any of its Subsidiaries in relation to facts, circumstances or
conditions at or affecting any site or facility now or previously owned,
operated or leased by the Guarantor or any of its Subsidiaries and that
could result in a Material Adverse Effect have been made available to the
Lenders.
8.14 CAPITALIZATION.
On the date hereof, the authorized capital stock of the Company
consists of an aggregate of 890,000 shares of $1.00 par value common stock. All
of the issued and outstanding shares of the Company on such date and at such
time will be duly and validly issued, fully paid and nonassessable. As of such
date and time, all of such shares will be owned beneficially and of record by
the Guarantor and (x) there will be no outstanding Equity Rights with respect to
the Company and (y) there will be no outstanding obligations of the Company or
the Guarantor or any of their Subsidiaries to repurchase, redeem, or otherwise
acquire any shares of capital stock of the Company nor will there be any
outstanding obligations of the Company or the Guarantor or any of their
Subsidiaries to make payments to any Person, such as "phantom stock" payments,
where the amount thereof is calculated with reference to the fair market value
or equity value of the Company or any of its Subsidiaries.
8.15 SUBSIDIARIES, ETC.
(a) Part A of Schedule III hereto sets forth all Subsidiaries of the
Guarantor as of the date hereof and after giving effect to the Azerty
Acquisition.
(b) Set forth in Part B of Schedule III hereto is a complete and
correct list of all Investments held by the Guarantor or any of its Subsidiaries
on the date hereof and after giving effect to the Azerty Acquisition, and, for
each such Investment, (x) the identity of the Person or Persons holding such
Investment and (y) the nature of such Investment. Except as disclosed in
Schedule III hereto, each of the Guarantor or such Subsidiary, as the case may
be, owns on the date hereof, free and clear of all Liens (other than Liens
permitted under Section 9.06 hereof) all such Investments.
CREDIT AGREEMENT
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8.16 TITLE TO ASSETS. Except as disclosed in the footnote under the
heading "Real Property Interests" in Schedule IV hereto, each of the Guarantor
and its Subsidiaries and each Acquired Business owns and has on the date hereof
good and marketable title (subject only to Liens permitted by Section 9.06
hereof) to the Properties shown to be owned in the most recent financial
statements referred to in Section 8.02 hereof (other than Properties that are
disposed of in the ordinary course of business or otherwise permitted to be
disposed of pursuant to Section 9.05 hereof or, in the case of the Acquired
Businesses, that are not material to the operation and conduct of the Guarantor
and its Subsidiaries). Each of the Guarantor and its Subsidiaries and each
Acquired Business owns and has on the date hereof good and marketable title to,
or valid leasehold interests in, and enjoys peaceful and undisturbed possession
of, all Properties (subject only to Liens permitted by Section 9.06 hereof) that
are necessary for the operation and conduct of its businesses.
8.17 TRUE AND COMPLETE DISCLOSURE. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Obligors to the Administrative Agent or any Lender in connection
with the negotiation, preparation or delivery of this Agreement and the other
Basic Documents or included herein or therein or delivered pursuant hereto or
thereto (including, without limitation, the Information Memorandum), when taken
as a whole, do not contain any untrue statement of material fact or omit to
state any material fact necessary to make the statements herein or therein, in
light of the circumstances under which they were made, not misleading. All
written information furnished after the date hereof by the Guarantor or any of
its Subsidiaries to the Administrative Agent and the Lenders in connection with
this Agreement and the other Basic Documents and the transactions contemplated
hereby and thereby will be true, complete and accurate in every material
respect, or (in the case of projections) based on estimates deemed in good faith
to be reasonable, on the date as of which such information is stated or
certified. There is no fact known to any Obligor that could reasonably be
expected to have a Material Adverse Effect that has not been disclosed herein,
in the other Basic Documents or in a report, financial statement, exhibit,
schedule, disclosure letter or other writing furnished to the Lenders for use in
connection with the transactions contemplated hereby or thereby.
8.18 REAL PROPERTY. Set forth on Schedule IV hereto is a list, as
of the date hereof and after giving effect to the Azerty Acquisition, of all of
the real Property interests held by the Guarantor and its Subsidiaries,
indicating in each case whether the respective Property is owned or leased, the
identity of the owner or lessee and the location of the respective Property.
8.19 SECURITY DOCUMENTS. The Security Documents create, as security
for the obligations purported to be secured thereby, a valid and enforceable
perfected interest in and Lien on all of the Properties covered thereby in favor
of the Administrative Agent, superior to and prior to the right of all third
Persons and subject to no other Liens (other than Liens permitted under Section
9.06 hereof).
8.20 YEAR 2000. The Company believes that any reprogramming
required to permit the proper functioning in and following the year 2000 of the
Company's computer systems and any necessary equipment of the Company containing
embedded microchips and the testing of all such systems and equipment as so
reprogrammed will be completed in a manner and to the extent that any failure by
the Company to complete any such reprogramming or testing
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could not reasonably be expected to have a Material Adverse Effect.
Section 9. COVENANTS OF THE OBLIGORS. Each Obligor covenants and
agrees with the Lenders and the Administrative Agent that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by the Obligors hereunder:
9.01 FINANCIAL STATEMENTS, ETC. The Guarantor and the Company shall
deliver to each of the Lenders:
(a) as soon as available and in any event within 45 days after the
end of the first three quarterly fiscal periods of each fiscal year of the
Guarantor, consolidated statements of income, retained earnings and cash
flows of the Guarantor and its Subsidiaries for such period and for the
period from the beginning of the respective fiscal year to the end of such
period, and the related consolidated balance sheet as at the end of such
period, setting forth in each case in comparative form the corresponding
consolidated figures for the corresponding periods in the preceding fiscal
year, accompanied by a certificate of a Responsible Officer of the
Guarantor, which certificate shall state that said consolidated financial
statements present fairly, in all material respects, the consolidated
financial position and results of operations of the Guarantor and its
Subsidiaries, in each case in accordance with generally accepted accounting
principles, consistently applied, as at the end of, and for, such period
(subject to normal year-end audit adjustments and excluding any footnotes
thereto);
(b) as soon as available and in any event within 90 days after the
end of each fiscal year of the Guarantor, audited consolidated statements
of income, retained earnings and cash flows of the Guarantor and its
Subsidiaries, for such fiscal year and the related audited consolidated
balance sheet as at the end of such fiscal year, setting forth in each case
in comparative form (i) the corresponding consolidated figures for the
preceding fiscal year and (ii) the corresponding consolidated projected
figures contained in the business plan furnished under Section 9.01(f)
hereof in respect of such fiscal year (or in the quarterly business plan of
the Guarantor heretofore delivered to the Administrative Agent) and
accompanied by an opinion thereon of independent certified public
accountants of recognized national standing (the "ACCOUNTANTS"), which
opinion shall state that said consolidated financial statements present
fairly, in all material respects, the consolidated financial position and
results of operations of the Guarantor and its Subsidiaries as at the end
of, and for, such fiscal year in accordance with generally accepted
accounting principles, and a certificate of such accountants stating that,
in making the examination necessary for their opinion, they obtained no
knowledge, except as specifically stated, of any Default under any of
Sections 9.09 through 9.13 hereof;
(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports and other material
reports, if any, which either the Guarantor or the Company shall have filed
with the Commission (or any governmental agency substituted therefor) or
any national securities exchange;
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(d) promptly upon the mailing thereof to the shareholders of either
the Guarantor or the Company generally, copies of all financial statements,
reports and proxy statements so mailed;
(e) as soon as possible, and in any event within 21 days after either
the Guarantor or the Company knows or has reason to believe that any of the
events or conditions specified below with respect to any Plan or
Multiemployer Plan has occurred or exists, a statement signed by a
Responsible Officer of the Company setting forth details respecting such
event or condition and the action, if any, that the Guarantor or the
Company, as the case may be, or its ERISA Affiliate proposes to take with
respect thereto (and a copy of any report or notice required to be filed
with or given to PBGC by such Obligor or an ERISA Affiliate with respect to
such event or condition):
(i) any reportable event, as defined in Section 4043(b) of
ERISA and the regulations issued thereunder, with respect to a Plan,
as to which PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of the
occurrence of such event (PROVIDED that a failure to meet the minimum
funding standard of Section 412 of the Code or Section 302 of ERISA,
including, without limitation, the failure to make on or before its
due date a required installment under Section 412(m) of the Code or
Section 302(e) of ERISA, shall be a reportable event regardless of the
issuance of any waivers in accordance with Section 412(d) of the
Code); and any request for a waiver under Section 412(d) of the Code
for any Plan;
(ii) the distribution under Section 4041 of ERISA of a notice
of intent to terminate any Plan or any action taken by either the
Guarantor or the Company or an ERISA Affiliate to terminate any Plan
if the assets of such Plan are insufficient to provide in full for all
of the benefit liabilities under such Plan as contemplated by
Section 4041(b) of ERISA;
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by either the
Guarantor or the Company any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC with
respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer
Plan by either Obligor or any ERISA Affiliate that results in
liability under Section 4201 or 4204 of ERISA (including the
obligation to satisfy secondary liability as a result of a purchaser
default) or the receipt by either the Guarantor or the Company or any
ERISA Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA
or that it intends to terminate or has terminated under Section 4041A
of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against either the Guarantor or the Company or any
ERISA Affiliate to enforce Section 515 of ERISA, which proceeding is
not dismissed within 30 days;
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(vi) the adoption of an amendment to any Plan that, pursuant
to Section 401(a)(29) of the Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such
Plan is a part if either the Guarantor or the Company or an ERISA
Affiliate fails to timely provide security to the Plan in accordance
with the provisions of said Sections; and
(vii) the existence of any event or circumstance which may
reasonably be expected to constitute grounds for either the Guarantor
or the Company or any ERISA Affiliate to incur liability under Section
4062, 4063, 4064 or 4069 of ERISA;
(f) no later than 15 days prior to the end of the fiscal year of the
Company, an annual business plan for the Company and its Subsidiaries
covering the next succeeding year, in form and substance reasonably
satisfactory to the Administrative Agent (and, if reasonably requested by
the Majority Lenders prior to such date, an annual business plan for the
succeeding five-year period);
(g) as soon as available after the end of each fiscal year of the
Company, and at such other times as the Administrative Agent or the
Majority Revolving Credit Lenders may reasonably request, a report of the
Accountants as at the end of such annual period which report shall indicate
that, based upon a review by the Accountants of the Receivables other than
those transferred in connection with the Receivables Financing (including,
without limitation, verification with respect to the amount, aging,
identity and credit of the respective account debtors and the billing
practices of the Company and the Subsidiary Guarantors) and Inventory
(including, without limitation, verification as to the value, location and
respective types), the value of such Receivables and Inventory;
(h) promptly after becoming aware thereof, written notice of (i) the
assertion of any Environmental Claim by any Person against, or with respect
to the activities of, the Guarantor or any of its Subsidiaries and notice
of any alleged violation of or non-compliance with any Environmental Laws
or any permits, licenses or authorizations, other than any Environmental
Claims or alleged violations which, if adversely determined, would not have
a Material Adverse Effect, (ii) any Environmental Claim, inquiry,
proceeding, investigation, or other action, including a notice from any
governmental authority of potential environmental liability, or any
Federal, state or local environmental agency or board, that involves any
collateral security for the Loans or the Lenders' rights with respect to
any such collateral security, and (iii) any Release of a non-de minimus
quantity of Hazardous Materials at any site or facility of the Guarantor or
any Subsidiary;
(i) promptly after either the Guarantor or the Company knows or has
reason to believe that any Default has occurred, a notice of such Default
describing the same in reasonable detail and, together with such notice or
as soon thereafter as reasonably possible, a description of any action that
the Guarantor or the Company, as the case may be, has taken or proposes to
take with respect thereto; and
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(j) from time to time such other information regarding the financial
condition, operations, business or prospects of the Guarantor or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan
and any reports or other information required to be filed under ERISA) as
any Lender or the Administrative Agent may reasonably request.
