--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT 11
QUEST DIAGNOSTICS INCORPORATED,
as Borrower,
and
THE GUARANTORS PARTY HERETO
----------------------
$1,575,000,000
CREDIT AGREEMENT
Dated as of August 16, 1999
----------------------
XXXXXXX XXXXX & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
as Joint Lead Arranger and Syndication Agent,
and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arranger,
and
BANK OF AMERICA, N.A.,
as Administrative Agent,
and
WACHOVIA BANK, N.A.,
as Co-Documentation Agent,
THE BANK OF NEW YORK,
as Co-Documentation Agent,
and
THE LENDERS PARTY HERETO
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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.
Page
----
Section 1. Definitions, Accounting Matters and Rules of Construction............ 1
1.01. Certain Defined Terms................................................ 1
1.02. Accounting Terms and Determinations.................................. 38
1.03. Classes and Types of Loans........................................... 39
1.04. Rules of Construction................................................ 39
Section 2. Commitments, Letters of Credit, Conversions and Continuations,
Fees, Register, Prepayments and Replacement of Lenders............ 40
2.01. Loans................................................................ 40
2.02. Borrowings........................................................... 42
2.03. Letters of Credit.................................................... 43
2.04. Termination and Reductions of Commitments............................ 48
2.05. Fees................................................................. 49
2.06. Lending Offices...................................................... 50
2.07. Several Obligations of Lenders....................................... 50
2.08. Notes; Register...................................................... 50
2.09. Optional Prepayments and Conversions or Continuations of Loans....... 51
2.10. Mandatory Prepayment and Commitment Reductions....................... 52
2.11. Replacement of Lenders............................................... 57
2.12. Defaulting Lenders................................................... 58
Section 3. Payments of Principal and Interest................................... 61
3.01. Repayment of Loans................................................... 61
3.02. Interest............................................................. 61
Section 4. Payments; Pro Rata Treatment; Computations; Etc...................... 62
4.01. Payments............................................................. 62
4.02. Pro Rata Treatment................................................... 63
4.03. Computations......................................................... 64
4.04. Minimum Amounts...................................................... 64
4.05. Certain Notices...................................................... 64
4.06. Non-Receipt of Funds by Administrative Agent......................... 65
4.07. Right of Setoff; Sharing of Payments; Etc............................ 66
-i-
Page
----
Section 5. Yield Protection, Etc................................................ 68
5.01. Additional Costs..................................................... 68
5.02. Inability to Determine Interest Rate................................. 69
5.03. Illegality........................................................... 70
5.04. Treatment of Affected Loans.......................................... 70
5.05. Compensation......................................................... 71
5.06. Net Payments......................................................... 71
5.07. Limitations on Obligations of Borrower............................... 74
Section 6. Guarantee............................................................ 75
6.01. The Guarantee........................................................ 75
6.02. Obligations Unconditional............................................ 75
6.03. Reinstatement........................................................ 77
6.04. Subrogation; Subordination........................................... 77
6.05. Remedies............................................................. 77
6.06. Instrument for the Payment of Money.................................. 78
6.07. Continuing Guarantee................................................. 78
6.08. General Limitation on Guarantee Obligations.......................... 78
Section 7. Conditions Precedent................................................. 78
7.01. Conditions to Effectiveness.......................................... 78
7.02. Conditions to Initial Extension of Credit............................ 79
7.03 Conditions to Initial and Subsequent Extensions of Credit............ 85
7.04. Determinations Under Section 7....................................... 86
Section 8. Representations and Warranties....................................... 86
8.01. Corporate Existence.................................................. 87
8.02. Financial Condition; Etc............................................. 87
8.03. Litigation........................................................... 88
8.04. No Breach; No Default................................................ 88
8.05. Action............................................................... 89
8.06. Approvals............................................................ 89
8.07. [Reserved]........................................................... 89
8.08. ERISA................................................................ 90
8.09. Taxes................................................................ 90
8.10. Investment Company Act; Public Utility Holding Company Act;
Other Restrictions................................................ 90
8.11. Environmental Matters................................................ 91
8.12. [Reserved]........................................................... 91
8.13. Use of Proceeds...................................................... 91
8.14. Subsidiaries, Etc.................................................... 92
8.15. Ownership of Property; Liens......................................... 92
-ii-
Page
----
8.16. Security Interest; Absence of Financing Statements; Etc.............. 92
8.17. Licenses and Permits; Compliance with Laws........................... 93
8.18. True and Complete Disclosure; Exchange Act Filings................... 93
8.19. Solvency............................................................. 93
8.20. Contracts............................................................ 94
8.21. Labor Matters........................................................ 94
8.22. Subordinated Debt.................................................... 94
8.23. Year 2000............................................................ 94
8.24. Intellectual Property................................................ 94
8.25. Existing Indebtedness................................................ 95
Section 9. Covenants............................................................ 95
9.01. Financial Statements, Etc............................................ 95
9.02. Litigation, Etc...................................................... 99
9.03. Existence; Compliance with Law; Payment of Taxes; Inspection
Rights; Performance of Obligations; Etc........................... 99
9.04. Insurance............................................................ 100
9.05. Limitation on Lines of Business...................................... 100
9.06. Limitation on Fundamental Changes, Acquisitions or Dispositions...... 101
9.07. Limitation on Liens and Negative Pledges............................. 105
9.08. Prohibition on Disqualified Capital Stock; Limitation on
Indebtedness and Contingent Obligations; Limitation on
Designated Senior Indebtedness.................................... 107
9.09. Limitation on Investments; Limitation on Creation of Subsidiaries.... 110
9.10. Limitation on Dividend Payments...................................... 114
9.11. Financial Covenants.................................................. 115
9.12. Equal Security for Loans and Notes; Pledge or Mortgage of Real
Property; Landlord Consents....................................... 117
9.13. Security Interests; Further Assurances............................... 118
9.14. Compliance with Environmental Laws................................... 118
9.15. Limitation on Transactions with Affiliates and Related Persons....... 119
9.16. Limitation on Accounting Changes; Limitation on Investment
Company Status.................................................... 120
9.17. Limitation on Modifications of Certain Documents, Etc................ 120
9.18. Interest Rate Protection Agreements.................................. 120
9.19. Limitation on Certain Restrictions Affecting Subsidiaries............ 120
9.20. Additional Obligors.................................................. 121
9.21. Limitation on Payments or Prepayments of Indebtedness or
Modification of Xxx Documents..................................... 122
9.22. Year 2000 Compliance................................................. 123
-iii-
Page
----
Section 10. Events of Default.................................................... 123
Section 11. Agents............................................................... 128
11.01. General Provisions................................................... 128
11.02. Indemnification...................................................... 130
11.03. Consents Under Other Credit Documents................................ 131
11.04. Collateral Sub-Agents................................................ 131
Section 12. Miscellaneous........................................................ 131
12.01. Waiver............................................................... 131
12.02. Notices.............................................................. 132
12.03. Expenses, Indemnification, Etc....................................... 132
12.04. Amendments, Etc...................................................... 134
12.05. Successors and Assigns............................................... 139
12.06. Assignments and Participations....................................... 139
12.07. Survival............................................................. 141
12.08. Captions............................................................. 141
12.09. Counterparts; Interpretation; Effectiveness.......................... 142
12.10. Governing Law; Submission to Jurisdiction; Waivers; Etc.............. 142
12.11. Confidentiality...................................................... 143
12.12. Independence of Representations, Warranties and Covenants............ 143
12.13. Severability......................................................... 143
Signatures.......................................................................... S-1
ANNEX A - Commitments
ANNEX B - Terms of Receivables Transaction
SCHEDULE 1.01(a) - Applicable Margins Before Trigger Date
SCHEDULE 1.01(b) - Applicable Margins After Trigger Date
SCHEDULE 1.01(c) - Applicable R/C Fee Percentage
SCHEDULE 1.01(d) - Guarantors
SCHEDULE 1.01(e) - Excluded Subsidiaries at Effective Date
SCHEDULE 1.01(f) - Qualified Joint Ventures
SCHEDULE 1.01(g) - Contemplated Acquisitions
SCHEDULE 1.01(h) - Contemplated Dispositions
SCHEDULE 1.01(i) - Contemplated Investments
SCHEDULE 1.01(j) - Mortgaged Real Property at Closing Date
SCHEDULE 2.03(l) - Existing Letters of Credit
SCHEDULE 3.01(b) - Amortization Schedule
SCHEDULE 7.02(xviii) - Mortgaged Real Property Matters at Closing Date
SCHEDULE 8.02(C) - Certain Contingent Obligations
SCHEDULE 8.03 - Litigation
-iv-
SCHEDULE 8.09 - Tax Matters
SCHEDULE 8.11 - Environmental Matters
SCHEDULE 8.14 - Subsidiaries, Etc.
SCHEDULE 8.16 - Security Interests
SCHEDULE 8.21 - Labor Matters
SCHEDULE 8.24 - Intellectual Property Matters
SCHEDULE 8.25(A) - Indebtedness Outstanding as of the Effective Date
SCHEDULE 8.25(B) - Certain Indebtedness to Remain Outstanding After the
Closing Date
SCHEDULE 9.07 - Certain Existing Liens
SCHEDULE 9.09 - Investments
SCHEDULE 9.12 - Mortgaged Real Property Matters After Closing Date
SCHEDULE 9.15 - Existing Affiliate Agreements
SCHEDULE 9.19 - Certain Restrictions Applicable to Subsidiaries
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term A Facility Note
EXHIBIT A-3 - Form of Term B Facility Note
EXHIBIT A-4 - Form of Term C Facility Note
EXHIBIT A-5 - Form of Capital Markets Facility Note
EXHIBIT A-6 - Form of Swing Loan Note
EXHIBIT B - Terms of Subordination Provision
EXHIBIT C-1 - Form of Interest Rate Certificate
EXHIBIT C-2 - Form of Solvency Certificate
EXHIBIT D - Form of Security Agreement
EXHIBIT E-1 - Form of Opinion of Xxxxxxx X. Xxxxxx, Vice President
and Senior Counsel of Borrower
EXHIBIT E-2 - Form of Opinion of Counsel to the Obligors
EXHIBIT F - Form of Notice of Assignment
EXHIBIT G - Form of Notice of Borrowing
EXHIBIT H - Form of Notice of Conversion/Continuation
EXHIBIT I - Form of Joinder Agreement
EXHIBIT J - Form of Foreign Lender Certificate
EXHIBIT K - [Reserved]
EXHIBIT L - Form of Assignment Agreement
EXHIBIT M - Form of Perfection Certificate
-v-
CREDIT AGREEMENT dated as of August 16, 1999, among QUEST DIAGNOSTICS
INCORPORATED, as Borrower; the Guarantors party hereto; each of the lenders that
is a signatory hereto identified under the caption "LENDERS" on the signature
pages hereto or that, pursuant to Section 12.06(b), shall become a "Lender"
hereunder (individually, a "LENDER" and, collectively, the "LENDERS"); XXXXXXX
XXXXX & CO., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED ("XXXXXXX
XXXXX"), as joint lead arranger; BANC OF AMERICA SECURITIES LLC ("BAS"), as
joint lead arranger (in such capacity, together with its successors and Xxxxxxx
Xxxxx together with its successors in its capacity as joint lead arranger, the
"JOINT LEAD ARRANGERS"); BANK OF AMERICA, N.A. ("BANK OF AMERICA"), as
administrative agent (in such capacity, together with its successors in such
capacity, the "ADMINISTRATIVE AGENT"); WACHOVIA BANK, N.A. ("WACHOVIA"), as
co-documentation agent; THE BANK OF NEW YORK, as co-documentation agent (in such
capacity, together with Wachovia as co-documentation agent, the
"CO-DOCUMENTATION AGENTS"); and XXXXXXX XXXXX & CO., XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED, as syndication agent (in such capacity, together
with its successors in such capacity, the "SYNDICATION AGENT").
The parties hereto agree as follows:
Section 1. DEFINITIONS, ACCOUNTING MATTERS AND RULES OF CONSTRUCTION.
1.01. CERTAIN DEFINED TERMS. As used herein, the following terms shall
have the following meanings:
"ABR LOANS" shall mean Loans that bear interest at rates based upon the
Alternate Base Rate.
"ACCOUNT" shall mean any account (as that term is defined in Section
9-106 of the UCC) of any Company arising from the sale or lease of goods or
rendering of services.
"ACQUISITION" shall mean, with respect to any Person, any transaction
or series of related transactions for the direct or indirect (a) acquisition of
all or substantially all of the Property of any other Person, or of any business
or division of any other Person, (b) acquisition of more than 50% of the Equity
Interests of any other Person, or otherwise causing any other Person to become a
Subsidiary of such Person, or (c) merger or consolidation or any other
combination with any other Person.
"ACQUISITION CONSIDERATION" shall mean the purchase consideration for
any Acquisition and all other payments made and Indebtedness incurred by any
Company in exchange for, or as part of the purchase price for, any Acquisition,
whether paid in cash or by exchange of Equity Interests or of Property or
otherwise and whether payable at or prior to the consummation of such
Acquisition or deferred for payment at any future time, whether or not any such
future payment is subject to the occurrence of any contingency, and includes any
and all payments and liabilities representing the purchase price and any
assumption of Indebtedness, "earn-outs" and other Profit Payment Agreements (if,
and when, paid) and non-competition agreements.
-2-
"ADJUSTED NET INCOME" shall mean, for any period, Consolidated Net
Income for such period, adjusted by excluding (to the extent taken into account
in the calculation of such Consolidated Net Income) the effect of (a) gains or
losses for such period from Excluded Dispositions and Dispositions not in the
ordinary course of business, and the tax consequences thereof, (b) any
non-recurring or extraordinary items of income (other than the proceeds of
business interruption insurance) or expense, including transaction and
integration expenses related to the SBCL Acquisition (the cash amount related to
the SBCL Acquisition being limited to an aggregate pre-tax amount of $300.0
million (it being understood that the write-down of accounts receivable in
connection with the SBCL Acquisition are not cash expenses)) for such period and
the tax consequences thereof, (c) the net income of any Subsidiary to the extent
that the declaration or payment of dividends or similar distribution by such
Subsidiary was not for the relevant period permitted, by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to such Subsidiary or its
stockholders, and (d) non-cash charges associated with the issuance by Borrower
of its Equity Interests or Equity Rights to employees of any Company.
"ADMINISTRATIVE AGENT" see the introduction hereto.
"ADVANCE DATE" see Section 4.06.
"AFFILIATE" shall mean, with respect to any Person, any other Person
which directly or indirectly controls, or is under common control with, or is
controlled by, such Person. 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).
"AFFILIATE TRANSACTION" see Section 9.15.
"AGENT" shall mean any of Administrative Agent, either Co-Documentation
Agent, either Joint Lead Arranger or Syndication Agent.
"AGREEMENT" shall mean this Credit Agreement, as amended from time to
time.
"ALTERNATE BASE RATE" shall mean for any day, the higher of (a) the
Prime Rate announced by Administrative Agent from time to time, changing when
said Prime Rate changes, and (b) the Federal Funds Rate plus 0.50% PER ANNUM.
Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such change.
"AMORTIZATION PAYMENT" shall mean each scheduled installment of
payments on the Term Loans as set forth in Section 3.01(b).
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of such
Lender) designated for such type of Loan on the signature pages hereof or such
other office of such Lender (or of an Affiliate of such
-3-
Lender) as such Lender may from time to time specify to Administrative Agent and
Borrower as the office by which its Loans of such Type are to be made and
maintained.
"APPLICABLE MARGIN" shall be, for any Type and Class of Loan, (A) prior
to the Trigger Date (as defined below), the percentage PER ANNUM set forth on
SCHEDULE 1.01(A) for such Type and Class of Loan, and (B) on and after the date
(the "TRIGGER DATE") which is the later of (a) the date of repayment in full of
the Capital Markets Facility and (b) the first date after the Closing Date on
which Borrower has delivered to the Lenders the financial statements and an
Interest Rate Certificate required by Sections 9.01(a), (b) and (e) and an
Officers' Certificate demonstrating the then applicable Total Leverage Ratio for
a fiscal quarter ended at least six months after the Closing Date, the
Applicable Margin shall be the percentage PER ANNUM set forth on SCHEDULE
1.01(B) for such Type and Class of Loan set forth opposite the relevant Total
Leverage Ratio in each Schedule as evidenced in the most recent Interest Rate
Certificate delivered hereunder. After the Trigger Date, any change in the Total
Leverage Ratio shall be effective to adjust the Applicable Margin as of the date
of receipt by Administrative Agent of the Interest Rate Certificate most
recently delivered pursuant to Section 9.01(e). If Borrower fails to deliver the
financial statements or Interest Rate Certificate within the times specified in
Sections 9.01(a), (b) and (e), the Total Leverage Ratio shall be deemed to be
greater than or equal to 4.25:1.0 from the date of any such failure to deliver
until Borrower delivers such Interest Rate Certificate and financial statements.
"APPLICABLE R/C FEE PERCENTAGE" shall mean 0.50% PER ANNUM; PROVIDED,
HOWEVER, that on and after the Trigger Date, when the Total Leverage Ratio (as
evidenced in the most recently delivered Interest Rate Certificate) at the end
of the most recently ended fiscal quarter is as set forth in SCHEDULE 1.01(C),
the Applicable R/C Fee Percentage shall mean the percentage PER ANNUM set forth
opposite such Total Leverage Ratio in SCHEDULE 1.01(C). Any change in the Total
Leverage Ratio shall be effective to adjust the Applicable R/C Fee Percentage as
of the date of receipt by Administrative Agent of the Interest Rate Certificate
most recently delivered pursuant to Section 9.01(e). If Borrower fails to
deliver the financial statements and Interest Rate Certificate within the times
specified in Sections 9.01(a), (b) and (e), the Total Leverage Ratio shall be
deemed to be greater than or equal to 4.25:1.0 from the date of any such failure
to deliver until Borrower delivers such Interest Rate Certificate and financial
statements.
"APPROVED FUND" shall mean, with respect to any Lender that is a fund
or commingled investment vehicle that invests in loans, any other fund that
invests in loans and is managed or advised by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.
"BANKRUPTCY CODE" shall mean the United States Federal Bankruptcy Code
of 1978, as amended or supplemented.
"BAS" see the introduction to this Agreement.
"BORROWER" shall mean Quest Diagnostics Incorporated, a Delaware
corporation.
"BUSINESS DAY" shall mean any day, except a Saturday or Sunday, (a) on
which commercial banks are not authorized or required to close in Xxx Xxxx Xxxx
xxx Xxxxxxxxx, Xxxxx Xxxxxxxx
-4-
and (b) if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, a Continuation or Conversion of or into, or an
Interest Period for, a LIBOR Loan or a notice by Borrower with respect to any
such borrowing, payment, prepayment, Continuation, Conversion or Interest
Period, that is also a day on which dealings in Dollar deposits are carried out
in the London interbank market. Administrative Agent will notify Borrower of any
such day that is a Business Day in North Carolina but not in New York to the
extent Administrative Agent has knowledge of the same.
"CAPITAL EXPENDITURES" shall mean, for any period, any direct or
indirect (by way of acquisition of securities of a Person or the expenditure of
cash or the transfer of Property or the incurrence of Indebtedness) expenditures
in respect of the purchase or other acquisition of fixed or capital assets
determined in conformity with GAAP, excluding (a) normal replacement and
maintenance programs properly charged to current operations, (b) any expenditure
made with the Net Available Proceeds of any Equity Issuance or Disposition Event
to the extent such Net Available Proceeds are not required to be applied to the
prepayment of the Loans in accordance with Sections 2.10(a)(ii) or 2.10(a)(iv),
(c) any expenditure made in an amount not exceeding the proceeds of any Excluded
Disposition (other than sales of inventory in the ordinary course of business),
(d) expenditures in an amount not to exceed the sum of (x) the Net Available
Proceeds of any Casualty Event to the extent such Net Available Proceeds are not
required to be applied to the prepayment of the Loans in accordance with Section
2.10(a)(i) and (y) the amount of any applicable insurance deductibles with
respect to such Casualty Event to the extent such amount is applied as set forth
in clause (x) of Section 2.10(a)(i) within the period specified therein, (e)
expenditures to effect Permitted Acquisitions to the extent permitted by
Sections 9.06 and 9.09, and (f) the purchase price of equipment to the extent
that the consideration therefor consists of used or surplus equipment being
traded in at such time or the proceeds of a concurrent sale of such used or
surplus equipment.
"CAPITAL LEASE," as applied to any Person, shall mean any lease of any
Property by that Person as lessee which, in conformity with GAAP, is required to
be classified and accounted for as a capital lease on the balance sheet of that
Person.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all obligations
of such Person to pay rent or other amounts under a Capital Lease, and, for
purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"CAPITAL MARKETS FACILITY" shall mean the credit facility comprising
the Capital Markets Facility Commitments and Capital Markets Facility Loans.
"CAPITAL MARKETS FACILITY COMMITMENT" shall mean, for each Capital
Markets Facility Lender, the obligation of such Lender to make a Capital Markets
Facility Loan in an amount up to but not exceeding the amount set opposite the
name of such Lender on ANNEX A under the caption "Capital Markets Facility
Commitment" (as the same may be changed pursuant to Section 12.06(b)). The
initial aggregate principal amount of the sum of the Capital Market Facility
Commitments of all Lenders is $300.0 million.
"CAPITAL MARKETS FACILITY LENDERS" shall mean (a) on the date hereof,
the Lenders having Capital Markets Facility Commitments on the signature pages
hereof, and (b) thereafter, the
-5-
Lenders from time to time holding Capital Markets Facility Loans and Capital
Markets Facility Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b).
"CAPITAL MARKETS FACILITY LOANS" see Section 2.01(b).
"CAPITAL MARKETS FACILITY NOTES" shall mean the promissory notes
substantially in the form of EXHIBIT A-5.
"CASH EQUIVALENTS" shall mean, for any Person: (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 by
any agency thereof, in either case maturing not more than thirteen months from
the date of acquisition thereof by such Person; (b) time deposits, certificates
of deposit or bankers' acceptances (including eurodollar deposits) issued by any
Lender or any other 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 $500.0 million and a deposit rating of investment grade; (c)
commercial paper rated or master notes issued or guaranteed by an entity rated
A-1 or better by S&P or P-1 or better by Xxxxx'x, respectively, maturing not
more than 180 days from the date of acquisition thereof by such Person; (d)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (a) above entered into with a bank
meeting the qualifications described in clause (b) above; (e) securities with
maturities of six months or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least A by S&P or A by Moody's; or (f) money market mutual funds or bond
funds that invest primarily in the foregoing items.
"CASUALTY EVENT" shall mean, with respect to any Property of any
Person, any loss of title with respect to Real Property, or any loss of or
damage to or destruction of, or any condemnation or other taking (including by
any Governmental Authority) of, such Property for which such Person or any of
its Subsidiaries receives insurance proceeds or proceeds of a condemnation award
or other compensation; PROVIDED, HOWEVER, no such event shall constitute a
Casualty Event if (x) such proceeds or other compensation in respect thereof is
less than $5.0 million and (y) all such proceeds and other compensation in
respect of all such events since the Effective Date is less than $20.0 million.
"CASUALTY EVENT" shall include but not be limited to any taking of all or any
part of any Real Property of any Company, in or by condemnation or other eminent
domain proceedings pursuant to any Law, or by reason of the temporary
requisition of the use or occupancy of all or any part of any Real Property of
any Company by any Governmental Authority, civil or military.
"CERCLA" see Section 8.11.
"CHANGE OF CONTROL" shall mean any transaction or event occurring on or
after the date hereof as a direct or indirect result of which (a) any Person or
any group shall (i) beneficially own (directly or indirectly) in the aggregate
Equity Interests of Borrower having 35% or more of the aggregate voting power of
all Equity Interests of Borrower at the time outstanding or (ii) have the right
or power to appoint a majority of the board of directors of Borrower; or (b)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the board of
-6-
directors of Borrower (together with any new directors whose election by such
board of directors or whose nomination for election by the shareholders of
Borrower was approved by a vote of a majority of the directors of Borrower then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute at least a majority of the board of directors of
Borrower then in office. For purposes of this definition, the terms
"BENEFICIALLY OWN" and "GROUP" shall have the respective meanings ascribed to
them pursuant to Section 13(d) of the Exchange Act, except that a Person or
group shall be deemed to "beneficially own" all securities that such Person or
group has the right to acquire, whether such right is exercisable immediately or
only after the passage of time.
"CLASS" see Section 1.03.
"CLOSING DATE" see Section 7.02.
"CODE" shall mean the United States Internal Revenue Code of 1986, as
amended.
"CO-DOCUMENTATION AGENTS" see the introduction hereto.
"COLLATERAL" shall mean all of the Pledged Collateral, the Mortgaged
Property (as defined in each Mortgage) and any other Property, whether now owned
or hereafter acquired, upon which a Lien securing the Obligations is granted or
to be granted in accordance with the terms hereof under any Security Document.
"COLLATERAL ACCOUNT" see Section 9(d) of the Security Agreement.
"COMMISSION" shall mean the United States Securities and Exchange
Commission.
"COMMITMENT LETTER" shall mean the Credit Facilities Commitment Letter
among Xxxxxxx Xxxxx Capital Corporation, BAS (f/k/a NationsBanc Xxxxxxxxxx
Securities LLC), Bank of America (f/k/a NationsBank, N.A.) and Borrower dated
February 8, 1999, together with Exhibit A thereto.
"COMMITMENTS" shall mean the Revolving Commitments and the Term Loan
Commitments.
"COMPANIES" shall mean Borrower and the Subsidiaries; and "COMPANY"
shall mean any of them.
"CONSOLIDATED COMPANIES" shall mean Borrower and its Consolidated
Subsidiaries.
"CONSOLIDATED EBITDA" shall mean, for any period, the sum (without
duplication) of the amounts for such period of Adjusted Net Income, PLUS, in
each case to the extent deducted in calculating such Adjusted Net Income, (a)
income tax expense, (b) Consolidated Interest Expense, (c) depreciation and
amortization expense, and (d) other non-cash items of expense, other than to the
extent requiring an accrual or reserve for future cash expenses all as
determined on a consolidated basis for Consolidated Companies. Consolidated
EBITDA shall be calculated on a pro forma basis
-7-
and otherwise in accordance with GAAP and Regulation S-X under the Securities
Act to give effect to the SBCL Acquisition and any other Acquisitions and
Dispositions during the fiscal period of Borrower ended on the Test Date thereof
as if each such Acquisition had been effected on the first day of such period
and as if each such Disposition had been consummated on the day prior to the
first day of such period. In calculating Consolidated EBITDA prior to the first
anniversary of the Closing Date, such calculation shall be made on a pro forma
basis (to the extent applicable) to give effect to the SBCL Acquisition on a
basis and with adjustments substantially consistent with the calculation of
Consolidated EBITDA made in connection with satisfying the condition set forth
in Section 7.02(xiii) (and, prior to the first anniversary of the Closing Date,
Borrower shall provide Joint Lead Arrangers with an Officers' Certificate
accompanied by a schedule providing reasonable detail for each such
calculation).
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, the sum of
(x) all cash interest expense of Consolidated Companies for such period as
determined on a consolidated basis for Consolidated Companies in accordance with
GAAP and (y) in the event of the consummation of a Permitted Receivables
Transaction, an amount equal to the interest (or other fees in the nature of
interest or discount accrued and paid or payable in cash for such period) on
such Permitted Receivables Transaction.
"CONSOLIDATED NET INCOME" shall mean, for any period, the consolidated
net income (or loss) of Consolidated Companies for such period, determined in
conformity with GAAP, but excluding the income of any Person (other than the
Subsidiaries) in which any Company has an ownership interest, until such income
has been received by a Company in a cash distribution.
"CONSOLIDATED SUBSIDIARY" shall mean, for any Person, each Subsidiary
of such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall or should be consolidated with the financial
statements of such Person in accordance with GAAP.
"CONTEMPLATED ACQUISITION" shall mean each proposed Acquisition listed
on SCHEDULE 1.01(g).
"CONTEMPLATED DISPOSITION" shall mean each Disposition contemplated by
Companies identified on SCHEDULE 1.01(h).
"CONTEMPLATED INVESTMENT" shall mean each Investment contemplated by
Companies identified on SCHEDULE 1.01(i).
"CONTINGENT OBLIGATION" shall mean, as to any Person, any direct or
indirect liability of such Person, whether or not contingent, (a) with respect
to any Indebtedness, lease, dividend, letter of credit or other obligation (the
"PRIMARY OBLIGATIONS") of another Person (the "PRIMARY OBLIGOR"), including any
obligation of such Person (i) to purchase, repurchase or otherwise acquire such
primary obligations or any security therefor, (ii) to advance or provide funds
for the payment or discharge of any such primary obligation, or to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of income or
financial condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the
-8-
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (iv)
otherwise to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof (each of (i)-(iv), a "GUARANTY OBLIGATION"); (b)
with respect to any Surety Instrument (other than any Letter of Credit) issued
for the account of such Person or as to which such Person is otherwise liable
for reimbursement of drawings or payments; (c) to purchase any materials,
supplies or other property from, or to obtain the services of, another Person if
the relevant contract or other related document or obligation requires that
payment for such materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials, supplies or
other property is ever made or tendered, or such services are ever performed or
tendered; or (d) in respect of any Swap Contract; PROVIDED, HOWEVER, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection or standard contractual indemnities entered into, in each
case in the ordinary course of business. The amount of any Contingent Obligation
shall (x) in the case of a Guaranty Obligation, be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and (y) in the case of
other Contingent Obligations, be equal to the maximum reasonably anticipated
liability in respect thereof. The Contingent Obligations of any Person shall
include any Indebtedness of any partnership in which such Person is the general
partner.
"CONTINUE," "CONTINUATION" and "CONTINUED" shall refer to the
continuation pursuant to Section 2.09 of a LIBOR Loan from one Interest Period
to the next Interest Period.
"CONTRACTUAL OBLIGATION" shall mean as to any Person, any provision of
any security issued by such Person or of any mortgage, security agreement,
pledge agreement, indenture, credit agreement, securities purchase agreement,
debt instrument, contract, agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its Property is bound or
subject.
"CONVERT," "CONVERSION" and "CONVERTED" shall refer to a conversion
pursuant to Section 2.09 of one Type of Loan into another Type of Loan, which
may be accompanied by the transfer by a Lender (at its sole discretion) of a
Loan from one Applicable Lending Office to another.
"COVERED TAXES" see Section 5.06(a).
"CREDIT DOCUMENTS" shall mean this Agreement, the Notes, the L/C
Documents and the Security Documents, as amended from time to time.
"CREDIT FACILITIES" shall mean the Term Facilities and the Revolving
Facility.
"CREDITOR" shall mean each of (a) each Agent, (b) each L/C Lender, (c)
each Lender, and (d) each party to a Swap Contract relating to the Loans if at
the date of entering into such Swap Contract such Person was a Lender or an
Affiliate of a Lender.
"DEBT ISSUANCE" shall mean the incurrence by any Company of any
Indebtedness after the Effective Date.
-9-
"DEFAULT" shall mean any event or condition that constitutes an Event
of Default or that would become, with notice or lapse of time or both, an Event
of Default.
"DEFAULTED ADVANCE" shall mean, with respect to any Lender at any time,
the portion of any Loan required to be made by such Lender to Borrower pursuant
to Section 2 at or prior to such time that has not been made by such Lender or
by Administrative Agent for the account of such Lender pursuant to Section 4.06
as of such time. In the event that a portion of a Defaulted Advance shall be
deemed made pursuant to Section 2.12(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to be made
pursuant to Section 2 on the same date as the Defaulted Advance so deemed made
in part.
"DEFAULTED AMOUNT" shall mean with, respect to any Lender at any time,
any Required Payment to be paid by such Lender to any Agent or any other Lender
hereunder or under any other Credit Document at or prior to such time that has
not been so paid as of such time. In the event that a portion of a Defaulted
Amount shall be deemed paid pursuant to Section 2.12(b), the remaining portion
of such Defaulted Amount shall be considered a Defaulted Amount originally
required to be paid hereunder or under any other Credit Document on the same
date as the Defaulted Amount so deemed paid in part.
"DEFAULTING LENDER" shall mean, at any time, any Lender that, at such
time, (a) owes, for a period of three or more consecutive Business Days, a
Defaulted Advance or a Defaulted Amount or (b) shall take any action or be the
subject of any action or proceeding of a type described in Sections 10(e)
through (g).
"DISPOSITION" shall mean (a) any conveyance, sale, lease, assignment,
transfer or other disposition (including by way of merger or consolidation and
including any Sale and Leaseback Transaction) of any Property (including
Accounts of any Company and Equity Interests of any Person owned by any Company)
(whether owned on the Effective Date or thereafter acquired) by any Company to
any Person, (b) any issuance or sale by any Subsidiary of its Equity Interests
to any Person (other than any Company), and (c) any liquidating dividend or
distribution received by any Company in respect of any Minority Interest,
excluding, however, in each case any Excluded Disposition (except for purposes
of defining the term "Excluded Disposition").
"DISPOSITION EVENT" shall mean the receipt by any Company of cash
proceeds or cash distributions of any kind in consideration for a Disposition.
"DISQUALIFIED CAPITAL STOCK" shall mean, with respect to any Person,
any Equity Interest of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily redeemable or
purchaseable (other than solely for Qualified Capital Stock), pursuant to a
sinking fund obligation or otherwise, or is redeemable or purchaseable at the
sole option of the holder thereof (other than solely for Qualified Capital
Stock) or exchangeable or convertible into debt securities of the issuer thereof
at the sole option of the holder thereof, in whole or in part, on or prior to
the date which is 90 days after the Final Maturity Date.
-10-
"DIVIDEND PAYMENT" shall mean 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 Equity Interests
or Equity Rights of any Company, but excluding dividends paid through the
issuance of additional shares of Qualified Capital Stock and any redemption or
exchange of any Qualified Capital Stock of such Obligor through the issuance of
Qualified Capital Stock of such Obligor.
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" shall mean any Subsidiary other than a Foreign
Subsidiary.
"EFFECTIVE DATE" see Section 7.01.
"ELIGIBLE PERSON" shall mean (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $500.0 million; (b) a commercial bank organized under
the laws of any other country that is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus in a dollar equivalent amount
of at least $500.0 million; PROVIDED, HOWEVER, that such bank is acting through
a branch or agency located in the country in which it is organized or another
country that is also a member of the OECD; (c) an insurance company, mutual fund
or other entity which is regularly engaged in making, purchasing or investing in
loans or securities; or any other financial institution organized under the laws
of the United States, any state thereof, any other country that is a member of
the OECD or a political subdivision of any such country with assets, or assets
under management, in a dollar equivalent amount of at least $500.0 million; (d)
any Affiliate of a Lender; (e) any other entity (other than a natural person)
which is an "accredited investor" (as defined in Regulation D under the
Securities Act) which extends credit or buys loans as one of its principal
businesses or investing activities including, but not limited to, insurance
companies, mutual funds and investment funds; and (f) any other entity consented
to by each Joint Lead Arranger, Administrative Agent and Borrower. With respect
to any Lender that is a fund or commingled investment vehicle that invests in
loans, any other fund or commingled investment vehicle that invests in loans and
is managed or advised by the same investment advisor of such Lender or by an
Affiliate of such investment advisor shall be treated as a single Eligible
Person.
"EMPLOYEE BENEFIT PLAN" shall mean an employee benefit plan (as defined
in Section 3(3) of ERISA) that is maintained or contributed to by any ERISA
Entity or with respect to which Borrower or a Subsidiary could incur liability.
"ENVIRONMENTAL CLAIM" shall mean, with respect to any Person, any
written notice, claim, demand or other written communication (collectively, a
"CLAIM") by any other Person alleging such Person's liability for any costs,
cleanup costs, response or corrective action costs, damages to natural resources
or other Property, personal injuries, fines or penalties arising out of or
resulting from (a) the presence, Release or threatened Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (b) any violation of any Environmental Law. The term
"ENVIRONMENTAL CLAIM" shall include any claim by any Person seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of
-11-
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment.
"ENVIRONMENTAL LAWS" shall mean any and all present and future
applicable laws, rules or regulations of any Governmental Authority, any orders,
decrees, judgments or injunctions and the common law in each case as now or
hereafter in effect, relating to pollution or protection of human health, safety
or the environment, including without limitation, ambient air, indoor air, soil,
or surface water, ground water, land or subsurface strata, and natural resources
such as wetlands, flora or fauna, including, without limitation, those relating
to Releases or threatened Releases of Hazardous Materials into the environment,
or otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, discharge, disposal, collection, transfer, transport or
handling of Hazardous Materials.
"EQUITY INTERESTS" shall mean, with respect to any Person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, whether outstanding on the date
hereof or issued after the Effective Date.
"EQUITY ISSUANCE" shall mean any of (a) any issuance or sale after the
Effective Date by Borrower of any Equity Interests (including any Equity
Interests issued upon exercise of any Equity Rights) or any Equity Rights, or
(b) the receipt by Borrower after the Closing Date of any capital contribution
(whether or not evidenced by any Equity Interest issued by the recipient of such
contribution), excluding in each case, any Excluded Equity Issuance.
"EQUITY PROCEEDS" shall mean, as of any date of determination, the
aggregate amount of the net proceeds received by Borrower from the sale or sales
of, or capital contributions with respect to, its Equity Interests or Equity
Rights, after deduction of costs, discounts and commissions incurred in
connection with such sale or sales, to such date of determination.
"EQUITY RIGHTS" shall mean, with respect to any Person, any outstanding
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any stockholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities convertible
into, any additional shares of Equity Interests of any class, or partnership or
other ownership interests of any type in, such Person.
"ERISA" shall mean the United States Employee Retirement Income
Security Act of 1974, as amended.
"ERISA ENTITY" shall mean any member of an ERISA Group.
"ERISA EVENT" shall mean (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Pension Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Pension Plan of an
-12-
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived, the failure to make by its due
date a required installment under Section 412(m) of the Code with respect to any
Pension Plan or the failure to make any required contribution to a Multiemployer
Plan; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Pension Plan; (d) the incurrence by any ERISA Entity of any
liability under Title IV of ERISA with respect to the termination of any Pension
Plan; (e) the receipt by any ERISA Entity from the PBGC or a plan administrator
of any notice relating to an intention to terminate any Pension Plan or to
appoint a trustee to administer any Pension Plan, or the occurrence of any event
or condition which could constitute grounds under ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan; (f) the
incurrence by any ERISA Entity of any liability with respect to the withdrawal
or partial withdrawal from any Pension Plan or Multiemployer Plan; (g) the
receipt by an ERISA Entity of any notice, or the receipt by any Multiemployer
Plan from any ERISA Entity of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA; (h) the making of any amendment to any Pension Plan which could result
in the imposition of a lien or the posting of a bond or other security; or (i)
the occurrence of a nonexempt prohibited transaction (within the meaning of
Section 4975 of the Code or Section 406 of ERISA) which could result in
liability to any Company.
"ERISA GROUP" shall mean any Company and all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with such Company, are treated as a single
employer under Section 414 of the Code.
"EVENT OF DEFAULT" see Section 10.
"EXCESS CASH FLOW" shall mean for the relevant period, (a) the sum of
(i) Consolidated EBITDA for such period (calculated for this definition by
adding back the cash portion of all extraordinary or non-recurring items of
income (other than from Dispositions ) to the extent excluded in the calculation
of Adjusted Net Income and by deducting the cash portion of all extraordinary or
non-recurring items of expense to the extent excluded in the calculation of
Adjusted Net Income (including transaction and integration expense to the extent
related to the SBCL Acquisition and other Acquisitions permitted hereby)); (ii)
any net decrease in Working Capital during such period (except to the extent
attributable to assets or Persons subject to a Disposition during such period);
and (iii) cash received from the proceeds of any life insurance or "key man"
policies during such period (to the extent not included in Adjusted Net Income),
MINUS (b) the sum of (i) Consolidated Interest Expense to the extent paid in
cash for such period; (ii) the sum of all scheduled principal payments (other
than pursuant to Section 2.10(a)(v)) on any Indebtedness (including Capital
Leases and Term Loans pursuant to Section 3.01(b)) of Consolidated Companies
made during such period from internally generated funds, all voluntary
prepayments of Term Loans made during such period from internally generated
funds and all prepayments of Revolving Loans made during such period from
internally generated funds to the extent accompanied by a permanent reduction in
the Revolving Commitments; (iii) cash Capital Expenditures made during such
period by the Companies to the extent funded from internally generated funds;
(iv) all cash taxes actually paid to any Governmental Authority by Consolidated
Companies during such period (other than any taxes relating to Dispositions or
-13-
Excluded Dispositions not in the ordinary course of business); (v) cash paid
during such period for any Acquisition permitted by Section 9.06 to the extent
made from internally generated funds; (vi) any net increases in Working Capital
during such period (except to the extent attributable to assets or Persons
subject to an Acquisition during such period); (vii) the amount of dividends on
the Voting Cumulative Preferred Stock paid during such period in cash; (viii)
all cash payments during such period to effect the settlement of governmental
and other claims arising out of alleged violations of applicable federal fraud
and health care statutes and relating to billing practices to the extent (A)
covered by reserves, (B) not otherwise deducted in calculating Adjusted Net
Income for such period, (C) not reimbursed by a third party and (D) not funded
from sources other than internally generated funds; (ix) Investments permitted
under Section 9.09 (except cash and Cash Equivalents) to the extent funded from
internally generated funds; (x) cash outlays for Permitted Customary Liens to
the extent not otherwise deducted in calculating Adjusted Net Income; (xi) cash
payments made during such period permitted by Section 9.10(b)(iii); and (xii)
any earnings included in Consolidated EBITDA for such period of a Receivables
Co. to the extent the terms of any Permitted Receivables Transaction prohibit
the distribution thereof to any Obligor.
"EXCHANGE ACT" shall mean the United States Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"EXCHANGE INDENTURE" shall mean an indenture pursuant to which Exchange
Notes are issued.
"EXCHANGE NOTES" see Section 9.08(A)(j).
"EXCHANGE OFFER" see Section 9.08(A)(j).
"EXCLUDED DISPOSITIONS" shall mean (a) Dispositions for fair market
value resulting in no more than $500,000 in aggregate proceeds per Disposition
(or series of related Dispositions) and less than $10.0 million in aggregate
proceeds in any fiscal year; (b) an exchange of equipment or inventory for other
equipment or inventory, provided that the Company effecting such exchange
receives at least substantially equivalent value in such exchange for the
Property disposed of; (c) any Permitted Lien, the making of any Investment
permitted by Section 9.09 and any Dividend Payment permitted by Section 9.10;
(d) any issuance of Equity Interests by any Subsidiary to directors or nominees
if resulting in DE MINIMIS proceeds; and (e) the sale of inventory in the
ordinary course of business.
"EXCLUDED ENTITY" shall mean each Excluded Subsidiary, each Foreign
Subsidiary, each Joint Venture Holding Company and each Qualified Joint Venture.
"EXCLUDED EQUITY ISSUANCE" shall mean (a) any issuance of common Equity
Interests of Borrower to the seller or sellers in consideration for a Permitted
Acquisition or pursuant to the SBCL Acquisition Agreement, (b) any issuance or
sale by Borrower of Equity Interests of Borrower to or for the account of
current or former employees, directors, officers or consultants pursuant to a
benefit or compensation plan or agreement, (c) any issuance of Qualified Capital
Stock of Borrower to the extent that the proceeds thereof are used for a
substantially contemporaneous purchase or
-14-
redemption of Equity Interests of Borrower contemplated by Section 9.10(b)(ii),
and (d) any issuance of Equity Interests by any Subsidiary to directors or
nominees if resulting in DE MINIMIS proceeds.
"EXCLUDED EXISTING LIENS" shall mean all Liens (including any Prior
Liens) in existence on the Effective Date so long as (i) any such Lien which is
securing liabilities greater than or equal to $1.0 million is identified with
particularity on SCHEDULE 9.07 and (ii) all such Liens identified on SCHEDULE
9.07 when aggregated with all such Liens not identified on SCHEDULE 9.07 do not
exceed $20.0 million in the aggregate.
"EXCLUDED SUBSIDIARY" shall mean each Subsidiary existing on the
Effective Date identified on SCHEDULE 1.01(E) as an Excluded Subsidiary unless
and until (other than in the case of a Joint Venture Holding Company) either (a)
such Subsidiary has consolidated assets in excess of $5.0 million or (b) such
Subsidiary's consolidated revenues for any fiscal year of Borrower exceed 1.0%
of Borrower's consolidated revenues for such fiscal year (and thereafter such
Subsidiary shall be deemed not an "Excluded Subsidiary").
"EXCLUDED TAXES" see Section 5.06(a).
"EXISTING AFFILIATE AGREEMENTS" see Section 9.15.
"EXISTING CREDIT FACILITIES" shall mean the existing $450.0 million
credit facilities of Borrower pursuant to a credit agreement dated as of
December 5, 1996 (as amended through the date hereof) agented by Xxxxxx Guaranty
Trust Company of New York, as administrative agent.
"EXISTING CREDIT FACILITIES REPAYMENT" shall mean the repayment of all
Indebtedness and cancellation of all commitments to make extensions of credit
under the Existing Credit Facilities.
"EXISTING INDENTURE" shall mean the Indenture pursuant to which the
Existing Notes were issued.
"EXISTING NOTES" shall mean Borrower's $150.0 million aggregate
principal amount of 10 3/4% Senior Subordinated Notes due 2006.
"FAIR MARKET VALUE" shall mean, with respect to any Property, a price
(after taking into account any liabilities relating to such Property), as
determined by Borrower in good faith, that is within a reasonable range of
prices which could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of which is
under any compulsion to complete the transaction.
"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, however, 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
-15-
is not so published for any Business Day, the Federal Funds Rate for such
Business Day shall be the average rate quoted to Administrative Agent on such
Business Day on such transactions by three federal funds brokers of recognized
standing, as determined by Administrative Agent.
"FEE LETTER" shall mean the Credit Facilities Fee Letter dated as of
February 8, 1999 among Xxxxxxx Xxxxx Capital Corporation, BAS (f/k/a NationsBanc
Xxxxxxxxxx Securities LLC), Bank of America (f/k/a NationsBank, N.A.) and
Borrower.
"FINAL MATURITY DATE" shall mean August 16, 2007; PROVIDED, HOWEVER,
that if at January 10, 2000 more than $15.0 million in aggregate principal
amount of the Existing Notes remains outstanding, then the Final Maturity Date
shall be June 15, 2006.
"FINANCIAL MAINTENANCE COVENANTS" shall mean the covenants set forth in
Sections 9.11(a) through (d).
"FIXED CHARGE COVERAGE RATIO" shall mean, for any Test Date, the ratio
of (x) Consolidated EBITDA for the four fiscal quarters ending on such Test Date
to (y) Fixed Charges for the four fiscal quarters ending on such Test Date.
Until June 30, 2000, the component of Fixed Charges that is Consolidated
Interest Expense shall be deemed to equal the product of (i) Consolidated
Interest Expense since the Closing Date to the date in question and (ii) a
fraction, the numerator of which is 365 and the denominator of which is the
number of days since the Closing Date. In addition, prior to the Test Date as of
September 30, 2000, Capital Expenditures as a component of Fixed Charges shall
be calculated by adding to the amount of Capital Expenditures otherwise
calculated in accordance with this definition the following amounts on the
following Test Dates: $31,200,000 for the Test Date as of September 30, 1999;
$22,762,000 for the Test Date as of December 31, 1999; $11,203,000 for the Test
Date as of March 31, 2000; and $7,800,000 for the Test Date as of June 30, 2000.
"FIXED CHARGES" shall mean, for any period, the sum of (a) Consolidated
Interest Expense for such period to the extent paid or payable in cash during
such period, (b) the sum of all scheduled principal payments on any Indebtedness
of Consolidated Companies (including, without duplication, any lease payments in
respect of Capital Leases of Consolidated Companies attributable to the
principal component thereof for such period (other than Capital Leases in
existence on the Effective Date to the extent of the amount of the principal
component of such Capital Leases on the Closing Date after giving effect to the
SBCL Acquisition) but excluding any prepayment of a type contemplated by Section
2.10), (c) all cash income tax expense actually paid to any Governmental
Authority by Consolidated Companies for such period (other than taxes related to
Dispositions or Excluded Dispositions not in the ordinary course of business and
other than taxes for which Borrower is entitled to be reimbursed pursuant to its
indemnity agreement from Corning, SmithKline Xxxxxxx Corporation or SmithKline
Xxxxxxx plc (as the case may be) to the extent Borrower has notified Corning,
SmithKline Xxxxxxx Corporation or SmithKline Xxxxxxx plc (as the case may be) of
the same in accordance with such agreement and to the extent such agreement is
in full force and effect and such reimbursement claim has not been disputed by
Corning, SmithKline Xxxxxxx Corporation or SmithKline Xxxxxxx plc (as the case
may be) or the party liable), (d) Capital Expenditures during
-16-
such period to the extent made from internally generated funds, and (e) all
dividends paid during such period on the Voting Cumulative Preferred Stock.
"FOREIGN LENDER CERTIFICATE" see Section 5.06.
"FOREIGN PLAN" shall mean any employee benefit plan, program, policy,
arrangement or agreement maintained or contributed to by, or entered into with,
any Company with respect to employees employed outside the United States.
"FOREIGN SUBSIDIARY" shall mean any direct or indirect Subsidiary
organized outside of the United States as defined in Section 7701(a)(9) of the
Code (or any successor provision).
"FUNDED INDEBTEDNESS" shall mean, at the date of determination thereof,
any Indebtedness of any Company which by its terms matures more than one year
after the date of calculation, and any such Indebtedness maturing within one
year from such date which is renewable or extendible at the option of the
obligor to a date more than one year from such date including, in any event, all
current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of
its creation and Indebtedness in respect of Loans, in each case determined on a
consolidated basis in conformity with GAAP.
"FUNDING DATE" shall mean the date of the making of any extension of
credit hereunder (including the Closing Date).
"GAAP" shall mean generally accepted accounting principles set forth as
of the relevant date in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the
date of determination.
"GOVERNMENTAL AUTHORITY" shall mean any national, state, county, city,
town, village, municipal or other local government department, commission,
board, bureau, agency, authority, or instrumentality of the United States or any
other national authority or any political subdivision of any thereof, and any
Person exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any of the foregoing entities, having jurisdiction
over the Person or matters in question.
"GUARANTEE" shall mean the guarantee of each Guarantor pursuant to
Section 6.
"GUARANTEED OBLIGATIONS" see Section 6.01.
"GUARANTORS" shall mean each Subsidiary listed on SCHEDULE 1.01(d) and
each Subsidiary that after the Effective Date guarantees the payment of the
Obligations pursuant to Section 7.02(xvi) or Section 9.20.
"GUARANTY OBLIGATION" see the definition of Contingent Obligation.
-17-
"HAZARDOUS MATERIAL" shall mean any pollutant, contaminant, toxic,
hazardous or extremely hazardous substance, constituent or waste, or any other
constituent, waste, material, compound or substance regulated under any
Environmental Law including, without limitation, petroleum or any petroleum
product, including crude oil or any fraction thereof, polychlorinated biphenyls,
urea-formaldehyde insulation and friable asbestos.
"INCUR" shall mean, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person, or to grant or create a Lien upon any Property of
such Person to secure any Indebtedness of another Person (and "INCURRENCE,"
"INCURRED" and "INCURRING" shall have meanings correlative to the foregoing).
"INDEBTEDNESS" shall mean, for any Person, without duplication, (a) all
indebtedness for borrowed money of such Person; (b) all obligations issued,
undertaken or assumed by such Person as the deferred purchase price of Property
or services (other than trade payables and accrued expenses); (c) all unpaid
reimbursement obligations in respect of Letters of Credit and all non-contingent
reimbursement or payment obligations of such Person with respect to Surety
Instruments that are not reimbursed within three Business Days (such as, for
example, unpaid reimbursement obligations in respect of a drawing under a letter
of credit); (d) all obligations of such Person evidenced by notes, bonds (other
than bid or performance bonds), debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of Property
or businesses; (e) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement, or incurred as financing,
in either case with respect to Property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such Property (other than
operating leases)); (f) all Capital Lease Obligations of such Person; (g) all
indebtedness of other Persons referred to in clauses (a) through (f) above
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in Property
(including accounts and contracts rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such indebtedness
(PROVIDED that the amount of indebtedness shall be deemed to be limited to the
lesser of the fair market value of such Property and the principal amount
outstanding if such Person has not assumed or become liable for the payment of
such indebtedness); (h) bankers' acceptances; and (i) all Guaranty Obligations
of such Person in respect of indebtedness or obligations of any other Person of
the kinds referred to in clauses (a) through (h) above. Indebtedness shall not
include accounts extended by suppliers in the ordinary course of business in
connection with the purchase of goods and services.
"INDEMNITEE" see Section 12.03(b).
"INSOLVENCY PROCEEDING" shall mean, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or by or
before any other Governmental Authority relating to bankruptcy, insolvency,
reorganization, liquidation, receivership, dissolution, sequestration,
conservatorship, winding-up or relief of debtors (or the convening of a meeting
or the
-18-
passing of a resolution for or with a view to any of the foregoing), or (b) any
assignment for the benefit of creditors, composition, marshalling of assets for
creditors, or other similar arrangement in respect of such Person's creditors
generally or any substantial portion of its creditors.
"INTELLECTUAL PROPERTY" see Section 8.24.
"INTEREST COVERAGE RATIO" shall mean, for any Test Date, the ratio of
(x) Consolidated EBITDA for the four fiscal quarters ending on such Test Date to
(y) Consolidated Interest Expense for the four fiscal quarters ending on such
Test Date. Until June 30, 2000, Consolidated Interest Expense shall equal the
product of (i) Consolidated Interest Expense since the Closing Date to the date
in question and (ii) a fraction, the numerator of which is 365 and the
denominator of which is the number of days since the Closing Date.
"INTEREST PERIOD" shall mean, with respect to any LIBOR Loan, each
period commencing on the date such LIBOR Loan is made or Converted from an ABR
Loan or the last day of the next preceding Interest Period for such LIBOR Loan
and (subject to the requirements of Section 2.09) ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as Borrower may select as provided in Section 4.05, 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: (a) if any
Interest Period for any Revolving Loan would otherwise end after the R/C
Termination Date, such Interest Period shall end on the R/C Termination Date;
(b) no Interest Period for any Term Loan may commence before and end after any
Principal Payment Date, unless, after giving effect thereto, the aggregate
principal amount of the Term Loans having Interest Periods that end after such
Principal Payment Date shall be equal to or less than the aggregate principal
amount of the Term Loans scheduled to be outstanding after giving effect to the
payments of principal required to be made on such Principal Payment Date; (c)
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 (d) notwithstanding clauses (a) and (b) above, no Interest
Period shall have a duration of less than one month and, if the Interest Period
for any LIBOR Loan would otherwise be a shorter period, such Loan shall not be
available hereunder as a LIBOR Loan for such period.
"INTEREST RATE CERTIFICATE" shall mean an Officers' Certificate
substantially in the form of EXHIBIT C-1, delivered pursuant to Section 9.01(e),
demonstrating in reasonable detail the calculation of the Total Leverage Ratio
as of any Test Date.
"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 financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"INTERNALLY GENERATED FUNDS" shall mean funds not generated from the
proceeds of any Loan, Debt Issuance, Equity Issuance, Disposition, insurance
recovery or Indebtedness (in each case
-19-
without regard to the exclusions from the definition thereof (other than sales
of inventory in the ordinary course of business)).
"IN THE ORDINARY COURSE OF BUSINESS" shall mean in the ordinary course
of business of the Companies.
"INVENTORY" shall have the meaning as defined in the Uniform Commercial
Code as in effect in the State of New York.
"INVESTMENT" shall mean, for any Person: (a) the acquisition (whether
for cash, Property, services or securities or otherwise) of Equity Interests,
Equity Rights, bonds, notes, debentures or other securities of any other Person;
(b) the making of any deposit (other than demand deposits or accounts receivable
in the ordinary course) 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); and (c) any capital contribution to (by means of any
transfer of cash or other Property to others or any payment for Property or
services for the account or use of others) any other Person.
"JOINDER AGREEMENT" shall mean a Joinder Agreement substantially in the
form of EXHIBIT I.
"JOINT LEAD ARRANGERS" see the introduction hereto.
"JOINT VENTURE" shall mean a corporation, partnership, limited
liability company, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now or
hereafter formed by any Company with another Person or Persons in order to
conduct a common venture or enterprise with such Person or Persons.
"JOINT VENTURE HOLDING COMPANY" shall mean a Subsidiary the only
material non-cash asset of which is its ownership interest in a Qualified Joint
Venture and the cash assets of which are promptly distributed.
"LAWS" shall mean, collectively, all common law and all international,
foreign, federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial precedents,
including without limitation the interpretation thereof by any Governmental
Authority charged with the enforcement thereof.
"L/C DOCUMENTS" shall mean, with respect to any Letter of Credit,
collectively, 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.
"L/C INTEREST" shall mean, for each Revolving Lender, such Lender's
participation interest (or, in the case of L/C Lender, L/C Lender's retained
interest) in L/C Lender's liability under
-20-
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.
"L/C LENDER" shall mean Bank of America, N.A. or any of its Affiliates,
or such other Lender or Lenders which have agreed to act in such capacity,
have been selected by Administrative Agent and are reasonably satisfactory to
Borrower, as the issuer of Letters of Credit under Section 2.03, together with
its successors and assigns in such capacity.
"L/C LIABILITY" shall mean, without duplication, at any time and in
respect of any Letter of Credit, the sum of (a) the undrawn face amount of such
Letter of Credit, PLUS (b) the aggregate unpaid principal amount of all
Reimbursement Obligations at such time in respect of all drawings made under
such Letter of Credit.
"LEASE" shall mean any lease, sublease, franchise agreement, license,
occupancy or concession agreement.
"LENDER" and "LENDERS" see the introduction hereto.
"LETTER OF CREDIT" see Section 2.03.
"LIBO RATE" shall mean, for any LIBOR Loan for any Interest Period
therefor, a rate PER ANNUM (rounded upwards, if necessary, to the nearest 1/100
of 1%) determined by Administrative Agent to be equal to the LIBOR 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.
"LIBOR BASE RATE" shall mean, with respect to any LIBOR Loan for any
Interest Period therefor, the rate PER ANNUM determined by Administrative Agent
to be the arithmetic mean (rounded to the nearest 1/100th of 1%) of the offered
rates for deposits in Dollars with a term comparable to such Interest Period
that appears on the Telerate British Bankers Assoc. Interest Settlement Rates
Page (as defined below) at approximately 11:00 a.m., London, England time, on
the second full Business Day preceding the first day of such Interest Period (as
adjusted for maximum statutory reserves (if applicable)); PROVIDED, HOWEVER,
that (a) if no comparable term for an Interest Period is available, the LIBOR
Base Rate shall be determined using the weighted average of the offered rates
for the two terms most nearly corresponding to such Interest Period and (b) if
there shall at any time no longer exist a Telerate British Bankers Assoc.
Interest Settlement Rates Page, "LIBOR BASE RATE" shall mean, with respect to
each day during each Interest Period pertaining to LIBOR Loans comprising part
of the same borrowing, the rate PER ANNUM equal to the rate at which
Administrative Agent is offered deposits in Dollars at approximately 11:00 a.m.,
London, England time, two Business Days prior to the first day of such Interest
Period in the London interbank market for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to its portion of the amount of such LIBOR Loan to be outstanding
during such Interest Period. "TELERATE BRITISH BANKERS ASSOC. INTEREST
SETTLEMENT RATES PAGE" shall mean the display designated as Page 3750 on the
Telerate System Incorporated Service (or such other page as may replace such
page on such service for the purpose of displaying the rates at which Dollar
deposits are offered by leading banks in the London interbank deposit markets).
-21-
"LIBOR LOANS" shall mean Loans that bear interest at rates based on
rates referred to in the definition of "LIBO Rate" in this Section 1.01.
"LIEN" shall mean, with respect to any Property, any mortgage, lien,
pledge, claim, charge, security interest or encumbrance of any kind, any other
type of preferential arrangement in respect of such Property having the effect
of a security interest or any filing consented to by any Company of any
financing statement under the UCC or any other similar notice of Lien under any
similar notice or recording statute of any Governmental Authority consented to
by any Company, including any easement, right-of-way or other encumbrance on
title to Real Property, and any agreement to give any of the foregoing.
"LOANS" shall mean the Revolving Loans, the Swing Loans and the Term
Loans.
"LOSSES" of any Person shall mean the losses, liabilities, claims
(including those based upon negligence, strict or absolute liability and
liability in tort), damages, reasonable expenses, obligations, penalties,
actions, judgments, encumbrances, liens, penalties, fines, suits, reasonable and
documented costs or disbursements of any kind or nature whatsoever (including
reasonable fees and expenses of counsel in connection with any Proceeding
commenced or threatened in writing, whether or not such Person shall be
designated a party thereto) at any time (including following the payment of the
Obligations) incurred by, imposed on or asserted against such Person.
"MAJORITY LENDERS" shall mean (a) at any time prior to the Closing
Date, Lenders holding at least a majority of the aggregate amount of the
Commitments, and (b) at any time after the Closing Date, Lenders holding at
least a majority of the sum of (without duplication) (i) the aggregate principal
amount of outstanding Loans, PLUS (ii) the aggregate amount of all L/C
Liabilities, PLUS (iii) the aggregate Unutilized Revolving Commitments then in
effect; PROVIDED, HOWEVER, that if any Lender shall be a Defaulting Lender at
such time, there shall be excluded from the determination of Majority Lenders at
such time (A) the aggregate principal amount of the Loans owing to such Lender
(in its capacity as a Lender) and outstanding at such time and (B) such Lender's
Unutilized Revolving Commitment at such time.
"MAJORITY PRO RATA LENDERS" see Section 12.04(i)(m).
"MAJORITY REVOLVING LENDERS" shall mean (a) at any time prior to the
Closing Date, Lenders holding at least a majority of the aggregate amount of the
Revolving Commitment, and (b) at any time after the Closing Date, Lenders
holding at least a majority of the sum of (without duplication) (i) the
aggregate principal amount of outstanding Revolving Loans, PLUS (ii) the
aggregate amount of all L/C Liabilities, PLUS (iii) the aggregate Unutilized
Revolving Commitments then in effect, PLUS (iv) in the case of the Swing Loan
Lender only, the aggregate amount of Swing Loans then outstanding; PROVIDED,
HOWEVER, that if any Lender shall be a Defaulting Lender at such time, there
shall be excluded from the determination of Majority Revolving Lenders at such
time (A) the aggregate principal amount of the Loans owing to such Lender (in
its capacity as a Lender) and outstanding at such time and (B) such Lender's
Unutilized Revolving Commitment at such time.
-22-
"MARGIN STOCK" shall mean margin stock within the meaning of
Regulations T, U and X.
"MATERIAL ADVERSE CHANGE" shall mean, with respect to any Person, a
material adverse change, or any condition or event that has resulted in a
material adverse change (after taking into account the restructuring charges and
incurrence of Indebtedness contemplated by the Transactions), in the business,
operations, financial condition or assets of such Person, together with its
Subsidiaries taken as a whole (after taking into account indemnification
obligations by third parties that are Solvent to the extent that such third
party has not disputed (after notice of claim in accordance with the applicable
agreement therefor) liability to make such indemnification payment). "PERSON" as
used in this definition of Material Adverse Change shall refer to the Qualified
Companies taken as a whole.
"MATERIAL ADVERSE EFFECT" shall mean an event, circumstance,
occurrence, or condition which has caused as of any date of determination any of
(a) a material adverse effect, or any condition or event that has resulted in a
material adverse effect (after taking into account the restructuring charges and
incurrence of debt contemplated by the Transactions), on the business,
operations, financial condition or assets of the Qualified Companies taken as a
whole (after taking into account indemnification obligations by third parties
that are Solvent to the extent that such third party has not disputed (after
notice of claim in accordance with the applicable agreement therefor) liability
to make such indemnification payment), (b) a material adverse effect on the
ability of the Obligors to consummate in a timely manner the Transactions or to
perform any of their material obligations under any Credit Document or (c) a
material adverse effect on the legality, binding effect or enforceability of any
Credit Document or any of the material rights and remedies of any Creditor
thereunder or the legality, priority, or enforceability of the Lien on a
material portion of the Collateral.
"XXXXXXX XXXXX" see the introduction to this Agreement.
"MINORITY INTEREST" shall mean an Investment in any Person that is not
a Subsidiary (including any Joint Venture).
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MORTGAGE" shall mean an agreement, including, but not limited to, a
mortgage, deed of trust or any other document, creating and evidencing a Lien on
a Mortgaged Real Property, which shall be in form and substance reasonably
satisfactory to Administrative Agent, with such schedules and including such
provisions as shall be necessary to conform such document to applicable or local
law or as shall be customary under local law, as the same may at any time be
amended in accordance with the terms thereof and hereof.
"MORTGAGED REAL PROPERTY" shall mean (A) each Real Property identified
on SCHEDULE 1.01(j) and (B) each Real Property, if any, which shall be subject
to a Mortgage delivered after the Closing Date pursuant to Section 9.12.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan within the meaning
of Section 4001(a)(3) of ERISA (a) to which any ERISA Entity is then making or
accruing an obligation to make
-23-
contributions, (b) to which any ERISA Entity has within the preceding five plan
years made contributions, including any Person which ceased to be an ERISA
Entity during such five year period, or (c) with respect to which any Company
could incur liability.
"NAIC" shall mean the National Association of Insurance Commissioners.
"NET AVAILABLE PROCEEDS" shall mean:
(a) in the case of any Disposition Event, the amount of Net Cash
Payments received by any Company in connection with such Disposition Event,
net of, in the case of any Permitted Receivables Transaction, any escrowed
or pledged cash proceeds which effectively secure, or are required to be
maintained as reserves by the applicable Receivables Co. for, the
obligations of any Company under such Permitted Receivables Transaction;
(b) in the case of any Casualty Event, the aggregate amount of cash
proceeds of insurance, condemnation awards and other compensation received
by any Company in respect of such Casualty Event net of (i) fees and
expenses incurred by such Company in connection with recovery thereof, (ii)
repayments of Indebtedness (other than Indebtedness hereunder) secured by a
Lien on such Property that is permitted by the Credit Documents, and (iii)
any Taxes paid or payable by any Company in respect of the amount so
recovered (after application of all credits and other offsets); and
(c) in the case of any Equity Issuance or any Debt Issuance, the
aggregate amount of all cash received by any Company in respect thereof net
of all investment banking fees, discounts and commissions, taxes, legal
fees, consulting fees, accountants' fees, underwriting discounts,
commissions and other fees and expenses, actually incurred in connection
therewith, net of, in the case of any Permitted Receivables Transaction,
any escrowed or pledged cash proceeds which effectively secure, or are
required to be maintained as reserves by the applicable Receivables Co.
for, the Indebtedness of any Company in respect of such Permitted
Receivables Transaction.
"NET CASH PAYMENTS" shall mean, with respect to any Disposition Event,
the aggregate amount of all cash payments (including any cash payments received
by way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and
when received) received by any Company directly or indirectly in connection with
such Disposition Event, net (without duplication) of (a) the amount of all fees
and expenses paid by any Company in connection with such Disposition Event (the
"RELEVANT DISPOSITION"); (b) any Taxes paid or estimated to be payable by any
Company as a result of the Relevant Disposition (after application of all
credits and other offsets); (c) any repayments by any Company of Indebtedness
(other than the Obligations) to the extent that such Indebtedness is secured by
a Permitted Lien on the subject Property; (d) amounts required to be paid to any
Person (other than any Company) owning a beneficial interest in the subject
Property; and (e) amounts reserved, in accordance with GAAP, against any
liabilities retained by any Company after such Relevant Disposition and related
thereto, including pension and other post-employment benefit liabilities,
liabilities related to environmental
-24-
matters and liabilities under any indemnification obligations associated with
such Relevant Disposition.
"NET WORTH" shall mean, at any time for the determination thereof, the
sum of the capital stock and additional paid-in capital, PLUS retained earnings
(or MINUS accumulated deficit) as determined on a consolidated basis for
Consolidated Companies in conformity with GAAP, PLUS any non-recurring or
extraordinary items of expense for such period and the tax consequences thereof,
PLUS transaction and integration expenses related to the SBCL Acquisition (the
cash amount related to the SBCL Acquisition being limited to an aggregate
pre-tax amount of $300.0 million (it being understood that the write-down of
accounts receivable in connection with the SBCL Acquisition are not cash
expenses)) for such period and the tax consequences thereof.
"NON-QUALIFIED FOREIGN SUBSIDIARY" shall mean each Foreign Subsidiary
that is not a Qualified Company.
"NON-QUALIFIED SUBSIDIARY" shall mean any Subsidiary other than a
Qualified Subsidiary.
"NON-U.S. LENDER" see Section 5.06(b).
"NOTE DEFEASANCE" shall mean the defeasance of all covenants and events
of default (except to the extent prohibited by the terms of the Existing
Indenture) relating to the Existing Notes.
"NOTES" shall mean the Revolving Notes, the Term Loan Notes and the
Swing Loan Notes.
"NOTE TENDER" shall mean the tender offer and consent solicitation with
respect to the Existing Notes by Borrower pursuant to documentation and on terms
and conditions satisfactory to Joint Lead Arrangers.
"NOTICE OF ASSIGNMENT" shall mean a notice of assignment pursuant to
Section 12.06 substantially in the form of EXHIBIT F.
"NOTICE OF BORROWING" shall mean a notice of borrowing substantially in
the form of EXHIBIT G.
"OBLIGATIONS" shall mean all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing by any
Obligor to any Creditor or any of its Related Parties or their respective
successors, transferees or assignees pursuant to the terms of any Credit
Document or any Swap Contract relating to the Loans or secured by any of the
Security Documents, whether or not the right of such Person to payment in
respect of such obligations and liabilities is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured and whether or not such claim is
discharged, stayed or otherwise affected by any bankruptcy case or insolvency or
liquidation proceeding.
"OBLIGORS" shall mean Borrower and the Guarantors.
-25-
"OFFICERS' CERTIFICATE" shall mean, as applied to any corporation, a
certificate executed on behalf of such corporation by its Chairman of the Board
(if an officer) or its Chief Executive Officer or its President or one of its
Vice Presidents (or an equivalent officer) and by its Chief Financial Officer,
Vice President-Finance or its Treasurer, Chief Accounting Officer or Corporate
Controller (or an equivalent officer) or any Assistant Treasurer in their
official (and not individual) capacities.
"ORGANIC DOCUMENT" shall mean, relative to any Person, its certificate
of incorporation, its by-laws, its partnership agreement, its memorandum and
articles of association, share designations or similar organization documents
and all shareholder agreements, voting trusts and similar arrangements
applicable to any of its authorized Equity Interests.
"ORIGINAL LENDERS" shall mean the Lenders named on the signature pages
hereof who were Lenders at the Effective Date.
"OTHER TAXES" see Section 5.06(c).
"PARTICIPANT" see Section 12.06(c).
"PAYMENT DATE" shall mean any Principal Payment Date and each date on
which interest is due and payable on any Loan.
"PAYOR" see Section 4.06.
"PBGC" shall mean the United States Pension Benefit Guaranty
Corporation or any successor thereto.
"PENSION PLAN" shall mean an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code or Section 302 of ERISA
and is maintained or contributed to by any ERISA Entity or with respect to which
any Company could incur liability.
"PERMITS" see Section 8.17.
"PERMITTED ACQUISITION" shall mean any Acquisition effected in
compliance with Section 9.06(h), (m) or (o).
"PERMITTED CUSTOMARY LIENS" shall mean (a) Liens imposed by any
Governmental Authority for taxes, assessments or charges (other than any DE
MINIMIS taxes, assessments or charges) not yet due or which are being contested
in good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Companies, in accordance with GAAP;
(b) Liens imposed by law which were incurred in the ordinary course of business,
such as carriers', warehousemen's, landlords' and mechanics' Liens and other
similar Liens arising in the ordinary course of business, in each case for sums
the payment of which is not required by Section 9.03; (c) pledges or deposits
under workers' compensation, unemployment insurance and other social security
legislation (including the Federal Employer's Liability Act) or the deposits
securing the liability to insurance carriers, in each case arising in the
ordinary course of business; (d) pledges or deposits to
-26-
secure the performance of bids, contracts (other than for borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business
under insurance or self insurance agreements; (e) easements, rights-of-way,
restrictions or minor defects or irregularities in title incurred in the
ordinary course of business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of Real Property or minor
imperfections in title thereto which, in the aggregate, are not material in
amount, and which do not in any case materially detract from the value of the
Real Property subject thereto or interfere with the ordinary conduct of the
business of any Company; (f) Liens consisting of judgment or judicial attachment
Liens (including pre-judgment attachment) in existence less than 60 days after
the entry thereof or the enforcement of which is effectively stayed or payment
of which is covered in full (subject to a customary deductible) by insurance or
which do not otherwise result in an Event of Default under Section 10(h) or (n);
(g) any obligations or duties affecting any of the Property of any Company to
any municipality or public authority with respect to any franchise, grant,
license or permit which do not materially impair the use of such Property for
the purposes for which it is held; (h) leases or subleases granted by any
Company to third Persons not interfering in any material respect with the
business of such Company; (i) Liens arising from UCC financing statements
regarding leases permitted by this Agreement; (j) Liens in favor of customs and
revenue authorities arising as a matter of law to secure payment of custom
duties in connection with the importation of goods so long as such Liens attach
only to the imported goods; (k) Liens arising out of consignment or similar
arrangements for the sale of goods entered into by any Company in the ordinary
course of business; (l) Liens that are contractual rights of set-off; (m) Liens
arising in connection with any escrow or similar arrangement to secure executive
compensation in an amount not exceeding $7.5 million; and (n) Liens on
Intellectual Property to the extent such Liens arise from the granting of
licenses to use such Intellectual Property and which do not interfere in any
material respect with the conduct of the business of Consolidated Companies.
"PERMITTED INVESTMENTS" shall mean: (a) operating deposit accounts and
certificates of deposit with banks in the ordinary course of business; (b)
without duplication, Investments that constitute Indebtedness or Contingent
Obligations permitted under Section 9.08; (c) extensions of credit in the nature
of (i) accounts receivable or notes receivable arising from the sale or lease of
goods or services in the ordinary course of business and (ii) prepayments and
other credits to suppliers made in the ordinary course of business; (d) pledges
or deposits in connection with workers' compensation, unemployment or other
insurance and other social security or similar legislation; (e) pledges or
deposits in connection with (i) the non-delinquent performance of bids,
contracts (other than for borrowed money), leases or statutory obligations, (ii)
contingent obligations on surety or appeal bonds, and (iii) other non-delinquent
obligations of a like nature, in each case incurred in the ordinary course of
business; (f) investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers or in
settlement of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business; (g) Capital Expenditures
(other than Acquisitions) and Liens not prohibited by this Agreement; and (h)
cash and Cash Equivalents.
"PERMITTED LIENS" see Section 9.07.
-27-
"PERMITTED OBLIGATIONS" shall mean: (a) Contingent Obligations in
respect of operating leases of any Company entered into in the ordinary course
of business and otherwise permitted by the terms of this Agreement; (b)
Indebtedness and Contingent Obligations arising from honoring a check, draft or
similar instrument against insufficient funds; PROVIDED, HOWEVER, that such
Indebtedness and Contingent Obligations are extinguished within four Business
Days of their incurrence; (c) Swap Contracts entered into in the ordinary course
of business (as a BONA FIDE hedge and not for speculative purposes) and designed
to protect the Obligors against fluctuations in interest rates, currency
exchange rates, or similar risks (including any Interest Rate Protection
Agreement entered into pursuant to Section 9.18); (d) Contingent Obligations in
connection with Excluded Dispositions or Dispositions permitted under Section
9.06 arising in connection with indemnification and other agreements in respect
of any contract relating to such Excluded Disposition or Disposition (expressly
excluding however any Contingent Obligation in respect of any obligation of any
third Person incurred in connection with the acquisition of the Property which
is the subject of such Excluded Disposition or Disposition); (e) Indebtedness or
Contingent Obligations of any Company to (including obligations in respect of
letters of credit for the benefit of) any Person providing workers'
compensation, health, disability or other employee benefits or property,
casualty, liability or other insurance to any Company; and (f) Indebtedness or
Contingent Obligations of any Company in respect of performance bonds, bid
bonds, appeal bonds, surety bonds and similar obligations and trade letters of
credit, in each case provided in the ordinary course of business, including
those incurred to secure health, safety and environmental obligations in the
ordinary course of business, and any extension, renewal or refinancing thereof
to the extent the amount of refinancing Indebtedness or Contingent Obligations
is not greater than the amount of Indebtedness or Contingent Obligations being
refinanced.
"PERMITTED RECEIVABLES TRANSACTION" shall mean any transaction
providing for the sale or financing of Accounts (other than between Qualified
Companies); PROVIDED, HOWEVER, that any such transaction shall be consummated
(a) on terms that include terms substantially as described on ANNEX B or as the
Majority Lenders may otherwise consent, such consent not to be unreasonably
withheld, and (b) pursuant to documentation in form and substance reasonably
satisfactory to Joint Lead Arrangers, as evidenced by their written approval
thereof.
"PERMITTED REFINANCING" shall mean, with respect to any Indebtedness or
Contingent Obligation, any refinancing thereof, PROVIDED, HOWEVER, that
(a) no Default or Event of Default shall have occurred and be
continuing or would arise therefrom;
(b) any such refinancing Indebtedness shall (i) not be on financial
and other terms that are materially more onerous in the aggregate to any
Company or Creditor than the Indebtedness or Contingent Obligation being
refinanced and shall not have defaults, rights or remedies more burdensome
to any Company or Creditor than the Indebtedness being refinanced, (ii) not
have a stated maturity or weighted average life that is shorter than (I)
with respect to the refinancing of the Existing Notes, six months after the
Final Maturity Date and (II) in each other case, that of the Indebtedness
or Contingent Obligation being refinanced (provided that the stated
maturity or weighted average life may be shorter if the stated maturity of
any principal payment (including any amortization payments) is not earlier
than (I) with
-28-
respect to the refinancing of the Existing Notes, six months after the
Final Maturity Date and (II) in each other case, the earlier of (A) the
stated maturity in effect prior to such refinancing or (B) 90 days after
the Final Maturity Date), (iii) be (if the Indebtedness or Contingent
Obligation being refinanced is subordinated by its terms or by the terms of
any agreement or instrument relating to such Indebtedness or Contingent
Obligation) at least as subordinate to the Obligations as the Indebtedness
or Contingent Obligation being refinanced (and unsecured if the refinanced
Indebtedness is unsecured), and (iv) be in a principal amount that does not
exceed the principal amount so refinanced, PLUS accrued interest, PLUS the
amount of any reasonable premium required to be paid at such time to
refinance the Indebtedness, PLUS, in either case, the amount of fees and
reasonable expenses of any Company incurred in connection with such
refinancing;
(c) the Indebtedness to be refinanced is not outstanding more than 45
days after the date of the incurrence of the Indebtedness incurred to
effect the refinancing thereof; and
(d) the sole obligor on such refinancing Indebtedness or Contingent
Obligation shall be Borrower or the original obligor on such Indebtedness
or Contingent Obligation being refinanced; provided, HOWEVER, that (i) any
guarantor of the Indebtedness or Contingent Obligation being refinanced
shall be permitted to guarantee the refinancing Indebtedness or Contingent
Obligation and (ii) any Obligor shall be permitted to guarantee any such
refinancing of any other Obligor.
"PERSON" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"PLEDGED COLLATERAL" shall mean all Property pledged pursuant to the
Security Agreement.
"PRIME RATE" shall mean the PER ANNUM rate of interest established from
time to time by Bank of America, N.A. (or any successor thereto) as its prime
rate, which rate may not be the lowest rate of interest charged by Bank of
America, N.A. to its customers.
"PRINCIPAL OFFICE" shall mean the principal office of Administrative
Agent, located on the Effective Date at 000 Xxxxx Xxxxx Xxxxxx, 15th Floor,
NC1-001-15-04, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Agency Services, or
such other office as may be designated by Administrative Agent.
"PRINCIPAL PAYMENT DATE" shall mean, with respect to any Term Loan,
each Quarterly Date or other date set forth on SCHEDULE 3.01(b) on which a
payment of principal is due with respect to such Term Loan.
"PRIOR LIENS" shall mean Liens which, pursuant to the provisions of any
Security Document, are or may be permitted to be superior to the Lien of such
Security Document.
-29-
"PROCEEDING" shall mean any claim, counterclaim, action, judgment,
suit, hearing, governmental investigation, arbitration or proceeding, including
by or before any Governmental Authority and whether judicial or administrative.
"PROFIT PAYMENT AGREEMENT" shall mean any agreement to make any payment
the amount of which is, or the terms of payment of which are, in any respect
subject to or contingent upon the revenues, income, cash flow, earnings or
profits (or the like) of any Person or business.
"PRO FORMA BALANCE SHEET" see Section 8.02(E).
"PRO FORMA DATE" see Section 8.02(E).
"PROPERTY" shall mean any right, title or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including Equity Interests or other ownership
interests of any Person.
"PURCHASE PRICE ADJUSTMENT AMOUNT" see Section 2.10(a)(vi).
"QUALIFIED CAPITAL STOCK" shall mean with respect to any Person any
Equity Interest of such Person which is not Disqualified Capital Stock.
"QUALIFIED COMPANY" shall mean Borrower and each Qualified Subsidiary.
"QUALIFIED JOINT VENTURE" shall mean (a) any Joint Venture described in
SCHEDULE 1.01(f) and (b) any additional Joint Venture that any Company may enter
into in accordance with Section 9.09(A)(k).
"QUALIFIED SUBSIDIARY" shall mean any Wholly Owned Subsidiary of
Borrower (other than any Receivables Co.) that is or is required to be a
Guarantor and a party to the Security Agreement. "QUARTER" shall mean each three
month period ending on March 31, June 30, September 30 and December 31.
"QUARTERLY DATES" shall mean the last Business Day of each Quarter in
each year, commencing with the last Business Day of the first Quarter after the
Closing Date; PROVIDED, HOWEVER, that solely for purposes of Sections 2.05(a)
and (b), the Quarterly Dates shall commence with the last Business Day of the
first Quarter after the Effective Date.
"R/C PERCENTAGE" shall mean, with respect to any Revolving Lender, the
ratio of (a) the amount of the Revolving Commitments of such Lender to (b) the
aggregate amount of the Revolving Commitments of all of the Lenders.
"R/C TERMINATION DATE" shall mean the date that is the sixth
anniversary of the Closing Date.
-30-
"REAL PROPERTY" shall mean all right, title and interest of any Company
(including, without limitation, any leasehold estate) in and to a parcel of real
property owned or operated by any Company, whether by lease, license or other
use or occupancy agreement, together with, in each case, all improvements and
appurtenant fixtures, equipment, personal property, easements and other property
and rights incidental to the ownership, lease or operation thereof or thereon.
"RECEIVABLES CO." shall mean any special purpose Wholly-Owned
Subsidiary of Borrower organized after the Effective Date (or such other Person
agreed to by Joint Lead Arrangers) that purchases Accounts generated by any
Company in connection with a Permitted Receivables Transaction.
"REDEEM" shall mean redeem, repurchase, repay, defease or otherwise
acquire or retire for value; and "REDEMPTION" and "REDEEMED" have correlative
meanings.
"REFINANCE" shall mean refinance, renew, extend, replace, defease or
refund, in whole or in part, including successively; and "REFINANCING" and
"REFINANCED" have correlative meanings.
"REGISTER" see Section 2.08.
"REGULATION D" shall mean Regulation D (12 C.F.R. Part 204) of the
Board of Governors of the United States Federal Reserve System.
"REGULATIONS T, U AND X" shall mean, respectively, Regulation T (12
C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) and Regulation X (12 C.F.R.
Part 224) of the Board of Governors of the United States 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 Effective Date in United States Federal, state or foreign law or
regulations (including Regulation D) or the adoption or making after such date
of any interpretation, directive or request applying to a class of banks or
other financial institutions 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 or any other regulatory agency with proper
authority, including non-governmental agencies or bodies, charged with the
interpretation or administration thereof or by the NAIC.
"REIMBURSEMENT OBLIGATIONS" shall mean, at any time, the obligations of
Borrower then outstanding, or that may thereafter arise in respect of all
Letters of Credit then outstanding, to reimburse amounts paid by L/C Lender in
respect of any drawings under a Letter of Credit.
"RELATED PARTIES" see Section 11.01.
"RELATED PERSON" of any Person shall mean any other Person who
beneficially owns (a) 5% or more of the outstanding common stock of such Person
or (b) 5% or more of the Voting Equity Interests of such Person in each case,
excluding any Person (other than SmithKline Xxxxxxx plc
-31-
or related entities) that files a Schedule 13G with respect to such Person
pursuant to the Exchange Act (and is qualified to do so).
"RELEASE" shall mean any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the environment.
"REPLACED LENDER" see Section 2.11.
"REPLACEMENT LENDER" see Section 2.11.
"REQUIRED PAYMENT" see Section 4.06.