The Guarantor will furnish to each Lender, at the time it furnishes
each set of financial statements pursuant to paragraph (a) or (b) above, a
certificate of a Responsible Officer of the Company (i) to the effect that, to
the best of such Responsible Officer's knowledge, no Default has occurred and is
continuing (or, if any Default has occurred and is continuing, describing the
same in reasonable detail and describing any action that either the Guarantor or
the Company has taken or proposes to take with respect thereto) and (ii) setting
forth in reasonable detail the computations necessary to determine whether the
Guarantor and the Company are in compliance with Sections 9.09 through 9.13
(inclusive) as of the end of the respective quarterly fiscal period or fiscal
year.
9.02 LITIGATION. Promptly upon becoming aware thereof, the Company
(for itself and on behalf of the Guarantor and its Subsidiaries) will promptly
give to each Lender notice of all legal or arbitral proceedings, and of all
proceedings by or before any governmental or regulatory authority or agency, and
any material development in respect of such legal or other proceedings,
affecting the Guarantor or any of its Subsidiaries, except proceedings that, if
adversely determined, could not (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
9.03 EXISTENCE, ETC. The Guarantor will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material
rights, privileges, licenses and franchises (PROVIDED that nothing in this
Section 9.03 shall prohibit any transaction expressly permitted under
Section 9.05 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure
to comply with such requirements could (either individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect;
(c) pay and discharge all material taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or
on any of its Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of which is
being contested in good faith and by proper proceedings and against which
adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its business in
good working order and condition, ordinary wear and tear excepted;
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(e) keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting
principles consistently applied; and
(f) permit representatives of any Lender or the Administrative Agent
upon reasonable prior notice and, during normal business hours, to examine,
copy and make extracts from its books and records, to inspect any of its
Properties, and to discuss its business and affairs with its officers and
independent certified public accountants, all to the extent reasonably
requested by such Lender or the Administrative Agent (as the case may be).
9.04 INSURANCE. The Guarantor will, and will cause each of its
Subsidiaries to, keep insured by financially sound and reputable insurers all
Property of a character usually insured by corporations engaged in the same or
similar business similarly situated against loss, damage and liability of the
kinds and in the amounts customarily insured against by such corporations.
Such insurance shall be written by financially responsible companies
selected by the Company, duly licensed to do business in the states in which the
relevant facilities are located and having an A. M. Best rating of "A-" or
better and being in a financial size category of VIII or larger, or by other
companies reasonably acceptable to the Administrative Agent. The policies for
any casualty insurance required hereunder shall either name or contain an
endorsement naming the Administrative Agent as first mortgagee and loss payee
under a first mortgage clause or endorsement without contribution substantially
equivalent to the New York standard first mortgage clause of endorsement. Each
policy referred to in this Section 9.04 shall provide that it will not be
canceled or reduced, or allowed to lapse without renewal, except after not less
than 30 days' notice to the Administrative Agent and shall also provide that the
interests of the Administrative Agent and the Lenders shall not be invalidated
by any act or negligence of the Obligor or any Person having an interest in any
Property covered by a Mortgage nor by occupancy or use of any such Property for
purposes more hazardous than permitted by such policy nor by any foreclosure or
other proceedings relating to such Property and shall otherwise be in form and
substance satisfactory to each Lender. The Company will advise the
Administrative Agent promptly of any policy cancellation, reduction or
amendment.
By October 31 of each year, the Company will deliver to the
Administrative Agent the certificates of insurance evidencing that all insurance
required to be maintained by the Company hereunder will be in effect for the 12
months beginning after the immediately succeeding November 1, subject only to
the payment of premiums as they become due. The Company will not obtain or
carry separate insurance concurrent in form or contributing in the event of loss
with that required by this Section 9.04 unless the Administrative Agent, on
behalf of the Lenders, is named as first mortgagee and loss payee as provided
herein. The Company will immediately notify the Administrative Agent whenever
any such separate insurance is obtained and shall deliver to the Administrative
Agent the certificates evidencing the same.
Without limiting the obligations of the Company under the foregoing
provisions of this Section 9.04, in the event the Company shall fail to maintain
in full force and effect insurance as required by the foregoing provisions of
this Section 9.04, then the Administrative
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Agent may, but shall have no obligation so to do, procure insurance covering the
interests of the Lenders and the Administrative Agent in such amounts and
against such risks as the Administrative Agent (or the Majority Lenders) shall
deem appropriate, and the Company shall reimburse the Administrative Agent in
respect of any premiums paid by the Administrative Agent in respect thereof.
9.05 PROHIBITION OF FUNDAMENTAL CHANGES.
(a) The Guarantor will not, nor will it permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution).
(b) The Guarantor will not, nor will it permit any of its
Subsidiaries to, acquire any business or Property from, or capital stock of, or
be a party to any acquisition of, any Person except for (i) the Azerty
Acquisition, (ii) purchases of inventory and other Property to be sold or used
in the ordinary course of business, (iii) Investments permitted under
Section 9.08 hereof, (iv) Capital Expenditures and (v) Permitted Acquisitions,
PROVIDED that, in the case of clause (v), after giving effect to any such
Permitted Acquisition (including after giving Pro Forma Effect), no Default
shall have occurred and be continuing.
(c) The Guarantor will not, nor will it permit any of its
Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its business or Property,
whether now owned or hereafter acquired, including, without limitation,
receivables and leasehold interests, but excluding (i) obsolete or worn-out
Property, tools or equipment no longer used or useful in its business, (ii) any
inventory or other Property sold or disposed of in the ordinary course of
business and on ordinary business terms, (iii) any Part A Property sold or
disposed of for fair value, (iv) any Part B Property sold or disposed of within
one year prior to or after the Disposition of any Part A Property located in the
same geographical area if the proceeds thereof are applied as provided in
Section 2.10(d) hereof, (v) shares in United Business Computers, Inc. to be
transferred as described in Schedule III hereto and (vi) other Properties sold
for fair value, PROVIDED that at least 75% of the proceeds of each such sale
shall be received in cash and the aggregate Net Available Proceeds received from
the sale of such Properties and all other Properties sold pursuant to this
clause (vi) shall not exceed $15,000,000.
(d) Notwithstanding the foregoing provisions of this Section 9.05:
(i) any Subsidiary of the Company may be merged or consolidated
with or into: (i) the Company if the Company shall be the continuing or
surviving corporation or (ii) any other such Subsidiary; PROVIDED that if
any such transaction shall be between a Subsidiary and a Wholly-Owned
Subsidiary, the Wholly-Owned Subsidiary shall be the continuing or
surviving corporation;
(ii) any Subsidiary of the Company may sell, lease, transfer or
otherwise dispose of any or all of its Property (upon voluntary liquidation
or otherwise) to the Company or a Wholly-Owned Subsidiary of the Company;
CREDIT AGREEMENT
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(iii) the Company and its Subsidiaries may sell or discount, in each
case without recourse and in the ordinary course of business, receivables
more than 90 days overdue and arising in the ordinary course of business,
but only in connection with the compromise or collection thereof consistent
with customary industry practice (and not as part of any bulk sale or
financing of receivables);
(iv) the Company and its Subsidiaries may transfer condemned
Property to the respective governmental authority or agency that has
condemned the same (whether by deed in lieu of condemnation or otherwise),
and may transfer Properties that have been subject to a casualty to the
respective insurer (or its designee) of such Property as part of an
insurance settlement;
(v) the Company and its Subsidiaries may license or sublicense
software, trademarks, and other intellectual property in the ordinary
course of business which do not materially interfere with the business of
the Company or any Subsidiary;
(vi) the Company and its Subsidiaries may enter into consignment
arrangements (as consignor or consignee) or similar arrangements for the
sale of goods in the ordinary course of business and consistent with the
past practices of the Company and its Subsidiaries; and
(vii) the Company and its Subsidiaries may transfer Receivables in
connection with the Receivables Financing.