"REQUIREMENT OF LAW" shall mean as to any Person, the Organic Documents
of such Person, and any Law or determination of an arbitrator or any
Governmental Authority, in each case applicable to or binding upon such Person
or any of its Property or to which such Person or any of its Property is
subject.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for any LIBOR
Loan, the average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during such
Interest Period under Regulation D by member banks of the United States Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
"RESPONSIBLE OFFICER" shall mean the chief executive officer of
Borrower or the president or any vice president of Borrower and, with respect to
financial matters, the chief financial officer, treasurer, chief accounting
officer or corporate controller of Borrower.
"REVOLVING COMMITMENT" shall mean, for each Revolving Lender, the
obligation of such Lender to make Revolving Loans in an aggregate principal
amount at any one time outstanding up to but not exceeding the amount set
opposite the name of such Lender on ANNEX A under the caption "Revolving
Commitment" (as the same may be reduced from time to time pursuant to Section
2.04 or changed pursuant to Section 12.06(b)). The initial aggregate principal
amount of the sum of the Revolving Commitments of all Lenders is $250.0 million.
"REVOLVING FACILITY" shall mean the credit facility comprising the
Revolving Commitments.
"REVOLVING LENDERS" shall mean (a) on the Effective Date, the Lenders
having a Revolving Commitment on the signature pages hereof and (b) thereafter,
the Lenders from time to time holding Revolving Loans and a Revolving Commitment
after giving effect to any assignments thereof permitted by Section 12.06(b).
"REVOLVING LOANS" see Section 2.01(a).
"REVOLVING NOTES" shall mean the promissory notes substantially in the
form of EXHIBIT A-1.
-32-
"SALE AND LEASEBACK TRANSACTION" shall mean any arrangement, directly
or indirectly, with any Person whereby it shall sell or transfer any Property
used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such Property or other Property which it intends to use
for substantially the same purpose or purposes as the Property being sold or
transferred.
"S&P" shall mean Standard & Poor's, a division of The McGraw Hill
Companies.
"SBCL" shall mean collectively SBCL, Inc., a Delaware corporation and
SmithKline Xxxxxxx Clinical Laboratories, Inc., a Delaware corporation, and any
Other Assets (as defined in the SBCL Acquisition Agreement) purchased under the
SBCL Acquisition Agreement.
"SBCL ACQUISITION" shall mean the Acquisition by Borrower of SBCL
pursuant to the SBCL Acquisition Agreement and all other transactions
contemplated by the SBCL Acquisition Agreement.
"SBCL ACQUISITION AGREEMENT" shall mean the Stock and Asset Purchase
Agreement dated as of February 9, 1999 among Borrower, SmithKline Xxxxxxx plc
and SmithKline Xxxxxxx Corporation.
"SBCL FINANCIAL STATEMENTS" see Section 8.02(B).
"SECURITIES ACT" shall mean the United States Securities Act of 1933,
as amended, and all rules and regulations of the Commission promulgated
thereunder.
"SECURITY AGREEMENT" shall mean a Security Agreement substantially in
the form of EXHIBIT D among the Obligors and Administrative Agent, as the same
may be amended in accordance with the terms thereof and hereof or such other
agreements reasonably acceptable to Administrative Agent as shall be necessary
to comply with applicable Requirements of Law and effective to grant to
Administrative Agent (on behalf of the Creditors) a perfected first priority
security interest in the Pledged Collateral covered thereby.
"SECURITY DOCUMENTS" shall mean the Security Agreement, the Mortgages
and each other security document or pledge agreement required by applicable
local law to grant a valid, perfected security interest in any Property acquired
or developed pursuant to a Permitted Acquisition, and all UCC or other financing
statements or instruments of perfection required by this Agreement, the Security
Agreement or any Mortgage to be filed with respect to the security interests in
Property and fixtures created pursuant to the Security Agreement or any Mortgage
and any other document or instrument utilized to pledge as collateral for the
Obligations any Property of whatever kind or nature.
"SOLVENT" and "SOLVENCY" shall mean, for any Person on a particular
date, that on such date (a) the fair value of the Property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts and liabilities beyond such Person's ability to
-33-
pay such debts and liabilities as they mature and (d) such Person is not engaged
in a business or a transaction, and is not about to engage in a business or a
transaction, for which such Person's Property would constitute an unreasonably
small capital.
"SUBORDINATED DEBT" shall mean Indebtedness of any Company that is
contractually subordinated to any other Indebtedness of such Company.
"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 and/or one or
more Subsidiaries of such Person. Unless the context clearly requires otherwise,
all references to any Subsidiary shall mean a Subsidiary of Borrower. All
references to any Subsidiary of Borrower on or after the Closing Date (both
before and after giving effect to any extension of credit made hereunder on or
after the Closing Date) shall include all those Persons which become
Subsidiaries of Borrower upon consummation of the SBCL Acquisition and at any
time thereafter. Unrestricted Subsidiaries are not Subsidiaries (and hence, not
a Company) for purposes of Section 9.
"SUPERMAJORITY LENDERS" shall mean (a) at any time prior to the Closing
Date, Lenders holding at least two-thirds of the aggregate amount of the
Commitments and (b) at any time after the Closing Date, Lenders holding at least
two-thirds of the sum of (without duplication) (i) the aggregate principal
amount of outstanding Loans, PLUS (ii) the aggregate amount of all L/C
Liabilities, PLUS (iii) the aggregate Unutilized Revolving Commitments then in
effect; PROVIDED, HOWEVER, that if any Lender shall be a Defaulting Lender at
such time, there shall be excluded from the determination of Supermajority
Lenders at such time the aggregate principal amount of the Loans owing to such
Lender (in its capacity as a Lender) and outstanding at such time.
"SUPERMAJORITY LENDERS OF THE AFFECTED CLASS" shall mean (a) at any
time prior to the Closing Date, Lenders holding at least two-thirds of the
aggregate amount of the Commitments of the applicable Term Facility which would
be affected by any modification, supplement or waiver contemplated by clause (f)
to the proviso to Section 12.04(i), and (b) at any time after the Closing Date,
Lenders holding at least two-thirds of the sum of the aggregate amount of the
outstanding Loans of the applicable Term Facility which would be affected by any
modification, supplement or waiver contemplated by clause (f) to the proviso to
Section 12.04(i).
"SUPPLEMENTAL INDENTURE" shall mean a supplemental indenture to the
Existing Indenture which eliminates all negative covenants and events of default
under the Existing Indenture.
"SURETY INSTRUMENTS" shall mean all letters of credit (including
standby and commercial), bankers' acceptances, bank guarantees, surety bonds and
similar instruments.
-34-
"SWAP CONTRACT" shall mean any agreement (including any master
agreement and any schedule or agreement, whether or not in writing, relating to
any single transaction) that is an interest rate swap agreement, basis swap,
forward rate agreement, commodity swap, commodity option, equity or equity index
swap or option, bond option, interest rate option, foreign exchange agreement,
rate cap, collar or floor agreement, currency swap agreement, cross-currency
rate swap agreement, swaption, currency option or any other similar agreement
(including any option to enter into any of the foregoing) and is designed to
protect any Company against fluctuations in interest rates, currency exchange
rates, commodity prices or similar risks (including any Interest Rate Protection
Agreement entered into pursuant to Section 9.18).
"SWING LOAN COMMITMENT" shall mean the obligation of the Swing Loan
Lender to make or continue Swing Loans hereunder in an aggregate principal
amount up to but not exceeding $35.0 million, as the same may be reduced or
terminated pursuant to Section 2.04 or Section 10, it being understood that the
Swing Loan Commitment is part of the Revolving Commitment of the Swing Loan
Lender, rather than a separate, independent commitment.
"SWING LOAN LENDER" shall mean Bank of America, N.A. and its successors
and assigns in such capacity.
"SWING LOAN NOTES" shall mean the promissory notes substantially in the
form of EXHIBIT A-6.
"SWING LOANS" see Section 2.01(g).
"SYNDICATION AGENT" see the introduction hereto.
"TAX BENEFIT" see Section 5.06(f).
"TAXES" shall mean any and all taxes, imposts, duties, charges, fees,
levies or other similar charges or assessments, including income, gross
receipts, excise, real or personal property, sales, withholding, social
security, retirement, unemployment, occupation, use, service, license, net
worth, payroll, franchise, and transfer and recording, imposed by the Internal
Revenue Service or any taxing authority (whether domestic or foreign, including
any federal, state, U.S. possession, county, local or foreign government or any
subdivision or taxing agency thereof), whether computed on a separate,
consolidated, unitary, combined or any other basis, including interest, fines,
penalties or additions to tax attributable to or imposed on or with respect to
any such taxes, charges, fees, levies or other assessments.
"TAX RETURNS" see Section 8.09.
"TERM A FACILITY" shall mean the credit facility comprising the Term A
Facility Commitments and the Term A Facility Loans.
"TERM A FACILITY COMMITMENT" shall mean, for each Term A Facility
Lender, the obligation of such Lender to make a Term A Facility Loan in an
amount up to but not exceeding the amount set opposite the name of such Lender
on ANNEX A under the caption "Term A Facility
-35-
Commitment" (as the same may be changed pursuant to Section 12.06(b)). The
initial aggregate principal amount of the sum of the Term A Facility Commitments
of all Lenders is $400.0 million.
"TERM A FACILITY LENDERS" shall mean (a) on the Effective Date, the
Lenders having Term A Facility Commitments on the signature pages hereof, and
(b) thereafter, the Lenders from time to time holding Term A Facility Loans and
Term A Facility Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b).
"TERM A FACILITY LOANS" see Section 2.01(c).
"TERM A FACILITY NOTES" shall mean the promissory notes substantially
in the form of Exhibit A-2.
"TERM B FACILITY" shall mean the credit facility comprising the Term B
Facility Commitments and the Term B Facility Loans.
"TERM B FACILITY COMMITMENT" shall mean, for each Term B Facility
Lender, the obligation of such Lender to make a Term B Facility Loan in an
amount up to but not exceeding the amount set opposite the name of such Lender
on ANNEX A under the caption "Term B Facility Commitment" (as the same may be
changed pursuant to Section 12.06(b)). The initial aggregate principal amount of
the sum of the Term B Facility Commitments of all Lenders is $325.0 million.
"TERM B FACILITY LENDERS" shall mean (a) on the Effective Date, the
Lenders having Term B Facility Commitments on the signature pages hereof, and
(b) thereafter, the Lenders from time to time holding Term B Facility Loans and
Term B Facility Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b).
"TERM B FACILITY LOANS" see Section 2.01(d).
"TERM B FACILITY NOTES" shall mean the promissory notes substantially
in the form of Exhibit A-3.
"TERM C FACILITY" shall mean the credit facility comprising the Term C
Facility Commitments and the Term C Facility Loans.
"TERM C FACILITY COMMITMENT" shall mean, for each Term C Facility
Lender, the obligation of such Lender to make a Term C Facility Loan in an
amount up to but not exceeding the amount set opposite the name of such Lender
on ANNEX A under the caption "Term C Facility Commitment" (as the same may be
changed pursuant to Section 12.06(b)). The initial aggregate principal amount of
the sum of the Term C Facility Commitments of all Lenders is $300.0 million.
"TERM C FACILITY LENDERS" shall mean (a) on the Effective Date, the
Lenders having Term C Facility Commitments on the signature pages hereof, and
(b) thereafter, the Lenders from time to time holding Term C Facility Loans and
Term C Facility Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b).
-36-
"TERM C FACILITY LOANS" see Section 2.01(e).
"TERM C FACILITY NOTES" shall mean the promissory notes substantially
in the form of Exhibit A-4.
"TERM FACILITIES" shall mean the credit facilities comprising the
Capital Markets Facility, the Term A Facility, the Term B Facility and the Term
C Facility, collectively.
"TERM LOAN COMMITMENTS" shall mean the Term A Facility Commitments, the
Term B Facility Commitments, the Term C Facility Commitments and the Capital
Markets Facility Commitments, collectively.
"TERM LOAN LENDERS" shall mean the Term A Facility Lenders, the Term B
Facility Lenders, the Term C Facility Lenders and the Capital Markets Facility
Lenders, collectively.
"TERM LOAN NOTES" shall mean the Term A Facility Notes, the Term B
Facility Notes, the Term C Facility Notes and the Capital Markets Facility
Notes, collectively.
"TERM LOANS" shall mean the Term A Facility Loans, the Term B Facility
Loans, the Term C Facility Loans and the Capital Markets Facility Loans,
collectively.
"TEST DATE" shall mean, for any Financial Maintenance Covenant, the
last day of each fiscal quarter of Borrower included within any period set forth
in the table for such Financial Maintenance Covenant.
"TOTAL DEBT" shall mean, at any date, the aggregate amount of
Indebtedness of Consolidated Companies at such date PLUS the aggregate undrawn
face amount of all undrawn Letters of Credit or any other letter of credit of
Consolidated Companies at such date and LESS the aggregate amount of cash and
Cash Equivalents of Consolidated Companies at such date, in each case determined
on a consolidated basis in conformity with GAAP.
"TOTAL FUNDED INDEBTEDNESS" shall mean, at any date, the aggregate
amount of Funded Indebtedness of Consolidated Companies as of such date
determined on a consolidated basis in conformity with GAAP.
"TOTAL LEVERAGE RATIO" shall mean, for any Test Date, the ratio of (x)
the sum of (i) Total Debt at such Test Date, PLUS (ii) without duplication of
amounts included in clause (i), an amount equal to the aggregate cash proceeds
received by any Company from an unrelated third party (net of amounts repaid)
from the financing pursuant to any Permitted Receivables Transaction of Accounts
which are outstanding at such Test Date to (y) Consolidated EBITDA for the four
fiscal quarters ending on such Test Date. Calculations under clause (i) or under
clause (ii) of this definition shall be reduced by any escrowed or pledged cash
proceeds which effectively secure the Indebtedness or the obligations of any
Company under such Permitted Receivables Transaction to the extent not already
deducted in the calculation of Total Debt.
-37-
"TRANSACTION DOCUMENTS" shall mean the SBCL Acquisition Agreement, the
Unsecured Note Documents (if any), this Agreement, all documents relating to the
Note Tender (if any) and the Note Defeasance (if any) and in each case all
documents related thereto and all exhibits, appendices, schedules and annexes to
any thereof.
"TRANSACTIONS" shall mean the financings and transactions to occur on
the Closing Date, including, the SBCL Acquisition, the Existing Credit
Facilities Repayment, the Note Tender (if any), the Note Defeasance (if any) and
the extensions of credit made hereunder on the Closing Date.
"TRIGGER DATE" see the definition of Applicable Margin.
"TYPE" see Section 1.03.
"UCC" shall mean the Uniform Commercial Code as in effect in the
applicable state or other jurisdiction.
"UNRESTRICTED SUBSIDIARY" shall mean each Non-Qualified Foreign
Subsidiary and each Subsidiary of a Non-Qualified Foreign Subsidiary, so long as
the net revenues of Consolidated Companies attributed to all Non-Qualified
Foreign Subsidiaries are less than 5% of the net revenues of Consolidated
Companies.
"UNSECURED NOTE DOCUMENTS" shall mean any Unsecured Notes Indenture and
all other documents relating thereto and delivered to Agents, as any such
agreement or document may be amended and in effect from time to time in
accordance with its terms and this Agreement.
"UNSECURED NOTES" shall mean Indebtedness incurred pursuant to Section
9.08(A)(j).
"UNSECURED NOTES INDENTURE" shall mean any indenture under which
Unsecured Notes are (and any Exchange Notes may be) issued.
"UNUTILIZED REVOLVING COMMITMENT" shall mean, for any Revolving Lender,
at any time, the excess of such Lender's Revolving Commitment at such time over
the sum of (a) the aggregate outstanding principal amount of Revolving Loans
made by such Lender and (b) such Lender's R/C Percentage of the aggregate amount
of L/C Liabilities at such time.
"VOTING CUMULATIVE PREFERRED STOCK" shall mean the voting cumulative
preferred stock of Borrower outstanding on the Effective Date pursuant to
documentation existing on the Effective Date.
"WHOLLY OWNED SUBSIDIARY" shall mean, with respect to any Person, any
corporation, partnership or other entity of which all of the Equity Interests
(other than, in the case of a corporation, directors' qualifying shares or
nominee shares required under applicable law) are directly or indirectly owned
or controlled by such Person and/or one or more Wholly Owned Subsidiaries of
such Person. Unless the context clearly requires otherwise, all references to
any Wholly Owned Subsidiary shall mean a Wholly Owned Subsidiary of Borrower.
-38-
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.
"WORKING CAPITAL" shall mean an amount determined for Consolidated
Companies equal to the sum of all current assets (other than cash and Cash
Equivalents) less the sum of all current liabilities (other than the current
portion of long-term Indebtedness).
1.02. ACCOUNTING TERMS AND DETERMINATIONS. Except as otherwise provided
in this Agreement, all computations and determinations as to accounting or
financial matters (including Financial Maintenance Covenants and other financial
covenants) shall be made in accordance with GAAP consistently applied for all
applicable periods, and all accounting or financial terms shall have the
meanings ascribed to such terms by GAAP; PROVIDED, HOWEVER, that, if Borrower
notifies Joint Lead Arrangers that Borrower wishes to amend the calculation of
the Total Leverage Ratio for purposes of determining the Applicable Margins or
to amend any covenant in Section 9, in either case to eliminate the effect of
any change in GAAP (as to which Borrower shall give notice of such change to
Joint Lead Arrangers and the Lenders within a reasonable time after such change)
on the operation of such calculation or covenant (or if Joint Lead Arrangers
notify Borrower that the Majority Lenders wish to amend any such calculation or
covenant for such purpose), then such calculation or Borrower's compliance with
such covenant, as the case may be, shall be determined on the basis of GAAP in
effect immediately before the relevant change in GAAP became effective, until
either such notice is withdrawn or such calculation or covenant is amended in a
manner satisfactory to Borrower and the Majority Lenders. All financial
statements to be delivered pursuant to this Agreement shall be prepared in
accordance with GAAP.
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 Loan, Swing Loan, Term A Facility
Loan, Term B Facility Loan, Term C Facility Loan or Capital Markets Facility
Loan each of which constitutes a Class. The "TYPE" of a Loan refers to whether
such Loan is an ABR Loan or a LIBOR Loan, each of which constitutes a Type.
Loans may be identified by both Class and Type.
1.04. RULES OF CONSTRUCTION. (a) In each Credit Document, unless the
context clearly requires otherwise (or such other Credit Document clearly
provides otherwise), references to (i) the plural include the singular, the
singular include the plural and the part include the whole; (ii) Persons include
their respective permitted successors and assigns or, in the case of
governmental Persons, Persons succeeding to the relevant functions of such
Persons; (iii) agreements (including this Agreement), promissory notes and other
contractual instruments include subsequent amendments, assignments, and other
modifications thereto, but only to the extent such amendments, assignments or
other modifications thereto are not prohibited by their terms or the terms of
any Credit Document; (iv) statutes and related regulations include any
amendments of the same and any successor statutes and regulations; and (v) time
shall be a reference to New York City time.
(b) In each Credit Document, unless the context clearly requires
otherwise (or such other Credit Document clearly provides otherwise), (i)
"AMEND" shall mean "amend, restate, amend
-39-
and restate, supplement or modify"; and "AMENDED," "AMENDING," and "AMENDMENT"
shall have meanings correlative to the foregoing; (ii) in the computation of
periods of time from a specified date to a later specified date, "FROM" shall
mean "from and including"; "TO" and "UNTIL" shall mean "to but excluding"; and
"THROUGH" shall mean "to and including"; (iii) "HEREOF," "HEREIN" and
"HEREUNDER" (and similar terms) in any Credit Document refer to such Credit
Document as a whole and not to any particular provision of such Credit Document;
(iv) "INCLUDING" (and similar terms) shall mean "including without limitation"
(and similarly for similar terms); (v) "OR" has the inclusive meaning
represented by the phrase "and/or"; (vi) "SATISFACTORY TO" any Creditor shall
mean in form, scope and substance and on terms and conditions satisfactory to
such Creditor; (vii) references to "THE DATE HEREOF" shall mean the date first
set forth above; (viii) "ASSET" and "PROPERTY" shall have the same meaning and
effect and refer to all tangible and intangible assets and property, whether
real, personal or mixed and of every type and description; and (ix) a "FISCAL
YEAR" or a "FISCAL QUARTER" are references to a fiscal year or fiscal quarter of
Borrower.
(c) In this Agreement unless the context clearly requires otherwise,
any reference to (i) an Annex, Exhibit or Schedule is to an Annex, Exhibit or
Schedule, as the case may be, attached to this Agreement and constituting a part
hereof, and (ii) a Section or other subdivision is to a Section or such other
subdivision of this Agreement.
Section 2. COMMITMENTS, LETTERS OF CREDIT, CONVERSIONS AND
CONTINUATIONS, FEES, REGISTER, PREPAYMENTS AND REPLACEMENT
OF LENDERS.
2.01. LOANS.
(a) REVOLVING LOANS. Each Revolving Lender severally agrees, on the
terms and conditions of this Agreement, to make revolving loans (the "REVOLVING
LOANS") to Borrower in Dollars during the period from and including the Closing
Date to but not including the R/C Termination Date in an aggregate principal
amount at any one time outstanding not exceeding the amount of the Revolving
Commitment of such Lender as in effect from time to time; PROVIDED, HOWEVER,
that in no event shall the sum of the aggregate principal amount of (without
duplication) all Revolving Loans then outstanding, PLUS the aggregate principal
amount of Swing Loans then outstanding, PLUS the aggregate amount of all L/C
Liabilities at any time exceed the aggregate amount of the Revolving Commitments
as in effect at such time. Subject to the terms and conditions of this
Agreement, during such period Borrower may borrow, repay and reborrow the amount
of the Revolving Commitments by means of ABR Loans and LIBOR Loans.
(b) CAPITAL MARKETS FACILITY LOANS. Each Capital Markets Facility
Lender severally agrees, on the terms and conditions of this Agreement, to make
a term loan ("CAPITAL MARKETS FACILITY LOANS") to Borrower in Dollars on the
Closing Date in an aggregate principal amount up to the Capital Markets Facility
Commitment of such Lender. Capital Markets Facility Loans that are repaid or
prepaid may not be reborrowed.
(c) TERM A FACILITY LOANS. Each Term A Facility Lender severally
agrees, on the terms and conditions of this Agreement, to make a term loan
("TERM A FACILITY LOANS") to Borrower
-40-
in Dollars on the Closing Date in an aggregate principal amount up to the Term A
Facility Commitment of such Lender. Term A Facility Loans that are repaid or
prepaid may not be reborrowed.
(d) TERM B FACILITY LOANS. Each Term B Facility Lender severally
agrees, on the terms and conditions of this Agreement, to make a term loan
("TERM B FACILITY LOANS") to Borrower in Dollars on the Closing Date in an
aggregate principal amount up to the Term B Facility Commitment of such Lender.
Term B Facility Loans that are repaid or prepaid may not be reborrowed.
(e) TERM C FACILITY LOANS. Each Term C Facility Lender severally
agrees, on the terms and conditions of this Agreement, to make a term loan
("TERM C FACILITY LOANS") to Borrower in Dollars on the Closing Date in an
aggregate principal amount up to the Term C Facility Commitment of such Lender.
Term C Facility Loans that are repaid or prepaid may not be reborrowed.
(f) LIMIT ON LIBOR LOANS. No more than twelve separate Interest Periods
in respect of LIBOR Loans may be outstanding at any one time.
(g) SWING LOANS. Subject to the terms and conditions of this Agreement,
upon request of Borrower, the Swing Loan Lender agrees to make one or more loans
("SWING LOANS") to Borrower from time to time from and including the Closing
Date to but excluding the R/C Termination Date, in an amount not to exceed the
Swing Loan Commitment as then in effect. Prior to the R/C Termination Date,
Borrower may borrow, repay and reborrow Swing Loans up to the Swing Loan
Commitment in accordance with the terms of this Agreement. The Swing Loan Lender
shall not make any Swing Loans on or after the R/C Termination Date. No Swing
Loan shall be made if, after giving full effect to the requested Swing Loan, the
aggregate outstanding amount of Revolving Loans, PLUS the aggregate outstanding
amount of Swing Loans, PLUS the aggregate outstanding L/C Liabilities would
exceed the aggregate amount of the Revolving Commitments as in effect at such
time. All Swing Loans shall be made and maintained only as ABR Loans. The Swing
Loan Lender shall not make any Swing Loan after receiving a written notice from
Borrower or the Majority Revolving Lenders stating that a Default exists and is
continuing until such time as the Swing Loan Lender shall have received written
notice of (i) rescission of all such notices from the party or parties
originally delivering such notice, (ii) the waiver of such Default by the
Majority Lenders, or (iii) Administrative Agent's good faith determination that
such Default has ceased to exist. Swing Loans shall be made in minimum amounts
of $1.0 million and integral multiples of $100,000 above such amount.
Upon the occurrence of a Default, each Revolving Lender shall be deemed
to have purchased (and each Revolving Lender hereby irrevocably agrees to
purchase) an irrevocable participation in all outstanding Swing Loans, together
with all accrued interest thereon equal to such Lender's R/C Percentage thereof,
without any further action by or on behalf of the Swing Loan Lender, any other
Lender, Borrower or any other Person. Upon one Business Day's notice from the
Swing Loan Lender, each other Revolving Lender shall deliver to the Swing Loan
Lender an amount equal to its respective participation in such Swing Loan (as
determined pursuant to the immediately preceding sentence) in immediately
available funds. In order to evidence such participation, each Revolving Lender
agrees to enter into a participation agreement at the request of the Swing Loan
Lender in form and substance satisfactory to the Swing Loan Lender and the
Revolving Lender. If any Revolving Lender fails to make available to the Swing
Loan Lender the amount of such Revolving
-41-
Lender's participation as provided in this paragraph, the Swing Loan Lender
shall be entitled to recover such amount on demand from such Revolving Lender,
together with interest thereon at the Federal Funds Rate until such amount is
paid in full in immediately available funds. In the event the Swing Loan Lender
receives a payment from any Obligor of any amount in which the Revolving Lenders
have purchased participations as provided in this paragraph, the Swing Loan
Lender shall promptly distribute to each Revolving Lender its PRO RATA share of
such payment. Notwithstanding anything herein to the contrary, each Revolving
Lender's obligation to purchase a participation in each unpaid Swing Loan shall
be absolute and unconditional and shall not be affected by any circumstances,
including, (1) any setoff, counterclaim, recoupment, defense or other right
which such Revolving Lender may now or hereafter have against the Swing Loan
Lender, Borrower or any other Person for any reason whatsoever, (2) the
occurrence or continuation of a Default or an Event of Default, (3) the
occurrence of any Material Adverse Change, (4) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing, except that
no Revolving Lender need participate in any Swing Loan made by the Swing Loan
Lender in violation of the penultimate sentence of the first paragraph of
Section 2.01(g).
2.02. BORROWINGS. Borrower shall give Administrative Agent notice of
each borrowing hereunder as provided in Section 4.05. The form of such notice of
borrowing shall be substantially in the form of EXHIBIT G. Not later than 11:00
a.m. New York City time on the date specified for each borrowing hereunder, each
Lender shall make available the amount of the Loan or Loans to be made by it on
such date to Administrative Agent, at an account specified by Administrative
Agent maintained at the Principal Office, in immediately available funds, for
the account of Borrower. Each borrowing of Revolving Loans shall be made by each
Revolving Lender PRO RATA based on its R/C Percentage. The amounts so received
by Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to Borrower by depositing the same, in immediately
available funds, in an account of Borrower maintained with Administrative Agent
at the Principal Office designated by Borrower.
2.03. LETTERS OF CREDIT. Subject to the terms and conditions hereof,
the Revolving Commitments may be utilized, upon the request of Borrower, in
addition to the Revolving Loans provided for by Section 2.01(a), for standby and
commercial documentary letters of credit (herein collectively called "LETTERS OF
CREDIT") issued by L/C Lender for the account of any Obligor (PROVIDED, that
Borrower shall be a co-applicant (and jointly and severally liable) with respect
to each Letter of Credit issued for the account of any Subsidiary); PROVIDED,
HOWEVER, that in no event shall (i) the aggregate amount of all L/C Liabilities,
PLUS the aggregate principal amount of the Revolving Loans then outstanding,
PLUS the aggregate principal amount of Swing Loans then outstanding exceed at
any time the Revolving Commitments as in effect at such time, (ii) the sum of
the aggregate principal amount of Revolving Loans then outstanding made by any
Revolving Lender, PLUS such Lender's R/C Percentage of the aggregate principal
amount of Swing Loans then outstanding, PLUS such Lender's R/C Percentage of the
aggregate amount of all L/C Liabilities exceed such Lender's Revolving
Commitment as in effect at such time, (iii) the outstanding aggregate amount of
all L/C Liabilities exceed $75.0 million, (iv) the face amount of any Letter of
Credit be less than $250,000, (v) the expiration date of any Letter of Credit
extend beyond the earlier of (x) the fifth Business Day preceding the R/C
Termination Date and (y) the date twelve months following the date of such
issuance for standby Letters of
-42-
Credit or 180 days after the date of such issuance for commercial documentary
Letters of Credit, unless the Majority Revolving Lenders have approved such
expiry date in writing (but never beyond the fifth Business Day prior to the R/C
Termination Date); PROVIDED, HOWEVER, that any standby Letter of Credit may,
with the prior written approval of L/C Lender (such approval not to be
unreasonably withheld or delayed), be automatically extendible for periods of up
to one year (but never beyond the fifth Business Day preceding the R/C
Termination Date) so long as such Letter of Credit provides that L/C Lender
retains an option satisfactory to L/C Lender to terminate such Letter of Credit
prior to each extension date, unless all of the Revolving Lenders have approved
such expiry date in writing, (vi) L/C Lender issue any Letter of Credit after it
has received notice from Borrower or the Majority Revolving Lenders stating that
a Default exists until such time as L/C Lender shall have received written
notice of (x) rescission of such notice from the Majority Revolving Lenders, (y)
waiver of such Default in accordance with this Agreement or (z) Administrative
Agent's good faith determination that such Default has ceased to exist, or (vii)
a commercial letter of credit be issued in a currency other than Dollars or at a
tenor other than sight. The following additional provisions shall apply to
Letters of Credit:
(a) Borrower shall give Administrative Agent at least three Business
Days' irrevocable prior notice (effective upon receipt) pursuant to a
Letter of Credit application satisfactory to L/C Lender specifying the date
(which shall be no later than thirty days preceding the R/C Termination
Date) each Letter of Credit is to be issued and describing in reasonable
detail the proposed terms of such Letter of Credit (including the
beneficiary thereof) (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, Administrative Agent shall advise L/C Lender of the
contents thereof. Each Lender hereby authorizes L/C Lender to issue, and
perform its obligations under, Letters of Credit. Letters of Credit shall
be issued in accordance with the customary procedures of L/C Lender, which
may include an application for Letters of Credit. L/C Lender may refuse to
issue any Letter of Credit the contents of which are not reasonably
satisfactory to it. If there is any conflict between the procedures or any
Letter of Credit application required by L/C Lender and this Agreement,
this Agreement shall govern.
(b) On each day during the period commencing with the issuance by L/C
Lender of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Revolving Commitment of each Revolving
Lender shall be deemed to be utilized for all purposes hereof in an amount
equal to such Lender's R/C Percentage of the then undrawn face amount of
such Letter of Credit plus the amount of any unreimbursed drawings
thereunder. Each Revolving Lender (other than L/C Lender) severally agrees
that, upon the issuance of any Letter of Credit hereunder, it shall
automatically acquire a participation in L/C Lender's obligation to fund
drawings and rights under such Letter of Credit in an amount equal to such
Lender's R/C Percentage of such obligations and rights, and each Revolving
Lender (other than L/C Lender) thereby shall absolutely, unconditionally
and irrevocably assume, as primary obligor and not as surety, and shall be
unconditionally obligated to L/C Lender to pay and discharge when due, its
R/C Percentage of L/C Lender's obligation to fund drawings under such
Letter of Credit. L/C Lender shall be deemed to hold an L/C Liability in an
amount equal to its retained interest in the related Letter of Credit after
giving effect to such acquisition by the Revolving Lenders other than L/C
Lender of their participation interests.
-43-
(c) In the event that L/C Lender has determined to honor a drawing
under a Letter of Credit, L/C Lender shall promptly notify Borrower
(through Administrative Agent) of the amount paid by L/C Lender and the
date on which payment is to be made to such beneficiary. Borrower hereby
unconditionally agrees to pay and reimburse L/C Lender for the amount of
payment under such Letter of Credit, together with interest thereon at the
Alternate Base Rate plus the Applicable Margin applicable to Revolving
Loans from the date payment was made to such beneficiary to the date on
which payment is due, not later than the next Business Day after the date
on which Borrower receives such notice from L/C Lender (or the second
Business Day thereafter if such notice is received on a date that is not a
Business Day or after 11:00 a.m. New York City time on a Business Day). Any
such payment due from Borrower and not paid on the required date shall bear
interest at rates specified in Section 3.02(b).
(d) Forthwith upon its receipt of a notice referred to in clause (c)
of this Section 2.03, Borrower shall advise L/C Lender whether or not
Borrower intends to borrow hereunder to finance its obligation to reimburse
L/C Lender 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. In the
event that Borrower fails to so advise Administrative Agent, or if Borrower
fails to reimburse L/C Lender for a demand for payment under a Letter of
Credit by the next Business Day after the date of such notice,
Administrative Agent shall give each Revolving Lender prompt notice of the
amount of the demand for payment, specifying such Lender's R/C Percentage
of the amount of the related demand for payment.
(e) Each Revolving Lender (other than L/C Lender) shall pay to
Administrative Agent for account of L/C Lender at the Principal Office in
Dollars and in immediately available funds, the amount of such Lender's R/C
Percentage of any payment under a Letter of Credit upon not less than one
Business Day's actual notice by L/C Lender (through Administrative Agent)
to such Revolving Lender requesting such payment and specifying such
amount. Subject to the proviso to the last paragraph of this Section 2.03,
each such Revolving Lender's obligation to make such payments to
Administrative Agent for the account of L/C Lender under this clause (e),
and L/C Lender's right to receive the same, shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including (i) the failure of any other Revolving Lender to make its payment
under this clause (e), (ii) the financial condition of Borrower or the
existence of any Default or (iii) the termination of the Commitments. Each
such payment to L/C Lender shall be made without any offset, abatement,
withholding or reduction whatsoever.
(f) Upon the making of each payment by a Revolving Lender to L/C Lender
pursuant to clause (e) above in respect of any Letter of Credit, such
Lender shall, automatically and without any further action on the part of
Administrative Agent, L/C Lender or such Lender, acquire (i) a
participation in an amount equal to such payment in the Reimbursement
Obligation owing to L/C Lender by Borrower hereunder and under the L/C
Documents relating to such Letter of Credit and (ii) a participation in a
percentage equal to such Lender's R/C Percentage in any interest or other
amounts payable by Borrower hereunder and under such L/C Documents in
respect of such Reimbursement Obligation. Upon receipt by L/C Lender from
or for the account of Borrower of any payment in respect of any
Reimbursement Obligation or
-44-
any such interest or other amounts (including by way of setoff or
application of proceeds of any collateral security) L/C Lender shall
promptly pay to Administrative Agent for the account of each Revolving
Lender which has satisfied its obligations under clause (e) above, such
Revolving Lender's R/C Percentage of such payment, each such payment by L/C
Lender to be made in Dollars. In the event any payment received by L/C
Lender and so paid to the Revolving Lenders hereunder is rescinded or must
otherwise be returned by L/C Lender, each Revolving Lender shall, upon the
request of L/C Lender (through Administrative Agent), repay to L/C Lender
(through Administrative Agent) the amount of such payment paid to such
Lender, with interest at the rate specified in clause (i) of this Section
2.03.
(g) Borrower shall pay to Administrative Agent for the account of L/C
Lender in respect of each Letter of Credit a letter of credit commission in
an amount (not less than $500) equal to (x) the rate PER ANNUM equal to the
Applicable Margin for Revolving Loans that are LIBOR Loans in effect from
time to time, multiplied by (y) the daily average undrawn face 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
which expires in accordance with its terms, to and including such
expiration date and (ii) in the case of a Letter of Credit which 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 and to be
paid in arrears quarterly, on each Quarterly Date, and on the earlier of
the R/C Termination Date or the date of the termination of the Revolving
Commitment or the date of such termination, expiration or the Business Day
subsequent to notice of a drawing. L/C Lender shall pay to Administrative
Agent for the account of each Revolving Lender (other than L/C Lender),
from time to time at reasonable intervals (but in any event at least
quarterly), but only to the extent actually received from Borrower, an
amount equal to such Lender's R/C Percentage of all letter of credit
commissions referred to in the first sentence of this clause (g). In
addition, Borrower shall pay to Administrative Agent for account of L/C
Lender only in respect of each Letter of Credit a letter of credit issuance
fee in an amount equal to 0.03125% quarterly in arrears multiplied by the
face amount from the issue date through the expiry date of such Letter of
Credit (but in no event less than $500 per Letter of Credit), such amount
to be payable on the date of issuance of such Letter of Credit, plus all
charges, costs and expenses in the amounts customarily charged by L/C
Lender from time to time in like circumstances with respect to the
issuance, amendment or transfer of each Letter of Credit and drawings and
other transactions relating thereto.
(h) Promptly following the end of each calendar quarter, L/C Lender
shall deliver (through Administrative Agent) to each Revolving Lender and
Borrower a notice describing the aggregate amount of all Letters of Credit
outstanding at the end of such quarter. Upon the request of any Revolving
Lender from time to time, L/C Lender shall deliver to such Lender and
Borrower any other information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
(i) To the extent that any Revolving Lender fails to pay an amount
required to be paid pursuant to clause (e) or (f) of this Section 2.03 on
the due date therefor, such Lender shall pay interest to L/C Lender
(through Administrative Agent) on such amount from and
-45-
including such due date to but excluding the date such payment is made at a
rate PER ANNUM equal to the Federal Funds Rate (as in effect from time to
time).
(j) The issuance by L/C Lender of any material modification or
supplement to any Letter of Credit hereunder that would extend the expiry
date or increase the face amount thereof 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 (x) 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 (y) the Majority
Revolving Lenders (or all of the Revolving Lenders to the extent required
by Section 12.04 shall) have consented thereto.
(k) Notwithstanding the foregoing, L/C Lender shall not be under any
obligation to issue any Letter of Credit if at the time of such issuance,
any order, judgment or decree of any Governmental Authority or arbitrator
shall purport by its terms to enjoin or restrain L/C Lender from issuing
such Letter of Credit or any requirement of law applicable to L/C Lender or
any request or directive (whether or not having the force of law) from any
Governmental Authority shall prohibit the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon L/C
Lender with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which L/C Lender is not otherwise compensated) not
in effect on the date hereof. At any time that L/C Lender shall not be
under any obligation to issue Letters of Credit pursuant to this paragraph
(k), L/C Lender may be replaced by Borrower with another Lender reasonably
acceptable to Administrative Agent upon notice to L/C Lender and
Administrative Agent and acceptance of such appointment by such successor
L/C/ Lender. Upon any such replacement, Administrative Agent shall notify
the Lenders of any such replacement of L/C Lender and the replacement L/C
Lender shall agree to be bound by the applicable provisions of this
Agreement. At the time any such replacement shall become effective,
Borrower shall pay all unpaid fees accrued for the account of the replaced
L/C Lender pursuant to Section 2.03(g). From and after the effective date
of any such replacement, (i) the successor L/C Lender shall have all the
rights and obligations of L/C Lender under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the
term "L/C Lender" shall be deemed to refer to such successor or to any
previous L/C Lender, or to such successor and all previous L/C Lenders, as
the context shall require. After the replacement of an L/C Lender
hereunder, the replaced L/C Lender shall remain a party hereto and shall
continue to have all the rights and obligations of an L/C Lender under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of
Credit.
The obligations of Borrower under this Agreement and any L/C Document to
reimburse L/C Lender for a drawing under a Letter of Credit, and to repay any
drawing under a Letter of Credit converted into Revolving Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C Document under all
circumstances, including the following: (i) any lack of validity or
enforceability of this Agreement or any L/C Document; (ii) the existence of any
claim, set-off, defense or other right that Borrower may have at any time
against any beneficiary or any transferee of any Letter of Credit (or any Person
for whom any
-46-
such beneficiary or any such transferee may be acting), L/C Lender or any other
Person, whether in connection with this Agreement, the transactions contemplated
hereby or by the L/C Documents or any unrelated transaction; (iii) any draft,
demand, certificate or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit; or any defense based upon the failure of
any drawing under a Letter of Credit to conform to the terms of the Letter of
Credit or any non-application or misapplication by the beneficiary of the
proceeds of such drawing; or (iv) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, Borrower or a Guarantor; PROVIDED, HOWEVER, that neither Borrower
nor any Revolving Lender shall be obligated to reimburse L/C Lender for any
wrongful payment finally determined by a court of competent jurisdiction to have
been made by L/C Lender as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of L/C Lender. To the extent that any
provision of any L/C Document is inconsistent with the provisions of this
Section 2.03, the provisions of this Section 2.03 shall control.
(l) Each letter of credit set forth on SCHEDULE 2.03(l) hereto
outstanding on the Closing Date shall be deemed to have been issued by L/C
Lender hereunder on the Closing Date.
2.04. TERMINATION AND REDUCTIONS OF COMMITMENTS. (a)(i) The Commitments
shall be automatically and permanently terminated on September 30, 1999 if the
Closing Date does not occur on or prior to such date.
(ii) The Term Loan Commitments shall be reduced prior to the initial
extensions of credit hereunder dollar-for-dollar by an amount equal to (1) the
gross proceeds from any Debt Issuance contemplated by Section 9.08(A)(j) on or
prior to the Closing Date (excluding gross proceeds in excess of $300,000,000
and less than $325,000,001), (2) the gross proceeds from any Debt Issuance
contemplated by Section 9.08(A)(i) on or prior to the Closing Date and, without
duplication of such amount, an amount equal to the aggregate cash proceeds
received by any Company on or prior to the Closing Date from an unrelated third
party (net of amounts repaid and expenses related thereto) from the financing
pursuant to any Permitted Receivables Transaction of Accounts which are
outstanding at the date of determination, and (3) except to the extent that
Borrower has consummated the Note Defeasance, the aggregate principal amount of
the Existing Notes outstanding on the Closing Date, with any such reduction (A)
pursuant to clause (a)(ii)(1) or clause (a)(ii)(3) being applied FIRST to the
Capital Markets Facility Commitments, and SECOND, after the Capital Markets
Facility Commitments have been reduced to zero, to the Commitments under the
other Term Facilities pro RATA, and (B) pursuant to clause (a)(ii)(2) being
applied FIRST to the Term A Facility Commitments, and SECOND, after the Term A
Facility Commitments have been reduced to zero, to the Commitments under the
other Term Facilities PRO RATA. In determining the aggregate cash proceeds
received by any Company from the financing of any Accounts pursuant to any
Permitted Receivables Transaction, such amount shall be reduced by any escrowed
or pledged cash proceeds which effectively secure the obligations of any Company
under such Permitted Receivables Transaction.
-47-
(iii) The aggregate amount of the Revolving Commitments shall be
automatically and permanently reduced to zero on the R/C Termination Date.
(iv) The aggregate amount of the Revolving Commitments shall be
permanently reduced on the date any prepayments required pursuant to Section
2.10(a) are made in the amount specified in Section 2.10(b)(ii).
(v) The aggregate amount of the Term Loan Commitments shall be
automatically and permanently reduced to zero immediately after the making of
the Term Loans on the Closing Date.
(b) Borrower shall have the right at any time or from time to time
(without premium or penalty except breakage costs (if any) pursuant to Section
5.05 ) (i) so long as no Revolving Loans or L/C Liabilities will be outstanding
as of the date specified for termination, to terminate the Revolving Commitments
in their entirety, and (ii) to reduce the aggregate amount of the Unutilized
Revolving Commitments (which shall be PRO RATA among the Revolving Lenders);
PROVIDED, HOWEVER, that (x) Borrower shall give notice of each such termination
or reduction as provided in Section 4.05, and (y) each partial reduction shall
be in an aggregate amount at least equal to $10.0 million (or a larger multiple
of $5.0 million in excess thereof) or, if less, the remaining Unutilized
Revolving Commitments.
(c) Any Commitment once terminated or reduced may not be reinstated.
2.05. FEES. (a) Borrower shall pay to Administrative Agent for the
account of each Revolving Lender a commitment fee on the daily average amount of
such Lender's Unutilized Revolving Commitment, for the period from and including
the Effective Date to but not including the earlier of the date such Revolving
Commitment is terminated and the R/C Termination Date, at a rate equal to the
Applicable R/C Fee Percentage. Any accrued commitment fee under this Section
2.05(a) shall be payable in arrears on the Closing Date, on each Quarterly Date
after receipt of an invoice delivered by Administrative Agent and on the earlier
of the date the Revolving Commitments are terminated or expire and the R/C
Termination Date.
(b) Borrower shall pay to Administrative Agent for the account of each
Term Loan Lender a commitment fee on the amount of such Lender's Term Loan
Commitment, for the period from and including the Effective Date to but not
including the Closing Date, at a rate equal to 0.50% PER ANNUM. Any accrued
commitment fee under this Section 2.05(b) shall be payable in arrears on the
Closing Date, on each Quarterly Date after receipt of an invoice delivered by
Administrative Agent and on the earlier of the date the Term Loan Commitments
are terminated or expire and on the Closing Date.
(c) Borrower shall pay to Administrative Agent for its own account the
annual administrative fee pursuant to the Fee Letter.
-48-
(d) Notwithstanding Section 2.05(b) or (c), no commitment fee shall
accrue on any of the Commitments of a Defaulting Lender for any period of time
during which such Lender shall be a Defaulting Lender.
2.06. LENDING OFFICES. The Loans of each Type made by each Lender shall
be made and maintained at such Lender's Applicable Lending Office for Loans of
such Type.
2.07. SEVERAL OBLIGATIONS OF LENDERS. 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 Administrative Agent shall be responsible for the failure of any
other Lender to make a Loan to be made by such other Lender, and no Lender shall
have any obligation to Administrative Agent or any other Lender for the failure
by such Lender to make any Loan required to be made by such Lender. No Revolving
Lender will be responsible for the failure of any other Lender to fund its
participation in Swing Loans or Letters of Credit.
2.08. NOTES; REGISTER. (a) At the request of any Lender, its Loans of a
particular Class shall be evidenced by a promissory note, dated the Closing
Date, payable to such Lender (or its nominee) and otherwise duly completed,
substantially in the form of EXHIBIT X-0, X-0, X-0, X-0, X-0 and A-6, for such
Lender's Revolving Loans, Term A Facility Loans, Term B Facility Loans, Term C
Facility Loans, Capital Markets Facility Loans and Swing Loans, respectively.
(b) The date, amount, Type, interest rate and duration of the Interest
Period (if applicable) of each Loan of each Class made by each Lender to
Borrower and each payment made on account of the principal thereof, shall be
recorded by such Lender (or its nominee) on its books and, prior to any transfer
of any Note evidencing the Loans of such Class held by it, endorsed by such
Lender (or its nominee) on the schedule attached to such Note or any
continuation thereof; PROVIDED, HOWEVER, that the failure of such Lender (or its
nominee) to make any such recordation or endorsement or any error in any such
recordation or endorsement shall not affect the obligations of Borrower to make
a payment when due of any amount owing hereunder or under such Note.
(c) Borrower hereby designates Administrative Agent to serve as its
agent, solely for purposes of this Section 2.08, to maintain a register (the
"REGISTER") on which Administrative Agent will record the name and address of
each Lender, the Commitment from time to time of each of the Lenders, the
principal amount of the Loans made by each of the Lenders and each repayment in
respect of the principal amount of the Loans of each Lender and assignments and
transfers of Loans and Notes pursuant to Section 12.06(b). Failure to make any
such recordation or any error in such recordation shall not affect Borrower's
obligations in respect of such Loans. The entries in the Register shall be
conclusive, in the absence of manifest error, and the parties hereto shall treat
each Person whose name is recorded in the Register as the owner of a Loan, a
Note or other obligation hereunder as the owner thereof for the purposes of
receiving principal and interest and all other purposes, notwithstanding any
notice to the contrary. The Register shall be available for inspection by
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
2.09. OPTIONAL PREPAYMENTS AND CONVERSIONS OR CONTINUATIONS OF LOANS.
Subject to Section 4.04, Borrower shall have the right to prepay Loans, or to
Convert Loans of one Type into
-49-
Loans of another Type or to Continue Loans of one Type as Loans of the same
Type, at any time or from time to time. Borrower shall give Administrative Agent
notice of each such prepayment, Conversion or Continuation as provided in
Section 4.05 (and, upon the date specified in any such notice of prepayment, the
amount to be prepaid shall become due and payable hereunder). Each notice of
Conversion or Continuation shall be substantially in the form of EXHIBIT H. If
LIBOR Loans are prepaid or Converted other than on the last day of an Interest
Period, Borrower shall at such time pay all expenses and costs required by
Section 5.05. Notwithstanding the foregoing, and without limiting the rights and
remedies of the Lenders under Section 10, in the event that any Event of Default
shall have occurred and be continuing, Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of Borrower to Convert
any Loan into a LIBOR Loan, or to Continue any Loan as a LIBOR 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 ABR Loans.
Prepayments of the Term Loans pursuant to this Section 2.09 shall be applied PRO
RATA among the Term Facilities based upon the remaining unpaid amounts thereof,
except that, at the sole election of Borrower, up to $25.0 million of the Term C
Facility Loans may be prepaid without prepaying any other Term Loans if such
prepayment is made within five Business Days of the Closing Date; with any
application (A) to the Term A Facility to be applied PRO RATA among the
remaining Amortization Payments thereof based upon the remaining unpaid amounts
thereof and (B) to each of the other Term Facilities to be applied in inverse
order of maturity of the remaining Amortization Payments thereof.
Notwithstanding the foregoing, any holder of Term B Facility Loans or
Term C Facility Loans at its sole discretion may, with respect to any optional
prepayment, so long as any Term A Facility Loans are then outstanding (after
giving effect to the application of such required prepayment to the Term A
Facility Loans), elect by written notice provided to Administrative Agent not to
have all or any amount of any such required prepayments applied to such holder's
Term B Facility Loans or Term C Facility Loans, as the case may be, in which
case the aggregate amount so declined shall, at the option of Borrower, either
be retained by Borrower or be applied PRO RATA to the remaining Amortization
Payments of the Term A Facility; PROVIDED, HOWEVER, that to the extent that the
aggregate principal amount of the Term A Facility Loans after giving effect to
such optional prepayment is less than the aggregate amount so declined by the
holders of the Term B Facility Loans and Term C Facility Loans, such amount so
declined shall be allocated between the declining holders of the Term B Facility
Loans and Term C Facility Loans PRO RATA based on the aggregate amount declined
by each such holder.
2.10. MANDATORY PREPAYMENT AND COMMITMENT REDUCTIONS. (a) Borrower
shall prepay the Loans (and/or reduce Commitments) as follows (each such
prepayment (and/or Commitment reduction) to be effected in each case in the
manner, order and to the extent specified in subsection (b) below of this
Section 2.10):
(i) CASUALTY EVENTS. Within five Business Days after any Company
receives any Net Available Proceeds from any Casualty Event, in an
aggregate principal amount equal to 100% of such Net Available Proceeds;
PROVIDED, HOWEVER, that
(x) if no Default or Event of Default then exists or would arise
therefrom, the Net Available Proceeds thereof shall not be required to
be so applied on such date to
-50-
the extent that Borrower has delivered an Officers' Certificate to
Administrative Agent on or prior to such date stating that such
proceeds shall be used to fund the substitution of Property used or
usable in the business of the Companies or repair, replace or restore
the Property in respect of which such Casualty Event has occurred, in
each case within one year following the date of the receipt of such Net
Available Proceeds,
(y) all such Net Available Proceeds in excess of the remainder of
(A) $20.0 million in the aggregate for all such Casualty Events (and
not reinvested within five Business Days of receipt in accordance with
clause (x) of this Section 2.10(a)(i)) MINUS (B) the amount not then
held in the Collateral Account by virtue of Section 2.10(a)(iv)(y)
shall be held in the Collateral Account and released therefrom only in
accordance with the terms of the Security Agreement, and
(z) if all or any portion of such Net Available Proceeds not
required to be applied to the prepayment of Loans pursuant to the
preceding proviso (x) is not so used within one year after the date of
the receipt of such Net Available Proceeds, such remaining portion
shall be applied on the last day of such period as specified in Section
2.10(b).
(ii) EQUITY ISSUANCE. Within three Business Days of any Equity Issuance
on or after the Closing Date, in an aggregate principal amount equal to 50%
(or, to the extent required to be applied to the Capital Markets Facility,
100%) of the Net Available Proceeds of such Equity Issuance.
(iii) DEBT ISSUANCE. (A) Within three (or five the first time required)
Business Days of any Debt Issuance on or after the Closing Date pursuant to
Section 9.08(A)(i) or 9.08(A)(j) (other than any Debt Issuance on the
Closing Date pursuant to Section 9.08(A)(j) to the extent that Commitments
have been reduced pursuant to Section 2.04), in an aggregate principal
amount equal to 100% of the remainder of the Net Available Proceeds of such
Debt Issuance (not applied to make a voluntary prepayment of Term Loans
pursuant to Section 2.09) less, so long as no Default or Event of Default
then exists or would arise therefrom, the amount of such Net Available
Proceeds applied within 45 days of receipt thereof to any Permitted
Refinancings of the Existing Notes or any Indebtedness incurred under such
clauses (it being understood that applications pursuant to this Section
2.10(a)(iii) shall not be duplicative of Section 2.10(a)(iv) below), and
(B) within five Business Days of the Closing Date in an amount equal to the
gross proceeds of any Debt Issuance described in Section 9.08(A)(j)
consummated prior to the Closing Date in excess of $300,000,000 and less
than $325,000,001 (and not applied to make a voluntary prepayment of Term
Loans under Section 2.09).
(iv) DISPOSITION EVENTS. Within five Business Days after receipt by any
Company of any Net Available Proceeds from any Disposition Event under
Section 9.06(g), (n), (p) or (q), in an aggregate principal amount equal to
100% of the Net Available Proceeds from such Disposition Event (it being
understood that applications pursuant to this Section 2.10(a)(iv) shall not
be duplicative of Section 2.10(a)(iii) above); PROVIDED, HOWEVER, that
-51-
(x) the Net Available Proceeds from any Disposition Event
permitted by Sections 9.06(g), (n), (p) and (q) shall not be required
to be applied as provided herein on such date if (1) no Default or
Event of Default then exists or would arise therefrom, and (2) Borrower
delivers an Officers' Certificate to Administrative Agent on or prior
to such date stating that such Net Available Proceeds shall be
reinvested in capital assets of (A) if such Disposition Event was
effected by any Obligor, any Obligor and (B) if such Disposition Event
was effected by any other Company, any Company (other than a
Receivables Co.), in each case within one year following the date of
such Disposition Event (which certificate shall set forth the estimates
of the proceeds to be so expended),
(y) all such Net Available Proceeds in excess of the remainder of
(A) $20.0 million in the aggregate for all such Disposition Events (and
not reinvested within five Business Days of receipt in accordance with
clause (x) of this Section 2.10(a)(iv)) MINUS (B) the amount not then
held in the Collateral Account by virtue of Section 2.10(a)(i)(y) shall
be held in the Collateral Account and released therefrom only in
accordance with the terms of the Security Agreement, and
(z) if all or any portion of such Net Available Proceeds which
are permitted to be applied to reinvestment pursuant to the terms of
this Section 2.10(a)(iv) is not so used within such one year period,
such remaining portion shall be applied on the last day of such period
(or such earlier date as Borrower determines not to reinvest any
portion thereof) as specified in Section 2.10(b) (it being understood
that the foregoing shall in no way affect the obligation of any Company
to obtain the consent of the Majority Lenders if required pursuant to
this Agreement to effect any Disposition).
(v) EXCESS CASH FLOW. Not later than 95 days after the end of each
fiscal year of Borrower commencing with the fiscal year ended December 31,
2000, in an aggregate principal amount equal to 50% of Excess Cash Flow for
such fiscal year; PROVIDED, HOWEVER, that if the unsecured senior long term
debt of Borrower is rated at least Baa3 (or the equivalent) or higher by
Xxxxx'x and at least BBB- (or the equivalent) or higher by S&P on the date
such payment would otherwise be required to be made, Borrower shall not be
required to prepay the Loans with Excess Cash Flow as set forth in this
Section 2.10(a)(v) (it being understood that any payment made prior to the
time that such condition is satisfied shall be permanent and not subject to
repayment to Borrower to the extent otherwise made in accordance herewith).
(vi) PURCHASE PRICE ADJUSTMENT. Upon any adjustment to the purchase
price for the SBCL Acquisition exceeding $20.0 million received in cash by
any Company pursuant to the SBCL Acquisition Agreement (other than for any
loss, cost or expense incurred by any Company and net liabilities assumed
by any Company under the SBCL Acquisition Agreement) (the "PURCHASE PRICE
ADJUSTMENT AMOUNT"), in an aggregate principal amount equal to 100% of the
Purchase Price Adjustment Amount.
-52-
(vii) OTHER REQUIRED PREPAYMENTS. If the terms of any agreement,
instrument or indenture pursuant to which any Indebtedness (other than the
Obligations) PARI PASSU with or junior in right of payment to the Loans is
outstanding (or pursuant to which such Indebtedness is guaranteed) require
prepayment of such Indebtedness out of the Net Available Proceeds of any
Disposition unless such Net Available Proceeds are used to prepay other
Indebtedness, then, to the extent not otherwise required by this Section
2.10(a), if the Companies shall not have reinvested the Net Available
Proceeds thereof as permitted by Section 2.10(a)(iv) within the time frame
permitted thereby (but prior to the date required to be applied to such
Indebtedness) the Loans shall be repaid in an amount not less than the
minimum amount that would be required to be prepaid not later than the
latest time as and upon such terms so that such other Indebtedness will not
be required to be prepaid pursuant to the terms of the agreement, indenture
or instrument or guarantee governing such other Indebtedness.
(viii) EXCEPTIONS TO PREPAYMENT. Notwithstanding anything to the
contrary contained in Sections 2.10(a)(i) and 2.10(a)(iv) or in Section
9.06, so long as no Default shall have occurred and be continuing, if on
any date on which a prepayment of Loans would otherwise be required
pursuant to Sections 2.10(a)(i) and 2.10(a)(iv) and the applicable
subsections of Section 9.06 the aggregate amount of Net Available Proceeds
otherwise required by such sections hereof to be applied to prepay Loans on
such date is less than or equal to $5.0 million, Borrower may defer such
prepayment until the date on which the aggregate amount of Net Available
Proceeds otherwise required by such sections hereof be applied to prepay
Loans exceeds $5.0 million. During such deferral period Borrower may apply
all or any part of such aggregate amount to prepay Revolving Loans and may
reborrow such amounts (which amounts, to the extent originally constituting
Net Available Proceeds, shall be deemed to retain their original character
as Net Available Proceeds when so reborrowed) for application as required
by this Section 2.10. Upon the occurrence of a Default, Borrower shall
immediately prepay Loans in the amount of all Net Available Proceeds that
are required to be applied to prepay Loans by this Section 2.10 (without
giving effect to the first and second sentences of this Section
2.10(a)(viii)) and Section 9.06 but which have not previously been so
applied.
(b) APPLICATION. The amount of any required prepayments described in
Section 2.10(a) shall be applied to repay Loans and/or reduce Commitments as
follows:
(i) FIRST, the amount of the required prepayment shall be applied to
the reduction of Amortization Payments on the Term Loans required by
Section 3.01(b) PRO RATA among the Term Facilities based upon the remaining
unpaid amounts thereof; PROVIDED, HOWEVER, that notwithstanding the
foregoing (A) the first $300.0 million of Net Available Proceeds of any
Debt Issuance or Equity Issuance shall be applied first to the outstanding
Capital Markets Facility Loans, (B) the first $200.0 million of any Net
Available Proceeds pursuant to a Permitted Receivables Transaction shall be
applied to the Term A Facility if consummated within six months of the
Closing Date, and (C) the amount required by Section 2.10(a)(iii)(B) and up
to an aggregate since the Closing Date of $25.0 million of any amount
required by Section 2.10(a)(iii)(A) may, at the sole election of Borrower,
be applied solely to the Term C Facility Loans if applied within five
business days of the Closing Date; with any application (I) to the Term A
Facility to be applied PRO RATA to the remaining Amortization Payments
-53-
thereof based on the remaining unpaid amounts thereof and (II) to each of
the other Term Facilities to be applied in inverse order of maturity to the
remaining Amortization Payments thereof. Notwithstanding the foregoing, any
holder of Term B Facility Loans or Term C Facility Loans may, at its sole
discretion, so long as any Term A Facility Loans are then outstanding
(after giving effect to the application of such required prepayment to the
Term A Facility Loans), elect by written notice provided to Administrative
Agent not to have all or any amount of any such required prepayments
applied to such holder's Term B Facility Loans or Term C Facility Loans, as
the case may be, in which case the aggregate amount so declined shall be
applied to the Term A Facility Loans PRO RATA to the remaining Amortization
Payments thereof; PROVIDED, HOWEVER, that (1) to the extent that the
aggregate principal amount of the Term A Facility Loans after giving effect
to such mandatory prepayment is less than the aggregate amount so declined
by the holders of the Term B Facility Loans and Term C Facility Loans, the
excess shall be allocated between the declining holders of the Term B
Facility Loans and Term C Facility Loans PRO RATA based on the aggregate
amount declined by each such holder; and (2) in connection with any
Permitted Receivables Transaction or issuance of Unsecured Notes, the
election to decline permitted by this sentence shall not be available if
such Permitted Receivables Transaction or Debt Issuance occurs within six
months of the Closing Date.
(ii) SECOND, after such time as no Term Loans remain outstanding, the
Revolving Commitments shall be permanently reduced PRO RATA in an amount
equal to the remaining amount of any such required prepayment that would
have been applied to the Term Loans (at the same time that the prepayment
of the Term Loans would have been made and assuming an unlimited amount
thereof then outstanding) and to the extent that, after giving effect to
such reduction, the aggregate principal amount of Revolving Loans, PLUS the
aggregate principal amount of Swing Loans, PLUS the aggregate amount of all
L/C Liabilities would exceed the Revolving Commitments, Borrower shall,
FIRST, prepay outstanding Swing Loans and SECOND, prepay outstanding
Revolving Loans and, THIRD, provide cover for L/C Liabilities as specified
in Section 2.10(d), in an aggregate amount equal to such excess.
(iii) THIRD, after application of prepayments in accordance with
clauses (i) and (ii) above, Borrower shall be permitted to retain any such
remaining excess.
Notwithstanding the foregoing, if the amount of any prepayment of Loans
required under this Section 2.10 shall be in excess of the amount of the ABR
Loans at the time outstanding, only the portion of the amount of such prepayment
as is equal to the amount of such outstanding ABR Loans shall be immediately
prepaid and, at the election of Borrower in its sole discretion, the balance of
such required prepayment shall be either (i) deposited in the Collateral Account
and applied to the prepayment of LIBOR Loans on the last day of the then
next-expiring Interest Period for LIBOR Loans (with all interest accruing
thereon for the account of Borrower) or (ii) prepaid immediately, together with
any amounts owing to the Lenders under Section 5.05. Notwithstanding any such
deposit in the Collateral Account, interest shall continue to accrue on such
Loans until prepayment.
(c) REVOLVING CREDIT EXTENSION REDUCTIONS. Until the R/C Termination
Date, Borrower shall from time to time immediately prepay the Swing Loans and
the Revolving Loans (and/or
-54-
provide cover for L/C Liabilities as specified in Section 2.10(d)) in such
amounts as shall be necessary so that at all times the aggregate outstanding
amount of the Revolving Loans, PLUS the aggregate outstanding amount of Swing
Loans, PLUS the aggregate outstanding L/C Liabilities shall not exceed the
Revolving Commitments as in effect at such time, such amount to be applied,
FIRST, to the Swing Loans, SECOND, to Revolving Loans outstanding and, THIRD, as
cover for L/C Liabilities outstanding as specified in Section 2.10(d).
(d) COVER FOR L/C LIABILITIES. In the event that Borrower shall be
required pursuant to this Section 2.10 to provide cover for L/C Liabilities,
Borrower shall effect the same by paying to Administrative Agent immediately
available funds in an amount equal to the required amount, which funds shall be
retained by Administrative Agent in the Collateral Account (as provided in the
Security Agreement as collateral security in the first instance for the L/C
Liabilities) until such time as all Letters of Credit shall have been terminated
and all of the L/C Liabilities paid in full.
2.11. REPLACEMENT OF LENDERS. Borrower shall have the right, if no
Default then exists, to replace any Lender (including L/C Lender and the Swing
Loan Lender) (the "REPLACED LENDER") with one or more other Eligible Persons
reasonably acceptable to Joint Lead Arrangers (such acceptance not to be
unreasonably withheld or delayed) (collectively, the "REPLACEMENT LENDER") if
(x) such Lender is charging Borrower increased costs or other amounts pursuant
to Section 5.01 or 5.06 in excess of those being charged generally by other
Lenders subject to the same regulatory requirements, or such Lender becomes
incapable of making LIBOR Loans as provided in Section 5.03 when other Lenders
are generally able to do so and/or (y) as provided in Section 12.04(ii), such
Lender refuses to consent to certain proposed amendments, waivers or
modifications with respect to this Agreement; PROVIDED, HOWEVER, that (i) at the
time of any replacement pursuant to this Section 2.11, the Replacement Lender
shall enter into one or more assignment agreements (and with all fees payable
pursuant to Section 12.06 to be paid by the Replacement Lender) in accordance
with Section 12.06 pursuant to which the Replacement Lender shall acquire all of
the Commitments and outstanding Loans of, and in each case L/C Interests held
by, the Replaced Lender and, in connection therewith, shall pay to (x) the
Replaced Lender, an amount equal to the sum of (A) the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Lender, (B) all
Reimbursement Obligations owing to such Replaced Lender, together with all then
unpaid interest with respect thereto at such time, and (C) all accrued, but
theretofore unpaid, fees owing to the Replaced Lender pursuant to Section 2.05,
and (y) L/C Lender an amount equal to such Replaced Lender's R/C Percentage of
any Reimbursement Obligations (which at such time remains a Reimbursement
Obligation) to the extent such amount was not theretofore funded by such
Replaced Lender, and (ii) all obligations of Borrower owing to the Replaced
Lender (other than those specifically described in clause (i) above in respect
of which the assignment purchase price has been, or is concurrently being, paid,
but including any amounts which would be paid to a Lender pursuant to Section
5.05 if Borrower were prepaying a LIBOR Loan) shall be paid in full to such
Replaced Lender concurrently with such replacement. Upon the execution of the
respective assignment agreement, the payment of amounts referred to in clauses
(i) and (ii) above and, if so requested by the Replacement Lender, delivery to
the Replacement Lender of Notes executed by Borrower, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder and be released of all its obligations as a
Lender, except with respect to indemnification provisions applicable to the
Replaced Lender under this Agreement, which shall survive as to such Replaced
Lender.
-55-
2.12. DEFAULTING LENDERS. (a) In the event that, at any one time, (i)
any Lender shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Advance to Borrower, (iii) Borrower shall be required to make any
payment hereunder or under any other Credit Document to or for the account of
such Defaulting Lender and (iv) all of the Revolving Lenders then constituting
Defaulting Lenders owing a Defaulted Advance to Borrower constitute less than
the Majority Revolving Lenders (determined without giving effect to the proviso
in the definition of Majority Revolving Lenders), then Borrower may, so long as
no Default shall occur or be continuing at such time and to the fullest extent
permitted by applicable law, set off and otherwise apply the obligation of
Borrower to make such payment, or any other payment hereunder, to or for the
account of such Defaulting Lender against the obligation of such Defaulting
Lender to make such Defaulted Advance. In the event that, on any date, Borrower
shall so set off and otherwise apply its obligation to make any such payment
against the obligation of such Defaulting Lender to make any such Defaulted
Advance on or prior to such date, the amount so set off and otherwise applied by
Borrower shall constitute for all purposes of this Agreement and the other
Credit Documents a Loan by such Defaulting Lender made on the date of such
setoff under the Commitments pursuant to which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01. Such extension
of credit shall be considered, for all purposes of this Agreement, to comprise
part of the borrowing in connection with which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01, even if the
other advances comprising such borrowing shall be LIBOR Loans on the date such
advance is deemed to be made pursuant to this subsection (a). Borrower shall
notify Administrative Agent at any time Borrower exercises its right of setoff
pursuant to this subsection (a) and shall set forth in such notice (A) the name
of the Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in respect of
such Defaulted Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by Borrower to or for the account of such
Defaulting Lender which is paid by Borrower, after giving effect to the amount
set off and otherwise applied by Borrower pursuant to this subsection (a), shall
be applied by Administrative Agent as specified in subsection (b) or (c) of this
Section 2.12.
(b) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lenders and (iii) Borrower shall make any payment
hereunder or under any other Credit Document to Administrative Agent for the
account of such Defaulting Lender, then Administrative Agent may, on its behalf
or on behalf of such other Agents or such other Lenders and to the fullest
extent permitted by applicable law, apply at such time the amount so paid by
Borrower to or for the account of such Defaulting Lender to the payment of each
such Defaulted Amount to the extent required to pay such Defaulted Amount. In
the event that Administrative Agent shall so apply any such amount to the
payment of any such Defaulted Amount on any date, the amount so applied by
Administrative Agent shall constitute for all purposes of this Agreement and the
other Credit Documents payment, to such extent, of such Defaulted Amount on such
date. Any such amount so applied by Administrative Agent shall be retained by
Administrative Agent or distributed by Administrative Agent to such other Agents
or such other Lenders, ratably in accordance with the respective portions of
such Defaulted Amounts payable at such time to Administrative Agent, such other
Agents and such other Lenders and, if the amount of such payment made by
Borrower shall at such time be insufficient to pay all Defaulted Amounts owing
at such time to Administrative Agent, such other Agents and such other Lenders,
in the following order of priority:
-56-
(i) FIRST, to the Agents for any Defaulted Amounts then owing to the
Agents, ratably in accordance with such respective Defaulted Amounts then
owing to the Agents;
(ii) SECOND, to L/C Lender and the Swing Loan Lender for any Defaulted
Amounts then owing to them, in their capacities as such, ratably in
accordance with such respective Defaulted Amounts then owing to L/C Lender
and the Swing Loan Lender;
(iii) THIRD, to any other Lenders for any Defaulted Amounts then owing
to such other Lenders, ratably in accordance with such respective Defaulted
Amounts then owing to such other Lenders.
Any portion of such amount paid by Borrower for the account of such Defaulting
Lender remaining, after giving effect to the amount applied by Administrative
Agent pursuant to this subsection (b), shall be applied by Administrative Agent
as specified in subsection (c) of this Section 2.12.
(c) In the event that, at any one time, (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) Borrower, any Agent or any other Lender shall be
required to pay or distribute any amount hereunder or under any other Credit
Document to or for the account of such Defaulting Lender, then Borrower or such
Agent or such other Lender shall pay such amount to Administrative Agent to be
held by Administrative Agent, to the fullest extent permitted by applicable law,
in escrow or Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds held
by Administrative Agent in escrow under this subsection (c) shall be deposited
by Administrative Agent in an account with Administrative Agent, in the name and
under the control of Administrative Agent, but subject to the provisions of this
subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to
time, shall be Administrative Agent's standard terms applicable to escrow
accounts maintained with it. Any interest credited to such account from time to
time shall be held by Administrative Agent in escrow under, and applied by
Administrative Agent from time to time in accordance with the provisions of,
this subsection (c). Administrative Agent shall, to the fullest extent permitted
by applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Loans required to be made by such Defaulting Lender
and to pay any amount payable by such Defaulting Lender hereunder and under the
other Credit Documents to Administrative Agent or any other Lender, as and when
such Loans or amounts are required to be made or paid and, if the amount so held
in escrow shall at any time be insufficient to make and pay all such Loans and
amounts required to be made or paid at such time, in the following order of
priority:
(i) FIRST, to the Agents for any amounts then due and payable by such
Defaulting Lender to the Agents hereunder, ratably in accordance with such
amounts then due and payable to the Agents;
(ii) SECOND, to L/C Lender and the Swing Loan Lender for any amounts
then due and payable to them hereunder, in their capacities as such, by
such Defaulting Lender, ratably in accordance with such amounts then due
and payable to L/C Lender and the Swing Loan Lender; and
-57-
(iii) THIRD, to any other Lenders for any amount then due and payable
by such Defaulting Lender to such other Lenders hereunder, ratably in
accordance with such respective amounts then due and payable to such other
Lenders; and
(iv) FOURTH, to Borrower for any Loan then required to be made by such
Defaulting Lender pursuant to a Commitment of such Defaulting Lender.
In the event that any Lender that is a Defaulting Lender shall, at any time,
cease to be a Defaulting Lender, any funds held by Administrative Agent in
escrow at such time with respect to such Lender shall be distributed by
Administrative Agent to such Lender and applied by such Lender to the
Obligations owing to such Lender at such time under this Agreement and the other
Credit Documents ratably in accordance with the respective amounts of such
Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.12 are in addition to other rights and remedies that Borrower may have
against such Defaulting Lender with respect to any Defaulted Advance and that
any Agent or any Lender may have against such Defaulting Lender with respect to
any Defaulted Amount.
Section 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01. REPAYMENT OF LOANS.
(a) REVOLVING CREDIT AND SWING LOANS. Borrower hereby promises to pay
to Administrative Agent for the account of each Revolving Lender the entire
outstanding principal amount of such Revolving Lender's Revolving Loans made to
Borrower and each Revolving Loan shall mature, on the R/C Termination Date.
Borrower hereby promises to pay the Swing Loan Lender for its account the entire
outstanding principal amount of each Swing Loan, and such Swing Loan shall
mature, on the earlier of the R/C Termination Date and the first day after such
Swing Loan is made on which a borrowing of Revolving Loans is made.
(b) (1) TERM A FACILITY LOANS, TERM B FACILITY LOANS AND TERM C
FACILITY LOANS. Borrower hereby promises to pay to Administrative Agent for the
account of the Term Lenders in repayment of the principal of the Term Loans
specified in SCHEDULE 3.01(b), the amount of the respective Term Loan specified
in SCHEDULE 3.01(b) under the column entitled "Term A Facility Loans," "Term B
Facility Loans" and "Term C Facility Loans," respectively, on the dates set
forth on SCHEDULE 3.01(b) (subject to adjustment for any prepayments under
Section 2.09 or Section 2.10 to the extent actually made).
(2) CAPITAL MARKETS FACILITY LOANS. Borrower hereby promises to pay to
Administrative Agent for the account of the Capital Markets Facility Lenders, in
repayment of the principal of the Capital Markets Facility Loans, the full
amount of the Capital Markets Facility Loans then outstanding on the date that
is the second anniversary of the Closing Date.
3.02. INTEREST. (a) Borrower hereby promises to pay to Administrative
Agent for the account of each Lender interest on the unpaid principal amount of
each Loan made or maintained by
-58-
such Lender to Borrower 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:
(i) during such periods as such Loan is an ABR Loan, the Alternate Base
Rate (as in effect from time to time), PLUS the Applicable Margin, and
(ii) during such periods as such Loan is a LIBOR Loan, for each
Interest Period relating thereto, the LIBO Rate for such Loan for such
Interest Period, PLUS the Applicable Margin.
(b) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and other overdue amounts owed by any Obligor
under the Credit Documents (including such interest accruing before and after
judgment) shall bear interest at a rate PER ANNUM equal to (x) in the case of
principal of any Loans, the rate which is 2% in excess of the rate then borne by
such Loans and (y) in the case of interest or such other amounts, the rate which
is 2% in excess of the rate otherwise applicable to ABR Loans which are
Revolving Loans from time to time. Interest which accrues under this paragraph
shall be payable on demand.
(c) Accrued interest on each Loan shall be payable (i) in the case of
an ABR Loan, quarterly on the Quarterly Dates, (ii) in the case of a LIBOR 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 and (iii) in the case of any LIBOR 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 rate set forth in Section 3.02(b) shall be payable from
time to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, Administrative Agent shall give
notice thereof to the Lenders to which such interest is payable and to Borrower.
Section 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
4.01. PAYMENTS. (a) All payments of principal, interest, Reimbursement
Obligations and other amounts to be made by Borrower under this Agreement and
the Notes, and, except to the extent otherwise provided therein, all payments to
be made by the Obligors under any other Credit Document, shall be made in
Dollars, in immediately available funds, without deduction, set-off or
counterclaim other than, in each case, as set forth in Section 2.12, to
Administrative Agent at its account at the Principal Office, not later than
11:00 a.m. New York City 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) Borrower shall, at the time of making each payment under this
Agreement or any Note for the account of any Lender, specify (in accordance with
Section 2.09 and 2.10, if applicable) to Administrative Agent (which shall so
notify the intended recipient(s) thereof) the Class and Type of Loans,
Reimbursement Obligations or other amounts payable by Borrower hereunder to
which such payment is to be applied (and in the event that Borrower fails to so
specify, or if an Event of Default has occurred and is continuing,
Administrative Agent may distribute such payment to the Lenders for
-59-
application to the Obligations under the Credit Documents in such manner as it
or the Majority Lenders, subject to Sections 2.09, 2.10 and 4.02, may determine
to be appropriate).
(c) Except to the extent otherwise provided in the second sentence of
Section 2.03(g), each payment received by Administrative Agent or by L/C Lender
(through Administrative Agent) under this Agreement or any Note for the account
of any Lender shall be paid by Administrative Agent or by L/C Lender (through
Administrative Agent), as the case may be, to such Lender, in immediately
available funds, (x) if the payment was actually received by Administrative
Agent or by L/C Lender (through Administrative Agent), as the case may be, prior
to 11:00 a.m. (New York City time) on any day, on such day and (y) if the
payment was actually received by Administrative Agent or by L/C Lender (through
Administrative Agent), as the case may be, after 11:00 a.m. (New York City time)
on any day, by 1:00 p.m. (New York City time) on the following Business Day (it
being understood that to the extent that any such payment is not made in full by
Administrative Agent or by L/C Lender (through Administrative Agent), as the
case may be, Administrative Agent shall pay to such Lender, upon demand,
interest at the Federal Funds Rate from the date such amount was required to be
paid to such Lender pursuant to the foregoing clauses until the date
Administrative Agent pays such Lender the full amount).
(d) If the due date of any payment under this Agreement or any Note
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 accrue for the
period of such extension and be payable at the rate then applicable.
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 shall be made from the relevant Lenders, each payment of commitment
fees under Section 2.05 in respect of 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 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,
except that Swing Loans shall be made only by, and interest thereon shall be
paid by Borrower only to, the Swing Loan Lender (subject to such Lender's
obligation in respect of any participation therein purchased by the other
Revolving Lenders as provided in Section 2.01(g)); (b) except as otherwise
provided in Section 5.04, LIBOR 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 Commitments and Term Loan Commitments (in
the case of the making of Loans) or their respective Revolving Loans and Term
Loans (in the case of Conversions and Continuations of Loans); (c) each payment
or prepayment of principal of Revolving Loans or Term Loans by Borrower shall be
made for the account of the relevant Lenders PRO RATA in accordance with the
respective unpaid outstanding principal amounts of the Loans of such class held
by them; and (d) each payment of interest on Revolving Loans and Term Loans by
Borrower 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.
4.03. COMPUTATIONS. Interest on LIBOR Loans, commitment fees and Letter
of Credit fees shall be computed on the basis of a year of 360 days and actual
days elapsed (including
-60-
the first day but excluding the last day) occurring in the period for which such
amounts are payable and interest on ABR Loans and Reimbursement Obligations
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 such amounts are payable. Notwithstanding the
foregoing, for each day that the Alternate Base Rate is calculated by reference
to the Federal Funds Rate, interest on ABR Loans and Reimbursement Obligations
shall be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day).
4.04. MINIMUM AMOUNTS. Except for mandatory prepayments made pursuant
to Section 2.10 and Conversions or prepayments made pursuant to Section 5.04,
each borrowing, Conversion and prepayment of principal of Loans (other than
Swing Loans, for which the minimum amounts thereof are in Section 2.01(g)) shall
be in an amount at least equal to $1.0 million with respect to ABR Loans and
$1.0 million with respect to LIBOR Loans and in multiples of $100,000 in excess
thereof (borrowings, Conversions or prepayments of or into Loans of different
Types or, in the case of LIBOR 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). Anything in this Agreement to the contrary notwithstanding, the
aggregate principal amount of LIBOR Loans having the same Interest Period shall
be in an amount at least equal to $1.0 million and in multiples of $100,000 in
excess thereof and, if any LIBOR Loans or portions thereof would otherwise be in
a lesser principal amount for any period, such Loans or portions, as the case
may be, shall be ABR Loans during such period except where such Loans, or
portions, as the case may be, coincide with any scheduled payment date or
Borrower has indicated to Administrative Agent that Borrower intends or expects
to use such Loans or portions, as the case may be, to make a scheduled payment
hereunder.
4.05. CERTAIN NOTICES. Notices by Borrower to 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 Administrative Agent by telephone not
later than 11:00 a.m. New York City time (promptly followed by written notice
via telecopier) on the number of Business Days prior to the date of the relevant
termination, reduction, borrowing, Conversion, Continuation or prepayment or the
first day of such Interest Period specified in the table below (and not later
than 11:00 a.m. New York City time on the Business Day of the borrowing or
prepayment in the case of Swing Loans).
-61-
NOTICE PERIODS
Notice Number of Business Days Prior
------ -----------------------------
Termination or reduction of Commitments 2
Borrowing or optional prepayment of, or
Conversions into, ABR Loans (other than Swing
Loans) 1
Borrowing or optional prepayment of,
Conversions into, Continuations as, or duration
of Interest Periods for, LIBOR Loans 3
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 prepayment shall specify the Class of
Loans to be borrowed, Converted, Continued or prepaid and the amount (subject to
Section 4.04) and Type of each Loan to be borrowed, Converted, Continued or
prepaid and the date of borrowing, Conversion, Continuation or 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. Unless
otherwise consented to by Agents in their sole discretion, prior to the earlier
of (x) five Business Days after the Closing Date, and (y) the date on which
Borrower has been notified by Joint Lead Arrangers that the primary syndication
of the Commitments has been completed, no borrowing of or Conversion into any
LIBOR Loan may be made, and, in addition to the foregoing limitation, prior to
the earlier of (x) ten days after the Closing Date and (y) the date on which
Borrower has been notified by Joint Lead Arrangers that the primary syndication
of the Commitments has been completed, no Interest Period of more than one month
may be elected. Administrative Agent shall promptly notify the Lenders of the
contents of each such notice. In the event that Borrower fails to select the
Type of Loan, or the duration of any Interest Period for any LIBOR Loan, within
the time period and otherwise as provided in this Section 4.05, such Loan (if
outstanding as a LIBOR Loan) will be automatically Converted into an ABR Loan on
the last day of the then current Interest Period for such Loan or (if
outstanding as an ABR Loan) will remain as, or (if not then outstanding) will be
made as, an ABR Loan (and Administrative Agent will endeavor (but shall not be
obligated) to notify Borrower of the same).
4.06. NON-RECEIPT OF FUNDS BY ADMINISTRATIVE AGENT. Unless
Administrative Agent shall have received written notice from a Lender or
Borrower (the "PAYOR") prior to the date on which the Payor is to make payment
to Administrative Agent of (in the case of a Lender) the proceeds of a Loan to
be made by such Lender hereunder or a payment to Administrative Agent for the
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 Administrative
Agent, Administrative Agent may assume that the Required Payment has 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 Administrative Agent, the
recipient(s) of such payment shall, on demand, repay to Administrative Agent the
amount so made available together with interest thereon in respect of
-62-
each day during the period commencing on the date (the "ADVANCE DATE") such
amount was so made available by Administrative Agent until the date
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, Administrative Agent shall be entitled to recover such
amount, on demand, from the Payor, together with interest as aforesaid;
PROVIDED, HOWEVER, that if neither the recipient(s) nor the Payor shall return
the Required Payment to Administrative Agent within three Business Days of the
date such demand was made, 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 (without double recovery):
(i) if the Required Payment shall represent a payment to be made by
Borrower to the Lenders, Borrower and the recipient(s) shall each be
obligated retroactively to the Advance Date to pay interest in respect of
the Required Payment at the rate set forth in Section 3.02(b) (without
duplication of the obligation of Borrower under Section 3.02 to pay
interest on the Required Payment at the rate set forth in Section 3.02(b)),
it being understood that the return by the recipient(s) of the Required
Payment to Administrative Agent shall not limit such obligation of Borrower
under Section 3.02 to pay interest at the rate set forth in Section 3.02(b)
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 Borrower, the Payor, or Borrower, shall each be
obligated retroactively to the Advance Date to pay interest in respect of
the Required Payment pursuant to Section 3.02, it being understood that the
return by Borrower, of the Required Payment to Administrative Agent shall
not limit any claim Borrower may have against the Payor in respect of such
Required Payment.
4.07. RIGHT OF SETOFF; SHARING OF PAYMENTS; ETC. (a) If any Event of
Default shall have occurred and be continuing and Administrative Agent shall
have, pursuant to Section 10, declared the Loans or Notes due and payable
pursuant to the provisions of Section 10, each Obligor agrees that, in addition
to (and without limitation of) any right of setoff, 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 is then due to such Obligor), in
which case it shall promptly notify such Obligor and Administrative Agent
thereof; PROVIDED, HOWEVER, that such Lender's failure to give such notice shall
not affect the validity thereof.