9.06 LIMITATION ON LIENS. The Guarantor will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
(b) Liens in existence on the date hereof and (i) listed in Part B of
Schedule I hereto or (ii) listed in any policy of title insurance delivered
hereunder or under the Existing Credit Agreement;
(c) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if, unless the amount thereof is not
material with respect to it or its financial condition, adequate reserves
with respect thereto are maintained on the books of the Guarantor or the
affected Subsidiaries, as the case may be, in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's or other like Liens arising in the ordinary course
of business that are not overdue for a period of more than 30 days or that
are being contested in good faith and by appropriate proceedings and Liens
securing judgments but only to the extent for an amount and for a period
not resulting in an Event of Default under Section 10(h) hereof;
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(e) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and encumbrances
consisting of zoning restrictions, easements, licenses, restrictions on the
use of Property, encroachments, protrusions or minor imperfections in title
thereto that, in the aggregate, are not material in amount, and that do not
in any case materially detract from the value of the Property subject
thereto or materially interfere with the ordinary conduct of the business
of the Company or any of its Subsidiaries;
(h) Liens on Property of any corporation that becomes a Subsidiary of
the Guarantor after the Effective Date; PROVIDED that such Liens are in
existence at the time such corporation becomes a Subsidiary of the
Guarantor and were not created in anticipation thereof;
(i) Liens upon Property acquired after the date hereof (by purchase,
construction or otherwise) by the Company or any of its Subsidiaries, each
of which Liens either (A) existed on such Property before the time of its
acquisition and was not created in anticipation thereof or (B) was created
within 120 days of the acquisition or completion of construction of such
Property solely for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost (including the cost of
construction) of such Property; PROVIDED that (i) no such Lien shall extend
to or cover any Property of the Company or such Subsidiary other than the
Property so acquired and improvements thereon and (ii) the principal amount
of Indebtedness secured by any such Lien shall at no time exceed 100% of
the fair market value (as determined in good faith by a Responsible Officer
of the Company) of such Property at the time it was acquired (by purchase,
construction or otherwise);
(j) Liens in respect of Capital Lease Obligations to the extent
permitted by Section 9.07 hereof and Liens arising under any equipment,
furniture or fixtures leases or Property consignments to the Guarantor or
any Subsidiary for which the filing of a precautionary financing statement
is permitted under Section 5.02 of the Security Agreement or Section 6.02
of the Subsidiary Guarantee and Security Agreement;
(k) licenses, leases or subleases granted to others in the ordinary
course of business not materially interfering with the conduct of the
business of the Company and its Subsidiaries taken as a whole;
(l) statutory and contractual landlords' liens under leases to which
the Company or any of its Subsidiaries is a party;
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(m) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement;
(n) Liens in favor of a banking institution arising as a matter of
law encumbering deposits (including the right of set-off) held by such
banking institutions incurred in the ordinary course of business and which
are within the general parameters customary in the banking industry;
(o) Liens in favor of customs and revenue authorities arising as a
matter of law to secure the payment of customs' duties in connection with
the importation of goods;
(p) Liens (if any) created by the Receivables Company in connection
with the Receivables Financing; and
(q) any extension, renewal or replacement of the foregoing, PROVIDED,
HOWEVER, that the Liens permitted hereunder shall not be spread to cover
any additional Indebtedness or Property (other than a substitution of like
Property).
9.07 INDEBTEDNESS. The Guarantor will not, nor will it permit any
of its Subsidiaries to, create, incur or suffer to exist any Indebtedness
except:
(a) Indebtedness to the Lenders hereunder and under the other Basic
Documents;
(b) the Guarantor Note and other Indebtedness outstanding on the date
hereof and listed in Schedule I hereto and any refinancing, refunding,
renewal or extension thereof, PROVIDED the principal amount thereof is not
materially increased after the date hereof and no Default exists at the
time of such refinancing, refunding, renewal or extension or would result
therefrom;
(c) Indebtedness of any Wholly-Owned Subsidiary of the Company (i) to
the Company in an aggregate unpaid principal amount of not more than
$25,000,000, in the case of each of Xxxxxxx and Azerty, or $1,500,000, in
the case of any other such Wholly-Owned Subsidiary or (ii) to any other
Wholly-Owned Subsidiary of the Company;
(d) Indebtedness of the Company to the Guarantor or to any
Wholly-Owned Subsidiary of the Guarantor provided that all such
Indebtedness is subordinate on terms satisfactory to the Majority Lenders
to the Indebtedness to the Lenders hereunder and under the other Basic
Documents and is evidenced by an intercompany promissory note which is
pledged to the Administrative Agent as collateral;
(e) Indebtedness of the Company or any Subsidiary as a guarantor of
the lessee under any lease pursuant to which the Company or any Subsidiary
of the Company is a lessee so long as such lease is otherwise permitted
hereunder;
(f) Indebtedness incurred on or after the Revolving Credit Commitment
Termination Date and after the payment in full of all Revolving Credit
Loans and all Letter of Credit Liabilities for working capital or other
general corporate purposes of the
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Company and/or its Subsidiaries not to exceed $250,000,000 in the aggregate
and on terms satisfactory to the Majority Lenders in their reasonable
discretion;
(g) Indebtedness of the Company and its Subsidiaries incurred after
the Effective Date (including, without limitation, Capital Lease
Obligations and other Indebtedness secured by Liens permitted under
Sections 9.06(i) or 9.06(j) hereof) up to but not exceeding, in the case of
the Company, $20,000,000 and, in the case of any Subsidiary of the Company,
$750,000, at any one time outstanding;
(h) the Take Out Notes and after the issuance thereof any other
senior subordinated debentures or notes (which may be guaranteed by the
Guarantor and the Subsidiary Guarantors) issued by the Company (i) having
terms (other than as to pricing and subordination) not materially more
restrictive with respect to the Guarantor and its Subsidiaries than those
terms contained in the Indenture (2005), (ii) having subordination terms
not materially less favorable to the Lenders than those contained in the
Indenture (2005), (iii) in an aggregate principal amount not exceeding
$100,000,000 at any one time outstanding, (iv) maturing not earlier than
ten years from the date hereof or having an average life of not less than
nine years and (v) having a cash interest rate or coupon of not more than
10% per annum; and
(i) Indebtedness of the Receivables Company incurred in connection
with the Receivables Financing not to exceed $163,000,000 in amount at any
one time outstanding.
9.08 INVESTMENTS. The Guarantor will not, nor will it permit any of
its Subsidiaries to, make or permit to remain outstanding any Investments
except:
(a) the Guarantor Note and other Investments (other than Permitted
Investments) outstanding on the date hereof and identified in Schedule III
hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(d) Investments by the Guarantor in the Company and Investments by
the Company in its Wholly-Owned Subsidiaries (other than the Receivables
Company), including, without limitation, any Investments made in connection
with the Azerty Acquisition, PROVIDED, such Investments shall not exceed
$10,000,000 in the aggregate for any such Wholly-Owned Subsidiaries that
are not Subsidiary Guarantors;
(e) deposits permitted by Section 9.06(f) hereof;
(f) Investments received in settlement of defaulted Receivables or in
connection with the bankruptcy or reorganization of suppliers and customers
and in connection with the settlement of other disputes with customers and
suppliers arising in the ordinary course of business;
(g) intercompany loans to the extent permitted by Section 9.07(c) or
(d) hereof;
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(h) Permitted Acquisitions;
(i) Investments by the Company and its Subsidiaries in connection
with the Receivables Financing;
(j) promissory notes and other non-cash consideration received
in connection with any transfer of assets permitted under Section 9.05(c)
hereof;
(k) customer advances not to exceed $250,000 in the aggregate
at any one time outstanding; and
(l) additional Investments up to but not exceeding $10,000,000
in the aggregate at any one time outstanding.
9.09 DIVIDEND PAYMENTS.
(a) The Company will not, nor will it permit any of its Subsidiaries
to, declare or make any Dividend Payment at any time; PROVIDED, HOWEVER, that
(1) any Subsidiary of the Company may make any Dividend Payment to the Company
or any Wholly-Owned Subsidiary of the Company and (2) the Company may declare
and make Dividend Payments in cash in respect of its common stock (i) to enable
the Guarantor to pay any income, franchise or like taxes to the extent permitted
by the Tax Sharing Agreement, (ii) to enable the Guarantor to pay its operating
expenses incurred in the ordinary course of business and other corporate
overhead costs and expenses (including, without limitation, legal, accounting,
reporting, listing and similar expenses) in an aggregate amount not in excess of
$750,000 in any fiscal year, (iii) to enable the Guarantor to acquire shares of
capital stock to distribute to directors, officers and other employees pursuant
to employee benefit plans, (iv) to enable the Guarantor (A) to repurchase its
common stock and warrants and/or to redeem or repurchase vested management
options for an aggregate purchase price of no more than $1,000,000 in any
12-month period and (B) to pay Accrued Warrant Liabilities, and (v) to permit
the Guarantor to make pay dividends in respect of the common stock of the
Guarantor , subject, in the case of clauses (iii), (iv) and (v) above, to the
satisfaction of the following conditions on the date of such Dividend Payment
and after giving effect thereto and to the application of any Excess Cash Flow
then required to be applied pursuant to Section 2.10(a) hereof:
(1) no Default shall have occurred and be continuing;
(2) the Fixed Charges Ratio as at the last day of the fiscal
quarter of the Company most recently ended prior to the date of such
Dividend Payment (and after giving pro forma effect thereto) shall not
be less than 1.2 to 1;
(3) the aggregate amount of such Dividend Payments made in
cash in any fiscal year of the Company shall not exceed an amount
equal to 25% of the Excess Cash Flow for the fiscal year of the
Company most recently ended prior to the date of such Dividend
Payment;
(4) the average, for the immediately preceding 90 days, of the
excess of (i) the aggregate Revolving Credit Commitments over (ii) the
sum of the
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outstanding principal amount of Revolving Credit Loans, and the
Swingline Loans and the aggregate amount of Letter of Credit
Liabilities shall be an amount at least equal to $50,000,000; and
(5) at least 10 Business Days (but not more than 20 Business
Days) prior to the date of each such Dividend Payment, the Company
shall have delivered to each Lender a certificate of a Responsible
Officer of the Company stating that, both before and after giving
effect to the Dividend Payment to be made, no Default exists and
demonstrating compliance with the conditions set forth in clauses (2),
(3) and (4) of this Section 9.09(a).
(b) The Guarantor will not declare or make any Dividend Payment
except (i) payments of Accrued Warrant Liabilities, (ii) repurchases of common
stock and warrants of the Guarantor and/or redemptions and repurchases of vested
management options for an aggregate purchase price of not more than $1,000,000
in any 12-month period and (iii) dividend payments in respect of its common
stock permitted under clause (v) of Section 9.09(a) above.
9.10 NET WORTH. The Guarantor will not permit Net Worth to be less
than the sum of (a) $210,000,000 plus (b) 75% of the sum of Net Income (if
positive) for each fiscal quarter of the Guarantor commencing with the first
full fiscal quarter occurring after the Effective Date plus (c) 100% of the
amount by which Net Worth shall have been increased as a result of any Equity
Issuance.
9.11 LEVERAGE RATIO. The Guarantor will not permit the Leverage
Ratio to exceed the following respective amounts at any time during the
following respective periods:
Period Ratio
------ -----
From the date hereof
through December 30, 1998 4.50 to 1
From December 31, 1998
through December 30, 1999 4.00 to 1
From December 31, 1999
through December 30, 2000 3.75 to 1
From December 31, 2000
through December 30, 2001 3.50 to 1
From December 31, 2001
through December 30, 2002 3.25 to 1
From December 31, 2002 3.0 to 1
9.12 FIXED CHARGES RATIO. The Guarantor will not permit the Fixed
Charges Ratio to be less than the following respective amounts at any time
during the following respective periods:
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Period Ratio
------ -----
From the date hereof
through September 30, 1998 1.05 to 1
From October 1, 1998
through December 31, 1998 1.10 to 1
From January 1, 1999
through December 31, 1999 1.15 to 1
From January 1, 2000
and thereafter 1.20 to 1
9.13 INTEREST COVERAGE RATIO. The Guarantor will not permit the
Interest Coverage Ratio to be less than the following respective amounts at any
time during the following respective periods:
Period Ratio
------ -----
From the date hereof
through December 30, 1998 2.25 to 1
From December 31, 1998
through December 30, 1999 2.50 to 1
From December 31, 1999
through December 30, 2000 2.75 to 1
From December 31, 2000
through December 30, 2001 3.0 to 1
From December 31, 2001
and thereafter 3.25 to 1
9.14 SUBORDINATED INDEBTEDNESS. The Guarantor will not, nor will it
permit any of its Subsidiaries to purchase, redeem, retire or otherwise acquire
for value, or set apart any money for a sinking, defeasance or other analogous
fund for the purchase, redemption, retirement or other acquisition of, or make
any voluntary payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, any Subordinated Indebtedness, except for
(i) regularly scheduled payments or prepayments of principal and interest in
respect thereof required pursuant to the instruments evidencing such
Subordinated Indebtedness; and (ii) the prepayment of up to $100,000,000
aggregate principal amount of Senior Subordinated Notes from the proceeds of an
Equity Issuance or Debt Issuance in accordance with Section 2.10(b) or (c)
hereof and the related payment (from any permitted source) of any premium and
accrued interest with respect thereto.
CREDIT AGREEMENT
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9.15 LINES OF BUSINESS. The Guarantor will not, nor will it permit
any of its Subsidiaries (including, without limitation, the Company) to, engage
to any substantial extent in any line or lines of business activity other than
(a) the business of the wholesale distribution and selling of office products,
computers, computer products, janitorial supplies and similar products and the
provision of fulfillment services and any lines of business reasonably related
thereto and (b) the sale of Receivables by the Company or any of its
Subsidiaries pursuant to the Receivables Financing.
9.16 TRANSACTIONS WITH AFFILIATES. Except as expressly permitted by
this Agreement, the Guarantor will not, nor will it permit any of its
Subsidiaries to, directly or indirectly: (a) make any Investment in an
Affiliate; (b) transfer, sell, lease, assign or otherwise dispose of any
Property to an Affiliate; (c) merge into or consolidate with or purchase or
acquire Property from an Affiliate; or (d) enter into any other transaction
directly or indirectly with or for the benefit of an Affiliate (including,
without limitation, Guarantees and assumptions of obligations of an Affiliate);
PROVIDED that (x) any Affiliate who is an individual may serve as a director,
officer, employee or consultant of the Guarantor or any of its Subsidiaries and
receive reasonable compensation for his or her services in such capacity,
(y) the Company and its Subsidiaries may enter into transactions (other than
extensions of credit by the Company or any of its Subsidiaries to an Affiliate)
providing for the leasing of Property, the rendering or receipt of services or
the purchase or sale of inventory and other Property in the ordinary course of
business if the monetary or business consideration arising therefrom would be
substantially as advantageous to the Company and its Subsidiaries as the
monetary or business consideration that would obtain in a comparable transaction
with a Person not an Affiliate and (z) the Company and its Subsidiaries may
perform their respective obligations under the Receivables Financing Documents.
9.17 USE OF PROCEEDS. The Company will use the proceeds of the Term
Loans and the Revolving Credit Loans solely (i) to consummate the Azerty
Acquisition, (ii) to refinance existing Indebtedness under the Existing Credit
Agreement and (iii) and for general corporate purposes of the Company and its
Subsidiaries (including Permitted Acquisitions). The use of the proceeds of the
Loans by the Company shall be in compliance with all applicable legal and
regulatory requirements, including, without limitation, Regulations U and X, the
Securities Act of 1933, as amended, and the Exchange Act and the regulations
thereunder; PROVIDED that neither the Administrative Agent nor any Lender shall
have any responsibility as to the use of any of such proceeds.
9.18 MODIFICATIONS OF CERTAIN DOCUMENTS. (a) Without the prior
consent of the Administrative Agent (with the approval of the Majority Lenders),
no Obligor will consent to any modification, supplement or waiver of (i) any of
the provisions of the Senior Subordinated Debt Documents (except any
supplemental indenture contemplated by Section 1017(a) or (c) of the Indenture
(2005) or any similar provision of any other Indenture) or (ii) the Guarantor
Preferred Stock or the Warrant Agreement to the extent such modification,
supplement or waiver would increase the amount of regularly scheduled Dividend
Payments in respect of Guarantor Preferred Stock or the amount of Accrued
Warrant Liabilities.
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(b) The Guarantor will not take any action to modify or supplement
the Articles of Incorporation of the Company, other than modifications that do
not adversely affect the interests of the Lenders, without the prior approval of
the Majority Lenders.
9.19 OWNERSHIP OF THE COMPANY. The Guarantor will at all times hold
not less than 100% of the issued and outstanding capital stock of the Company.
9.20 SEVERANCE PAYMENTS. Neither Obligor nor any of its
Subsidiaries shall pay any severance payments or fees or amounts to any officer
or director of any Acquired Business in connection with or as a result, directly
or indirectly, of the Azerty Acquisition except pursuant to a schedule delivered
to the Administrative Agent prior to the Effective Date and in form and
substance reasonably satisfactory to the Administrative Agent.
9.21 TAXES; TAX SHARING AGREEMENT. The Guarantor and its
Subsidiaries will file consolidated Federal income tax returns. Prior to filing
any Federal income tax returns or paying any Federal income tax after the Azerty
Acquisition, the Acquired Businesses will become a party to the tax allocation
agreement (the "TAX SHARING AGREEMENT") among the Guarantor and its
Subsidiaries.
9.22 SUBSIDIARY GUARANTORS; ADDITIONAL MORTGAGED PROPERTY.
(a) In the event that the Guarantor shall, after the Effective Date,
directly or indirectly hold or acquire any Domestic Subsidiary, the Guarantor
will notify the Lenders (through the Administrative Agent) and will, and will
cause each of its other Subsidiaries to, cause such Domestic Subsidiary (i) to
execute and deliver a written guarantee of the Guaranteed Obligations and a
security agreement in substantially the form of Exhibit A-2 hereto, MUTATIS
MUTANDIS, (ii) at the request of the Majority Lenders, to enter into a Mortgage
covering all of the interests in material real Property owned by such Domestic
Subsidiary and (iii) to deliver such proof of corporate action, incumbency of
officers, opinions of counsel and other documents as are consistent with those
delivered by the Company pursuant to Section 7.01 hereof or as the
Administrative Agent shall have reasonably requested.
(b) Subject to Section 9.25 hereof, if the Company or any of its
Domestic Subsidiaries acquires or leases any material real Property after the
Effective Date, other than any real Property encumbered by Liens permitted by
Section 9.06(i) hereof, the Company or such Subsidiary will promptly execute a
Mortgage covering the Property securing such repaid Indebtedness or such
newly-acquired Property, as the case may be, together with such surveys, title
insurance policies and endorsements, certificates of occupancy and such other
agreements, estoppels and consents (including agreements with lessors) as the
Administrative Agent may reasonably require. In addition, at the request of the
Administrative Agent, the Company shall, or shall cause such Domestic Subsidiary
to, execute a Mortgage covering any Property that is owned or leased by such
Domestic Subsidiary on the date hereof for which a Mortgage was not delivered on
the Effective Date, together with such surveys, title insurance policies and
endorsements, certificates of occupancy and such other agreements, estoppels and
consents (including agreements with lessors) as the Administrative Agent may
reasonably require with respect to such Property and which are available upon
the exercise by the Company and such Subsidiary of commercially reasonable
efforts.
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(c) The Company will (i) not later than 90 days after the date
hereof, execute and deliver to the Administrative Agent an amendment and
confirmation or other appropriate modification to each Mortgage covering
material Property (as determined by the Administrative Agent) of the Company or,
at the request of the Administrative Agent, a new Mortgage with respect to such
Property in substantially the form of the Mortgage delivered in connection with
the Original Credit Agreement and (ii) not later than 90 days after the date
hereof, cause the applicable title company to deliver to the Administrative
Agent endorsement of the mortgagee policies of title insurance delivered by such
title company under the Existing Credit Agreement (or, if such endorsements are
not available, new mortgagee policies of title in sequence) with respect to
Properties covered by the Mortgages (other than any such Properties located in
the State of Texas and the leasehold Property of the Company located in the
State of Florida), each such amendment or modification and endorsement to be in
form and substance reasonably satisfactory to the Administrative Agent.