(b) Each of the Lenders agrees that, if it should receive (other than
pursuant to Section 5) any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right of setoff or banker's
lien, by counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise) which is applicable to the payment of the
principal of, or interest on, the Loans, Reimbursement Obligations or fees, the
sum of which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such
-63-
amounts then owed and due to such Lender bears to the total of such amounts then
owed and due to all of the Lenders immediately prior to such receipt, then such
Lender receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the respective
Obligor to such Lenders in such amount as shall result in a proportional
participation by all of the Lenders in such amount; PROVIDED, HOWEVER, that if
all or any portion of such excess amount is thereafter recovered from such
Lender, such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest. Borrower consents to the
foregoing arrangements.
(c) Borrower agrees that any Lender so purchasing such a participation
may exercise all rights of setoff, 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 setoff 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) If the adoption of, or any change in, in
each case after the date hereof, any Requirement of Law or in the interpretation
or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority or the NAIC made subsequent to the date hereof:
(i) shall subject any Lender or L/C Lender to any additional tax of any
kind whatsoever with respect to this Agreement, any Note, any Letter of
Credit or any Lender's participation therein, any L/C Document or any Loan
made by such Lender or change the basis of taxation of payments to such
Lender in respect thereof by any Governmental Authority (except for taxes
covered by or expressly excluded from coverage by Section 5.06, changes in
the rate of tax on the overall net income or net profits of such Lender or
its Applicable Lending Office, or any affiliate thereof or franchise taxes
or similar taxes imposed with respect to or in lieu of its net income or
net profits by any Governmental Authority);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender or L/C Lender which is not otherwise included in the
determination of the LIBO Rate hereunder; or
-64-
(iii) shall impose on such Lender or L/C Lender any other condition
(excluding taxes);
and the result of any of the foregoing is to increase the cost to such Lender or
L/C Lender, by an amount which such Lender or L/C Lender deems to be material
(and it is the policy of such Lender or L/C Lender to seek reimbursement from a
borrower for such amount), of making, converting into, continuing or maintaining
LIBOR Loans or issuing or participating in Letters of Credit or to reduce any
amount receivable hereunder in respect thereof then, in any such case, Borrower
shall, within 10 days of written demand therefor, pay such Lender or L/C Lender
any additional amounts necessary to compensate such Lender or L/C Lender on a
net after-tax basis (taking into account any additional tax costs or tax
benefits) for such increased cost or reduced amount receivable; PROVIDED,
HOWEVER, that a Lender claiming additional amounts under this Section 5.01(a)
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending Office
if the making of such a designation would avoid the need for, or in the
reasonable opinion of such Lender or L/C Lender materially reduce the amount of,
such increased cost that may thereafter accrue and would not, in the sole
judgment of such Lender, be otherwise disadvantageous to such Lender. Without
limiting the survival of any other covenant hereunder, this Section 5.01 shall
survive the termination of this Agreement and the payment of the Notes and all
other Obligations payable hereunder.
(b) In the event that any Lender or L/C Lender shall have determined
that the adoption after the date hereof of any law, rule, regulation or
guideline regarding capital adequacy (or any change after the date hereof
therein or in the interpretation or application thereof) or compliance by any
Lender or L/C Lender or any corporation controlling such Lender or L/C Lender
with any request or directive regarding capital adequacy (whether or not having
the force of law) from any central bank or other Governmental Authority or the
NAIC, in each case, made subsequent to the date hereof including, without
limitation, the issuance after the date hereof of any final rule, regulation or
guideline, does or shall have the effect of reducing the rate of return on such
Lender's or L/C Lender's or such corporation's capital as a consequence of its
obligations hereunder or under any Letter of Credit to a level below that which
such Lender or L/C Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's or L/C
Lender's or such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender or L/C Lender to be material (and it is the policy
of such Lender or L/C Lender to seek reimbursement from a borrower for such
amount), then from time to time, after submission by such Lender or L/C Lender
to Borrower (with a copy to Administrative Agent) of a written request therefor,
Borrower shall, within 10 days of such written request, pay to such Lender or
L/C Lender such additional amount or amounts as will compensate such Lender or
L/C Lender on a net after-tax basis (taking into account any additional tax
costs or tax benefits) for such reduction.
5.02. INABILITY TO DETERMINE INTEREST RATE. If prior to the first day
of any Interest Period: (a) Administrative Agent shall have determined (which
determination shall be conclusive and binding upon Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the LIBOR Base Rate for such Interest Period, or (b)
Administrative Agent shall have received notice from the Majority Lenders that
the LIBOR Base Rate determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost
-65-
to such Lenders (or any affiliate of any such Lender from which such Lender
customarily obtains funds) (as conclusively certified by such Lenders) of making
or maintaining their affected Loans during such Interest Period, Administrative
Agent shall give telecopy or telephonic notice thereof to Borrower and the
Lenders as soon as practicable thereafter. If such notice is given, (x) any
LIBOR Loans requested to be made on the first day of such Interest Period shall
be made as ABR Loans, (y) any Loans that were to have been Converted on the
first day of such Interest Period to LIBOR Loans shall be Converted to or
Continued as ABR Loans and (z) any outstanding LIBOR Loans shall be Converted,
on the first day of such Interest Period, to ABR Loans; PROVIDED, HOWEVER, that
in any event any such LIBOR Loan Converted into an ABR Loan shall bear interest
at the Prime Rate then in effect. Until such notice has been withdrawn by
Administrative Agent, no further LIBOR Loans shall be made or Continued as such,
nor shall Borrower have the right to Convert Loans to LIBOR Loans.
5.03. ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that any change after the date hereof in any Requirement
of Law or in the interpretation or application thereof shall make it unlawful
for any Lender or L/C Lender or its Applicable Lending Office to honor its
obligation to make or maintain LIBOR Loans or issue Letters of Credit hereunder
(and, in the sole opinion of such Lender or L/C Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender or L/C Lender), then such Lender or L/C
Lender shall promptly notify Borrower thereof (with a copy to Administrative
Agent) and such Lender's or L/C Lender's obligation to make or Continue, or to
Convert Loans of any other Type into, LIBOR Loans or issue Letters of Credit
shall be suspended until such time as such Lender or L/C Lender may again make
and maintain LIBOR Loans or issue Letters of Credit (in which case the
provisions of Section 5.04 shall be applicable); PROVIDED, HOWEVER, that each
such Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid such
unlawfulness or would not, in the sole judgment of such Lender, be otherwise
disadvantageous to such Lender.
5.04. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make LIBOR Loans or to Continue, or to Convert ABR Loans into, LIBOR Loans shall
be suspended pursuant to Section 5.03, such Lender's LIBOR Loans shall be
automatically Converted into ABR Loans on the last day(s) of the then current
Interest Period(s) for such LIBOR Loans (or on such earlier date as such Lender
may specify to Borrower with a copy to Administrative Agent as is required by
law) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.03 which gave rise to such Conversion no
longer exist:
(i) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal which would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its ABR
Loans; and
(ii) all Loans which would otherwise be made or Continued by such
Lender as LIBOR Loans shall be made or Continued instead as ABR Loans and
all ABR Loans of such Lender which would otherwise be Converted into LIBOR
Loans shall remain as ABR Loans.
-66-
If such Lender gives notice to Borrower with a copy to Administrative Agent that
the circumstances specified in Section 5.03 which gave rise to the Conversion of
such Lender's LIBOR 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 LIBOR Loans are outstanding, such Lender's ABR Loans shall be
automatically Converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding LIBOR Loans, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding LIBOR 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. (a) Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any reasonable loss or reasonable expense which
such Lender may sustain or incur as a consequence of (1) default by Borrower in
payment when due of the principal amount of or interest on any LIBOR Loan, (2)
default by Borrower in making a borrowing of, Conversion into or Continuation of
LIBOR Loans after Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (3) default by Borrower in making any
prepayment after Borrower has given a notice thereof in accordance with the
provisions of this Agreement, or (4) the Conversion or the making of a payment
or a prepayment of LIBOR Loans on a day which is not the last day of an Interest
Period with respect thereto, including in each case, any such loss (excluding
loss of Applicable Margin) or expense arising from the reemployment of funds
obtained by it or from fees payable to terminate the deposits from which such
funds were obtained.
(b) Any Lender requesting compensation pursuant to this Section 5.05
will furnish to Administrative Agent and Borrower a certificate setting forth
the basis and amount of such request and such certificate, absent manifest
error, shall be conclusive. Without limiting the survival of any other covenant
hereunder, this covenant shall survive the termination of this Agreement and the
payment of the Notes and all other amounts payable hereunder.
5.06. NET PAYMENTS. (a) Except as provided in Section 5.06(b), all
payments made by any Obligor hereunder or under any Note or Guarantee shall be
made free and clear of, and without deduction or withholding for, any present or
future Taxes now or hereafter imposed by any Governmental Authority or by any
political subdivision or taxing authority thereof or therein with respect to
such payments (but excluding any Excluded Tax) and all interest, penalties or
similar liabilities with respect thereto (all such Taxes (other than Excluded
Taxes) being referred to collectively as "COVERED TAXES"). If any Covered Taxes
are so levied or imposed, each Obligor agrees on a joint and several basis to
pay the full amount of such Covered Taxes, and such additional amounts as may be
necessary so that every payment to any Lender or Administrative Agent, as the
case may be, of all amounts due under this Agreement, the Guarantees or under
any Note, after withholding or deduction for or on account of any Covered Taxes,
will not be less than the amount such Lender or Administrative Agent would have
received had no such withholding or deduction been made. If any amounts are
payable in respect of Covered Taxes pursuant to the preceding sentence, each
Obligor agrees, notwithstanding the definition of Excluded Taxes, to reimburse
on a joint and several basis each Lender, upon the written request of such
Lender, (i) for Taxes imposed on or measured by the net income or net profits of
such Lender pursuant to the laws of the jurisdiction in which such Lender is
organized or in which the principal office or Applicable Lending Office of such
Lender is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction by reason of the making of payments
-67-
in respect of Covered Taxes pursuant to this Section (including pursuant to this
sentence) and (ii) for any withholding of Taxes as such Lender shall determine
are payable by, or withheld from, such Lender in respect of amounts paid in
respect of Covered Taxes to or on behalf of such Lender pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Lender pursuant to this sentence. Each Obligor will furnish to Administrative
Agent within 45 days after the date the payment of any Covered Taxes is due
pursuant to applicable law certified copies of tax receipts or other
documentation reasonably satisfactory to such Lender evidencing such payment by
such Obligor. Except as provided in Section 5.06(b) and (e), the Obligors agree
to jointly and severally indemnify and hold harmless each Lender, and reimburse
such Lender upon its written request, for the amount of any Covered Taxes so
levied or imposed and paid by such Lender.
"EXCLUDED TAXES" shall mean other than as provided in the third
sentence of the first paragraph of this Section 5.06(a), any Tax (other than any
Other Taxes) (i) imposed on or measured by the net income or net profits of
Administrative Agent or any Lender or (ii) imposed on Administrative Agent or
any Lender in the nature of franchise taxes or similar taxes imposed with
respect to or in lieu of net income or net profits, in each case as a result of
a present or former connection between Administrative Agent or such Lender and
the jurisdiction, the laws pursuant to which such Tax is imposed or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, the Loan Documents).
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) (a "NON-U.S. LENDER") agrees to
deliver to Borrower and Administrative Agent on or prior to the Effective Date
or, in the case of a Lender that is an assignee or transferee of an interest
under this Agreement pursuant to Section 12.06 (unless the assignee or
transferee Lender was already a Lender hereunder immediately prior to such
assignment or transfer and was in compliance with this Section 5.06(b) as of the
date of such assignment or transfer), on the date of such assignment or transfer
to such Lender, (i) two accurate and complete original signed copies of Internal
Revenue Service Form 4224 or 1001 (or successor forms) certifying to such
Lender's entitlement to a complete exemption from United States withholding tax
with respect to payments to be made under this Agreement or under any Note or
any Guarantee (or, with respect to any assignee Lender, at least as extensive as
the assigning Lender), or (ii) if the Lender is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate
substantially in the form of EXHIBIT J (any such certificate, a "FOREIGN LENDER
CERTIFICATE") and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8 (or successor form) certifying to such
Lender's entitlement to a complete exemption from United States withholding tax
with respect to payments to be made under this Agreement or under any Note or
any Guarantee (or, with respect to any assignee Lender, at least as extensive as
the assigning Lender). In addition, each Lender agrees that from time to time
after the Closing Date, when a lapse in time or change in circumstances renders
the previous certification obsolete or inaccurate in any material respect, it
will deliver to Borrower and Administrative Agent two new accurate and complete
original signed copies of Internal Revenue Service Form 4224 or 1001, or Form
W-8 and a Foreign Lender Certificate, as the case may be, and such other forms
as may be required in order to confirm or establish the entitlement of such
Lender to a continued exemption from United States withholding tax with respect
to payments under this Agreement or
-68-
any Note or any Guarantee, or it shall immediately notify Borrower or each
Guarantor, as the case may be, and Administrative Agent of its inability to
deliver any such Form or Certificate, in which case such Lender shall not be
required to deliver any such form or certificate pursuant to this Section
5.06(b) for so long as such payments may be made free from United States
withholding tax. Notwithstanding the foregoing, no Lender shall be required to
deliver any such form or certificate described in this Section 5.06(b) if a
change in treaty, law or regulation has occurred prior to the date on which such
delivery would otherwise be required that renders any such form or certificate
inapplicable or would prevent the Lender from duly completing and delivering any
such form or certificate with respect to it and such Lender so advises Borrower.
No Obligor shall be required to indemnify any Non-U.S. Lender, or to pay any
additional amounts to any Non-U.S. Lender, in respect of any Covered Taxes to
the extent that the obligation to pay such Covered Taxes would not have arisen
but for a failure by such Non-U.S. Lender to comply with the provisions of this
Section 5.06(b). Notwithstanding anything to the contrary contained in this
Section 5.06 and except as set forth in Section 12.06(b), Borrower agrees to pay
additional amounts and to indemnify each Lender in the manner set forth in
Section 5.06(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld by
it as described in the immediately preceding sentence as a result of any changes
after the Effective Date or, in the case of a Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 12.06 (unless
the assignee or transferee lender was already a Lender hereunder immediately
prior to such assignment or transfer and was in compliance with this Section
5.06(b) as of the date of such assignment or transfer), on the date of such
assignment or transfer to such Lender, in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of Covered Taxes.
(c) In addition, Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Notes or from
the execution, delivery, filing, recordation or registration of, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "OTHER
TAXES"); PROVIDED, HOWEVER, that Borrower shall have no obligation to pay Other
Taxes that arise as a result of a participation pursuant to Section 12.06.
(d) Any Lender claiming any additional amounts payable pursuant to this
Section 5.06 agrees to use (at the Obligors' expense) reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if the making of such
change would avoid the need for, or in the reasonable opinion of such Lender
materially reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the sole judgment of such Lender, be otherwise
disadvantageous to such Lender.
(e) No Obligor shall be required to indemnify any Lender or to pay any
additional amounts to any Lender pursuant to Section 5.06(a) to the extent that
(i) the obligation to withhold existed on the date a Lender designated a
different lending office; PROVIDED, HOWEVER, that this clause (i) shall not
apply (1) to a different lending office resulting from a designation made at the
request of any Obligor, and (2) to the extent that the indemnity payment or
additional amounts any Lender would be entitled to receive (without regard to
this clause (i)) do not exceed the indemnity payment or additional amounts that
the Person making the designation of such different lending office would have
-69-
been entitled to receive in the absence of such designation or (ii) the
obligation to pay such additional amounts would not have arisen but for a
failure by such Lender to comply with the provisions of Section 5.06(b) or (d)
above.
(f) If any Obligor pays any additional amounts under this Section 5.06
to a Lender and such Lender determines in its sole and absolute discretion that
it has actually received or realized in connection therewith any refund or any
reduction of, or credit against, its tax liabilities (a "TAX BENEFIT"), such
Lender shall pay to such Obligor, an amount that the Lender shall, in its sole
and absolute discretion, determine is equal to the net benefit, after tax, which
was obtained by the Lender as a consequence of such Tax Benefit; PROVIDED,
HOWEVER, that (i) such Lender shall not be required to make any payment under
this Section 5.06(f) if an Event of Default shall have occurred and be
continuing; (ii) any taxes that are imposed on a Lender as a result of a
disallowance or reduction (including through the expiration of any tax credit
carryover or carryback of such Lender that otherwise would not have expired) of
any Tax Benefit with respect to which such Lender has made a payment to Obligor
pursuant to this Section 5.06(f) shall be treated as a tax for which Obligor is
obligated to indemnify such Lender pursuant to this Section 5.06 without any
exclusions or defenses; and (iii) nothing in this Section 5.06(f) shall require
the Lender to disclose any confidential information to any Company (including
its tax returns).
5.07. LIMITATIONS ON OBLIGATIONS OF BORROWER. Each Lender or L/C Lender
shall notify Borrower of any event that will entitle such Lender or L/C Lender
to compensation under Section 5.01 or Section 5.06 as promptly as practicable,
but in any event within 90 days after such Lender or L/C Lender obtains actual
knowledge thereof; PROVIDED, HOWEVER, that if any Lender or L/C Lender fails to
give such notice within 90 days after it obtains actual knowledge of such an
event, such Lender or L/C Lender shall, with respect to compensation payable
pursuant to Section 5.01 or Section 5.06 in respect of any costs resulting from
such event, only be entitled to payment under Section 5.01 or Section 5.06 for
costs incurred from and after the date 90 days prior to the date that such
Lender or L/C Lender does give such notice. Each Lender or L/C Lender will
furnish to Borrower at the time of request for compensation under paragraph (a)
or (b) of Section 5.01 or Section 5.06 a certificate setting forth the basis,
amount and reasonable detail of computation of each request by such Lender or
L/C Lender for compensation under Section 5.01 or Section 5.06, which
certificate shall, except for demonstrable error, be final, conclusive and
binding for all purposes.
Section 6. GUARANTEE.
6.01. THE GUARANTEE. The Guarantors hereby jointly and severally
guarantee as a primary obligor and not as a surety to each Creditor 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 (including any interest, fees, costs or charges that would accrue but
for the provisions of the Bankruptcy Code after any bankruptcy or insolvency
petition under the Bankruptcy Code) on the Loans made by the Lenders to, and the
Notes held by each Lender of, Borrower, and all other Obligations from time to
time owing to each Creditor by any Obligor under any Credit Document or Swap
Contract relating to the Loans, in each case strictly in accordance with the
terms thereof (such obligations being herein collectively called the "GUARANTEED
OBLIGATIONS"). The Guarantors hereby jointly and severally agree that if
Borrower or other Guarantor(s) shall fail to pay in full when
-70-
due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations, the Guarantors will promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
6.02. OBLIGATIONS UNCONDITIONAL. The obligations of the Guarantors
under Section 6.01 shall constitute a guaranty of payment and are absolute,
irrevocable and unconditional, joint and several, irrespective of the value,
genuineness, validity, regularity or enforceability of any Guaranteed Obligation
of any Obligor under any Credit Document 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 (except for payment in full).
Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not alter or impair the
liability of the Guarantors hereunder which shall remain absolute, irrevocable
and unconditional under any and all circumstances as described above:
(i) at any time or from time to time, without notice to the Guarantors,
the time for any performance of or compliance with any of 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 the Notes 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 amended in any
respect, or any right under the Credit Documents or any other agreement or
instrument referred to herein or therein shall be amended or waived in any
respect 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;
(iv) any lien or security interest granted to, or in favor of, L/C
Lender or any Lender or Agent as security for any of the Guaranteed
Obligations shall fail to be perfected; or
(v) the release of any other Guarantor.
The Guarantors hereby expressly waive diligence, presentment, demand of
payment, protest and all notices whatsoever, and any requirement that any
Creditor exhaust any right, power or remedy or proceed against Borrower under
this Agreement or the Notes 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. The Guarantors waive any and
all notice of the creation, renewal, extension, waiver, termination or accrual
of any of the Guaranteed Obligations and notice of or proof of reliance by any
Creditor upon this guarantee or acceptance of this guarantee, and
-71-
the Guaranteed Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred in reliance upon this guarantee, and
all dealings between Borrower and the Creditors shall likewise be conclusively
presumed to have been had or consummated in reliance upon this guarantee. This
guarantee shall be construed as a continuing, absolute, irrevocable and
unconditional guarantee of payment without regard to any right of offset with
respect to the Guaranteed Obligations at any time or from time to time held by
the Creditors, and the obligations and liabilities of the Guarantors hereunder
shall not be conditioned or contingent upon the pursuit by the Creditors or any
other Person at any time of any right or remedy against Borrower or against any
other Person which may be or become liable in respect of all or any part of the
Guaranteed Obligations or against any collateral security or guarantee therefor
or right of offset with respect thereto. This guarantee shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantors and the successors and assigns thereof, and shall
inure to the benefit of the Lenders, and their respective successors and
assigns, notwithstanding that from time to time during the term of this
Agreement there may be no Guaranteed Obligations outstanding.
6.03. REINSTATEMENT. The obligations of the Guarantors under this
Section 6 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of Borrower or other 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. The Guarantors jointly
and severally agree that they will indemnify the Creditors on demand for all
reasonable costs and expenses (including reasonable fees of counsel) incurred by
the Creditors 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, other than any costs or
expenses resulting from the gross negligence or bad faith of such Creditor.
6.04. SUBROGATION; SUBORDINATION. Each Guarantor hereby agrees that
until the indefeasible payment and satisfaction in full in cash of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders under this Agreement it shall not exercise any right or remedy
arising by reason of any performance by it of its guarantee in Section 6.01,
whether by subrogation or otherwise, against Borrower or any other Guarantor of
any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations. The payment of any amounts due with respect to any indebtedness of
Borrower or any other Guarantor now or hereafter owing to any Guarantor or
Borrower by reason of any payment by such Guarantor under the Guarantee in this
Section 6 is hereby subordinated to the prior indefeasible payment in full in
cash of the Guaranteed Obligations. Each Guarantor agrees that it will not
demand, xxx for or otherwise attempt to collect any such indebtedness of
Borrower to such Guarantor until the Obligations shall have been indefeasibly
paid in full in cash. If, notwithstanding the foregoing sentence, any Guarantor
shall prior to the indefeasible payment in full in cash of the Guaranteed
Obligations collect, enforce or receive any amounts in respect of such
indebtedness, such amounts shall be collected, enforced and received by such
Guarantor as trustee for the Creditors and be paid over to Administrative Agent
on account of the Guaranteed Obligations without affecting in any manner the
liability of such Guarantor under the other provisions of the guaranty contained
herein.
-72-
6.05. REMEDIES. The Guarantors jointly and severally agree that, as
between the Guarantors and the Creditors, the obligations of Borrower under this
Agreement and the Notes may be declared to be forthwith due and payable as
provided in Section 10 (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, notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due
and payable) as against Borrower and that, in the event of such declaration (or
such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by Borrower) shall forthwith
become due and payable by the Guarantors for purposes of Section 6.01.
6.06. INSTRUMENT FOR THE PAYMENT OF MONEY. Each Guarantor hereby
acknowledges that the guarantee in this Section 6 constitutes an instrument for
the payment of money, and consents and agrees that any Creditor, at its sole
option, in the event of a dispute by such Guarantor in the payment of any moneys
due hereunder, shall have the right to bring a motion-action under New York CPLR
Section 3213.
6.07. CONTINUING GUARANTEE. The guarantee in this Section 6 is a
continuing guarantee of payment, and shall apply to all Guaranteed Obligations
whenever arising.
6.08. GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In any action or
proceeding involving any state corporate law, or any state, Federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 6.01
would otherwise be held or determined to be void, voidable, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under Section 6.01, then, notwithstanding any
other provision to the contrary, the amount of such liability shall, without any
further action by such Guarantor, any Creditor or any other Person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
Section 7. CONDITIONS PRECEDENT.
7.01. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Agreement
is subject to the satisfaction of the conditions precedent that (the date of the
satisfaction (or waiver) of each of the following conditions, the "EFFECTIVE
DATE"):
(i) DOCUMENTATION AND EVIDENCE OF CERTAIN MATTERS. Joint Lead Arrangers
shall have received the following documents, each duly executed where
appropriate (with sufficient conformed copies for each Lender), each of
which shall be reasonably satisfactory to Joint Lead Arrangers in form and
substance:
(1) CORPORATE DOCUMENTS. Certified true and complete copies of
the charter and by-laws and all amendments thereto (or equivalent
documents) of each Obligor and of all documents evidencing corporate
authority for each Obligor (including board of director resolutions and
evidence of the incumbency, including specimen signatures, of officers)
with respect to the execution, delivery and performance
-73-
of such of the Credit Documents to which such Obligor is intended to be
a party and each other document to be delivered by such Obligor from
time to time in connection herewith and the extensions of credit
hereunder and the consummation of the Transactions, certified as of the
Effective Date as complete and correct copies thereof by the Secretary
or an Assistant Secretary of such Obligor.
(2) THE CREDIT AGREEMENT. This Agreement, (i) executed and
delivered by a duly authorized officer of each Obligor, and (ii)
executed and delivered by a duly authorized officer of each Lender and
Agent.
(3) SBCL ACQUISITION AGREEMENT. Executed copies of the SBCL
Acquisition Agreement and all exhibits, appendices, annexes and
schedules to any thereof, each certified by a senior officer of
Borrower as true, complete and correct copies thereof.
(ii) YEAR 2000. Joint Lead Arrangers shall have received a satisfactory
Officers' Certificate from an officer of Borrower reasonably acceptable to
Joint Lead Arrangers confirming that (a) the Companies are taking all
commercially reasonable steps to ascertain the extent of, and to quantify
and successfully address, business and financial risks facing the Companies
as a result of what is commonly referred to as the "Year 2000 problem"; and
(b) the Companies' critical computer applications will, on a timely basis,
adequately address the Year 2000 problem in all material respects so as not
to result in a Material Adverse Effect.
(iii) PAYMENT OF FEES AND EXPENSES. All accrued and unpaid fees and
expenses of the Lenders and Joint Lead Arrangers in connection with the
Credit Documents, to the extent invoiced prior to the Effective Date, shall
have been paid.
7.02. CONDITIONS TO INITIAL EXTENSION OF CREDIT. The obligation of the
Lenders to make any initial extension of credit hereunder (whether by making a
Loan or issuing a Letter of Credit) is subject to the satisfaction of the
conditions precedent that the Effective Date shall have occurred (or shall occur
simultaneously therewith) and to the satisfaction of the additional conditions
precedent that (the date of the satisfaction (or waiver) of all of the
conditions to the initial extension of credit in this Section 7.02, the "CLOSING
DATE"):
(i) DOCUMENTATION AND EVIDENCE OF CERTAIN MATTERS. Joint Lead Arrangers
shall have received the following documents, each duly executed where
appropriate (with sufficient conformed copies for each Lender), each of
which shall be reasonably satisfactory to Joint Lead Arrangers in form and
substance:
(1) OFFICERS' CERTIFICATE. An Officers' Certificate of Borrower,
dated the Closing Date, (x) to the effect set forth in clauses (a) and
(b) of Section 7.03(i).
(2) OPINIONS OF COUNSEL. Opinion of (I) Xxx Xxxxxx, Vice
President and General Counsel of Borrower, substantially in the form of
EXHIBIT E-1; (II) Shearman & Sterling, counsel to the Obligors,
substantially in the form of EXHIBIT E-2; and
-74-
(III) local counsel opinions reasonably acceptable to Joint Lead
Arrangers with respect to Mortgages delivered on the Closing Date.
(3) NOTES. The Notes, duly completed and executed for each Lender
that has requested Notes prior to the Closing Date.
(4) SECURITY DOCUMENTS. The Security Agreement, such other pledge
agreements required under local law in the reasonable judgment of
counsel to Administrative Agent and requested reasonably in advance of
the intended Closing Date (each of which shall be in full force and
effect) and the Perfection Certificate, substantially in the form of
EXHIBIT M, duly authorized, executed and delivered by the Obligors
(including SBCL and its Subsidiaries) and Administrative Agent, and the
certificates identified under the name of such Obligors in Schedule I-A
and Schedule I-B to the Security Agreement, accompanied by undated
stock powers, instruments of assignment or issuer acknowledgments
executed in blank if applicable, and the intercompany indebtedness
identified under the name of such Obligors in Schedule II to the
Security Agreement, accompanied by undated notations or instruments of
assignment executed in blank if applicable.
(5) SOLVENCY CERTIFICATE. A certificate in the form of EXHIBIT
C-2 from the chief financial officer of Borrower in form and substance
reasonably satisfactory to Joint Lead Arrangers with respect to the
Solvency (on a consolidated basis) of each Obligor immediately after
the consummation of the Transactions to occur on the Closing Date.
(6) INSURANCE. Evidence of insurance complying with the
requirements of Section 9.04 and the Security Documents and
certificates complying with Section 9.04.
(ii) REPAYMENT OF EXISTING CREDIT FACILITIES. Borrower shall have
effected the Existing Credit Facilities Repayment on terms and conditions
and pursuant to documentation reasonably satisfactory to Joint Lead
Arrangers. All Liens in respect of the Existing Credit Facilities shall
have been released and Joint Lead Arrangers shall have received evidence
thereof reasonably satisfactory to Joint Lead Arrangers and a "pay-off"
letter or letters reasonably satisfactory to Joint Lead Arrangers with
respect to the Existing Credit Facilities Repayment; in addition, from any
Person holding any Lien securing any such Indebtedness, such Uniform
Commercial Code termination statements, mortgage releases and other
instruments, in each case in proper form for recording, as Joint Lead
Arrangers shall have reasonably requested to release and terminate the
Liens of record securing such Indebtedness (or arrangements for such
release and termination reasonably satisfactory to Joint Lead Arrangers
shall have been made).
(iii) NO OTHER DEBT OR PREFERRED STOCK. After giving effect to the
Transactions and the other transactions contemplated hereby, Borrower and
its Subsidiaries shall have outstanding no Funded Indebtedness or preferred
stock (or direct or indirect guarantee or other
-75-
credit support in respect thereof) outstanding other than the Loans, the
Unsecured Notes (if issued), the Existing Notes, the Voting Cumulative
Preferred Stock outstanding on the Effective Date, and other Indebtedness
(including Capital Leases) in an amount not exceeding $65.0 million in the
aggregate.
(iv) SBCL ACQUISITION AGREEMENT IN FULL FORCE AND EFFECT; FILINGS. The
SBCL Acquisition Agreement shall be in full force and effect. Joint Lead
Arrangers shall have received copies, certified by Borrower, of all filings
made with any Governmental Authority in connection with the Transactions.
(v) CONSUMMATION OF TRANSACTIONS. Each of the Transactions (other than
the Existing Credit Facilities Repayment and the extensions of credit
hereunder) shall have been (or shall be contemporaneously) consummated in
all material respects in accordance with the terms hereof and the terms of
documentation therefor (without the material waiver or material amendment
of any material condition therein unless consented to by Joint Lead
Arrangers and the Lenders) that are in form and substance reasonably
satisfactory to Joint Lead Arrangers (with any material condition therein
requiring the satisfaction or consent of any Person other than Joint Lead
Arrangers or the Lenders being deemed to require the reasonable
satisfaction or consent of Joint Lead Arrangers and the Lenders). Each of
the parties thereto shall have complied in all material respects with
Section 7.11 of the SBCL Acquisition Agreement and all other covenants set
forth in the SBCL Acquisition Agreement (without the waiver of performance
under or amendment of Section 7.11 of the SBCL Acquisition Agreement or the
material waiver or material amendment of any of the other material terms
thereof unless consented to by Joint Lead Arrangers and the Lenders).
(vi) MAXIMUM SBCL ACQUISITION PRICE. The consideration paid in
connection with the SBCL Acquisition shall consist of 12,564,336 newly
issued shares of common stock of Borrower as set forth in the SBCL
Acquisition Agreement and no more than $1,025.0 million in cash (subject to
adjustment post-closing as set forth in the SBCL Acquisition Agreement).
(vii) NOTE TENDER ACCEPTANCE; NOTE DEFEASANCE. If the consummation of
the Transactions would result in a breach or default of any of the terms
and conditions of the Existing Notes or the Existing Indenture, Borrower
shall have (or shall contemporaneously with the initial extension of credit
hereunder) (a) at a date prior to the Closing Date reasonably acceptable to
Joint Lead Arrangers and Borrower, commenced the Note Tender pursuant to
documentation and on terms and conditions reasonably satisfactory to Joint
Lead Arrangers for all of the Existing Notes and, if an amount thereof
reasonably acceptable to Joint Lead Arrangers and Borrower is tendered (but
in any event not less than an amount thereof sufficient to eliminate all
material negative covenants and events of default relating thereto in the
Existing Indenture), consummate such Note Tender on or prior to the Closing
Date; or (b) to the extent that a Note Tender which eliminates all material
covenants and events of default relating thereto shall not have been
consummated, on or prior to the Closing Date, defease all such covenants
and events of default (except to the extent prohibited by the terms of the
Existing Indenture) pursuant to documentation reasonably satisfactory to
Joint Lead Arrangers. If the Note Tender is accomplished, the Supplemental
Indenture shall have become effective in
-76-
accordance with the terms thereof and the terms of such Supplemental
Indenture shall be satisfactory to Joint Lead Arrangers.
(viii) NO MATERIAL ADVERSE CHANGE. There shall not have occurred or
become known any material adverse change, or any condition or event that
could reasonably be expected to result in a material adverse change, in the
business, operations, financial condition or assets of Borrower, SBCL and
their respective Subsidiaries taken as a whole (and after giving effect to
the Transactions) since December 31, 1998.
(ix) PRO FORMA BALANCE SHEET. The Lenders shall have received a pro
forma consolidated balance sheet of Borrower dated as of the date of the
most recently available quarterly financial statements after giving effect
to the Transactions, which balance sheet shall be consistent in all
material respects with the sources and uses of funds previously provided to
the Lenders.
(x) APPROVALS. All requisite material Governmental Authorities and
material third parties have approved or consented to the Transactions and
the other transactions contemplated hereby to the extent required (without
the imposition of any materially burdensome or materially adverse
conditions or requirements in the reasonable judgment of Joint Lead
Arrangers), all such approvals are in full force and effect, all applicable
appeal periods have expired and there shall be no Proceeding, actual or
threatened, that has or could have a reasonable likelihood of restraining,
preventing or imposing materially burdensome conditions on any of the
Transactions or the other transactions contemplated hereby. Joint Lead
Arrangers shall have received copies (certified by Borrower as true and
correct) of any such approvals or consents so obtained. Joint Lead
Arrangers shall have received satisfactory evidence that all necessary
Xxxx-Xxxxx-Xxxxxx waiting periods shall have expired on terms and
conditions reasonably acceptable to Joint Lead Arrangers (other than any
waiting periods relating to item 3 of SCHEDULE 1.01(h)).
(xi) PAYMENT OF FEES AND EXPENSES. All accrued and unpaid fees and
expenses (including the fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx and of
local counsel to Joint Lead Arrangers) of the Lenders and Joint Lead
Arrangers in connection with the Credit Documents, to the extent invoiced
prior to the Closing Date, shall have been paid.
(xii) DOCUMENTATION FOR DEBT SECURITIES ISSUANCE. If any Unsecured
Notes are issued on or prior to the Closing Date, all terms and provisions
thereof and all documentation therefor shall be in form and substance
reasonably satisfactory to the Majority Lenders (it being understood that
if the Unsecured Notes and the documentation therefor are substantially
consistent with the terms set forth in the description thereof distributed
to the Lenders on June 16, 1999 such terms and provisions and documentation
are reasonably satisfactory to the Majority Lenders for the purposes of
this Section 7.02(xii) and Section 9.08(j) with respect to the aggregate
principal amount issued on the Closing Date).
(xiii) MINIMUM EBITDA. Joint Lead Arrangers shall have received
reasonably satisfactory evidence (including reasonably satisfactory
supporting schedules and other data) that
-77-
combined EBITDA (calculated in a manner reasonably consistent with the
calculations set forth in the Confidential Information Memorandum, which
calculations were reviewed by Joint Lead Arrangers but shall exclude any
expenses retained by Seller pursuant to the SBCL Acquisition Agreement
associated with pensions, other post-retirement liabilities and other
employee liabilities) of Borrower, SBCL and their respective Subsidiaries
after giving effect to the Transactions for each of the twelve months ended
December 31, 1998 and the trailing twelve months ended May 31, 1999 would
not be less than $305.0 million and such EBITDA shall not be materially
inconsistent with the projections provided to Joint Lead Arrangers prior to
the date of the Commitment Letter.
(xiv) NO LEGAL BAR. No Law shall be applicable in the reasonable
judgment of Joint Lead Arrangers that restrains, prevents or imposes
material adverse conditions upon any material component of the Transactions
or the financing thereof, including the Credit Facilities (other than any
law of general applicability to financing transactions of the type
contemplated by the Commitment Letter in effect on the date of the
Commitment Letter (as in effect on such date) of which Joint Lead Arrangers
in the exercise of reasonable diligence should have been aware).
(xv) FILINGS AND LIEN SEARCHES. The Obligors shall have authorized,
executed and delivered each of the following:
(1) UCC Financing Statements (Form UCC-1) in appropriate form for
filing under the UCC and any other applicable law, rule or regulation
in each jurisdiction as may be necessary or appropriate to perfect the
Liens created, or purported to be created, by the Security Documents;
(2) certified copies of Requests for Information (Form UCC-11),
tax lien, judgment lien searches or equivalent reports or lien search
reports, each of a recent date listing all effective financing
statements, lien notices or comparable documents that name any Obligor
as debtor and that are filed in those state, county and other
jurisdictions in which any of the Collateral of such Obligor is
located, the state, county and other jurisdictions in which each such
Person's principal place of business is located and the state in which
such Person is organized, none of which encumber the Collateral covered
or intended to be covered by the Security Agreement other than those
encumbrances which constitute Prior Liens and other Liens expressly
permitted by the terms of the applicable Security Document; and
(3) evidence of arrangements for (A) the completion of all
recordings and filings of, or with respect to, the Security Documents,
including, to the extent required by Joint Lead Arrangers, filings with
the United States Patent and Trademark Office and the United States
Copyright Office and (B) the taking of all actions as may be necessary
or, in the reasonable opinion of Agents, desirable, to perfect the
Liens created, or purported to be created, by the Security Documents.
-78-
(xvi) JOINDER AGREEMENT TO BE SIGNED BY SBCL AND SUBSIDIARIES.
SBCL and its Subsidiaries shall become parties to this Agreement as
Guarantors through the execution and delivery of a Joinder Agreement.
(xvii) FINANCIAL STATEMENTS. The Lenders shall have received (i)
audited consolidated financial statements of Borrower for fiscal year
1998 and of SBCL for fiscal years 1996 through 1998 and (ii) unaudited
interim consolidated financial statements of Borrower and of SBCL for
each fiscal quarterly period ended subsequent to December 31, 1998 (and
each monthly period ended subsequent to December 31, 1998 for which a
quarterly statement has not been delivered if reasonably requested by
Joint Lead Arrangers (which monthly financial statements need only be
in a format consistent with the internal financials customarily
produced by Borrower)) as to which such financial statements are
available all of which shall be consistent in all material respects
with information previously provided to the Lenders.
(xviii) MORTGAGE MATTERS. On or prior to the Closing Date, each
Obligor shall have caused to be delivered to Administrative Agent, on
behalf of the Lenders:
(1) a Mortgage encumbering each Mortgaged Real Property in
favor of Administrative Agent, for the benefit of the Lenders,
duly executed and acknowledged by the Obligor that is the owner
of or holder of an interest in such Mortgaged Real Property, and
otherwise in form for recording in the recording office of each
political subdivision where each such Mortgaged Real Property is
situated, together with such certificates, affidavits,
questionnaires or returns as shall be required in connection with
the recording or filing thereof to create a lien under applicable
law, and such UCC-1 Financing Statements and other similar
statements as are required in respect of such Mortgage, all of
which shall be in form and substance reasonably satisfactory to
Administrative Agent, and any other instruments necessary to
grant a mortgage lien under the laws of any applicable
jurisdiction, which Mortgage and financing statements and other
instruments shall when recorded be effective to create a first
priority Lien on such Mortgaged Real Property subordinate to no
Liens other than Prior Liens applicable to such Mortgaged Real
Property and subject to no other Liens except Liens expressly
permitted by such Mortgage; and
(2) those documents, instruments, certificates and other
matters referred to in SCHEDULE 7.02(xviii).
7.03. CONDITIONS TO INITIAL AND SUBSEQUENT EXTENSIONS OF CREDIT. The
obligation of the Lenders to make any Loan or otherwise extend any credit to
Borrower upon the occasion of each borrowing or other extension of credit
(whether by making a Loan or issuing a Letter of Credit) hereunder (including
the initial borrowing) is subject to the further conditions precedent that:
(i) NO DEFAULT OR EVENT OF DEFAULT; REPRESENTATIONS AND WARRANTIES
TRUE. Both immediately prior to the making of such Loan or other extension
of credit and also after giving pro forma effect thereto and to the
intended use thereof:
-79-
(a) no Default or Event of Default shall have occurred and be
continuing;
(b) the representations and warranties made by the Obligors in
Section 8, and by each Obligor in each of the other Credit Documents to
which it is a party shall be accurate in all material respects on and
as of the date of the making of such Loan or other extension of credit
with the same force and effect as if made on and as of such date
(except that (1) any representation or warranty which is expressly made
as of a specific date need only be accurate on the date of the making
of such Loan or other extension of credit as of such specific date and
(2) subject to the foregoing clause (1) of this parenthetical, any such
representation or warranty qualified as to materiality shall be
accurate on and as of the date of the making of such Loan or other
extension of credit with the same force and effect as if made on and as
of such date); and
(c) the sum of the aggregate amount of the outstanding Swing
Loans, PLUS Revolving Loans, PLUS L/C Liabilities shall not exceed the
Revolving Commitments then in effect.
(ii) NO LEGAL BAR. The Loans and other extensions of credit and the use
of proceeds thereof shall not contravene, violate or conflict with any
Requirement of Law.
(iii) NOTICE OF BORROWING. Other than with respect to a Swing Loan,
Administrative Agent shall have received a Notice of Borrowing duly
completed and complying with Section 4.05.
Each Notice of Borrowing or request for the issuance of a Letter of
Credit delivered by Borrower hereunder shall constitute a certification by
Borrower to the effect set forth in clauses (i)-(ii) above as of the date of
such borrowing or issuance. Each notice submitted by Borrower hereunder for an
extension of credit hereunder shall constitute a representation and warranty by
Borrower, as of the date of such notice and as of the relevant borrowing date or
date of issuance of a Letter of Credit, as applicable, that the applicable
conditions in Sections 7.02 and 7.03 have been satisfied or waived in accordance
with the terms hereof.
7.04. DETERMINATIONS UNDER SECTION 7. For purposes of determining
compliance with the conditions specified in Sections 7.01 and 7.02, each Lender
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to the Lenders unless an officer of
Administrative Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that
Borrower, by notice to the Lenders, designates as the proposed date of the
extension of credit, specifying its objection thereto.
Section 8. REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to the Creditors that (A) at and as of the Effective Date (with respect
to Sections 8.01, 8.04, 8.05 and 8.06 and solely with respect to this Agreement)
and (B) at and as of each Funding Date (with respect to Section 8.01 through and
including 8.25) (in each case with respect to each Funding Date immediately
-80-
before and immediately after giving effect to the transactions to occur on such
date (including, with respect to the Closing Date, the Transactions)):
8.01. CORPORATE EXISTENCE. Each Company: (a) is a corporation,
partnership, limited liability company 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 authority, and
has all governmental licenses, authorizations, consents and approvals necessary
to own its Property and carry on its business as now being conducted; (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 such qualification necessary;
and (d) is in compliance with all Requirements of Law, EXCEPT, in the case of
clauses (a), (b), (c) and (d) where the failure thereof individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
8.02. FINANCIAL CONDITION; ETC. (A) Borrower has delivered to the
Lenders (i) the audited consolidated balance sheets of Borrower and the
Subsidiaries as of December 31, 1998, 1997 and 1996, and the related statements
of earnings, changes in stockholders' equity and cash flows for the fiscal years
ended on those dates, together with reports thereon by PricewaterhouseCoopers
LLP, certified public accountants and (ii) unaudited consolidated balance sheet
of Borrower and the Subsidiaries as of March 31, 1998 and March 31, 1999 and the
related statements of earnings as of such date, and a consolidated statement of
cash flows for the period from the beginning of the respective fiscal year to
the end of such period. All of said financial statements, including in each case
the related schedules and notes, are true, complete and correct and have been
prepared in accordance with GAAP consistently applied and present fairly in all
material respects the financial position of Borrower and its Subsidiaries as of
the respective dates of said balance sheets and the results of their operations
for the respective periods covered thereby, subject (in the case of interim
statements) to normal period-end audit adjustments.
(B) Borrower has delivered to Lenders (i) the audited consolidated
balance sheets of SBCL as of December 31, 1998, 1997 and 1996, and the related
statements of earnings, changes in stockholders' equity and cash flows for the
fiscal years ended on those dates, together with the reports thereon by
PricewaterhouseCoopers LLP, certified public accountants and (ii) unaudited
consolidated balance sheets of SBCL as of March 31, 1999 and the related
statements of earnings, changes in stockholders' equity and cash flows for the
fiscal quarters ended on such dates. All of said financial statements, including
in each case the related schedules and notes, are true and complete and have
been prepared in accordance with GAAP consistently applied and present fairly in
all material respects the financial position of SBCL as of the respective dates
of said balance sheets and the results of their operations for the respective
periods covered thereby, subject (in the case of interim statements) to normal
period-end audit adjustments (such financial statements, collectively, the "SBCL
FINANCIAL STATEMENTS").
(C) Except as set forth in SCHEDULE 8.02(C), in the financial
statements or other information referred to in Section 8.02(A) or Section
8.02(B), as of the Effective Date, there are no material liabilities of any
Company of any kind required to be set forth on a balance sheet or in the notes
thereto prepared in accordance with GAAP, whether accrued, contingent, absolute,
determined,
-81-
determinable or otherwise, and there is no existing condition, situation or set
of circumstances which is reasonably likely to result in such a liability.
(D) Since December 31, 1998 there has been no Material Adverse Change.
(E) The pro forma balance sheet of Consolidated Companies (the "PRO
FORMA BALANCE SHEET"), certified by the chief financial officer of Borrower,
copies of which will be furnished to each Lender not later than the second
Business Day (nor earlier than the fifth Business Day) prior to the Closing
Date, is the balance sheet of Consolidated Companies as of the date of the
latest available quarterly balance sheet of Borrower prior to the Closing Date
(the "PRO FORMA DATE"), adjusted to give effect (as if such events had occurred
on such date) to the Transactions to occur on the Closing Date and the
application of the proceeds of all Indebtedness to be incurred on such date. The
Pro Forma Balance Sheet, together with the notes thereto, accurately reflects in
all material respects all adjustments necessary to give effect to the
Transactions, was prepared based on good faith assumptions, and presents fairly
in all material respects on a pro forma basis the consolidated financial
position of Consolidated Companies as at the Pro Forma Date, adjusted as
described above.
8.03. LITIGATION. Except as set forth in SCHEDULE 8.03 or as described
in Borrower's Form 10-K for the fiscal year ended December 31, 1998, there is no
Proceeding (other than any QUI TAM Proceeding, to which this Section is limited
to the best of Borrower's knowledge) pending against, or, to the knowledge of
Borrower, threatened in writing against or affecting, any Company or any of its
respective Properties before any Governmental Authority that, if determined or
resolved adversely to such Company, could reasonably be expected to have a
Material Adverse Effect.
8.04. NO BREACH; NO DEFAULT. (A) None of the execution, delivery and
performance by any Obligor of any Credit Document or Transaction Document to
which it is a party nor the consummation of the transactions herein and therein
contemplated (including the Transactions) will (i) conflict with or result in a
breach of, or require any consent (which has not been obtained and is in full
force and effect) under, any Organic Document of any Company or any applicable
Requirement of Law or any order, writ, injunction or decree of any Governmental
Authority binding on any Company, or any term or provision of any Contractual
Obligation of any Company or (ii) constitute (with due notice or lapse of time
or both) a default under any such Contractual Obligation, or (iii) result in the
creation or imposition of any Lien (except for the Liens created pursuant to the
Security Documents) upon any Property of any Company pursuant to the terms of
any such Contractual Obligation, except with respect to each of the foregoing
which could not reasonably be expected to have a Material Adverse Effect and
which would not subject any Creditor to any material risk of damages or
liability to third parties.
(B) No Default or Event of Default has occurred and is continuing.
8.05. ACTION. Each Company has all necessary corporate or other entity
power, authority and legal right to execute, deliver and perform its obligations
under each Credit Document and Transaction Document to which it is a party and
to consummate the transactions herein and therein contemplated; the execution,
delivery and performance by each Company of each Credit Document and Transaction
Document to which it is a party and the consummation of the transactions
-82-
herein and therein contemplated have been duly authorized by all necessary
corporate or other entity action on its part; and this Agreement has been duly
and validly executed and delivered by each Obligor and constitutes, and each of
the Notes and the other Credit Documents to which it is a party when executed
and delivered by such Obligor (in the case of the Notes, for value) will
constitute, its legal, valid and binding obligation, enforceable against each
Obligor in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws of general applicability from time to time in effect
affecting the enforcement of creditors' rights and remedies and (b) 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. No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority or any securities
exchange are necessary for the execution, delivery or performance by any Company
of the Credit Documents and the Transaction Documents to which it is a party or
for the legality, validity or enforceability hereof or thereof or for the
consummation of the transactions herein and therein contemplated, except for
filings and recordings in respect of the Liens created pursuant to the Security
Documents and except for consents, authorizations and filings that have been
obtained or made and are in full force and effect or the failure of which to
obtain would not have a Material Adverse Effect (it being understood that this
Section 8.06 does not apply to ordinary course filings necessary to be made
after the Closing Date in connection with the Property (including licenses)
acquired pursuant to the SBCL Acquisition). All applicable Xxxx-Xxxxx-Xxxxxx
waiting periods have expired with respect to the SBCL Acquisition (other than
waiting periods post-Closing relating to the Investments contemplated by
SCHEDULE 1.01(h)).
8.07. [RESERVED].
8.08. ERISA. No ERISA Event has occurred or is reasonably expected to
occur which could have a Material Adverse Effect. The present value of all
accumulated benefit obligations of all underfunded Pension Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed by more than $20.0 million the fair market value of the
assets of all such underfunded Pension Plans. Each ERISA Entity is in compliance
in all material respects with the presently applicable provisions of ERISA and
the Code with respect to each Employee Benefit Plan. Using actuarial assumptions
and computation methods consistent with subpart 1 of subtitle E of Title IV of
ERISA, the aggregate liabilities of any of each ERISA Entity to all
Multiemployer Plans in the event of a complete withdrawal therefrom, as of the
close of the most recent fiscal year of each such Multiemployer Plan, would not
result in a Material Adverse Effect. All Foreign Plans are in substantial
compliance with all Requirements of Law (other than to the extent such failure
to comply would not reasonably be expected to have a Material Adverse Effect).
8.09. TAXES. Except as would not have a Material Adverse Effect, (i)
all tax returns, statements, reports and forms (including estimated Tax or
information returns) (collectively, the "TAX Returns") required to be filed with
any taxing authority by, or with respect to, each Company have been timely filed
in accordance with all applicable laws; (ii) each Company has timely paid or
made adequate provision for payment of all Taxes shown as due and payable on Tax
Returns that have been so filed, and, as of the time of filing, each Tax Return
was accurate and complete and correctly
-83-
reflected the facts regarding income, business, assets, operations, activities
and the status of each Company (other than Taxes which are being contested in
good faith and for which adequate reserves are reflected on the financial
statements delivered hereunder); and (iii) each Company has made adequate
provision for all Taxes payable by such Company for which no Tax Return has yet
been filed.
Except as set forth on SCHEDULE 8.09, (i) as of the date hereof no
Company is a member of an affiliated group of corporations within the meaning of
Section 1504 of the Code other than an affiliated group of corporations of which
Borrower is the common parent; and (ii) there are no material tax sharing or tax
indemnification agreements under which any Company is required to indemnify
another party (other than another Company) for a material amount of Taxes.
8.10. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT; OTHER
RESTRICTIONS. No Company is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the United States Investment
Company Act of 1940, as amended. No Company is a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the United States Public Utility Holding Company
Act of 1935, as amended. No Obligor is subject to regulation under any law or
regulation which limits its ability to incur Indebtedness, other than Regulation
X of the Board of Governors of the Federal Reserve System.
8.11. ENVIRONMENTAL MATTERS. Except as disclosed in SCHEDULE 8.11 and
except as would not, individually or in the aggregate, result in a Material
Adverse Effect: (i) each Company is in compliance with and has no liability
under any applicable Environmental Laws and there are no Environmental Laws,
including such Laws which have been formally proposed for public comment, which
could result in expenditures by any Company; (ii) no Company, or to the
knowledge of the Obligors, any of its predecessors in interest, has disposed of,
arranged for the disposal or treatment of, or otherwise released Hazardous
Materials at any site at which any Person is conducting or, to the knowledge of
the Obligors, plans to conduct any action under Environmental Law; (iii) no Real
Property now or formerly owned, leased or operated by any Company, or, to the
knowledge of the Obligors, any of their respective predecessors in interest, is
(x) listed or proposed for listing on the National Priorities List under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA"), or (y) listed on the Comprehensive Environmental Response,
Compensation and Liability Information System List promulgated pursuant to
CERCLA or (z) included on any similar lists maintained by any Governmental
Authority; (iv) there are no past or present events, conditions, activities,
practices or actions, or any agreements, judgments, decrees or orders by which
any Company is bound, which would reasonably be expected to prevent any
Company's compliance with any Environmental Law, or which would reasonably be
expected to give rise to any liability of any Company under any Environmental
Law; (v) no Lien has been recorded, or to the knowledge of the Obligors,
threatened, under any Environmental Law with respect to any Property of any
Company; and (vi) no Company is subject to any Proceeding alleging the violation
of, or liability under, any Environmental Law or has received any Environmental
Claims and, to the knowledge of the Obligors, no such Proceeding or
Environmental Claim is threatened.
8.12. [RESERVED].
-84-
8.13. USE OF PROCEEDS. Borrower is not engaged principally, or as one
of its important activities, in the business of extending credit for the
purpose, whether immediate, incidental or ultimate, of buying or carrying Margin
Stock and no part of the proceeds of any extension of credit hereunder will be
used directly or indirectly and whether immediately, incidentally or ultimately
to purchase or carry any Margin Stock or to extend credit to others for such
purpose or to refund Indebtedness originally incurred for such purpose.
Following application of the proceeds of each extension of credit hereunder, not
more than 25 percent of the value of the assets (either of Borrower individually
or of Consolidated Companies) will be Margin Stock. If requested by any
Creditor, Borrower will furnish to Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
U-1 referred to in Regulation U. Borrower will use the proceeds of (i) all Term
Loans to finance the Transactions and pay related fees and expenses and (ii)
Revolving Loans to finance the Transactions (in an amount not to exceed on the
Closing Date $75.0 million unless consented to by Joint Lead Arrangers in their
sole discretion), pay fees and expenses related thereto, and for general
corporate purposes.
8.14. SUBSIDIARIES, ETC. As of the Effective Date, Borrower has no
Subsidiaries or interests (whether direct or indirect) in partnerships, Minority
Interests or business trusts other than the entities set forth on SCHEDULE 8.14
and other than any Investment in any entity with a book value of less than $1.0
million, of which there are no more than $5.0 million of Investments as of the
Effective Date. Each Subsidiary listed on SCHEDULE 8.14 (other than each
Excluded Entity) will be a Guarantor as of the Closing Date. Borrower owns, as
of the Effective Date, not less than the percentage of the issued and
outstanding Equity Interests or other evidences of the ownership of each of its
Subsidiaries, partnerships or Minority Interests listed on SCHEDULE 8.14 as set
forth on such Schedule. No such Subsidiary has issued any securities convertible
into its Equity Interests (or other evidence of ownership) or any Equity Rights
to acquire such Equity Interests (other than buy/sell agreements relating to
Equity Interests of any Subsidiary that is not a Wholly Owned Subsidiary), and
the outstanding Equity Interests of such Subsidiaries are owned by the entities
listed in SCHEDULE 8.14 free and clear of all Liens and Equity Rights of others
of any kind whatsoever, except for Liens pursuant to the Security Documents.
8.15. OWNERSHIP OF PROPERTY; LIENS. Each Company has good record and
marketable title in fee simple to, or a valid leasehold interest in, all its
material Real Property, and good title to, or a valid leasehold interest in, all
its other material Property, and none of such Property interest is subject to
any Lien, except for Liens permitted by Section 9.07.
8.16. SECURITY INTEREST; ABSENCE OF FINANCING STATEMENTS; ETC. The
Security Documents, once executed and delivered, will (except as noted in the
Security Agreement) create, in favor of Administrative Agent for the benefit of
the Creditors, as security for the obligations purported to be secured thereby,
a valid and enforceable, and upon filing or recording with the appropriate
Governmental Authorities and delivery of the applicable documents to
Administrative Agent, perfected security interest in and Lien upon all of the
Collateral (and the proceeds thereof), superior to and prior to the rights of
all third persons other than the holders of Prior Liens and subject to no other
Liens except as expressly permitted by this Agreement and the Security
Documents.
-85-
Except as set forth on SCHEDULE 8.16 and for Liens under the Existing
Credit Facilities which will be released at the Closing Date and except for (i)
in the case of Collateral, Liens expressly permitted by the Security Documents;
(ii) in the case of all other Property, Permitted Liens and (iii) the Liens
created by the Security Documents, there is no currently effective financing
statement, security agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any filing records, registry, or other public
office, that purports to cover, affect or give notice of any Lien on, or
security interest in, any Property of any Company or rights thereunder.
8.17. LICENSES AND PERMITS; COMPLIANCE WITH LAWS. The Companies hold
all governmental permits, licenses, authorizations, consents and approvals
necessary for the Companies to own, lease, and operate their respective
Properties and to operate their respective businesses as now being conducted
(collectively, the "PERMITS"), except for Permits the failure of which to obtain
would not have a Material Adverse Effect. None of the Permits has been modified
in any way that is reasonably likely to have a Material Adverse Effect. All
Permits are in full force and effect except where the failure to be in full
force and effect would not have a Material Adverse Effect.
8.18. TRUE AND COMPLETE DISCLOSURE; EXCHANGE ACT FILINGS. The
information, reports, financial statements, exhibits and schedules furnished in
writing by Borrower to any Creditor in connection with the negotiation,
preparation or delivery of the Credit Documents or included or delivered
pursuant thereto or pursuant to the Confidential Information Memorandum dated
March 1999 distributed in connection with the syndication of the Commitments and
Loans, including Borrower's Annual Report on Form 10-K for the year ended
December 31, 1998 and all filings made with the Commission under the Exchange
Act by any Company subsequent thereto, but in each case excluding all
projections, whether prior to or after the date of this Agreement, when taken as
a whole, do not, as of the date such information was furnished, contain any
untrue statement of material fact or omit to state a material fact necessary in
order to make the statements herein or therein, in light of the circumstances
under which they were made, not materially misleading. The projections and pro
forma financial information furnished at any time by any Obligor to any Creditor
pursuant to this Agreement have been prepared in good faith based on assumptions
believed by Borrower to be reasonable at the time made, it being recognized by
the Lenders that such financial information as it relates to future events is
not to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set
forth therein by a material amount and no Obligor, however, makes any
representation as to the ability of any Company to achieve the results set forth
in any such projections. Each Obligor understands that all such statements,
representations and warranties shall be deemed to have been relied upon by the
Lenders as a material inducement to make each extension of credit hereunder.
8.19. SOLVENCY. As of each Funding Date immediately prior to and
immediately following the consummation of the Transactions and the extensions of
credit to occur on such date each Obligor on a consolidated basis with each of
its Subsidiaries is and will be Solvent (after giving effect to Section 6.08).
8.20. CONTRACTS. No Company is in default under any material contract
or agreement to which it is a party or by which it is bound, nor, to Borrower's
knowledge, does any condition exist
-86-
that, with notice or lapse of time or both, would constitute such default,
excluding in any case such defaults that are not reasonably likely to have a
Material Adverse Effect.
8.21. LABOR MATTERS. Except as set forth in SCHEDULE 8.21, there is (i)
no unfair labor practice complaint pending against any Company or, to the best
knowledge of Borrower, threatened against any Company, before the National Labor
Relations Board or any other Governmental Authority, and no grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against any Company or, to the best knowledge of
Borrower after due inquiry, threatened against any Company, (ii) no strike,
labor dispute, slowdown or stoppage pending against any Company or, to the best
knowledge of Borrower, after due inquiry, threatened against any Company and
(iii) to the best knowledge of Borrower after due inquiry, no union
representation question existing with respect to the employees of any Company
and, to the best knowledge of Borrower, no union organizing activities are
taking place, except such as would not, with respect to any matter specified in
clause (i), (ii) or (iii) above, individually or in the aggregate, have a
Material Adverse Effect.
8.22. SUBORDINATED DEBT. The Loans and all interest and fees thereon
are senior debt with respect to all Subordinated Debt of each Obligor and
entitled to the full benefits of all subordination provisions therein and such
subordination provisions are in full force and effect.
8.23. YEAR 2000. The Companies are taking all commercially reasonable
steps to ascertain the extent of, and to quantify and successfully address
business and financial risks associated with, the "Year 2000" issue. No Company
has reason to believe that the risks associated with the Year 2000 issue would
have a Material Adverse Effect.
8.24. INTELLECTUAL PROPERTY. To the best knowledge of Borrower after
due inquiry, each Company owns or has the right to use all of the patents,
patent applications, trademarks, trademark applications, service marks, service
xxxx applications, copyrights, trade secrets and know-how that are used in the
operation of its business as presently conducted (collectively, "INTELLECTUAL
PROPERTY"), except where the failure to so own or have the right to use such
Intellectual Property would not, individually or in the aggregate, have a
Material Adverse Effect. Except as set forth on SCHEDULE 8.24, to the best
knowledge of Borrower, no claim is pending that any Company is engaging in any
activity that infringes upon the intellectual property rights of any other
Person, except for any such claim that would not, individually or in the
aggregate, have a Material Adverse Effect. Except as set forth on SCHEDULE 8.24,
to the best knowledge of Borrower, no claim is pending that any Intellectual
Property is invalid or unenforceable, except Permitted Liens, except for any
such claim that would not, individually or in the aggregate, have a Material
Adverse Effect.
Except as set forth in SCHEDULE 8.24, each Company owns or has the
right to use all Intellectual Property in the continued operation of its
business as presently conducted and the consummation of the transactions
contemplated hereby will not impair such ownership of right to use in a manner
that would, individually or in the aggregate, have a Material Adverse Effect.
Subject to the rights of third parties set forth in SCHEDULE 8.24, all
Intellectual Property is free and clear of all Liens except such as would not,
individually or in the aggregate, have a Material Adverse Effect.
-87-
8.25. EXISTING INDEBTEDNESS. SCHEDULE 8.25(A) sets forth a true and
complete list of all Indebtedness of the Companies outstanding as of the
Effective Date and SCHEDULE 8.25(B) sets forth a true and complete list of all
Indebtedness of the Companies as of the Closing Date that is to remain
outstanding after the Closing Date (excluding the Obligations hereunder), in
each case showing the aggregate principal amount thereof and the name of each
respective borrower and any other entity that directly or indirectly guaranteed
such Indebtedness.
Section 9. COVENANTS. Each Obligor, for itself and on behalf of its
Subsidiaries, covenants and agrees with the Creditors that, so long as any
Commitment, Loan or L/C Liability is outstanding and until payment in full of
all amounts payable by Borrower hereunder (and each Obligor covenants and agrees
that it will cause its Subsidiaries to observe and perform the covenants herein
set forth applicable to any such Subsidiary):
9.01. FINANCIAL STATEMENTS, ETC. Borrower shall deliver to
Administrative Agent and each of the Lenders:
(a) QUARTERLY FINANCIALS. As soon as available and in any event within
50 days after the end of each of the first three quarterly fiscal periods
of each fiscal year beginning with the fiscal quarter ending March 31,
1999, consolidated statements of operations for such period and for the
period from the beginning of the respective fiscal year to the end of such
period, a consolidated statement of cash flows for the period from the
beginning of the respective fiscal year to the end of such period, and the
related consolidated balance sheet of Consolidated Companies as at the end
of such period, setting forth in each case in comparative form the
corresponding consolidated statements of operations and cash flows for the
corresponding period in the preceding fiscal year to the extent such
financial statements are available, accompanied by a certificate of a
Responsible Officer of Borrower, which certificate shall state that said
consolidated financial statements fairly present in all material respects
the consolidated financial position, results of operations and cash flows
of Consolidated Companies in accordance with GAAP as at the end of, and
for, such period (subject to normal year-end audit adjustments) and except
for the absence of footnotes;
(b) ANNUAL FINANCIALS. As soon as available and in any event within 95
days after the end of each fiscal year beginning with the fiscal year
ending December 31, 1999, consolidated statements of operations, cash flows
and stockholders' equity of Consolidated Companies for such year and the
related consolidated balance sheet of Consolidated Companies as at the end
of such year, setting forth in each case in comparative form the
corresponding consolidated information as of the end of and for the
preceding fiscal year to the extent such financial statements are available
and accompanied by an unqualified opinion (without an explanatory paragraph
related to Borrower's ability to continue as a going concern or similar
circumstances, and without an exception as to scope) thereon of
PricewaterhouseCoopers LLP or other independent certified public
accountants of recognized national standing reasonably acceptable to Joint
Lead Arrangers and the Majority Lenders, which opinion shall state that
said consolidated financial statements fairly present in all material
respects the consolidated financial position, results of operations and
cash flows of Consolidated Companies as at the end of, and for, such fiscal
year in accordance with GAAP;
-88-
(c) AUDITOR'S CERTIFICATE; COMPLIANCE CERTIFICATE.
(i) concurrently with the delivery of the financial statements
referred to in Section 9.01(b), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Event of Default relating to the Financial
Maintenance Covenants, except as specified in such certificate; and
(ii) at the time it furnishes each set of financial statements
pursuant to paragraph (a) or (b) above, (1) a certificate of a
Responsible Officer of Borrower (I) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing the
action that the Companies have taken and propose to take with respect
thereto) and (II) setting forth in reasonable detail the computations
necessary to determine whether each Company is in compliance with
Section 9.11 as of the end of the respective quarterly fiscal period or
fiscal year and (2) any final accountants' management letters delivered
by the independent certified public accountants reporting on such
financial statements to any Company;
(d) OTHER FINANCIAL INFORMATION. Promptly (A) upon delivery thereof to
the holders of any debt securities or the stockholders of any Company
generally, copies of all financial statements and reports and proxy
statements so delivered, and promptly after the same are filed, copies of
all financial statements and reports which Borrower may make to or file
with the Commission or any successor or analogous Governmental Authority
and (B) upon delivery to any Company, copies of all material financial
statements or other material financial information provided by SBCL or any
of its Affiliates since the Effective Date pursuant to the SBCL Acquisition
Agreement;
(e) INTEREST RATE CERTIFICATES. From and after the Trigger Date,
together with the financial statements delivered pursuant to clause (a) or
(b) of this Section 9.01, an Interest Rate Certificate;
(f) NOTICE OF DEFAULT. Promptly after Borrower knows that any Default
has occurred or that any Company is in breach or violation of any term or
provision of any Contractual Obligation, a notice of such Default, breach
or violation describing the same in reasonable detail and a description of
the action that the Companies have taken and propose to take with respect
thereto except for any such breach or violation which could not reasonably
be expected to have a Material Adverse Effect;
(g) ENVIRONMENTAL MATTERS. Written notice of any Environmental Claim
materially affecting any Company, any Mortgaged Real Property or the
operations of any Company and any notice from any Person of (i) the
occurrence of any release, spill or discharge of any Hazardous Material
that is reportable under any Environmental Law, (ii) the commencement of
any clean-up pursuant to or in accordance with any Environmental Law of any
Hazardous Material at, on, under or within the Mortgaged Real Property or
any part thereof, (iii) any
-89-
matters relating to Hazardous Materials or Environmental Laws that may
impair, or threaten to impair, Lenders' security interest in the Mortgaged
Real Property or any Obligor's ability to perform any of its obligations
under this Agreement when such performance is due or (iv) any other
condition, circumstance, occurrence or event which is reasonably likely to
have a Material Adverse Effect;
(h) AUDITORS' REPORTS. Promptly upon receipt thereof, copies of all
final written annual, interim or special reports issued to any Company by
independent certified public accountants in connection with each annual,
interim or special audit of such Company's books made by such accountants,
including any management letter commenting on any Company's internal
controls issued by such accountants to management in connection with their
annual audit (it being understood that this clause (h) does not apply to
audits of taxes, audits of benefit plans, statutory audits of Foreign
Subsidiaries or ordinary and routine audits of a similar nature);
(i) ANNUAL BUDGETS. As soon as practicable and in any event within 65
days after the beginning of each fiscal year of Borrower beginning after
the fiscal year ending December 31, 1999, a consolidated plan and financial
forecast for such fiscal year, including a forecasted consolidated balance
sheet and forecasted consolidated statements of income and cash flows of
the Companies for such fiscal year and for each quarter of such fiscal year
(other than any fiscal quarter after December 31, 2000), together with an
Officers' Certificate demonstrating pro forma compliance for such fiscal
year with Section 9.11 and stating that such plan and projections have been
prepared using assumptions believed in good faith by management of Borrower
to be reasonable at the time made;
(j) LIEN MATTERS; CASUALTY AND DAMAGE TO COLLATERAL. Prompt written
notice of (i) the incurrence of any Lien not expressly permitted by the
applicable Security Document on, or claim asserted against, any of the
Collateral, (ii) any Casualty Event or other insured damage to any material
portion of the Collateral or the commencement of any Proceeding likely to
result in a Casualty Event or (iii) the occurrence of any other event which
is reasonably likely to materially adversely affect the aggregate value of
the Collateral;
(k) NOTICE OF MATERIAL ADVERSE EFFECT. Written notice of the occurrence
of any Material Adverse Effect;
(l) ERISA INFORMATION. Promptly upon the occurrence of any ERISA Event
that, alone or together with any other ERISA Events that have occurred,
could result in liability to the Companies in an aggregate amount exceeding
$2.5 million, a written notice specifying the nature thereof, what action
the Companies or other ERISA Entity have taken, are taking or propose to
take with respect thereto, and, when known, any action taken or threatened
by the Internal Revenue Service, Department of Labor, PBGC or Multiemployer
Plan sponsor with respect thereto;
(m) ERISA FILINGS, ETC. Upon request by Administrative Agent, copies
of: (i) each Schedule B (Actuarial Information) to the annual report (Form
5500 Series) filed by any
-90-
ERISA Entity with the Internal Revenue Service with respect to each Pension
Plan; (ii) the most recent actuarial valuation report for each Pension
Plan; (iii) all notices received by any ERISA Entity from a Multiemployer
Plan sponsor or any governmental agency concerning an ERISA Event; and (iv)
such other documents or governmental reports or filings relating to any
Employee Benefit Plan as Administrative Agent shall reasonably request; and
(n) MISCELLANEOUS. Promptly, such financial and other information with
respect to any Company (or, prior to the Closing Date, SBCL, if available
to any Company pursuant to the SBCL Acquisition Agreement) as any Creditor
may from time to time reasonably request.
9.02. LITIGATION, ETC. Borrower shall promptly give to Administrative
Agent and each Lender notice of all Proceedings, and (except to the extent that
any such notice would, in the reasonable opinion of outside counsel to Borrower,
waive attorney client privilege) any material development thereof, affecting any
Company, except Proceedings which would not have a Material Adverse Effect.
9.03. EXISTENCE; COMPLIANCE WITH LAW; PAYMENT OF TAXES; INSPECTION
RIGHTS; PERFORMANCE OF OBLIGATIONS; ETC. (A) Each Company shall (i) preserve and
maintain its legal existence and all of its material rights, privileges and
franchises other than if Borrower determines that the preservation or
maintenance thereof is no longer desirable in the conduct of the business of
such Company and the loss thereof is not materially disadvantageous to the
Lenders; PROVIDED, HOWEVER, that nothing in this Section 9.03 shall prohibit any
transaction expressly permitted under Section 9.06, (ii) except as would not
have a Material Adverse Effect, comply with all Requirements of Law, (iii)
except as would not have a Material Adverse Effect, timely file true, accurate
and complete Tax Returns required by all Governmental Authorities and pay and
discharge all Taxes prior to the date on which any material penalties attach
thereto (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 in accordance with GAAP); (iv) maintain all of its Properties used or
useful in its business in good working order and condition, ordinary wear and
tear excepted, except to the extent that the failure to do so would not have a
Material Adverse Effect; (v) permit representatives of any Creditor during
normal business hours and, except during the existence of any Default, upon
reasonable prior notice, to examine, copy and make extracts from its books and
records, to inspect its Properties, and to discuss its business and affairs with
its officers and employees, all to the extent reasonably requested by such
Creditor; (vi) upon reasonable notice, allow (with the presence of Borrower if
Borrower so elects to participate) Joint Lead Arrangers or any representative
chosen by the Majority Lenders to consult with Borrower's independent public
accountants and auditors with respect to the financial affairs of the Companies
and authorize such accountants to disclose to Joint Lead Arrangers or any
representative chosen by the Majority Lenders and the Lenders (and Joint Lead
Arrangers to the Creditors) any and all financial statements and other
supporting financial documents and schedules including copies of any management
letter with respect to the business, financial condition and other affairs of
the Companies; at the request of Joint Lead Arrangers or any representative
chosen by the Majority Lenders, Borrower shall deliver a letter addressed to
such accountants instructing them to comply with the provisions of this Section
9.03(vi); (vii) perform in all respects all of its Contractual Obligations,
except where such failure to so perform, singly or in the aggregate with all
other such failures, could not reasonably be expected to have a Material Adverse
Effect; and (viii) keep proper books of
-91-
record and accounts, in which full and correct entries shall be made of all
financial transactions and the Property and business of each Company in
accordance with GAAP.
(B) If the Tender Offer is consummated, Borrower will promptly make or
cause to be made payment on all Existing Notes validly tendered in the Tender
Offer in accordance with all applicable Requirements of Law.
9.04. INSURANCE. (A) Borrower shall maintain, with financially sound
and reputable insurers, insurance including self insurance of the kinds and in
the amounts customarily insured against by companies of established repute
engaged in the same or similar business and similarly situated (including
business interruption insurance).
(B) At the reasonable request of Administrative Agent, all policies of
insurance required to be maintained by any Company must name Administrative
Agent on behalf of the Creditors, as mortgagee or loss payee (in the case of
property insurance) or additional insured (in the case of liability insurance),
as applicable, or certificate holder (in the case of workers' compensation
insurance) and must provide that no cancellation or non-renewal of the policies
will be made without thirty days' prior written notice to Administrative Agent
and if the insurance carrier shall have received written notice from
Administrative Agent of the occurrence and continuance of an Event of Default,
the insurance carrier shall pay all proceeds otherwise payable to any Company
under such policies directly to Administrative Agent.
(C) Borrower shall give immediate written notice of any loss paid in
excess of $10.0 million to the insurance carrier and to Administrative Agent.
(D) If at any time the area in which any Mortgaged Real Property is
located is designated (i) a "flood hazard area" in any Flood Insurance Rate Map
published by the Federal Emergency Management Agency (or any successor agency),
Borrower shall obtain flood insurance in such total amount as Administrative
Agent or the Majority Lenders may from time to time reasonably require (so long
as such requirement is reasonably grounded in applicable Requirements of Law),
and otherwise comply with the National Flood Insurance Program as set forth in
the Flood Disaster Protection Act of 1973, as amended from time to time, or (ii)
a "Zone 1" area, Borrower shall obtain earthquake insurance in such total amount
as Administrative Agent or the Majority Lenders may reasonably require (so long
as such requirement is reasonably grounded in applicable Requirements of Law).
9.05. LIMITATION ON LINES OF BUSINESS. No Company shall directly or
indirectly, engage to any extent material to Consolidated Companies in any line
or lines of business activity other than the businesses of the type conducted by
the Companies as of the Effective Date (after giving effect to the SBCL
Acquisition) or any other businesses reasonably related thereto.
9.06. LIMITATION ON FUNDAMENTAL CHANGES, ACQUISITIONS OR DISPOSITIONS.
No Company shall, directly or indirectly, in a single transaction or series of
transactions, (1) merge, consolidate or amalgamate with or into any Person, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), (2) effect any Acquisition, or (3) effect any Disposition, EXCEPT
that each of the following shall be permitted:
-92-
(a) purchases and sales of Property and services in the ordinary course
of business;
(b) the pledge of the Collateral pursuant to the Security Documents and
the incurrence of (i) with respect to Collateral, any Lien permitted by the
Security Documents, and (ii) with respect to all other Property, any
Permitted Lien;
(c) so long as no Default then exists or would arise therefrom, the
merger, consolidation, dissolution or liquidation of (1) any Subsidiary
(other than a Receivables Co.) with or into (i) Borrower if Borrower shall
be the continuing or surviving corporation or (ii) any Qualified Subsidiary
if a Qualified Subsidiary shall be the continuing or surviving corporation,
and (2) any Non-Qualified Subsidiary (other than a Receivables Co.) with or
into any other Non-Qualified Subsidiary (other than a Receivables Co.);
(d) Dispositions by any Company (other than a Receivables Co.) to any
Qualified Company or by any Non-Qualified Subsidiary (other than a
Receivables Co.) to any other Non-Qualified Subsidiary (other than a
Receivables Co.);
(e) Dispositions of used, worn out, obsolete or surplus Property
(including resulting from integration of the businesses of SBCL) by any
Company in the ordinary course of business and the abandonment or other
Disposition of Intellectual Property that is, in the reasonable judgment of
Borrower, no longer economically practicable to maintain or useful in the
conduct of the business of the Companies taken as a whole; PROVIDED,
HOWEVER, that in each case the cash proceeds thereof, if any, shall, at
Borrower's option, be used to make a voluntary prepayment of Loans or be
reinvested in the business of a Company within one year of such
Disposition;
(f) the sale or discount without recourse of accounts receivable or
notes receivable arising in the ordinary course of business, or the
conversion or exchange of accounts receivable into or for notes receivable,
in each case in connection with the compromise or collection thereof and
not in connection with any financing transaction; PROVIDED, HOWEVER, that,
in the case of any Foreign Subsidiary, any such sale or discount may be
with recourse if such sale or discount is consistent with customary
practice in such Foreign Subsidiary's country of business and the aggregate
amount of any such recourse shall (to the extent such recourse is required
by GAAP to be included as Indebtedness on the consolidated balance sheet of
Consolidated Companies) be included in the determination of Indebtedness
for purposes of Section 9.08;
(g) so long as no Default then exists or would arise therefrom, any
Disposition (other than Excluded Dispositions and Contemplated
Dispositions) for fair market value so long as the gross proceeds from all
Dispositions since the Effective Date pursuant to this clause (g) do not
exceed $25.0 million; PROVIDED, HOWEVER, that the Net Available Proceeds
therefrom shall be applied as specified in Section 2.10(a)(iv);
(h) Acquisitions by any Qualified Company; PROVIDED, HOWEVER, that each
Acquisition under this Section 9.06(h) shall satisfy each of the following
conditions:
-93-
(i) no Default then exists or would result therefrom;
(ii) after giving pro forma effect in accordance with GAAP to such
Acquisition, Borrower shall be in compliance with all covenants set
forth in Section 9.11 as of the Test Date immediately prior to the
consummation thereof (assuming, for purposes of Section 9.11, that such
Acquisition, and all other Permitted Acquisitions consummated since the
first day of the relevant measurement period for each financial
covenant set forth in Section 9.11 ending on or prior to the date of
such Acquisition, had occurred on the first day of such relevant
measurement period);
(iii) the board of directors of the acquired Person shall not have
indicated privately at the time of consummation of the Acquisition to
any Company or publicly its opposition to the consummation of such
Acquisition;
(iv) such Acquisition shall be effected through a Qualified
Company and the Person or business acquired shall at the time of
consummation of such Acquisition be merged or combined or consolidated
with or into a Qualified Company (so long as, with respect to Borrower,
Borrower is the surviving Company and each other survivor shall be a
Qualified Company) or shall be or become at the time of consummation
thereof a Qualified Company;
(v) Borrower shall have delivered to Joint Lead Arrangers and the
Lenders an Officers' Certificate at least (A) if any Xxxx-Xxxxx-Xxxxxx
filing is needed, 10 days prior to the date of consummation of such
Acquisition and (B) in each other event, 10 days after the date of
consummation of such Acquisition (but in any event not earlier than a
date which would result in the Test Date occurring on or immediately
prior to the consummation of such Acquisition being more than 135 days
prior to the date of consummation of such Acquisition) certifying that
(1) such Acquisition complies with this Section 9.06(h), and (2) such
Acquisition is not reasonably likely to have a Material Adverse Effect;
(vi) the Acquisition Consideration for such Acquisition shall not
exceed $80.0 million; and
(vii) the Acquisition Consideration for such Acquisition
(excluding not more than $100.0 million of Acquisition Consideration
paid for such Acquisition in the form of the issuance of Equity
Interests or Equity Rights of Borrower), together with the aggregate
amount of the Acquisition Consideration (excluding not more than $100.0
million of Acquisition Consideration paid for such Acquisition and for
all other Acquisitions since the Effective Date in the form of the
issuance of Equity Interests or Equity Rights of Borrower) for all
Acquisitions effected pursuant to this Section 9.06(h) since the
Effective Date, shall not exceed 15% of Net Worth immediately prior to
such Acquisition;
-94-
(i) transfers resulting from any Casualty Event, PROVIDED, HOWEVER,
that the Net Available Proceeds therefrom shall be applied as specified in
Section 2.10(a)(i);
(j) licenses or sublicenses of software, Intellectual Property and
general intangibles and leases, licenses or subleases of other Property
which do not materially interfere with the business of Consolidated
Companies;
(k) any consignment arrangements or similar arrangements for the sale
of assets in the ordinary course of business of any Company;
(l) the making of Investments permitted by Section 9.09 and the
liquidation in the ordinary course of business of (A) Cash Equivalents and
(B) Investments made pursuant to clause (a) of the definition of Permitted
Investments;
(m) the SBCL Acquisition in accordance with the SBCL Acquisition
Agreement;
(n) so long as no Default then exists or would arise therefrom, Sale
and Leaseback Transactions not to exceed in the aggregate $10.0 million
since the Effective Date; PROVIDED, HOWEVER, that such Sale and Leaseback
Transaction involves a sale of Property by a Company solely for cash
consideration on terms not less favorable than would prevail in an
arm's-length transaction; PROVIDED, HOWEVER, that the Net Available
Proceeds of any such transaction shall be applied as specified in Section
2.10(a)(iv);
(o) any Contemplated Acquisition so long as effected substantially in
conformity with the terms therefor described in SCHEDULE 1.01(g) and so
long as satisfying each of the conditions set forth in Section
9.06(h)(i)-(v) as if consummated thereunder (with references therein to
Section 9.06(h) being deemed references to this Section 9.06(o));
(p) any Contemplated Disposition so long as effected substantially in
conformity with the terms thereof described in SCHEDULE 1.01(h); PROVIDED,
HOWEVER, that the Net Available Proceeds of any such transaction shall be
applied as specified in Section 2.10(a)(iv);
(q) the sale, transfer or discount of Accounts pursuant to any
Permitted Receivables Transaction; PROVIDED, HOWEVER, that the Net
Available Proceeds therefrom shall be applied as specified in Section 2.04
and Section 2.10(a)(iv); and
(r) Acquisitions by any Qualified Joint Venture.
No Company shall effect the Disposition of any Equity Interests of any
Subsidiary unless in compliance with the foregoing provisions and unless all
Equity Interests of such Subsidiary owned by the Companies are sold pursuant
thereto in accordance with the Credit Documents, upon which sale the Guarantee
by such Subsidiary shall be automatically deemed to be released (it being
understood that nothing contained in this sentence shall be deemed to permit any
Disposition otherwise prohibited by this Agreement).
-95-
Subject to Section 12.04, to the extent the Majority Lenders waive the
provisions of this Section 9.06 with respect to the sale or other disposition of
any Collateral, or any Collateral is sold or otherwise disposed of as permitted
by this Section 9.06 (other than to any Company), such Collateral in each case
shall be sold or otherwise disposed of free and clear of the Liens created by
the Security Documents and Administrative Agent shall take such actions as are
appropriate in connection therewith. Upon the disposition of any item of
Collateral of any Company (including, without limitation, as a result of the
sale, in accordance with the terms of the Credit Documents, of the Company that
owns such Collateral) in accordance with the terms of the Credit Documents,
Administrative Agent will, at Borrower' expense, execute and deliver to such
Company such documents as such Company may reasonably request to evidence the
release of such item of Collateral from the assignment and security interest
granted under the Security Documents in accordance with the terms of the Credit
Documents.