(d) The Company will not later than 10 days after the date hereof
deliver to the Administrative Agent a Mortgage covering the Property of Azerty
located in Orchard Park, New York, duly executed by Azerty and the
Administrative Agent, and in recordable form together with a survey of the
Property subject to the Mortgage and, not later than 45 days from the date
hereof, a fully paid title insurance policy and such other documents and
information relating thereto as the Administrative Agent may reasonably request,
in each case in form and substance reasonably satisfactory to the
Administrative Agent.
9.23 TERMINATION OF ERISA PLANS. The Company will not and will not
permit any Subsidiary to withdraw from any Multiemployer Plan or permit any
employee benefit plan maintained by it to be terminated if such withdrawal or
termination could result in withdrawal liability (as described in Part 1 of
Subtitle E of Title IV of ERISA) or the imposition of a Lien on any Property of
the Company or any Subsidiary pursuant to Section 4068 of ERISA.
9.24 LIMITATIONS ON RESTRICTIONS. The Guarantor will not and will
not permit any of its Subsidiaries to enter into any agreement or arrangement
that would prohibit, prevent or otherwise limit or impede the Guarantor or such
Subsidiary from encumbering any of its respective assets for the benefit of the
Lenders (other than any such assets subject to a Lien permitted by Section
9.06(i), (j) or(p)).
9.25 RELEASE OF SECURITY INTERESTS. If at any time the Leverage
Ratio as at the end of any fiscal quarter of the Guarantor is equal to or less
than 3.00 to 1 (as demonstrated in a certificate delivered pursuant to the last
sentence of Section 9.01 hereof), the Administrative Agent shall, upon the
request of the Company, release the Liens on all the Property covered by the
Security Documents (other than the capital stock of the Company and its
Subsidiaries and any collateral related thereto including, without limitation,
the proceeds thereof). If at any time the Guarantor or the Company shall
receive an implied investment grade rating from either Standard & Poor's Ratings
Group or Xxxxx'x Investors Service, Inc. in respect of the Guarantor's or the
Company's long-term unsecured debt, the Administrative Agent shall, upon the
request of the Company, release the Liens on all the Property covered by the
Security Documents. In the event that the Liens of the Security Documents are
released pursuant to this Section 9.25 and thereafter, at the end of any fiscal
quarter of the Guarantor, the Leverage Ratio exceeds 3.00 to 1,
CREDIT AGREEMENT
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upon the request of the Majority Lenders, the Guarantor and the Company shall,
and shall cause each Subsidiary Guarantor to, enter new security agreements,
pledges and mortgages, substantially in the form of the Security Document to
which such Person was a party prior to such release and which Security Documents
shall grant to the Administrative Agent for the benefit of the Lenders a first
priority perfected security interest in all the Property of such Person.
Section 10. EVENTS OF DEFAULT. If one or more of the following
events (herein called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) Any Obligor shall (i) default in the payment when due (whether at
stated maturity or upon mandatory or optional prepayment) of any principal
of any Loan or any Reimbursement Obligation or (ii) default in the payment
when due of any interest on any Loan or any Reimbursement Obligation or any
fee or any other amount payable by it hereunder or under any other Basic
Document and such default shall continue unremedied for three or more
Business Days; or
(b) Any Obligor or any of their respective Subsidiaries (the Obligors
and such Subsidiaries herein collectively called the "RELEVANT PARTIES")
shall default in the payment when due of any principal of or interest on
any of its Indebtedness aggregating $10,000,000 or more, or in the payment
when due of any amount under any Interest Rate Protection Agreement for a
notional principal amount exceeding $10,000,000; or any event specified in
any note, agreement, indenture or other document evidencing or relating to
any such Indebtedness or any event specified in any Interest Rate
Protection Agreement shall occur if the effect of such event is to cause,
or (with the giving of any notice or the lapse of time or both) to permit
the holder or holders Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, Indebtedness to become due, or to be prepaid
in full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity or to have the interest rate thereon reset to
a level so that securities evidencing such Indebtedness trade at a level
specified in relation to the par value thereof or, in the case of an
Interest Rate Protection Agreement, to permit the payments owing under such
Interest Rate Protection Agreement to be liquidated; or
(c) Any representation, warranty or certification made or deemed made
herein or in any Transaction Document (or in any modification or
supplement hereto or thereto) by any party thereto, or any certificate
furnished to any Lender or the Administrative Agent pursuant to the
provisions of any Basic Document, shall prove to have been false or
misleading as of the time made or furnished in any material respect; or
(d) Any Obligor (as applicable) shall default in the performance of
any of its obligations under any of Sections 9.01(i), 9.05 through 9.14,
inclusive, 9.16 through 9.20, inclusive, and 9.24 hereof or any Obligor (as
applicable) shall default in the performance of any of its obligations
under Section 4.02, 5.02 or 5.07 of the Security Agreement or the
equivalent provisions under the Subsidiary Guarantee and Security
Agreement, Section 4.02 or 4.07 of the Pledge Agreement or any provisions
of any Mortgage (or any Domestic Subsidiary shall default in the
performance of its obligations under the equivalent provisions in any
Guarantee and Security Agreement delivered pursuant to
CREDIT AGREEMENT
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Section 9.22 hereof); or any Obligor shall default in the performance of
any of its other obligations in this Agreement or any other Basic Document
and such default shall continue unremedied for a period of ten or more days
after notice thereof to the Company by the Administrative Agent or any
Lender (through the Administrative Agent); or
(e) Any Relevant Party shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) Any Relevant Party shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial part
of its Property, (ii) make a general assignment for the benefit of its
creditors, (iii) commence a voluntary case under the Bankruptcy Code,
(iv) file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of debts,
(v) fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case under the
Bankruptcy Code (or any other applicable bankruptcy, insolvency or similar
law) or (vi) take any corporate action for the purpose of effecting any of
the foregoing; or
(g) A proceeding or case shall be commenced, without the application
or consent of the affected Relevant Party, in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a receiver, custodian, trustee, examiner,
liquidator or the like of such Relevant Party or of all or any substantial
part of its Property or (iii) similar relief in respect of such Relevant
Party under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding or
case shall continue undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and continue unstayed and
in effect, for a period of 60 or more days; or an order for relief against
any Relevant Party shall be entered in an involuntary case under the
Bankruptcy Code (or any other applicable bankruptcy, insolvency or similar
law); or
(h) A final judgment or judgments for the payment of money in excess
of $5,000,000 in the aggregate (exclusive of judgment amounts fully covered
by insurance where the insurer has admitted liability in respect of such
judgment) shall be rendered by one or more courts, administrative tribunals
or other bodies having jurisdiction against any Relevant Party and the same
shall not be discharged (or provision shall not be made for such
discharge), or a stay of execution thereof shall not be procured, within 30
days from the date of entry thereof and such Relevant Party shall not,
within said period of 30 days, or such longer period during which execution
of the same shall have been stayed, appeal therefrom and cause the
execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 9.01(e) hereof shall
occur or exist with respect to any Plan or Multiemployer Plan and, as a
result of such event or condition, together with all other such events or
conditions, the Company or any ERISA Affiliate shall incur or in the
reasonable opinion of the Majority Lenders shall be
CREDIT AGREEMENT
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reasonably likely to incur a liability to a Plan, a Multiemployer Plan or
the PBGC (or any combination of the foregoing) that, in the determination
of the Majority Lenders, could (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect; or
(j) A reasonable basis shall exist for the assertion against the
Company or any of its Subsidiaries, or any predecessor in interest of the
Company or any of its Subsidiaries or Affiliates, of (or there shall have
been asserted against the Company or any of its Subsidiaries) an
Environmental Claim that, in the judgment of the Majority Lenders is
reasonably likely to be determined adversely to the Company or any of its
Subsidiaries, and the amount thereof (either individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect (insofar
as such amount is payable by the Company or any of its Subsidiaries but
after deducting any portion thereof that is reasonably expected to be paid
by other creditworthy Persons jointly and severally liable therefor); or
(k) Any Change of Control shall have occurred; or
(l) Except for expiration in accordance with its terms or a voluntary
release by the Administrative Agent on behalf of the Administrative Agent
and the Lenders, including without limitation any release of Liens
permitted under Section 9.25 or 11.09 hereof, the Liens created by the
Security Documents shall at any time not constitute a valid and perfected
Lien on the collateral intended to be covered thereby (to the extent
perfection by filing, registration, recordation or possession is required
herein or therein) in favor of the Administrative Agent, free and clear of
all other Liens (other than Liens permitted under Section 9.06 hereof or
under the respective Security Documents), or, except for expiration in
accordance with its terms, any of the Security Documents shall for whatever
reason be terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by either Obligor or any
Subsidiary Guarantor;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Section 10 with respect to any Obligor, the
Administrative Agent shall, at the direction of the Majority Lenders (or, with
respect to Swingline Loans, upon request of the Swingline Lender), by notice to
the Obligors, terminate the Commitments and/or declare the principal amount then
outstanding of, and the accrued interest on, the Loans (including the Swingline
Loans), the Reimbursement Obligations and all other amounts payable by the
Obligors hereunder (including, without limitation, any amounts payable under
Section 5.05 or 5.06 hereof) to be forthwith due and payable (PROVIDED that if
so requested by the Majority Revolving Credit Lenders, the Administrative Agent
shall terminate the Revolving Credit Commitments), whereupon such amounts shall
be immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by each
Obligor; and (2) in the case of the occurrence of an Event of Default referred
to in clause (f) or (g) of this Section 10 with respect to any Obligor, the
Commitments shall automatically be terminated and the principal amount then
outstanding of, and the accrued interest on, the Loans, the Swingline Loans, the
Reimbursement Obligations and all other amounts payable by the Obligors
hereunder (including, without limitation, any amounts payable under Section 5.05
or 5.06 hereof) shall automatically become immediately due and payable
CREDIT AGREEMENT
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without presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by each Obligor.