9.07. LIMITATION ON LIENS AND NEGATIVE PLEDGES. No Company shall,
directly or indirectly, create, incur, assume or suffer to exist any Lien upon
or with respect to any of their respective Property, whether now owned or
hereafter acquired, except, with respect to Collateral, for Liens expressly
permitted by the applicable Security Document and with respect to all other
Property, EXCEPT for each of the following (which are herein collectively
referred to as "PERMITTED LIENS"):
(a) Excluded Existing Liens (excluding, however, following the Closing
Date, any such Excluded Existing Liens securing the Existing Credit
Facilities, which Liens shall be extinguished on the Closing Date);
(b) Permitted Customary Liens;
(c) Liens upon Property acquired after the Effective Date by any
Company, 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 solely for the purpose of securing Indebtedness representing, or
incurred to finance or refinance, the cost of such Property or improvements
thereon; PROVIDED, HOWEVER, that (1) no such Lien shall extend to or cover
any Property of any Company other than the Property so acquired and
improvements thereon and proceeds thereof, (2) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 100% of the
fair market value of such Property at the time it was acquired or
constructed and (3) the Indebtedness secured by any such Lien is permitted
by Section 9.08(f);
(d) Liens existing on any Property at the time such Property is
acquired or the owner thereof becomes a Subsidiary or is merged or
consolidated with or into a Subsidiary and, in each case, not created in
contemplation of or in connection with such event; PROVIDED, HOWEVER, that
(1) such Liens do not extend to any other Property of any Company and (2)
any Indebtedness secured by any such Lien is permitted by Section 9.08(g);
(e) Liens not otherwise permitted hereunder (on Property other than the
Collateral) securing obligations of any Company at any time not exceeding
(as to all of the Companies) in the aggregate $25.0 million;
-96-
(f) Liens securing obligations under Swap Contracts with any Creditor
to the extent such Swap Contract relates to the Loans and only so long as
the Obligations are secured by the same collateral on at least a PARI PASSU
basis;
(g) Liens securing obligations in respect of Capital Leases solely on
Property (including improvements thereto and the proceeds thereof) subject
to such Capital Leases (including Capital Leases resulting from any Sale
and Leaseback Transaction permitted by Section 9.06(n)); PROVIDED, HOWEVER,
that such Capital Leases are permitted by Section 9.08(f);
(h) Liens created under the Credit Documents securing the Obligations;
(i) Liens arising in connection with buy/sell agreements related to
Equity Interests of any Person that is not a Wholly Owned Subsidiary;
(j) Liens securing Contingent Obligations permitted by clause (e) of
the definition of Permitted Obligations not exceeding (as to all of the
Companies) $5.0 million in aggregate amount at any time outstanding;
(k) Liens on Accounts or related assets of any Receivables Co. created
in connection with a Permitted Receivables Transaction;
(l) Liens on accounts receivable of a Qualified Joint Venture to secure
a working capital facility of a Qualified Joint Venture; and
(m) any extension, renewal or replacement of the foregoing; PROVIDED,
HOWEVER, that the Liens permitted by this Section 9.07(m) shall not cover
any additional principal amount of Indebtedness or Property (other than
like Property substituted for Property covered by such Lien).
Except with respect to (i) specific Property encumbered pursuant to a
Lien permitted to be incurred pursuant to this Section 9.07 or (ii) specific
Property to be sold pursuant to any Disposition or Excluded Disposition
permitted hereby, no Company will directly or indirectly, enter into or suffer
to exist any Contractual Obligation on or after the Effective Date prohibiting
or restricting in any manner (directly or indirectly and including by way of
covenant, representation or warranty or event of default) the creation or
assumption of any Lien upon its Property, whether now owned or hereafter
acquired, EXCEPT pursuant to (1) the Credit Documents, (2) any other agreement
that does not restrict in any manner (directly or indirectly) Liens created
pursuant to the Credit Documents on Property of any Company (whether now owned
or hereafter acquired) securing the Obligations and does not require the direct
or indirect granting of any Lien securing any Indebtedness or other obligation
by virtue of the granting of Liens on or pledge of Property of any Company to
secure the Obligations, and (3) any industrial revenue or development bonds,
acquisition agreements, or agreements in connection with any Permitted
Receivables Transaction permitted hereby (in which case, any prohibition or
limitation shall only be effective against the Property financed or acquired
thereby) or operating leases of Real Property entered into in the ordinary
course of business.
-97-
9.08. PROHIBITION ON DISQUALIFIED CAPITAL STOCK; LIMITATION ON
INDEBTEDNESS AND CONTINGENT OBLIGATIONS; LIMITATION ON DESIGNATED SENIOR
INDEBTEDNESS. (A) No Company shall directly or indirectly issue or permit to be
outstanding any Disqualified Capital Stock. No Company shall, directly or
indirectly, incur or suffer to exist any Indebtedness or any Contingent
Obligation, EXCEPT for each of the following:
(a) the Loans and the other Obligations (including the Guarantees)
under the Credit Documents;
(b) the Existing Notes (so long as the Note Tender or Note Defeasance
if required pursuant to Section 7.02 has been effected), other Indebtedness
and Contingent Obligations (other than the Existing Notes) outstanding on
the Effective Date and listed in SCHEDULE 8.25(A) and specified on SCHEDULE
8.25(B) as to remain outstanding after the Effective Date (less the
aggregate amount of any permanent prepayments or repayments thereof) and,
in the case of any such Indebtedness listed on SCHEDULE 8.25(B), Permitted
Refinancings thereof;
(c) Indebtedness and Contingent Obligations of any Company (other than
any Receivables Co.) owing to any Qualified Company; PROVIDED, HOWEVER,
that such Indebtedness and Contingent Obligations shall not be held by any
Person other than a Qualified Company and shall not be subordinate to any
other Indebtedness or Contingent Obligations or other obligation of the
obligor unless also subordinated to the Obligations on terms no less
favorable to the Lenders than that of any other creditor;
(d) Contingent Obligations of any Qualified Company (other than any
Receivables Co.) in respect of Indebtedness or other liabilities of any
Qualified Company (other than a Receivables Co.) to the extent that the
existence of such Indebtedness or other liabilities is not prohibited under
this Agreement and on substantially similar terms as such Indebtedness;
(e) Permitted Obligations;
(f) Indebtedness and Contingent Obligations of the Companies (including
Permitted Refinancings thereof) secured by Liens permitted under Section
9.07(c) or (g) (and extensions, renewals or replacements thereof pursuant
to Section 9.07(m)) not exceeding in the aggregate at any time outstanding
for the Companies collectively (together with any Permitted Refinancing
thereof) the remainder of (I) $30.0 million MINUS (II) the aggregate amount
of Indebtedness outstanding under Sections 9.08(A)(g) and 9.08(A)(h);
(g) Indebtedness of a Person that becomes a Subsidiary after the
Effective Date; PROVIDED, HOWEVER, that (1) such Indebtedness existed at
the time such Person became a Subsidiary and was not created in connection
with or in anticipation thereof, (2) immediately after giving effect to the
acquisition of such Person by Borrower no Default shall have occurred and
be continuing, and (3) the aggregate amount of Indebtedness outstanding at
any time pursuant to this Section 9.08(A)(g) for all Subsidiaries shall not
exceed the remainder of (I) $30.0 million MINUS (II) the aggregate amount
of Indebtedness outstanding under Sections 9.08(A)(h) and 9.08(A)(f);
-98-
(h) Indebtedness and Contingent Obligations incurred by any Company,
and any Permitted Refinancing thereof, not exceeding in the aggregate at
any time outstanding for all Companies the remainder of (I) $30.0 million
MINUS (II) the aggregate amount of Indebtedness outstanding pursuant to
Sections 9.08(A)(f) and 9.08(A)(g);
(i) Indebtedness of any Receivables Co. incurred in connection with a
Permitted Receivables Transaction consisting of (i) Indebtedness in an
aggregate amount at any time not to exceed $300.0 million and (ii) other
Indebtedness owing by a Receivables Co. to any Company on terms
satisfactory to Joint Lead Arrangers; PROVIDED, HOWEVER, that in the case
of clause (i) of this Section 9.08(A)(i), the Net Available Proceeds
therefrom shall be applied as specified in Section 2.04 and Section
2.10(a)(iii);
(j) debt securities issued by Borrower substantially on terms no less
favorable to Borrower than the Existing Notes (including any guarantees
thereof by any Qualified Subsidiary so long as a Qualified Subsidiary) and
otherwise on terms and conditions reasonably acceptable to Joint Lead
Arrangers and the Majority Lenders and any Permitted Refinancing thereof,
not to exceed in the aggregate at any time outstanding $600.0 million, (i)
which shall be unsecured, have no interim amortization and have a final
maturity date not earlier than December 31, 2007 and (ii) the first $300.0
million of which shall consist of senior subordinated notes unless, on a
pro forma basis after giving effect to the Transactions, the unsecured
senior long term debt of Borrower is rated greater than or equal to Ba1 by
Xxxxx'x and BB+ by S&P, in each case issued pursuant to the Unsecured Note
Documents and may include any unsecured notes issued pursuant to a
registered exchange offer (an "EXCHANGE OFFER") therefor made pursuant to a
registration rights agreement entered into in connection with the issuance
thereof on the date of issuance thereof ("EXCHANGE Notes"); PROVIDED,
HOWEVER, that (1) the remainder of the Net Available Proceeds thereof less,
so long as no Default or Event of Default then exists or would arise
therefrom, the amount of the Net Available Proceeds therefrom applied to
effect any Permitted Refinancing of the Existing Notes or any such debt
securities, shall be applied as specified in Section 2.04 and Section
2.10(a)(iii), and (2) the aggregate principal amount of debt securities
that shall be permitted to be outstanding under this Section 9.08(A)(j)
shall be reduced by the aggregate principal amount of Existing Notes
outstanding more than 45 days after the most recent date on which
Indebtedness was incurred under this Section 9.08(A)(j) so long as such
Existing Notes are outstanding;
(k) so long as no Default then exists or would arise therefrom,
Guaranty Obligations in respect of third-party loans and advances to
directors, officers or employees of any Company and, in the case of loans
or advances to finance the purchase of common stock of Borrower, to the
immediate family members or relatives thereof, or trusts or partnerships
for the benefit of any of the foregoing, or any of their heirs, executors,
or legal representatives, (i) for travel and entertainment expenses
incurred in the ordinary course of business, (ii) for relocation expenses
incurred in the integration of SBCL's businesses into the businesses of the
Companies or otherwise incurred in the ordinary course of business or (iii)
for any other purpose and, in the case of this clause (iii), in an
aggregate principal amount (as to Borrower and all its Subsidiaries),
together with the aggregate amount of all Investments permitted under
Section 9.09(A)(d)(1), of up to $10.0 million outstanding at any time in
excess of such Guaranty
-99-
Obligations existing on the date hereof and set forth on SCHEDULE 8.25(B),
plus the net cash proceeds received by Borrower since the Effective Date
from the issuance or sale of Equity Interests of Borrower (including any
Equity Rights in respect thereof) to any such Person;
(l) Guaranty Obligations of any Company in respect of recourse events
in connection with any Permitted Receivables Transaction;
(m) so long as no Default then exists or would arise therefrom,
Guaranty Obligations (including any Letters of Credit issued hereunder in
respect of the purchase of goods or services by any Joint Venture) in
respect of Indebtedness and other obligations of a Joint Venture and as to
all such Persons does not at any time exceed $25.0 million in aggregate
principal amount in excess of such Guaranty Obligations existing on the
date hereof and set forth on SCHEDULE 8.25(B); PROVIDED, HOWEVER, that such
amount shall be reduced by the aggregate amount of then existing
Investments permitted by Section 9.09(A)(k);
(n) so long as no Default then exists or would arise therefrom,
Indebtedness of a Qualified Joint Venture; PROVIDED, HOWEVER, that the
aggregate principal amount of Indebtedness permitted by this Section
9.08(A)(n) shall not at any time exceed $12.0 million for any Qualified
Joint Venture or $25.0 million in the aggregate for all Qualified Joint
Ventures; and
(o) Guaranty Obligations entered into in the ordinary course of
business in respect of operating leases and other ordinary course contracts
(other than any contract or agreement related to Indebtedness or Contingent
Obligations in respect of Indebtedness or any non-ordinary course contract)
of any Foreign Subsidiary.
All intercompany debt shall be unsecured and subordinate in right of
payment (to the same extent as the subordination provisions set forth in EXHIBIT
B hereto) to the Obligations. Each Obligor, by its execution and delivery of
this Agreement, hereby agrees to subordinate its right of payment under any
intercompany debt owed to it by any Company to the full and complete payment and
performance of the Obligations. No Obligor shall incur any Subordinated Debt
unless otherwise permitted by the foregoing exceptions listed as clauses (a)
through (o) above and unless such Subordinated Debt shall be subordinated to the
Obligations at least to the same extent and for so long as such Subordinated
Debt is subordinated to any other Indebtedness.
(B) No Company shall designate, or permit or suffer to exist the
designation of, any Indebtedness or other obligation, other than Indebtedness
under the Credit Documents, as "Designated Senior Indebtedness," as such term
may be defined in any Subordinated Debt, or effect or permit or suffer to exist
any comparable designation that confers upon the holders of such Indebtedness or
other obligation (or any Person acting on their behalf) the right to initiate
payment blockage periods under any Subordinated Debt.
9.09. LIMITATION ON INVESTMENTS; LIMITATION ON CREATION OF
SUBSIDIARIES. (A) No Company shall, directly or indirectly, make or permit to
remain outstanding any Investments, EXCEPT for each of the following:
-100-
(a) Permitted Investments and Investments that were Permitted
Investments when made;
(b) Investments in any Qualified Company or in any Subsidiary if as a
result thereof or in connection therewith such Subsidiary becomes a
Qualified Subsidiary and Investments by any Non-Qualified Subsidiary (other
than any Receivables Co.) in any Company or in any Person not a Subsidiary
if as a result thereof or in connection therewith such Person becomes a
Subsidiary (provided that no Investment will be permitted in respect of any
Subsidiary with respect to which Borrower has not complied with Section
9.20);
(c) any Investments outstanding on the Effective Date (and, to the
extent in excess of $1.0 million, identified in SCHEDULE 9.09) and any
renewals, amendments and replacements thereof that do not increase the
amount thereof;
(d) so long as no Default then exists or would arise therefrom,
advances, loans or extensions of credit to (1) officers, directors or
employees of any Company and, in the case of loans and advances to finance
the acquisition of common stock of Borrower, to immediate family members or
relatives thereof, or trusts or partnerships for the benefit of any of the
foregoing, or any of their heirs, executors, or legal representatives, (i)
in the ordinary course of business for travel and entertainment or
relocation expenses in the ordinary course of business or relocation
expenses in connection with the integration of SBCL's businesses into the
businesses of the Companies, (ii) existing on the Effective Date and
described in SCHEDULE 9.09, (iii) made after the Effective Date for other
purposes, not to exceed (as to all Companies), together with the amount of
all Guaranty Obligations permitted pursuant to Section 9.08(A)(k), $10.0
million in the aggregate outstanding at any time in excess of such
Investments existing on the date hereof and described in SCHEDULE 9.09,
plus the net cash proceeds received by Borrower since the Effective Date
from the issuance or sale of Equity Interests of Borrower (including any
Equity Rights in respect thereof) to any such Person and (iv) relating to
indemnification or reimbursement of any current or former officers,
directors or employees in respect of liabilities relating to their serving
in any such capacity or as otherwise specified in Section 9.15, and (2)
current or former officers, directors or employees of any Company in
connection with stock option plans so long as (x) such loans do not involve
cash payments by any Company and (y) no Company incurs any obligations at
any time to repurchase the stock so purchased;
(e) additional Investments in any Non-Qualified Subsidiary to the
extent that such Investments reflect an increase in the stockholders'
equity of such Subsidiary resulting from retained earnings of such
Subsidiary;
(f) so long as no Default shall have occurred and be continuing,
Investments in any Non-Qualified Subsidiary to the extent made in the
ordinary course to fund or support the ordinary course operations of such
Subsidiary; PROVIDED, HOWEVER, that (1) other than with respect to any
Subsidiary of which not less than 85% of the Equity Interests are owned
directly or indirectly by Borrower, the amount of such Investments made
pursuant to this clause (f) shall not exceed $10.0 million in the aggregate
(plus amounts representing return of capital)
-101-
outstanding at any time (without giving effect to any write-down or
write-off thereof) in excess of such Investments existing as of the date
hereof and described in SCHEDULE 9.09, and (2) no such Investment shall be
permitted which singularly or in the aggregate will result in all or a
substantial part of the assets of the Qualified Companies being transferred
to Non-Qualified Subsidiaries;
(g) the ownership of Equity Interests of any Subsidiary existing on the
Effective Date or created or acquired thereafter in accordance with the
provisions hereof and any additional Equity Interests issued in exchange
therefor or as a dividend thereon;
(h) Investments consisting of non-cash consideration received in the
form of securities, notes or similar obligations in connection with any
Disposition or Excluded Disposition (which shall not be subordinated by its
terms to any obligations of the issuer thereof); PROVIDED, HOWEVER, that
(1) the aggregate amount of such non-cash consideration received in
connection with any such Disposition shall not exceed 25% of the total
consideration received in connection with such Disposition, (2) such
non-cash consideration is pledged pursuant to the appropriate Security
Document (other than if received by any Foreign Subsidiary), and (3) the
aggregate amount of such Investments made and outstanding at any time shall
not exceed $25.0 million (without giving effect to any write-downs or
write-offs thereof);
(i) Investments consisting of or made in order to consummate Permitted
Acquisitions;
(j) any Investment which, in the judgment of such Company, is
reasonably necessary in connection with, and pursuant to, any Permitted
Receivables Transaction;
(k) so long as no Default then exists or would arise therefrom,
Investments in a Person in connection with a Joint Venture in an aggregate
amount (after giving effect to any repayments or other realized returns on
prior Investments made under this Section 9.09(A)(k)) not to exceed at any
one time outstanding an amount equal to $25.0 million PLUS the amount of
cash distributed to Qualified Companies by Joint Ventures not otherwise
replenishing such $25.0 million in an amount not to exceed an additional
$25.0 million; PROVIDED, HOWEVER, that such amount shall be reduced by the
aggregate amount of the outstanding Guaranty Obligations permitted by
Section 9.08(A)(m);
(l) Investments made by any Joint Venture to effect any Acquisition
permitted by Section 9.06(r);
(m) Contemplated Investments (however, any such Investment made with
the cash proceeds of any Contemplated Disposition shall be made only in a
Qualified Company);
(n) any investment in the entity being formed by SmithKline Xxxxxxx
pursuant to the Category Three Data Access Agreement between Borrower and
SmithKline Xxxxxxx dated as of the Closing Date or in any other Person (or
an Affiliate thereof) to which Borrower provides information products or
services or a license to use (or to which Borrower
-102-
discloses) clinical laboratory data of Borrower, which Investment is issued
or received (a) in exchange for the sale of such information products or
services or the license (or disclosure) of the data or (b) for cash in an
amount not to exceed the sum of $20.0 million in the aggregate under this
clause (b) plus the amount of cash fees received by Borrower or its
Subsidiaries after the Closing Date from the sale to such entity or Person
(or an Affiliate thereof) of information products or services or the
license (or disclosure) of clinical laboratory data of Borrower; and
(o) so long as no Default then exists or would arise therefrom,
Investments not otherwise permitted by this Section 9.09 in an aggregate
amount outstanding at any time not to exceed $10.0 million for all
Companies (PLUS amounts representing return of capital) (exclusive of any
write-down or write-off thereof).
In the case of any Investment by a Company in any Receivables Co., such
Investment shall only be made in connection with a Permitted Receivables
Transaction on terms satisfactory to Joint Lead Arrangers.
(B) No Company shall, directly or indirectly, create or acquire any
Subsidiary without the prior written consent of the Majority Lenders, which
consent shall not be unreasonably withheld; PROVIDED, HOWEVER, that (1) the
provisions of this Section 9.09(B) shall not require the Majority Lenders'
consent for (I) the creation or acquisition of direct or indirect Wholly Owned
Subsidiaries so long as Section 9.20 is complied with at the time of formation
or acquisition thereof and such creation or acquisition is otherwise permitted
under Section 9.09(A) and (II) the creation or acquisition of any Subsidiary
which is not a Wholly Owned Subsidiary so long as the Investment made in
connection therewith complies with Section 9.09(A) and so long as Section 9.20
is complied with at the time of formation or acquisition thereof; and (2) all
Investments in any Subsidiary, including in connection with the creation or
acquisition thereof, must comply with Section 9.09(A).
9.10. LIMITATION ON DIVIDEND PAYMENTS. No Company shall, directly or
indirectly, declare or make any Dividend Payment at any time, EXCEPT, without
duplication:
(a) any Subsidiary may declare and make Dividend Payments to Borrower
or any Subsidiary and to minority interest holders in such Subsidiary if
made on a PRO RATA basis to all holders of Equity Interests in such
Subsidiary at the same time except that no Qualified Subsidiary may make
any Dividend Payment to any Non-Qualified Subsidiary; and
(b) So long as no Default has occurred and is continuing or would arise
therefrom:
(i) the payment of dividends on the Voting Cumulative Preferred
Stock outstanding on the Effective Date pursuant to documentation
existing on the Effective Date not to exceed $150,000 per year and the
repurchase or redemption of the Voting Cumulative Preferred Stock for a
purchase price not exceeding $1.06 million plus accrued and unpaid
dividends;
-103-
(ii) Dividend Payments to redeem Equity Interests (other than
Disqualified Capital Stock) held by current or former employees,
officers or directors of any Company (or their estates or beneficiaries
of their estates) upon the death, disability, retirement or termination
of employment or directorship, as the case may be, pursuant to any
agreement in effect on the Effective Date as in effect on the Effective
Date and pursuant to other agreements on substantially similar terms
entered into after the Effective Date; PROVIDED, HOWEVER, that the
aggregate cash consideration paid, or distributions made, pursuant to
this clause (b)(ii) shall not exceed $5.0 million in any fiscal year
ending after the Effective Date, PLUS, in each case, the proceeds of
any Excluded Equity Issuance pursuant to clause (c) of the definition
thereof;
(iii) any purchase or other acquisition of common stock of
Borrower that is contributed to any Employee Benefit Plan to the extent
funded by employee contributions or deducted as an expense in
determining Adjusted Net Income of Borrower; and
(iv) Borrower may repurchase shares of its common stock to be
contributed to Employee Benefit Plans (or to replace shares contributed
after the date hereof to Employee Benefit Plans out of authorized but
unissued shares), in an aggregate amount not to exceed any cash
consideration received by Borrower in respect of the issuance of shares
of its common stock to employees.
9.11. FINANCIAL COVENANTS.
(a) MAXIMUM TOTAL LEVERAGE RATIO. The Total Leverage Ratio shall not,
as of any Test Date during any period set forth in the table below, exceed the
ratio set forth opposite such period in the table below:
Period Ratio
------ -----
9/30/99 to 3/30/00 5.00x
3/31/00 to 9/29/00 4.75x
9/30/00 to 12/30/01 4.50x
12/31/01 to 12/30/02 3.75x
12/31/02 to 12/30/03 3.00x
12/31/03 and thereafter 2.50x
-104-
(b) MINIMUM INTEREST COVERAGE RATIO. The Interest Coverage Ratio shall
not, as of any Test Date during any period set forth in the table below, be less
than the ratio set forth opposite such period in the table below:
Period Ratio
------ -----
9/30/99 to 12/30/00 2.25x
12/31/00 to 12/30/01 2.50x
12/31/01 to 12/30/02 3.00x
12/31/02 and thereafter 3.50x
(c) MINIMUM FIXED CHARGE COVERAGE RATIO. The Fixed Charge Coverage
Ratio shall not, as of any Test Date during any period set forth in the table
below, be less than the ratio set forth opposite such period in the table below:
Period Ratio
------ -----
9/30/99 to 12/30/01 1.10x
12/31/01 to 12/30/02 1.15x
12/31/02 to 12/30/03 1.20x
12/31/03 to 12/30/04 1.20x
12/31/04 to 12/30/05 1.20x
12/31/05 and thereafter 1.00x
(d) MINIMUM NET WORTH. Borrower will not permit Net Worth at any Test
Date to be less than (i) 85% of Borrower's Net Worth at the Closing Date after
giving effect to the SBCL Acquisition PLUS (ii) 75% of the sum of Adjusted Net
Income for each fiscal quarter beginning with the first fiscal quarter after the
Closing Date (without reduction for losses) PLUS (iii) 75% of Equity Proceeds
received by Borrower after the Closing Date from each Equity Issuance.
Notwithstanding the foregoing, if at any Test Date the unsecured senior long
term debt of Borrower is rated at least Baa3 (or the equivalent) or higher by
Xxxxx'x and at least BBB- (or the equivalent) or higher by S&P, Borrower need
not comply with this covenant at such Test Date.
(e) LIMITATION ON CAPITAL EXPENDITURES. The aggregate amount of Capital
Expenditures made by the Companies in any period set forth below shall not
exceed the amount set forth opposite such period below:
Period Ratio
------ -----
Effective Date - 6/30/2000 $135,000,000
7/1/2000 - 12/31/2000 $ 55,000,000
1/1/2001 - 12/31/2001 $110,000,000
1/1/2002 - 12/31/2002 $110,000,000
1/1/2003 - 12/31/2003 $115,000,000
1/1/2004 - 12/31/2004 $120,000,000
-105-
1/1/2005 - 12/31/2005 $125,000,000
1/1/2006 - 12/31/2006 $130,000,000
1/1/2007 - 12/31/2007 $135,000,000
; PROVIDED, HOWEVER, that (x) if the aggregate amount of Capital Expenditures
for any period set forth above shall be less than the amount permitted for such
period, then the shortfall may be added to the amount of Capital Expenditures
permitted for the immediately succeeding (but not any other) period set forth
above to the extent that the amount expended in such immediately succeeding
period set forth above would not exceed 125% (or 145% with respect to the period
from 7/1/2000 to 12/31/2000) of the amount permitted for such immediately
succeeding period set forth above (before any carryover and the addition
pursuant to clause (y) below) and (y) the amount expended in any period set
forth above shall be increased by an amount equal to 20% of the positive amount
of the most recent trailing four quarter EBITDA of any Permitted Acquisition
consummated by any Qualified Company during such period.
(f) LIMITATION ON OPERATING LEASES. No Company shall permit the
aggregate lease payments calculated in accordance with GAAP (including, without
limitation, any property taxes paid as additional rent or lease payments) by
Companies on a consolidated basis under any agreement to rent or lease any
Property (or any extension or renewal thereof) (excluding Capital Leases plus
any lease payments made in connection with any Sale and Leaseback Transaction
permitted by Section 9.06) to exceed in any fiscal year (commencing with fiscal
1999) $125.0 million.
9.12. EQUAL SECURITY FOR LOANS AND NOTES; PLEDGE OR MORTGAGE OF REAL
PROPERTY; LANDLORD CONSENTS. (A) If any Company (excluding each Excluded Entity
and each Receivables Co.) shall create or assume any Lien upon any of its
Property, whether now owned or hereafter acquired and whether or not such
Property constitutes Collateral, other than any Lien permitted by the Credit
Documents, it shall make or cause to be made effective provisions whereby the
Obligations will be secured by such Lien equally and ratably with any and all
other Indebtedness thereby secured so long as any such Indebtedness shall be
secured; PROVIDED, HOWEVER, that this covenant shall not be construed as consent
by any Creditor to any violation by any Company of the provisions of Section
9.07.
(B) If, after the Closing Date, any Company (excluding each Excluded
Entity and each Receivables Co.) acquires or holds an interest in Real Property
with a fair market value in excess of $20.0 million and such Real Property is
not subject to a Lien permitted under Section 9.07(c), such Company shall notify
Administrative Agent and, if requested by Majority Lenders or Administrative
Agent, (i) take such actions and execute such documents as Administrative Agent
or the Majority Lenders shall reasonably require to confirm the Lien of an
existing Mortgage, if applicable, or to create a new Mortgage on such additional
Real Property and (ii) cause to be delivered to Administrative Agent, on behalf
of the Creditors, all documents and instruments reasonably requested by
Administrative Agent or as shall be necessary in the opinion of counsel to the
Lenders to create a valid perfected first priority mortgage in such Mortgaged
Real Property, including, the following:
(i) a Mortgage in favor of Administrative Agent, for the benefit of the
Creditors, in form for recording in the recording office of each
jurisdiction where such Mortgaged Real Property is situated, together with
such other documentation as shall be required to create a
-106-
Lien under applicable law, which Mortgage and other documentation shall be
satisfactory to Administrative Agent and shall be effective to create a
first priority Lien on such Mortgaged Real Property subject to no Liens
other than Prior Liens; and
(ii) the approvals, documents, instruments, opinions and Officers'
Certificates set forth on SCHEDULE 9.12.
If reasonably requested by Joint Lead Arrangers or the Majority
Lenders, Borrower shall obtain at its sole expense and as soon as practicable
but in any event not later than 45 days after request therefor, environmental
assessments, including, if necessary, Phase 1 or Phase 2 environmental reports
from an environmental engineering firm reasonably acceptable to Joint Lead
Arrangers with respect to any Mortgaged Real Property held by any Company if not
delivered on or prior to the Closing Date.
(C) The costs of all actions taken by the parties in connection with
this Section 9.12, including reasonable costs of counsel for Administrative
Agent, shall be paid by the Obligors promptly following written demand.
9.13. SECURITY INTERESTS; FURTHER ASSURANCES. Each Qualified Company
shall, promptly, upon the reasonable request of Administrative Agent, at
Borrower's expense, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or
cause to be registered, filed or recorded, in an appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise deemed by Administrative Agent reasonably
necessary or desirable for the continued validity, perfection and priority of
the Liens on the Collateral covered thereby superior to and prior to the rights
of all third Persons other than the holders of Prior Liens and subject to other
Liens except as permitted by the Security Documents, or obtain any consents,
including, without limitation, landlord or similar lien waivers and consents, as
may be necessary or appropriate in connection therewith. Each Company shall
deliver or cause to be delivered to Administrative Agent from time to time such
other documentation, consents, authorizations, approvals and orders in form and
substance reasonably satisfactory to Administrative Agent as Administrative
Agent shall reasonably deem necessary to perfect or maintain the Liens on the
Collateral pursuant to the Security Documents. Upon the exercise by
Administrative Agent or the Lenders of any power, right, privilege or remedy
pursuant to any Credit Document which requires any consent, approval,
registration, qualification or authorization of any Governmental Authority, each
Company shall execute and deliver all applications, certifications, instruments
and other documents and papers that Administrative Agent or the Lenders may be
so required to obtain. If Administrative Agent or the Majority Lenders determine
that they are required by law or regulation to have appraisals prepared in
respect of the Real Property of any Obligor constituting Collateral, Borrower
shall provide to Administrative Agent, at Borrower's expense, appraisals that
satisfy the applicable requirements of the Real Estate Appraisal Reform
Amendments of FIRREA and are in form and substance satisfactory to
Administrative Agent.
9.14. COMPLIANCE WITH ENVIRONMENTAL LAWS. Each Company shall (a) comply
with all Environmental Laws, and will keep or cause all Real Property to be kept
free of any Liens under Environmental Laws, unless failure to do so would not
reasonably be expected to have a Material Adverse Effect; (b) in the event of
any Hazardous Material at, on, under or emanating from any Real Property which
would reasonably be expected to result in liability under or a violation of any
Environmental Law in each case which would reasonably be expected to have a
Material Adverse
-107-
Effect, undertake, and/or cause any of their respective tenants or occupants to
undertake, at their sole expense, any action required pursuant to Environmental
Laws to mitigate and eliminate such condition; PROVIDED, HOWEVER, that no
Company shall be required to comply with any order or directive which is being
contested in good faith and by proper proceedings so long as it has maintained
adequate reserves with respect to such compliance to the extent required in
accordance with GAAP; (c) promptly notify Administrative Agent of any event
specified in clause (b) of this Section and periodically thereafter keep
Administrative Agent informed of any material actions taken in response to such
event and the results thereof; and (d) at the written request of Administrative
Agent, provide, at such Company's sole expense, an environmental site assessment
(including, without limitation, the results of any groundwater or other testing,
conducted at Administrative Agent's request) concerning any Real Property now or
hereafter owned, leased or operated by any Company, conducted by an
environmental consulting firm proposed by such Obligor and approved by
Administrative Agent indicating the presence or absence of Hazardous Materials
and the potential cost of any required action in connection with any Hazardous
Materials on, at, under or emanating from such Real Property; PROVIDED, HOWEVER,
that such request may be made only if (i) there has occurred and is continuing
an Event of Default, or (ii) circumstances exist that reasonably could be
expected to form the basis of an Environmental Claim against such Company or any
such Real Property which would have a Material Adverse Effect; if any Company
fails to provide the same within 60 days after such request was made,
Administrative Agent may but is under no obligation to conduct the same, and
such Company shall grant and hereby grants to Administrative Agent and its
agents access to such Real Property and specifically grants Administrative Agent
an irrevocable non-exclusive license, subject to the rights of tenants, to
undertake such an assessment, all at such Company's sole cost and expense.
9.15. LIMITATION ON TRANSACTIONS WITH AFFILIATES AND RELATED PERSONS.
No Company shall, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any Property, the rendering of any service, or a merger, Acquisition
or other consolidation), with or for the benefit of any Affiliate or any Related
Person (an "AFFILIATE TRANSACTION") unless such Affiliate Transaction is
otherwise not prohibited under this Agreement and is (i) between or among
Companies, (ii) is between or among a Company (on the one hand) and one or more
Wholly Owned Subsidiaries or one or more Qualified Joint Ventures the Equity
Interests in which that are not owned by a Company or a Joint Venture Holding
Company (that is a Wholly Owned Subsidiary) are not owned by any Affiliate or
Related Person (other than another Company) (on the other hand), or (iii) on
fair and reasonable terms that are not less favorable to such Company than those
that are obtainable at the time in an arm's-length transaction with a Person
that is not such an Affiliate, EXCEPT that, notwithstanding the foregoing, each
of the following shall be permitted: (a) loans or advances to employees
permitted by Section 9.09(A)(d) and Dividend Payments permitted by Section 9.10;
(b) fees and compensation paid to, and customary indemnity and reimbursement
provided on behalf of, officers, directors and employees of any Company in the
ordinary course of business; (c) the SBCL Acquisition Agreement and each
agreement contemplated thereunder (including any registration rights agreement
or purchase agreement related thereto) as in effect on the Effective Date and
transactions and agreements in existence on the Effective Date and listed in
SCHEDULE 9.15 (as such agreements are in effect on the Effective Date, the
"EXISTING AFFILIATE AGREEMENTS")
-108-
and any amendment thereto that is not disadvantageous to the Lenders in any
material respect; (d) any employment agreements entered into by any Company in
the ordinary course of business; and (e) any Permitted Receivables Transaction.
9.16. LIMITATION ON ACCOUNTING CHANGES; LIMITATION ON INVESTMENT
COMPANY STATUS. No Company shall make or permit any change in (i) accounting
policies or reporting practices, except immaterial changes and except as
required by generally accepted accounting principles except that SBCL and any
other Person that becomes a Qualified Company after the Effective Date as a
result of a Permitted Acquisition may make such changes to conform to Borrower's
accounting principles and any Company may make accounting changes in connection
with the early adoption of pronouncements of the United States Financial
Accounting Standards Board or (ii) its fiscal year end (December 31 of each
year). No Obligor shall be or become an investment company subject to the
registration requirements under the United States Investment Company Act of
1940, as amended.
9.17. LIMITATION ON MODIFICATIONS OF CERTAIN DOCUMENTS, ETC. No Company
shall consent to any modification, supplement, waiver of, or termination of, or
amend, in any manner which could reasonably be expected to be materially adverse
to the Lenders, or result in a Material Adverse Change, any of the provisions of
any Organic Document, the SBCL Acquisition Agreement (or any agreement entered
into in connection therewith), any agreement or document relating to any
material Indebtedness or the Voting Cumulative Preferred Stock, or the
Supplemental Indenture.
9.18. INTEREST RATE PROTECTION AGREEMENTS. On or within 90 days after
the Closing Date, not less than 50% of the aggregate principal amount of then
outstanding Total Funded Indebtedness of the Companies (net of cash) shall be
either (x) fixed rate Indebtedness or (y) Indebtedness subject to Interest Rate
Protection Agreements having terms and with counterparties reasonably
satisfactory to Joint Lead Arrangers or (z) any combination of (x) and (y)
above.
9.19. LIMITATION ON CERTAIN RESTRICTIONS AFFECTING SUBSIDIARIES. No
Company shall, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any direct or indirect encumbrance or restriction on
the ability of any Subsidiary to (a) pay dividends or make any other
distributions on such Subsidiary's Equity Interests or any other interest or
participation in its profits owned by any Company, or pay any Indebtedness or
any other obligation owed to any Company, (b) make Investments in or to any
Company, or (c) transfer any of its Property to any Company, except that each of
the following shall be permitted: (i) any such encumbrances or restrictions
existing on the Effective Date and described on SCHEDULE 9.19 or existing under
or by reason of (w) any Organic Document of any Qualified Joint Venture, (x) any
Requirement of Law, (y) the Credit Documents or (z) the Existing Indenture or
the Unsecured Note Documents and any Permitted Refinancing of any thereof so
long as such restriction in such or such Permitted Refinancing is not more
disadvantageous to the Creditors or Borrower than the Existing Indenture or the
Unsecured Note Documents (as the case may be), (ii) restrictions on the transfer
of Property subject to a Permitted Lien, (iii) customary restrictions on
subletting or assignment of any lease governing a leasehold interest of any
Company, and (iv) restrictions on the transfer of any Property subject to a
Disposition permitted under this Agreement.
-109-
9.20. ADDITIONAL OBLIGORS. Upon any Company creating or acquiring any
Subsidiary after the Effective Date, such Company shall (i) cause each such
Subsidiary that is a Wholly Owned Subsidiary (excluding each Excluded Entity and
each Receivables Co.) to execute and deliver all such agreements, guarantees,
documents and certificates (including a Joinder Agreement and any amendments to
the Credit Documents) as Administrative Agent or the Majority Lenders may
reasonably request and do such other acts and things as Administrative Agent or
the Majority Lenders may reasonably request in order to have such Subsidiary
become a Guarantor, (ii) promptly, (I) execute and deliver to Administrative
Agent such amendments to the Security Documents as Administrative Agent deems
necessary or advisable in order to grant to Administrative Agent, for the
benefit of the Creditors, a perfected first priority security interest in the
Equity Interests and debt securities of such new Subsidiary which are owned by
any Company and required to be pledged pursuant to the Security Agreement (it
being understood that no Company shall be required to pledge Equity Interests of
any Foreign Subsidiary other than Equity Interests which do not comprise more
than 65% of the voting Equity Interests of each "first tier" Foreign
Subsidiary), (II) deliver to Administrative Agent the certificates representing
such Equity Interests and debt securities, together with (A) in the case of such
Equity Interests, undated stock powers endorsed in blank, and (B) in the case of
such debt securities, endorsed in blank, in each case executed and delivered by
a Responsible Officer of Borrower or such Subsidiary, as the case may be, (III)
cause such new Subsidiary (excluding each Excluded Entity and each Receivables
Co.) to take such actions necessary or advisable (including executing and
delivering a Joinder Agreement) to grant to Administrative Agent for the benefit
of the Creditors a perfected first priority security interest in the collateral
described in the Security Agreement with respect to such new Subsidiary,
including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Security Agreement or by law or as may
be reasonably requested by Administrative Agent, and (IV) deliver to
Administrative Agent all legal opinions reasonably requested relating to the
matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to Administrative Agent.
9.21. LIMITATION ON PAYMENTS OR PREPAYMENTS OF INDEBTEDNESS OR
MODIFICATION OF DEBT DOCUMENTS. No Company shall, directly or indirectly:
(a) make any payment or prepayment (optional or otherwise) on, or
redemption of, or any payments in redemption, defeasance or repurchase
(whether in cash, securities or other Property) of, the Unsecured Notes,
any Existing Notes, any Subordinated Debt or any Permitted Refinancing of
any of the foregoing, EXCEPT (1) regularly scheduled mandatory payments of
interest and any reasonable consent solicitation fees and consent payments
(including in connection with a tender offer therefor) on the Existing
Notes made in connection with any consent solicitation (or tender offer and
consent solicitation) that eliminates or modifies negative covenants
thereunder permitted in Borrower's reasonable judgment by the Existing
Indenture to be eliminated or modified through a supplemental indenture
thereto, (2) pursuant to or in connection with the Note Tender or the Note
Defeasance, (3) the conversion or exchange of any Indebtedness into shares
of common Equity Interests of Borrower, (4) the exchange of Unsecured Notes
for Exchange Notes, (5) in connection with any Permitted Refinancing
(including by tender offer therefor with the proceeds of the new
Indebtedness) of any of the foregoing and (6) repurchases of Existing Notes
not tendered in the Note Tender for a
-110-
purchase price not materially greater than that paid in the Note Tender up
to a maximum of $3.0 million;
(b) amend, supplement, waive or otherwise modify any of the material
provisions of any Unsecured Note Document or (other than in connection with
the Note Tender or the Note Defeasance) the Existing Indenture or the
Existing Notes (or any Permitted Refinancing of any thereof):
(i) which shortens the fixed maturity, or increases the rate or
shortens the time of payment of interest or dividends on, or increases
the amount or shortens the time of payment of any principal, or premium
payable whether at maturity, at a date fixed for prepayment or by
acceleration or otherwise of such Indebtedness, or increases the amount
of, or accelerates the time of payment of, any fees payable in
connection therewith;
(ii) which relates to the affirmative or negative covenants,
events of default, redemption or repurchase provisions, or remedies
under the documents or instruments evidencing such Indebtedness and the
effect of which is to subject any Obligor to any materially more
onerous or more restrictive provisions; or
(iii) if such Indebtedness is Subordinated Debt, which effects any
change to the subordination provisions (or related definitions) therein
or otherwise materially adversely affects the interests of the
Creditors as senior creditors or the interests of the Creditors under
any Credit Document in any respect; or
(c) in the event of the occurrence of a Change of Control, repurchase
any Unsecured Notes, Existing Notes, any Subordinated Debt or any Permitted
Refinancing of any thereof, unless Borrower shall have (i) made payment in
full of all Obligations and any other amounts then due and owing to each
Creditor hereunder and under any Note and cash collateralized the L/C
Liabilities on terms reasonably satisfactory to Administrative Agent or
(ii) made an offer to pay all Obligations and any amounts then due and
owing to each Creditor hereunder and under any Note and to cash
collateralize the L/C Liabilities in respect of each Lender and shall have
made payment in full thereof to each such Lender or Administrative Agent
which has accepted such offer and cash collateralized the L/C Liabilities
in respect of each such Lender which has accepted such offer; or
(d) effect any material change in any Unsecured Notes Indenture in
connection with an Exchange Offer or enter into an Exchange Indenture which
is different in any material respect from any Unsecured Notes Indenture in
connection with an Exchange Offer in each case unless the terms thereof are
reasonably acceptable to Agents and the Majority Lenders.