In addition, upon the occurrence and during the continuance of any
Event of Default (if the Administrative Agent has declared the principal amount
then outstanding of, and accrued interest on, the Revolving Credit Loans and all
other amounts payable by the Company hereunder to be due and payable), the
Company agrees that it shall, if requested by the Administrative Agent or the
Majority Revolving Credit Lenders through the Administrative Agent (and, in the
case of any Event of Default referred to in clause (f) or (g) of this Section 10
with respect to either Obligor, forthwith, without any demand or the taking of
any other action by the Administrative Agent or such Lenders) provide cover for
the Letter of Credit Liabilities by paying to the Administrative Agent
immediately available funds in an amount equal to the then aggregate undrawn
face amount of all Letters of Credit, which funds shall be held by the
Administrative Agent in the Collateral Account as collateral security in the
first instance for the Letter of Credit Liabilities and be subject to withdrawal
only as therein provided.
Section 11. THE ADMINISTRATIVE AGENT.
11.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Lender hereby
appoints and authorizes the Administrative Agent to act as its agent hereunder
and under the other Basic Documents with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and of the
other Basic Documents, together with such other powers as are reasonably
incidental thereto. The Administrative Agent (which term as used in this
sentence and in Section 11.05 and the first sentence of Section 11.06 hereof
shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and in the other Basic Documents, and shall not
by reason of this Agreement or any other Basic Document be a trustee for
any Lender;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or in
any other Basic Document, or in any certificate or other document referred
to or provided for in, or received by any of them under, this Agreement or
any other Basic Document, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Basic Document or any other document referred to or provided for herein or
therein or for any failure by the Company or any other Person to perform
any of its obligations hereunder or thereunder;
(c) shall not, except to the extent expressly instructed by the
Majority Lenders with respect to collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Basic Document; and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other Basic Document or under any other
document or instrument
CREDIT AGREEMENT
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referred to or provided for herein or therein or in connection herewith or
therewith, except for its own gross negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee (or Registered Holder, as the case may be) of a Loan as
the holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent, together with the consent of the Company to such assignment or transfer
(to the extent provided in Section 12.06(b) hereof).
11.02 RELIANCE BY AGENT. The Administrative Agent shall be entitled
to rely upon any certification, notice or other communication (including,
without limitation, any thereof by telephone, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Administrative Agent. As to any matters not expressly provided for by this
Agreement or any other Basic Document, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder or
thereunder in accordance with instructions given by the Majority Lenders or, if
provided herein, in accordance with the instructions given by the Majority
Revolving Credit Lenders, the Majority Term Lenders or all of the Lenders as is
required in such circumstance, and such instructions of such Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders.
11.03 DEFAULTS. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Lender or the Company specifying such Default
and stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall (subject to Section 11.07 hereof) take such action
with respect to such Default as shall be directed by the Majority Lenders or, if
provided herein, the Majority Revolving Credit Lenders or the Majority Term
Lenders, 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 as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Majority Lenders, the Majority Revolving Credit Lenders, the Majority Term
Lenders or all of the Lenders.
11.04 RIGHTS AS A LENDER. With respect to its Commitments, its
Swingline Commitment and the Loans made by it, Chase (and any successor acting
as Agent) in its capacity as a Lender or the Swingline Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Administrative Agent, and the term
"Lender" or "Lenders" or "Swingline Lender" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. Chase
(and any successor acting as Agent) and its affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to make
investments in and generally
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engage in any kind of banking, trust or other business with the Obligors (and
any of their Subsidiaries or Affiliates) as if it were not acting as the
Administrative Agent, and Chase (and any such successor) and its affiliates may
accept fees and other consideration from the Obligors for services in connection
with this Agreement or otherwise without having to account for the same to the
Lenders or the Swingline Lender.
11.05 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 12.03 hereof,
but without limiting the obligations of the Obligors under said Section 12.03,
and including in any event any payments under any indemnity that the
Administrative Agent is required to issue to any bank referred to in
Section 4.02 of the Security Agreement to which remittances in respect of
Accounts, as defined therein, are to be made) ratably in accordance with the
aggregate principal amount of the Loans and Reimbursement Obligations held by
the Lenders (or, if no Loans or Reimbursement Obligations are at the time
outstanding, ratably in accordance with their respective Commitments), for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the
Administrative Agent (including by any Lender) arising out of or by reason of
any investigation in or in any way relating to or arising out of this Agreement
or any other Basic Document or any other documents contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses that the Obligors are
obligated to pay under Section 12.03 hereof, and including also any payments
under any indemnity that the Administrative Agent is required to issue to any
bank referred to in Section 4.02 of the Security Agreement to which remittances
in respect of Accounts, as defined therein, are to be made, but excluding,
unless a Default has occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such other
documents, PROVIDED that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
party to be indemnified.
11.06 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees
that it has, independently and without reliance on the Administrative Agent or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Guarantor and its Subsidiaries
and decision to enter into this Agreement and that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or under any other Basic Document. The Administrative
Agent shall not be required to keep itself informed as to the performance or
observance by any Obligor of this Agreement or any of the other Basic Documents
or any other document referred to or provided for herein or therein or to
inspect the Properties or books of the Guarantor or any of its Subsidiaries.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Administrative Agent hereunder or
under the Security Documents, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Guarantor or any
of its
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Subsidiaries (or any of their affiliates) that may come into the possession of
the Administrative Agent or any of its affiliates.
11.07 FAILURE TO ACT. Except for action expressly required of the
Administrative Agent hereunder and under the other Basic Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 11.05 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
11.08 RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Obligors, and the Administrative Agent may be removed at
any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Lenders' removal of the retiring Agent,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, that shall be a bank with a combined capital and
surplus and undivided profits of at least $300,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation or removal hereunder as Agent, the provisions of this
Section 11 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent.
11.09 CONSENTS UNDER OTHER BASIC DOCUMENTS. Except as otherwise
provided in Section 12.04 hereof with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Majority Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the Basic Documents, PROVIDED that, without the prior consent of each Lender,
the Administrative Agent shall not (except as provided herein or in the Security
Documents) release any collateral or otherwise terminate any Lien under any
Basic Document providing for collateral security, or agree to additional
obligations being secured by such collateral security, except that no such
consent shall be required, and the Administrative Agent is hereby authorized, to
release any Lien (i) covering Property that is the subject of a disposition of
Property permitted hereunder, (ii) as contemplated by Section 9.25 hereof or
(iii) with respect to any Property transferred in connection with the
Receivables Financing (which release shall be deemed to have occurred without
any further action of any Person up on such transfer). The Administrative Agent
shall take any action reasonably requested by the Company (at the Company's sole
cost and expense) to release the Liens created under the Basic Documents on any
Receivables and Related Assets transferred in connection with the Receivables
Financing
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11.10 COLLATERAL SUB-AGENTS. Each Lender by its execution and
delivery of this Agreement agrees, as contemplated by Section 4.03 of the
Security Agreement, that, in the event it shall hold any Permitted Investments
referred to therein, such Permitted Investments shall be held in the name and
under the control of such Lender, and such Lender shall hold such Permitted
Investments as a collateral sub-agent for the Administrative Agent thereunder.
The Obligors by their execution and delivery of this Agreement hereby consent to
the foregoing.
Section 12. MISCELLANEOUS
12.01 WAIVER. No failure on the part of the Administrative Agent or
any Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
12.02 NOTICES. Except as otherwise expressly provided herein or in
the Security Documents, all notices, requests and other communications provided
for herein and under the Security Documents (including, without limitation, any
modifications of, or waivers, requests or consents under, this Agreement) shall
be given or made in writing (including, without limitation, by telecopy)
delivered to the Administrative Agent or the Obligors at the "Address for
Notices" specified below its name on the signature pages hereof (below the name
of the Company, in the case of the Guarantor) and for any Lender at the address
specified in its Administrative Questionnaire; or, as to any party, at such
other address as shall be designated by such party in a notice to each other
party. Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given when transmitted by telecopier or
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
12.03 EXPENSES, ETC. The Obligors agree, jointly and severally, to
pay or reimburse each of the Lenders and the Administrative Agent for: (a) all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and expenses of Milbank,
Tweed, Xxxxxx & XxXxxx, special New York counsel to Chase) in connection with
(i) the negotiation, preparation, execution and delivery of this Agreement and
the other Basic Documents and the extension of credit hereunder and (ii) the
negotiation or preparation of any modification, supplement or waiver of any of
the terms of this Agreement or any of the other Basic Documents (whether or not
consummated); (b) all reasonable out-of-pocket costs and expenses of the Lenders
and the Administrative Agent (including, without limitation, the reasonable fees
and expenses of legal counsel for the Administrative Agent and one legal counsel
for the Lenders) in connection with (i) any Default and any enforcement or
collection proceedings resulting therefrom, including, without limitation, all
manner of participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this
Section 12.03; (c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of
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the other Basic Documents or any other document referred to herein or therein
and all costs, expenses, taxes, assessments and other charges incurred in
connection with any filing, registration, recording or perfection of any
security interest contemplated by any Basic Document or any other document
referred to therein; and (d) all costs, expenses and other charges in respect of
title insurance procured with respect to the Liens created pursuant to the
Mortgages.
The Obligors hereby agree, jointly and severally, to indemnify the
Administrative Agent and each Lender and their respective directors, officers,
employees, attorneys and agents from, and hold each of them harmless against,
any and all losses, liabilities, claims, damages or expenses incurred by any of
them (including, without limitation, any and all losses, liabilities, claims,
damages or expenses incurred by the Administrative Agent to any Lender, whether
or not the Administrative Agent or any Lender is a party thereto) arising out of
or by reason of any investigation or litigation or other proceedings (including
any threatened investigation or litigation or other proceedings) relating to the
extensions of credit hereunder or any actual or proposed use by the Guarantor or
any of its Subsidiaries of the proceeds of any of the extensions of credit
hereunder, including, without limitation, the reasonable fees and disbursements
of counsel incurred in connection with any such investigation or litigation or
other proceedings (but excluding any such losses, liabilities, claims, damages
or expenses incurred by reason of the gross negligence or willful misconduct of
the Person to be indemnified or solely by reason of a breach of this Agreement
by such Person). Without limiting the generality of the foregoing, the Obligors
will (x) indemnify the Administrative Agent for any payments that the
Administrative Agent is required to make under any indemnity issued to any bank
referred to in Section 4.02 of the Security Agreement to which remittances in
respect to Accounts, as defined therein, are to be made and (y) indemnify the
Administrative Agent and each Lender from, and hold the Administrative Agent and
each Lender harmless against, any losses, liabilities, claims, damages or
expenses described in the preceding sentence (including any Lien filed against
any Property covered by the Mortgages or any part of the thereunder in favor of
any governmental entity, but excluding, as provided in the preceding sentence,
any loss, liability, claim, damage or expense incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified) arising under
any Environmental Law as a result of the past, present or future operations of
the Company or any of its Subsidiaries (or any predecessor in interest to the
Company or any of its Subsidiaries), or the past, present or future condition of
any site or facility owned, operated or leased at any time by the Company or any
of its Subsidiaries (or any such predecessor in interest), or any Release or
threatened Release of any Hazardous Materials at or from any such site or
facility, including any such Release or threatened Release that shall occur
during any period when the Administrative Agent or any Lender shall be in
possession of any such site or facility following the exercise by the
Administrative Agent or any Lender of any of its rights and remedies hereunder
or under any of the Security Documents.
12.04 AMENDMENTS, ETC. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Guarantor, the Company and the
Majority Lenders, or by the Guarantor, the Company and the Administrative Agent
acting with the consent of the Majority Lenders, and any provision of this
Agreement may be waived by the Majority Lenders or by the Administrative Agent
acting with the consent of the Majority Lenders; PROVIDED that (a) no
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modification, supplement or waiver shall, unless by an instrument signed by all
of the Lenders or by the Administrative Agent acting with the consent of all of
the Lenders: (i) increase, or extend the term of any of the Commitments or the
Swingline Commitment, or extend the time or waive any requirement for the
reduction or termination of any of the Commitments or the Swingline Commitment,
(ii) extend the date fixed for the payment of principal of or interest on any
Loan, the Reimbursement Obligations or any fee hereunder, (iii) reduce the
amount of any such payment of principal, (iv) reduce the rate at which interest
is payable thereon or any fee is payable hereunder, (v) alter the rights or
obligations of the Company to prepay Loans, (vi) alter the terms of Section
11.09 hereof or this Section 12.04, (vii) modify the definition of the term
"Majority Lenders", "Majority Revolving Credit Lenders" or "Majority Term
Lenders", or modify in any other manner the number or percentage of the Lenders
required to make any determinations or waive any rights hereunder or to modify
any provision hereof, (viii) waive any of the conditions precedent set forth in
Section 7.01 or 7.02 hereof or (ix) release the Guarantor from any of its
obligations under Section 6 hereof or any Subsidiary Guarantor from any of its
obligations under Section 3 of the Subsidiary Guarantee and Security Agreement;
(b) no modification, supplement or waiver shall (i) modify in any manner any of
Sections 2.01(a), 2.03, 9.01(g) and 9.01(j) hereof or (ii) modify the definition
of the term "Letter of Credit Documents", "Letter of Credit Interest", or
"Letter of Credit Liability", without the consent of the Majority Revolving
Credit Lenders; (c) no waiver or modification with respect to clause (i) of
Section 1402 or 1502 of the Indenture (2005) or any similar provision in any
agreement or instrument evidencing Subordinated Indebtedness shall be effective
without the consent of the Lenders holding at least 66 2/3% of the sum of (i)
the aggregate unused Commitments, (ii) the aggregate unpaid principal amount of
the Loans (other than the Swingline Loans) and (iii) the aggregate amount of all
Letter of Credit Liabilities; (d) any modification of any of the rights or
obligations of the Administrative Agent or the Issuing Bank hereunder
(including, without limitation, any of the provisions of Section 11.08 hereof)
shall require the consent of the Administrative Agent or the Issuing Bank (as
the case may be); and (e) no modification, supplement or waiver with respect to
any provision of Section 2.01(d) or 2.02(b) hereof shall be effective without
the concurrence of the Swingline Lender and, if at the time any Swingline Loans
shall be outstanding, no modification, supplement or waiver with respect to any
provision of Section 9 or 10 hereof shall be effective without the concurrence
of the Swingline Lender.
12.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
12.06 ASSIGNMENTS AND PARTICIPATIONS.
(a) No Obligor may assign any of its rights or obligations hereunder
without the prior consent of all of the Lenders and the Administrative Agent.
(b) Each Lender may assign any of its Loans, its Commitments, and, if
such Lender is a Revolving Credit Lender, its Letter of Credit Interest and its
interest acquired under Section 2.01(d) hereof in Swingline Loans (but only with
the consent of, in the case of its outstanding Commitments, the Company and the
Administrative Agent and, in the case of the Revolving Credit Commitment or a
Letter of Credit Interest, the Issuing Bank); PROVIDED that
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(i) no such consent by the Company or the Administrative Agent shall
be required in the case of any assignment to another Lender or an Affiliate
of such assigning Lender;
(ii) except to the extent the Company and the Administrative Agent
shall otherwise consent, any such partial assignment (other than to another
Lender) shall be in an amount at least equal to $5,000,000 (or, if less,
the aggregate unpaid principal amount of the Loans and the aggregate
Commitments of such Lender);
(iii) each such assignment by a Lender of its Revolving Credit Loans,
Revolving Credit Commitment or Letter of Credit Interest shall be made in
such manner so that the same portion of its Revolving Credit Loans,
Revolving Credit Commitment and Letter of Credit Interest is assigned to
the respective assignee;
(iv) upon each such assignment, the assignor and assignee shall
deliver to the Company, the Administrative Agent and the Issuing Bank an
Assignment and Acceptance in the form of Exhibit F hereto; and
(v) no consent required of the Company or the Administrative Agent
under this Section 12.06(b) shall be unreasonably withheld or delayed.
Upon execution and delivery by the assignor and the assignee to the Company, the
Administrative Agent and the Issuing Bank of such Assignment and Acceptance, and
upon consent thereto by the Company, the Administrative Agent and the Issuing
Bank to the extent required above, the assignee shall have, to the extent of
such assignment (unless otherwise consented to by the Company, the
Administrative Agent and the Issuing Bank), the obligations, rights and benefits
of a Lender hereunder holding the Commitment(s), Loans and, if applicable,
Letter of Credit Interest (or portions thereof) assigned to it and specified in
such Assignment and Acceptance (in addition to the Commitment(s), Loans and
Letter of Credit Interest, if any, theretofore held by such assignee) and the
assigning Lender shall, to the extent of such assignment, be released from the
Commitment(s) (or portion(s) thereof) so assigned. Upon each such assignment
the assigning Lender shall pay the Administrative Agent an assignment fee of
$3,000; provided that in the case of any such assignment to a Proposed Lender
(as defined in Section 5.08 hereof), such assignment fee shall be paid by the
Company.
(c) A Lender may sell or agree to sell to one or more other Persons a
participation in all or any part of any Loans or Letter of Credit Interest held
by it, or in its Commitments, in which event each purchaser of a participation
(a "PARTICIPANT") shall be entitled to the rights and benefits of the provisions
of Section 9.01(j) hereof with respect to its participation in such Loans,
Letter of Credit Interest and Commitments as if (and the Company shall be
directly obligated to such Participant under such provisions as if) such
Participant were a "Lender" for purposes of said Section, but, except as
otherwise provided in Section 4.07(c) hereof, shall not have any other rights or
benefits under this Agreement or any other Basic Document (the Participant's
rights against such Lender in respect of such participation to be those set
forth in the agreements executed by such Lender in favor of the Participant).
All amounts payable by the Company to any Lender under Section 5 hereof in
respect of Loans, Letter of Credit Interest held by it, and its Commitments,
shall be determined as if such Lender had not sold or agreed to sell any
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participations in such Loans, Letter of Credit Interest and Commitments, and as
if such Lender were funding each of such Loan, Letter of Credit Interest and
Commitments in the same way that it is funding the portion of such Loan, Letter
of Credit Interest and Commitments in which no participations have been sold.
In no event shall a Lender that sells a participation agree with the Participant
to take or refrain from taking any action hereunder or under any other Basic
Document except that such Lender may agree with the Participant that it will
not, without the consent of the Participant, agree to (i) increase or extend the
term, or extend the time or waive any requirement for the reduction or
termination, of such Lender's related Commitment, (ii) extend the date fixed for
the payment of principal of or interest on the related Loan or Loans,
Reimbursement Obligations or any portion of any fee hereunder payable to the
Participant, (iii) reduce the amount of any such payment of principal,
(iv) reduce the rate at which interest is payable thereon, or any fee hereunder
payable to the Participant, to a level below the rate at which the Participant
is entitled to receive such interest or fee, (v) alter the rights or obligations
of the Company to prepay the related Loans or (vi) consent to any modification,
supplement or waiver hereof or of any of the other Basic Documents to the extent
that the same, under Section 11.09 or 12.04 hereof, requires the consent of each
Lender.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 12.06, any Lender may (without notice
to the Company, the Administrative Agent or any other Lender and without payment
of any fee) (i) assign and pledge all or any portion of its Loans to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank and (ii) assign all or any portion
of its rights under this Agreement and its Loans to an affiliate. No such
assignment shall release the assigning Lender from its obligations hereunder.
(e) A Lender may furnish any information concerning the Obligors or
any of their respective Subsidiaries in the possession of such Lender from time
to time to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 12.12(b) hereof.
(f) Anything in this Section 12.06 to the contrary notwithstanding,
no Lender may assign or participate any interest in any Loan or Reimbursement
Obligation held by it hereunder to the Company or any of its Affiliates or
Subsidiaries without the prior consent of each Lender.
(g) At the request of any Lender that is not a U.S. Person and is not
a "bank" within the meaning of Section 881(c)(3)(A) of the Code, the Company
shall maintain, or cause to be maintained, a register (the "REGISTER") that, at
the request of the Company, shall be kept by the Administrative Agent on behalf
of the Company at no charge to the Company at the address to which notices to
the Administrative Agent are to be sent hereunder, on which it enters the name
of such Lender as the registered owner of each Registered Loan held by such
Lender. A Registered Loan may only be assigned or otherwise transferred in
whole or in part by registration of such assignment or transfer on the Register.
Any assignment or transfer of all or part of such Loan shall be effected by
registration of such assignment or transfer on the Register. Prior to the
registration of assignment or transfer of any Registered Loan, the Company shall
treat the Person in whose name such Loan is registered as the owner thereof for
the purpose of receiving all payments thereon and for all other purposes,
notwithstanding notice to the contrary.
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(h) The Register shall be available for inspection by the Company and
any Lender that is a Registered Holder at any reasonable time upon reasonable
prior notice.
12.07 SURVIVAL. The obligations of the Obligors under the last
paragraph of Section 2.03 hereof and under Sections 5.01, 5.05, 5.06, 5.07 and
12.03 hereof and under Section 6.03 of the Security Agreement, Section 7.03 of
the Subsidiary Guarantee and Security Agreement, and Section 4.13 of the Pledge
Agreement, the obligations of the Guarantor under Section 6.03 hereof, and the
obligations of the Lenders under Section 11.05 hereof, shall survive the
repayment of the Loans and Reimbursement Obligations and the termination of the
Commitments and, in the case of any Lender that may assign any interest in its
Commitments, Loans or Letter of Credit Interest hereunder, shall survive the
making of such assignment, notwithstanding that such assigning Lender may cease
to be a "Lender" hereunder. In addition, each representation and warranty made,
or deemed to be made by a notice of any extension of credit (whether by means of
a Loan or a Letter of Credit), herein or pursuant hereto shall survive the
making of such representation and warranty, and no Lender shall be deemed to
have waived, by reason of making any extension of credit hereunder (whether by
means of a Loan or a Letter of Credit), any Default that may arise by reason of
such representation or warranty proving to have been false or misleading,
notwithstanding that such Lender or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was false
or misleading at the time such extension of credit was made.
12.08 CAPTIONS. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
12.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.10 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement
shall be governed by, and construed in accordance with, the law of the State of
New York. Each Obligor hereby submits to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of the
Supreme Court of the State of New York sitting in New York County (including its
Appellate Division), and of any other appellate court in the State of New York,
for the purposes of all legal proceedings arising out of or relating to the
Basic Documents or the transactions contemplated hereby. Each Obligor hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
12.11 WAIVER OF JURY TRIAL. EACH OF THE OBLIGORS, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THE BASIC DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
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12.12 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
(a) Each Obligor acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
such Obligor or one or more of its Subsidiaries (in connection with this
Agreement or otherwise) by any Lender or by one or more subsidiaries or
affiliates of such Lender and each Obligor hereby authorizes each Lender to
share any information delivered to such Lender by such Obligor and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Lender to enter into this Agreement, with any such subsidiary or affiliate,
it being understood that any such subsidiary or affiliate receiving such
information shall be bound by the provisions of paragraph (b) below as if it
were a Lender hereunder. Such authorization shall survive the repayment of the
Loans and Reimbursement Obligations and the termination of the Commitments.
(b) Each Lender and the Administrative Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by any Obligor pursuant to this Agreement
that is identified by such Person as being confidential at the time the same is
delivered to the Lenders or the Administrative Agent, PROVIDED that nothing
herein shall limit the disclosure of any such information (i) to the extent
required by statute, rule, regulation or judicial process, (ii) to counsel for
any of the Lenders or the Administrative Agent, (iii) to regulatory personnel,
auditors or accountants, (iv) to the Administrative Agent or any other Lender
(or to Chase Securities, Inc.), (v) in connection with any litigation related to
the Azerty Acquisition or the transactions contemplated by the Credit Agreement
or the other Basic Documents to which the Administrative Agent or any of the
Lenders is a party, (vi) to a subsidiary or affiliate of such Lender as provided
in paragraph (a) above or (vii) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or participant (or prospective
assignee or participant) first executes and delivers to the respective Lender a
confidentiality agreement containing substantially the terms set forth in this
Section 12.12 (or executes and delivers to such Lender an acknowledgement to the
effect that it is bound by the provisions of this Section 12.12(b), which
acknowledgement may be included as part of the respective assignment or
participation agreement pursuant to which such assignee or participant acquires
an interest in the Loans or Letter of Credit Interest hereunder); PROVIDED,
FURTHER, that in no event shall any Lender or the Administrative Agent be
obligated or required to return any materials furnished by any Obligor. The
obligations of any assignee that has executed a confidentiality agreement
containing substantially the terms set forth in this Section 12.12 shall be
superseded by this Section 12.12 upon the date upon which such assignee becomes
a Lender hereunder pursuant to Section 12.06(b) hereof.
12.13 CERTAIN TAX INFORMATION. Upon the reasonable request of the
Administrative Agent, the Company shall provide in writing to the Lenders on a
timely basis such information, if any, required by Treasury Regulation
Section 1.1275-2(e).
12.14 ACKNOWLEDGEMENT AND CONSENT. Each of the Company and the
Guarantor hereby acknowledges that (a) each reference in the Pledge Agreement to
the Credit Agreement shall mean the Existing Credit Agreement as amended and
restated by this Agreement, and as the
CREDIT AGREEMENT
- 93 -
same shall be modified and supplemented and in effect from time to time, and
(b) each reference therein to the "Agent" shall be deemed to be a reference to
the Administrative Agent.
CREDIT AGREEMENT
- 94 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
UNITED STATIONERS SUPPLY CO.
By
----------------------------------
Title:
Address for Notices:
0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
(with a copy to the General
Counsel's Office)
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000 x0000
UNITED STATIONERS INC.
By
----------------------------------
Title:
Address for Notices:
0000 Xxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Financial Officer
(with a copy to the General
Counsel's Office)
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000 x0000
CREDIT AGREEMENT
- 95 -
LENDERS
THE CHASE MANHATTAN BANK
By
----------------------------------
Title: Vice President
CREDIT AGREEMENT
- 96 -
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By
----------------------------------
Title:
CREDIT AGREEMENT
- 97 -
THE FIRST NATIONAL BANK OF CHICAGO
By
----------------------------------
Title:
CREDIT AGREEMENT
- 98 -
PNC BANK, NATIONAL ASSOCIATION
By
----------------------------------
Title:
CREDIT AGREEMENT
- 99 -
ARAB BANKING CORPORATION
(B.S.C.)
By
----------------------------------
Title:
CREDIT AGREEMENT
- 100 -
THE BANK OF NEW YORK
By
----------------------------------
Title:
CREDIT AGREEMENT
- 101 -
BANK OF SCOTLAND
By
----------------------------------
Title:
CREDIT AGREEMENT
- 102 -
BANK ONE, MILWAUKEE, NA
By
----------------------------------
Title:
CREDIT AGREEMENT
- 103 -
COMERICA BANK
By
----------------------------------
Title:
CREDIT AGREEMENT
- 104 -
THE FIRST NATIONAL BANK OF MARYLAND
By
----------------------------------
Title:
CREDIT AGREEMENT
- 105 -
HIBERNIA NATIONAL BANK
By
----------------------------------
Title:
CREDIT AGREEMENT
- 106 -
KEY BANK
By
----------------------------------
Title:
CREDIT AGREEMENT
- 107 -
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH
By
----------------------------------
Title:
CREDIT AGREEMENT
- 108 -
MICHIGAN NATIONAL BANK
By
----------------------------------
Title:
CREDIT AGREEMENT
- 000 -
XXXXXXXX XXXX XX XXXXXX, a Canadian
Chartered Bank
By
----------------------------------
Title:
By
----------------------------------
Title:
CREDIT AGREEMENT
- 110 -
TRANSAMERICA BUSINESS CREDIT
CORPORATION
By
----------------------------------
Title:
CREDIT AGREEMENT
- 000 -
XXXXX XXXX XX XXXXXXXXXX, N.A.
By
----------------------------------
Title:
CREDIT AGREEMENT
- 112 -
WACHOVIA BANK, N.A.
By
----------------------------------
Title:
CREDIT AGREEMENT
- 113 -
BANQUE PARIBAS
By
----------------------------------
Title:
By
----------------------------------
Title:
CREDIT AGREEMENT
- 114 -
DAI-ICHI KANGYO BANK, LTD.
By
----------------------------------
Title:
CREDIT AGREEMENT
- 115 -
DEUTSCHE FINANCIAL SERVICES
By
----------------------------------
Title:
CREDIT AGREEMENT
- 116 -
THE FUJI BANK, LIMITED
By
----------------------------------
Title:
CREDIT AGREEMENT
- 117 -
THE MITSUBISHI TRUST AND BANKING
CORPORATION CHICAGO BRANCH
By
----------------------------------
Title:
CREDIT AGREEMENT
- 118 -
NATIONAL CITY BANK
By
----------------------------------
Title:
CREDIT AGREEMENT
- 119 -
THE NORTHERN TRUST COMPANY
By
----------------------------------
Title:
CREDIT AGREEMENT
- 120 -
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By
----------------------------------
Title:
CREDIT AGREEMENT
- 121 -
XXXXXXXXX CAPITAL PARTNERS
By
----------------------------------
Title:
CREDIT AGREEMENT
- 122 -
THE CHASE MANHATTAN BANK,
as Agent
By
----------------------------------
Title:
Address for Notices to Chase as Agent:
The Chase Manhattan Bank
New York Agency
000 Xxxx 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agent Bank Services
Telecopier No.: (000) 000-0000
CREDIT AGREEMENT