9.22. YEAR 2000 COMPLIANCE. Each Company will, on or prior to September
30, 1999, eliminate any significant risks that computer hardware, software or
any equipment containing embedded microchips used in their business or
operations will not in the case of dates or time periods occurring after
December 31, 1999 function, in the receipt, transmission, processing,
manipulation,
-111-
storage, retrieval, retransmission or other utilization of data, at least as
effectively as in the case of dates or time periods occurring prior to January
1, 2000, in any respect that would cause a Material Adverse Effect.
Section 10. EVENTS OF DEFAULT. If one or more of the following events
(herein called "EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) Borrower shall default in the payment when due (whether at
stated maturity upon prepayment or repayment or acceleration or otherwise)
of any principal of any Loan or Reimbursement Obligation, or (ii) Borrower
shall default in the payment when due of interest on any Loan or any
Reimbursement Obligation or any fee or any other amount payable by it
hereunder or under any other Credit Document when due and such default
under this clause (ii) shall have continued unremedied for three or more
Business Days; or
(b) (i) Any Company shall default in the payment when due of any
principal of or interest on any of its Indebtedness (other than the Loans)
aggregating $15.0 million or more, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created, after giving effect to any consents or waivers relating thereto
obtained before the expiration of any such period of grace; or (ii) any
Company fails to perform or observe any other term, condition or covenant,
or any other event shall occur or condition exist under any note,
agreement, indenture or other document evidencing or relating to any
Indebtedness aggregating $15.0 million or more if the effect of such event
(after giving effect to any consents or waivers relating thereto obtained
before the expiration of any such period of grace) is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (with or without notice or
passage of time or both), such 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
(c) Any representation or warranty made or deemed made in any Credit
Document (or in any modification or supplement thereto) by any Company or
in any certificate furnished to any Creditor pursuant to the provisions
thereof, shall prove to have been incorrect, false or misleading as of the
time made, deemed made or furnished in any material respect; or
(d) Any Obligor shall default in the performance of any of its material
obligations under any of Sections 9.01(f), 9.06 through 9.11, 9.15 or 9.17
through 9.19, 9.21 through 9.22; or Borrower shall default in the
performance of its obligations under Section 9.01(e) or (k) and such
default shall continue unremedied for at least five Business Days; or any
Obligor shall default in the performance of any of its other obligations in
this Agreement, the Security Documents or the L/C Documents and such
default shall continue unremedied for a period of at least thirty days
after written notice thereof to Borrower by Administrative Agent or the
Majority Lenders; or
(e) Any Company shall not, or shall admit in writing its inability to,
or be generally unable to, pay its debts as such debts become due (after
taking into account any applicable grace period); or
-112-
(f) Any Company shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee 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
or consents to any Insolvency Proceeding, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of debts, (v)
fail to controvert within 60 days or in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
Insolvency Proceeding, or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
(g) (i) Any Insolvency Proceeding is commenced or filed against any
Company, or any writ, judgment, warrant of attachment, execution or similar
process is issued or levied against any Company, and either (1) such
proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded, within 60 days after commencement, filing or levy
or (2) such proceeding shall not be actively contested by such Company;
(ii) any Company admits the material allegations of a petition against it
in any Insolvency Proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any Insolvency Proceeding; (iii) any
Company acquiesces in the appointment of a receiver, receiver and manager,
trustee, custodian, conservator, liquidator, mortgagee in possession (or
agent therefor), or other similar person for itself or a substantial
portion of its Property or business; or (iv) an order of relief against any
Company shall be entered in any Insolvency Proceeding; or
(h) A final judgment or judgments for the payment of money in excess of
$15.0 million in the aggregate (exclusive of judgment amounts to the extent
covered by insurance or indemnity payments) shall be rendered by one or
more courts, administrative tribunals or other bodies having jurisdiction
against any Company and the same shall not be discharged (or provision
which results in a stay of execution shall not be made for such discharge),
vacated or bonded pending appeal, or a stay of execution thereof shall not
be procured, within 60 days from the date of entry thereof and such Company
shall not, within said period of 60 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 ERISA Event or noncompliance with respect to Foreign Plans shall
have occurred that when taken together with all other ERISA Events and
noncompliance with respect to Foreign Plans that have occurred, is
reasonably likely to result in liability of any Company in an aggregate
amount exceeding $20.0 million; or
(j) Any Change of Control shall occur; or
(k) Any Security Document after delivery thereof by any Obligor at any
time shall cease to be in full force and effect, or ceases (other than
pursuant to the terms hereof and thereof) to give Administrative Agent the
Liens, rights, powers and privileges purported to be created thereby, in
favor of Administrative Agent on behalf of the Creditors, superior to and
prior to the rights of all third Persons other than the holders of Prior
Liens and subject to no
-113-
other Liens except as expressly permitted by the applicable Security
Document, or any judgment creditor having a Lien against any Collateral
commences legal action to foreclose such Lien or otherwise exercise its
remedies against any Collateral or any Company fails to comply with or to
perform any material obligation or agreement under any Security Document
within ten days after being requested by Administrative Agent or any
Lender; or
(l) Any Guarantee ceases to be in full force and effect (other than in
connection with the release thereof authorized by Section 9.06) or any of
the Guarantors repudiates, or attempts to repudiate, any of its obligation
under any of the Guarantees; or
(m) Any Credit Document or any material provision thereof shall at any
time and for any reason be declared by a court of competent jurisdiction to
be null and void, or a Proceeding shall be commenced by any Company or any
other Person, or by any Governmental Authority, seeking to establish the
invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or any Company shall repudiate or
deny in writing that it has any liability or obligation for the payment of
principal or interest or other obligations purported to be created under
any Credit Document; or
(n) Any non-monetary judgment, order or decree is entered against any
Company which does or would reasonably be likely to have a Material Adverse
Effect, and there shall be any period of 45 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(o) The SBCL Acquisition shall not be consummated in all material
respects in accordance with this Agreement and the SBCL Acquisition
Agreement substantially concurrently with the making of the initial
extensions of credit hereunder or the SBCL Acquisition shall be unwound,
reversed or otherwise rescinded in whole or in any material part for any
reason; or
(p) The subordinated provisions relating to any Subordinated Debt (the
"SUBORDINATION PROVISIONS") shall fail in any material respect to be
enforceable by the Lenders (which have not effectively waived the benefits
thereof) in accordance with the terms thereof, or any Obligation shall fail
to constitute Senior Indebtedness (as defined in any Subordinated Debt), or
any Obligor shall, directly or indirectly, disavow or contest in any manner
any of the Subordination Provisions; or
(q) Any event or circumstance shall occur which permits or requires the
Persons purchasing, or financing the purchase of, Accounts under a
Permitted Receivables Transaction to stop so purchasing or financing such
Accounts, other than by reason of the occurrence of the stated expiry date
of such Permitted Receivables Transaction or the voluntary termination
thereof by Borrower; PROVIDED that any notices or cure periods that are
conditions to the rights of such Persons to stop purchasing, or financing
the purchase of, such Accounts have been given or have expired, as the case
may be; or
-114-
(r) Any Obligor shall default in payment on any Swap Contracts if such
defaults in payment shall be in excess of $15.0 million in the aggregate;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (e), (f) or (g) of this Section 10 with respect to Borrower,
Administrative Agent may, and upon written direction of the Majority Lenders
shall, by notice to Borrower, terminate the Commitments and/or declare the
principal amount then outstanding of, and the accrued interest on, the Loans,
the Reimbursement Obligations and all other amounts payable by Borrower
hereunder and under the Notes (including any amounts payable under Section 5.05
or 5.06) to be forthwith due and payable, 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 Borrower,
reduce any claim to judgment, take any other action permitted by law and/or take
any action permitted to be taken by the Security Documents during the existence
of an Event of Default; and (2) in the case of the occurrence of an Event of
Default referred to in clause (e), (f) or (g) of this Section 10 with respect to
Borrower, the Commitments shall automatically be terminated and the principal
amount then outstanding of, and the accrued interest on, the Loans, the
Reimbursement Obligations and all other amounts payable by Borrower hereunder
and under the Notes (including any amounts payable under Section 5.05 or 5.06)
shall automatically become immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by each Obligor.
In addition, Borrower agrees, upon the occurrence and during the
continuance of any Event of Default if Administrative Agent has declared the
principal amount then outstanding of, and accrued interest on, the Revolving
Loans, and all other amounts payable to the Revolving Lenders hereunder and
under the Notes evidencing such Loans to be due and payable, it may and shall,
if requested by the Majority Revolving Lenders through Administrative Agent
(and, in the case of any Event of Default referred to in clause (e), (f) or (g)
of this Section 10 with respect to Borrower, forthwith, without any demand or
the taking of any other action by Administrative Agent or such Lenders) provide
cover for the L/C Liabilities by paying to 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 Administrative Agent in the
Collateral Account as collateral security in the first instance for the L/C
Liabilities and be subject to withdrawal only as provided in the Security
Agreement.
Section 11. AGENTS.
11.01. GENERAL PROVISIONS. Each of the Lenders, Agents and L/C Lender
hereby irrevocably appoints Administrative Agent as its agent and authorizes
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to Administrative Agent by the terms hereof and the
Security Documents, together with such actions and powers as are reasonably
incidental thereto. Administrative Agent agrees to give promptly to each Lender
a copy of each notice or other document received by it pursuant to any Credit
Document (other than any that are required to be delivered to the Lenders by any
Obligor).
The Lender or other financial institution serving as any Agent or L/C
Lender hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and
-115-
may exercise the same as though it were not such Agent or L/C Lender, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with any Company or other Affiliate thereof as if
it were not such Agent or L/C Lender hereunder.
No Agent or L/C Lender shall have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) no Agent or L/C Lender shall be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) no Agent or L/C Lender shall have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that such Agent or L/C Lender is required to
exercise in writing by the Majority Lenders (or such other number or percentage
of the Lenders as shall be required by Section 12.04), and (c) except as
expressly set forth herein, no Agent or L/C Lender shall have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to any Company that is communicated to or obtained by the financial
institution serving as such Agent or L/C Lender or any of its Affiliates in any
capacity. No Agent or L/C Lender shall be liable for any action taken or not
taken by it with the consent or at the request of the Majority Lenders (or such
other number or percentage of the Lenders as shall be required by Section 12.04)
or in the absence of its own gross negligence or willful misconduct. No Agent
shall be deemed to have knowledge of any Default unless and until written notice
thereof is given to Administrative Agent and such Agent by Borrower or a Lender,
and no Agent or L/C Lender shall be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Credit Document, (ii) the contents of any certificate,
report or other document delivered under any Credit Document or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Credit Document, (iv)
the validity, enforceability, effectiveness or genuineness of any Credit
Document or any other agreement, instrument or document, (v) the satisfaction of
any condition set forth in Section 7 or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to such Agent or (vi) making
a determination that any condition precedent set forth in Section 7 that is to
be to such Agent's satisfaction is satisfied.
Each Agent and L/C Lender shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent and L/C Lender
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. Each Agent and L/C Lender may consult with legal counsel (who
may be counsel for Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts. Each
Agent and L/C Lender may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with such Agent or L/C Lender. Each Agent
and L/C Lender shall be fully justified in failing or refusing to take any
action under any Credit Document unless it shall first receive such advice or
concurrence of the Majority Lenders (or, if so specified by this Agreement, all
Lenders or such other number or percentage of the Lenders as shall be required
by Section 12.04) as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action
(it being understood that this
-116-
provision shall not release Administrative Agent from performing any action with
respect to Borrower expressly required to be performed by it pursuant to the
terms hereof) under this Agreement. Each Agent and L/C Lender shall in all cases
be fully protected in acting, or in refraining from acting, under the Credit
Documents in accordance with a request of the Majority Lenders (or, if so
specified by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
Each Agent and L/C Lender may perform any and all of its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by such Agent or L/C Lender and reasonably acceptable to Borrower.
Each Agent, L/C Lender and any such sub-agent may perform any and all of its
duties and exercise its rights and powers through their respective Affiliates,
directors, officers, employees, agents and advisors ("RELATED PARTIES"). The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and L/C Lender and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
of such Agent or L/C Lender.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, any Agent may resign at any time by notifying the
Lenders, L/C Lender (with respect to Administrative Agent only) and Borrower.
Upon any such resignation, the Majority Lenders shall have the right to appoint
a successor which, so long as no Event of Default is continuing, shall be
reasonably acceptable to Borrower. If no successor shall have been so appointed
by the Majority Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders and L/C Lender, appoint a successor Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank which, so long as no Event of Default is continuing, shall be
reasonably acceptable to Borrower. Upon the acceptance of its appointment as
Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. The fees payable by Borrower to a successor Agent shall be the same
as those payable to its predecessor unless otherwise agreed between Borrower and
such successor. After Agent's resignation hereunder, the provisions of this
Section 11 shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while it was acting as such Agent.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent, L/C Lender or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent,
L/C Lender or any other Lender and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Agreement, any related
agreement or any document furnished hereunder or thereunder. No Agent or L/C
Lender shall be deemed a trustee or other fiduciary on behalf of any party.
-117-
11.02. INDEMNIFICATION. Each Lender agrees to indemnify and hold
harmless each Agent and L/C Lender (to the extent not reimbursed under Section
12.03, but without limiting the obligations of any Obligor under Section 12.03),
ratably in accordance with the aggregate principal amount of the respective
Commitments of and/or Loans and Reimbursement Obligations held by the Lenders
(or, if all of the Commitments shall have been terminated or expired, ratably in
accordance with the aggregate outstanding amount of the Loans and Reimbursement
Obligations held by the Lenders), for any and all liabilities (including
pursuant to any Environmental Law), obligations, losses, damages, penalties,
actions, judgments, deficiencies, suits, costs, expenses (including reasonable
attorney's fees) or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against such Agent or L/C Lender (including
by any Lender) arising out of or by reason of any investigation in or in any way
relating to or arising out of any Credit Document or any other documents
contemplated by or referred to therein for any action taken or omitted to be
taken by such Agent or L/C Lender under or in respect of any Credit Document or
other such documents or the transactions contemplated thereby (including the
costs and expenses that the Obligors are obligated to pay under Section 12.03,
and including also any payments under any indemnity granted pursuant to Section
18 of the Security Agreement, or to any Financial Intermediary referred to in
Section 9 of the Security Agreement to which remittances in respect of
Receivables, as defined in the Security Agreement, 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, HOWEVER, that (1) no Lender shall be liable for any of the
foregoing to the extent resulting from the gross negligence, bad faith or
willful misconduct of the party to be indemnified and (2) no Lender shall be
liable for any of the foregoing to the extent resulting from the failure of any
other Lender to fund its participation in any Swing Loan or Letter of Credit.
The agreements set forth in this Section 11.02 shall survive the payment of all
Loans and other obligations hereunder and shall be in addition to and not in
lieu of any other indemnification agreements contained in any other Credit
Document.
11.03. CONSENTS UNDER OTHER CREDIT DOCUMENTS. Except as otherwise
provided in the Credit Documents, 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 other Credit Documents.
11.04. COLLATERAL SUB-AGENTS. Each Lender by its execution and delivery
of this Agreement agrees, as contemplated by Section 9(g) of the Security
Agreement, that, in the event it shall hold any Cash Equivalents referred to
therein, upon the written request of Administrative Agent following the
occurrence of an Event of Default and the execution and delivery by
Administrative Agent, such Lender and the applicable Obligor of a mutually
acceptable control agreement with respect to such Cash Equivalents (it being
understood that no Lender is obligated to enter into any such control agreement)
such Cash Equivalents shall be held in the name and under the control of such
Lender, and such Lender shall hold such Cash Equivalents as a collateral
sub-agent for Administrative Agent thereunder. Each Obligor by its execution and
delivery of this Agreement hereby consents to the foregoing. In such event, such
Lender acting in the capacity of such a sub-agent shall be afforded all
protections set forth in Section 11 as if acting as Administrative Agent with
respect to such holdings. Notwithstanding anything in this Agreement or any
other Credit Document to the contrary, except, as set forth in Section 4.07
hereof, no Lender (other than Administrative Agent acting in such
-118-
capacity) which is acting as a Financial Intermediary (as defined in the
Security Agreement) with respect to any Financial Account Collateral (as defined
in the Security Agreement) shall have any duty or obligation (whether express or
implied) to the other Lenders in respect of such Financial Account Collateral or
the disposition thereof unless such Lender, Administrative Agent and the
applicable Obligor have entered into a Financial Account Consent Agreement (as
defined in the Security Agreement) or other control or similar agreement with
respect to such Financial Account Collateral (it being understood that no Lender
shall have any obligation to enter into any such agreement).
Section 12. MISCELLANEOUS.
12.01. WAIVER. No failure on the part of any Creditor to exercise and
no delay in exercising, and no course of dealing with respect to, any right,
power or privilege under any Credit Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege under
any Credit Document 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. All notices, requests and other communications provided
for herein and under the Security Documents (including any modifications of, or
waivers, requests or consents under, this Agreement) shall be given or made in
writing (including by facsimile) delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof (or
any Guarantor, as so specified for Borrower) 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 facsimile and confirmation of
receipt is received or personally delivered or, in the case of a mailed notice,
upon receipt, in each case given or addressed as aforesaid. Any Notice of
Borrowing or Notice of Continuation/Conversion shall be deemed to have been
received when actually received.
12.03. EXPENSES, INDEMNIFICATION, ETC. (a) The Obligors, jointly and
severally, agree to pay or reimburse:
(i) Agents for all reasonable out-of-pocket costs and expenses
(including the reasonable fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx or
other counsel to Agents selected by Agents (and all local counsel deemed
reasonably necessary by Agents)) in connection with (1) the negotiation,
preparation, execution and delivery of the Credit Documents and the
extension and syndication of credit hereunder, (2) the negotiation or
preparation of any modification, supplement or waiver of any of the terms
of any Credit Document (whether or not consummated or effective) and (3)
the syndication of the Loans and Commitments;
(ii) each Creditor for all reasonable out-of-pocket costs and expenses
of such Creditor (including the reasonable fees and expenses of legal
counsel, including the cost of internal counsel) in connection with (1) any
enforcement or collection proceedings resulting from any Default, including
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
-119-
proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated), (2) the enforcement of this Section
12.03 and (3) any documentary taxes; and
(iii) Administrative Agent for all reasonable costs, expenses, taxes,
assessments and other charges (including reasonable fees and disbursements
of counsel) incurred in connection with any filing, registration, recording
or perfection of any security interest contemplated by any Credit Document
or any other document referred to therein.
(b) The Obligors, jointly and severally, hereby agree to indemnify each
Creditor and their respective Affiliates, directors, trustees, officers,
employees and agents (each, an "INDEMNITEE") from, and hold each of them
harmless against, and that no Indemnitee will have any liability for, any and
all Losses incurred by any of them (including any and all Losses incurred by any
Agent or L/C Lender to any Lender, whether or not any Creditor is a party
thereto) directly or indirectly arising out of or by reason of or relating to
the negotiation, execution, delivery, performance, administration or enforcement
of any Credit Document, any of the transactions contemplated by the Credit
Documents (including the Transactions), any breach by any Company, as
applicable, of any representation, warranty, covenant or other agreement
contained in any Credit Document in connection with any of the Transactions, the
use or proposed use of any of the Loans or Letters of Credit, the issuance of or
performance under any Letter of Credit or the use of any collateral security for
the Loans (including the exercise by any Creditor of the rights and remedies or
any power of attorney with respect thereto and any action or inaction in respect
thereof), including all amounts payable by any Lender pursuant to Section 11.02,
but excluding any such Losses to the extent arising from the gross negligence,
bad faith or willful misconduct of the Indemnitee.
Without limiting the generality of the foregoing, the Obligors, jointly
and severally, will indemnify each Creditor and each other Indemnitee from, and
hold each Creditor and each other Indemnitee harmless against, any Losses
described in the preceding sentence arising under any Environmental Law as a
result of (A) the past, present or future operations of any Company (or any
predecessor in interest to any Company), (B) the past, present or future
condition of any site or facility owned, operated, leased or used at any time by
any Company (or any such predecessor in interest), or (C) any Release or
threatened Release of any Hazardous Materials at, on, under or from any such
site or facility (x) owned or operated by any Company (or any predecessor in
interest to any Company) or (y) at which any Company (or any such predecessor in
interest) is subject to liability under any Environmental Law, including any
such Release or threatened Release that shall occur during any period when any
Creditor shall be in possession of any such site or facility following the
exercise by such Creditor of any of its rights and remedies hereunder or under
any of the Security Documents; PROVIDED, HOWEVER, that the indemnity hereunder
shall be subject to the exclusions from indemnification set forth in the
preceding sentence.
To the extent that the undertaking to indemnify and hold harmless set
forth in this Section 12.03 or any other provision of any Credit Document
providing for indemnification is unenforceable because it is violative of any
law or public policy or otherwise, the Obligors, jointly and severally, shall
contribute the maximum portion that each of them is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by any of the Persons indemnified hereunder.
-120-
The Obligors also agree that no Indemnitee shall have any liability
(whether direct or indirect, in contract or tort or otherwise) for any Losses to
any Obligor or any Obligor's security holders or creditors resulting from,
arising out of, in any way related to or by reason of any matter referred to in
any indemnification or expense reimbursement provisions set forth in any Credit
Document, except to the extent that any Loss is determined by a court of
competent jurisdiction in a final nonappealable judgment to have resulted from
the gross negligence, bad faith or willful misconduct of such Indemnitee.
The Obligors agree that, without the prior written consent of
Administrative Agent, Syndication Agent and the Majority Lenders which consent
shall not be unreasonably withheld, no Obligor will settle, compromise or
consent to the entry of any judgment in any pending or threatened Proceeding in
respect of which indemnification is reasonably likely to be sought under the
indemnification provisions of this Section 12.03 (whether or not any Indemnitee
is an actual or potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional written release of each
Indemnitee from all liability arising out of such Proceeding and does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnitee and does not involve any payment of money or
other value by any Indemnitee or any injunctive relief or factual findings or
stipulations binding on any Indemnitee.
Without prejudice to the survival of any other agreement of the
Obligors hereunder, the agreement and obligations of the Obligors contained in
this Section 12.03 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
12.04. AMENDMENTS, ETC. (i) No provision of any Credit Document may be
amended, modified or supplemented except by an instrument in writing signed by
the Obligors party thereto and the Majority Lenders, or by the Obligors party
thereto and Administrative Agent acting with the written consent of the Majority
Lenders, and no provision of any Credit Document may be waived except by an
instrument in writing signed by the Obligors party thereto and the Majority
Lenders, or by the Obligors party thereto and Administrative Agent acting with
the written consent of the Majority Lenders; PROVIDED, HOWEVER, that:
(a) no amendment, modification, supplement or waiver shall, unless by
an instrument signed by each Lender or by Administrative Agent acting with
the written consent of each Lender (other than any Lender that is, at such
time, a Defaulting Lender) (with the consent of Lenders (including any
Lender that is, at such time, a Defaulting Lender) having Obligations
directly affected thereby in the case of clauses (I), (II) or (IV) (it
being understood that the consent of no other Lender or Agent is needed in
each such case)): (I) extend the scheduled final maturity of any Loan or
Note, or extend the expiration date of any Letter of Credit beyond the R/C
Termination Date, or reduce the rate of interest (other than any waiver of
any increase in the interest rate applicable to any of the Loans pursuant
to clause (b) of Section 3.02) or fees thereon, or extend the time of
payment of interest or fees thereon (other than in connection with the
extension of any scheduled payment hereunder otherwise permitted hereby),
or reduce the principal amount thereof, or make any change to the
definition of Applicable Margin or Applicable Revolving Credit Fee
Percentage (or SCHEDULE 1.01(a), (b) or (c)) or any defined term used
therein in the context of being used therein in each case if the
-121-
effect thereof would be to reduce the rate of interest or any fee
applicable to any Loan or Commitment from that previously in effect (it
being understood that any increase in the rate of interest or fee
applicable to any Loan or Commitment only requires the consent of the
Majority Lenders), or, subject to Section 12.04(iv), make any change to the
last sentence of the first paragraph of Section 2.09, or reduce the
Reimbursement Obligation in respect of any Letter of Credit, (II) extend
the final maturity of any of the Commitments (or reinstate any Commitment
terminated pursuant to Section 10) or amend Section 2.04(a), (III) change
the currency in which any Obligation is payable, (IV) amend the terms of
this Section 12.04 or clause (iv) of Section 12.06(b), Section 4.07, 5 or
11.03, (V) reduce the percentages specified in the definition of the term
"Majority Lenders" or "Supermajority Lenders" or amend or waive any
provision of any Credit Document requiring the consent of all the Lenders
or reduce any other percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision
hereof, (VI) release any Guarantor from its obligations under Section 6
(unless permitted by this Agreement), (VII) consent to the assignment or
transfer by any Obligor of any of its rights and obligations under any
Credit Document except in a transaction permitted by Section 9.06, (VIII)
release all or substantially all the Collateral or terminate the Lien under
any Credit Document in respect of all or substantially all the Collateral
(except as permitted by the Credit Documents) or agree to additional
obligations (other than the Obligations and any other extensions of credit
under this Agreement consented to by the Majority Lenders) being secured by
the Collateral, (IX) amend Section 12.03 or any other indemnification and
expense reimbursement provision set forth in any Credit Document in any
manner adverse to any Creditor or (X) provide for Interest Periods with a
longer period than the then longest available Interest Period;
(b) no such amendment or waiver shall increase the Commitments of any
Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that amendments or waivers of conditions
precedent, covenants or Defaults shall not constitute an increase of the
Commitment of any Lender);
(c) any modification or supplement of or waiver with respect to Section
11 which affects any Agent in its capacity as such shall require the
consent of such Agent;
(d) no consent of any Lender need be obtained, and Administrative Agent
is hereby authorized, to release any Lien securing the Obligations on
Property which is the subject of any disposition permitted by the Credit
Documents and to release any Guarantee of a Subsidiary upon the sale of all
of the Equity Interests of such Subsidiary in accordance with the Credit
Documents;
(e) subject to clause (a)(I) above of this proviso to this Section
12.04(i), the consent of all of the Lenders of the affected Term Facility
(but no other Lender or Agent) shall be required with respect to any
extension of any scheduled Amortization Payment or any reduction in the
amount of any scheduled Amortization Payment (except in accordance with
Section 2.09 or Section 2.10);
-122-
(f) no modification, supplement or waiver shall, unless by an
instrument signed by the Supermajority Lenders of the Affected Class or by
Administrative Agent acting with the written consent of the Supermajority
Lenders of the Affected Class (it being understood that the consent of no
other Lender or Agent is needed), change the timing of the receipt or the
application of prepayments required by Section 2.10 among the Loans under
the several Term Facilities or the order in which any such prepayment is
applied to the Loans under any Term Facility;
(g) no reduction of the percentage specified in the definition of
"Majority Revolving Lenders," shall be made without the consent of each
Revolving Lender (other than any Lender that is, at such time, a Defaulting
Lender) (it being understood, that no consent of any other Lender or Agent
is needed);
(h) no reduction of the percentage specified in the definition of
"Supermajority Lenders of the Affected Class" shall be made without the
consent of each Term Loan Lender (it being understood, that no consent of
any other Lender or Agent is needed);
(i) no amendment or waiver shall affect the rights or duties of L/C
Lender in its capacity as such or alter the obligation of any Revolving
Lender pursuant to Section 2.03(e) or 2.03(f) without the consent of L/C
Lender;
(j) no consent of any Lender need be obtained to effect any amendment
of any Credit Document necessary to comply with Section 9.12 or Section
9.20;
(k) subject to Section 12.04(iv), no amendment or waiver of the second
paragraph of Section 2.09 or the second sentence of Section 2.10(b)(i) may
be made without the consent of the Lenders having at least 66 2/3% of the
Commitments or Loans of the Term B Facility or Term C Facility affected
thereby;
(l) no amendment, modification, supplement or waiver may be made to any
condition precedent to any extension of credit under the Revolving Facility
set forth in subsection 7.03 without the written consent of the Majority
Revolving Lenders, it being understood that no amendment to or waiver of
any representation or warranty or any covenant contained in any Credit
Document, or of any Default, shall be deemed to be effective for purposes
of determining whether the conditions precedent set forth in subsection
7.03 to the making of any extension of credit under the Revolving Loans
have been satisfied unless the Majority Revolving Lenders shall have
consented to such amendment or waiver;
(m) so long as any Term A Facility Loans, Revolving Loans, Swing Loans
or L/C Liabilities are outstanding or any Revolving Commitments are in
effect, the date then in effect for any scheduled Amortization Payment of
the Term B Facility Loans or the Term C Facility Loans may not be made
earlier than the date then in effect and the then applicable amount of any
such Amortization Payment (other than the last Amortization Payment
thereon) may not be increased without the consent of the Lenders holding a
majority of the sum of the Revolving Loans, L/C Liabilities, Unutilized
Revolving Commitments then in effect, Swing Loans
-123-
and Term A Facility Loans (such Lenders holding such credit exposure, the
"MAJORITY PRO RATA LENDERS") then outstanding;
(n) so long as any Term A Facility Loans, Revolving Loans, Swing Loans
or L/C Liabilities are outstanding or any Revolving Commitments are in
effect or any Term B Facility Loans are outstanding, the date then in
effect for any scheduled Amortization Payment of the Term C Facility Loans
may not be made earlier than the date then in effect and the then
applicable amount of any such Amortization Payment (other than the last
Amortization Payment thereon) may not be increased without the consent of
the Majority Pro Rata Lenders (if any such extension of credit under the
Revolving Facility or Term A Facility Loans are outstanding or any
Revolving Commitments are in effect) and the consent of the Lenders holding
a majority of the Term B Facility Loans then outstanding;
(o) no amendments or waiver shall make any change to Section 2.01(g) or
the definitions of "Swing Loan Commitment," "R/C Termination Date" or
"Swing Loans" or the "Swing Loan Notes" without the consent of the Swing
Loan Lender; and
(p) no change shall be made to Section 2.10(b) that provides for the
Revolving Loans being repaid (or L/C Obligations being cash collateralized)
or Revolving Commitments being reduced prior to the time that no Term Loans
are outstanding with the Net Available Proceeds of any transaction or event
that pursuant to Section 2.10(a)(i) or Section 2.10(a)(iv) would otherwise
require prepayment of Term Loans without the consent of the Lenders holding
at least a majority of the sum of the aggregate amount of the Term B
Facility Loans and Term C Facility Loans (such Lenders of the Term B
Facility Loans and Term C Facility Loans voting together as one class) then
outstanding (it being understood that the consent of no other Lender or
Agent need be obtained).
(ii) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
Section 12.04(i)(a) (other than clause (I) of such section), the consent of the
Majority Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then Borrower shall have the
right to replace one or more of such non-consenting Lender or Lenders (so long
as all non-consenting Lenders are so replaced) with one or more Replacement
Lenders pursuant to Section 2.11 so long as at the time of such replacement each
such Replacement Lender consents to the proposed change, waiver, discharge or
termination; PROVIDED, HOWEVER, that Borrower shall not have the right to
replace a Lender solely as a result of the exercise of such Lender's rights (and
the withholding of any required consent by such Lender) pursuant to clause (I)
of Section 12.04(i)(a).
(iii) Notwithstanding anything herein to the contrary, (A) with the
consent of the Majority Lenders, other additional extensions of credit pursuant
to this Agreement may be included in the determination of the Majority Lenders,
Supermajority Lenders, Majority Revolving Lenders and Supermajority Lenders of
the Affected Class without notice to or consent of any other Lender or Agent on
substantially the same basis as the Commitments (and related extensions of
credit) are included on the Effective Date, and (B) it is agreed and understood
that, subject to clause (f) of Section
-124-
12.04(i), any prepayment required by Section 2.10 (and any corresponding
reduction of the Revolving Commitments) may be modified, supplemented or waived
by the Majority Lenders.
(iv) Notwithstanding anything herein to the contrary, upon any
additional extensions of credit under this Agreement being approved by the
written consent of the Majority Lenders, Joint Lead Arrangers, Administrative
Agent and the Obligors are hereby authorized to effect amendments (without
notice to or the consent of any other Lender or Agent) to (i) Sections 1.01 and
1.03 for the purpose of including such appropriate defined terms as may be
necessary and apply to such additional extensions of credit being incorporated
into this Agreement to identify it as a separate Class of Loans (and within the
definition of "Commitments", "Loans", etc.) hereunder (if necessary), and to
include it in the various defined terms relating to required percentages of
outstanding extensions of credit hereunder for purposes of amendments and
waivers to the Credit Documents (e.g., "Majority Lenders", "Supermajority
Lenders") so long as treated on substantially the same terms as other Classes of
Loans are then treated (or with respect to "Supermajority Lenders of the
Affected Class", the Term Facilities); (ii) Section 2.08 to effect conforming
changes to reflect such new Class; (iii) Section 2.09 to treat any such new
Class that is a term extension of credit on substantially the same terms as the
Term Facilities are then treated (including, for any new Class held by lenders
similar to the Lenders of the Term B Facility or Term C Facility, the provisions
of the second paragraph of Section 2.09) (it being understood that the order of
application of optional prepayments to amortization payments for such new Class
shall be as agreed between the Obligors and the lenders extending such new
credit in their sole discretion) and to treat any such new Class that is a
revolving facility on substantially the same terms as the Revolving Facility is
then treated; (iv) Section 2.10(b) to treat any such new Class that is a term
extension of credit on substantially the same terms as the Term Facilities are
then treated (including, for any new Class held by lenders similar to the
Lenders of the Term B Facility or Term C Facility, the provisions of the last
sentence of Section 2.10(b)(i)) (it being understood that the order of
application of mandatory prepayments to amortization payments for such new Class
shall be as agreed between the Obligors and the lenders extending such new
credit in their sole discretion) and to treat any such new Class that is a
revolving facility on substantially the same terms as the Revolving Facility is
then treated; and (v) Section 3.01(b)(1) to provide for the amortization for
such new Class of Loans as provided for by the lenders thereof and the Obligors
in their sole discretion so long as approved by the Majority Lenders.
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 its
respective rights or obligations hereunder or under the Notes or any other
Credit Document without the prior written consent of all of the Lenders.
(b) Each Lender may assign (which may be non-PRO RATA among Loans and
Commitments) to any Eligible Person any of its Loans, its Notes, its L/C
Interests and its Commitments (but only with the consent (which shall not be
unreasonably withheld, delayed or conditioned) of Borrower, Joint Lead
Arrangers, Administrative Agent and, in the case of the Revolving Commitment,
L/C Lender); PROVIDED, HOWEVER, that (i) no such consent shall be required in
the case of any assignment to another Lender or any Lender's Affiliate or an
Approved Fund of any Lender (in which case,
-125-
the assignee and assignor Lenders shall give notice of the assignment to
Borrower, Joint Lead Arrangers and Administrative Agent); (ii) no consent of
Borrower need be obtained if any Event of Default shall have occurred and be
continuing or if Joint Lead Arrangers, in consultation with Borrower, determine
that such assignment is necessary to achieve a successful syndication; (iii)
each assignment, other than to a Lender or any Lender's Affiliate or an Approved
Fund of any Lender and other than any assignment effected by either Joint Lead
Arranger or any of their respective Affiliates in connection with the
syndication of the Commitments and/or Loans or otherwise, shall not reduce the
assignor's aggregate Loans and Commitments to below $5.0 million (unless reduced
to $0 or unless Borrower and Joint Lead Arrangers otherwise consent) and shall
be in an aggregate amount of at least $1.0 million (unless the assignor's Loans
and Commitments are reduced to $0 or unless Borrower and Joint Lead Arrangers
otherwise consent); and (iv) in no event may any such assignment be made to any
Obligor or any of its Affiliates without consent of all Lenders. Any assignment
of a Loan shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of a Loan shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such
Loan (if a Note was issued in respect thereof), accompanied by an instrument in
writing substantially in the form of EXHIBIT F, and upon consent thereto by
Borrower, Joint Lead Arrangers and L/C Lender to the extent required above (none
of which consents to be unreasonably withheld, delayed, or conditioned), one or
more new Notes (if requested by the New Lender) in the same aggregate principal
amount shall be issued to the designated assignee (or its nominee) and the old
Notes shall be returned by Administrative Agent to Borrower marked "cancelled".
Upon execution and delivery by the assignee to Borrower, Joint Lead Arrangers
and the L/C Lender to the extent required above of an instrument in writing
substantially in the form of EXHIBIT F, and upon consent thereto by Borrower,
Joint Lead Arrangers and L/C Lender to the extent required above (none of which
consents to be unreasonably withheld, delayed, or conditioned), and in the case
of a Loan, upon appropriate entries being made in the Register the assignee
shall have, to the extent of such assignment (unless otherwise provided in such
assignment with the consent of Administrative Agent), the obligations, rights
and benefits of a Lender hereunder holding the Commitment(s), Loans (or portions
thereof) and L/C Interests assigned to it (in addition to the Commitment(s), L/C
Interests and Loans, 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 any such assignment
(other than to a Lender or any Affiliate of a Lender or any Approved Fund and
other than any assignment by either Joint Lead Arranger or any of their
respective Affiliates) the assignee Lender shall pay a fee of $3,500 to
Administrative Agent. Upon any such assignment, certain rights and obligations
of the assigning Lender shall survive as set forth in Section 12.07. Each
assignment shall be made pursuant to an agreement substantially in the form of
EXHIBIT L.
(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 and L/C Interests 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 5 (PROVIDED, HOWEVER, that no Participant shall be entitled to receive
any greater amount pursuant to Section 5 than the transferor Lender would have
been entitled to receive in respect of the participation effected by such
transferor Lender had no participation occurred) with respect to its
participation in such Loans, L/C Interests and Commitments as if such
Participant were a "Lender" for purposes of said Section, but, except as
otherwise provided in Section 4.07(c), shall not have any
-126-
other rights or benefits under any Credit 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 Borrower to any Lender under Section 5 in respect of Loans, L/C
Interests and its Commitments shall be no greater than the amount that would
have applied if such Lender had not sold or agreed to sell any participation in
such Loans, L/C Interests and Commitments, and as if such Lender were funding
each of such Loan, L/C Interests and Commitments in the same way that it is
funding the portion of such Loan, L/C Interests 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 Credit Document, except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to any modification or amendment set forth in subclauses (I),
(II), (III) or (VIII) of clause (a) of the proviso to Section 12.04(i) to the
extent such Lender's consent is required therefor. Concurrently with the sale of
a participation, such Lender shall cause a participant to agree (for the benefit
of the Lender, Administrative Agent and the Obligor) that it will deliver the
tax forms and other forms required to be delivered pursuant to Section 5.06(b)
and comply from time to time with all applicable laws and regulations with
respect to withholding tax exemptions.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 12.06, any Lender may assign and pledge
all or any portion of its Loans and its Notes to any United States Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank and, in the case of a Lender that is a fund that
invests in bank loans, any such Lender may assign or pledge all or any portion
of its Loans and its Notes to any holders of obligations owed, or securities
issued, by such fund, as security for such obligations or securities, or to any
trustee for, or any other representative of, such holders, without notice to or
consent of Borrower, Administrative Agent, Joint Lead Arrangers or L/C Lender.
Any transfer as a result of the foreclosure on such pledge shall be subject to
Section 12.06(b). No such assignment shall release the assigning Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning any Company in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants) subject, however, to and so
long as the recipient agrees to be bound by the provisions of Section 12.11. In
addition, each Agent may furnish any information concerning any Obligor or any
of its Affiliates in such Agent's possession to any Affiliate of such Agent,
subject, however, to the provisions of Section 12.11. The Obligors shall assist
any Lender in effectuating any assignment pursuant to this Section 12.06
(including during syndication) in whatever manner such Lender reasonably deems
necessary, including participation in meetings with prospective transferees.
12.07. SURVIVAL. The obligations of the Obligors under Sections 5.01,
5.05, 5.06 and 12.03, the obligations of each Guarantor under Section 6.03, and
the obligations of the Lenders under Sections 5.06 and 11.02, 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 L/C Interest hereunder, shall (to the extent relating to
such time as it was a Lender) 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
-127-
be made by a notice of any extension of credit, herein or pursuant hereto shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the Notes and the
making of any extension of credit hereunder, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that
Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty and regardless of whether any
such representation or warranty under the SBCL Acquisition Agreement survives
the SBCL Acquisition.
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; INTERPRETATION; EFFECTIVENESS. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the Fee
Letter and the Engagement Letter (as defined in the Commitment Letter)
constitute the entire contract among the parties thereto relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof, other than the Fee
Letter, the Engagement Letter and the indemnity, confidentiality, waiver of jury
trial and governing law provisions of the Commitment Letter and the provisions
of Section 2 of the Commitment Letter, which are not superseded and survive
solely as to the parties thereto. This Agreement shall become effective when the
Effective Date shall have occurred and this Agreement shall have been executed
and delivered by the Obligors and each Agent and when Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement. Upon the effectiveness of this
Agreement, all commitments to provide any financing pursuant to the Commitment
Letter shall permanently terminate.
12.10. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVERS; ETC. (a)
Each Credit Document shall be governed by, and construed in accordance with, the
law of the State of New York, without regard to the principles of conflicts of
laws thereof (except in the case of the other Credit Documents, to the extent
otherwise expressly stated therein). Each Obligor hereby irrevocably and
unconditionally: (I) submits for itself and its Property in any Proceeding
relating to any Credit Document to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Supreme Court of the State of New York sitting in New York
County, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof; (II) consents that any such
Proceeding may be brought in any such court; (III) agrees that service of
process in any such Proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to Borrower at its address set forth on the signature page
hereto or at such other address of which Administrative Agent shall have been
notified pursuant thereto; and (IV) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
-128-
(b) EACH OBLIGOR, EACH 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 ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
AND FOR ANY COUNTERCLAIM THEREIN.
12.11. CONFIDENTIALITY. Each Lender agrees to keep confidential
information obtained by it pursuant to the Credit Documents confidential in
accordance with such Lender's customary practices and agrees that it will only
use such information in connection with the transactions contemplated hereby and
not disclose any of such information other than (a) to such Lender's employees,
representatives, directors, attorneys, auditors, agents, professional advisors,
trustees or affiliates who are advised of the confidential nature thereof or to
any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provision of this Section 12.11, such Lender being liable for
any breach of confidentiality by any Person described in this clause (a) and
with respect to disclosures to an Affiliate to the extent disclosed by such
Lender to such Affiliate), (b) to the extent such information presently is or
hereafter becomes available to such Lender on a non-confidential basis from a
Person not an Affiliate of such Lender not known to such Lender to be violating
a confidentiality obligation by such disclosure, (c) to the extent disclosure is
required by any Law, subpoena or judicial order or process (PROVIDED that notice
of such requirement or order shall be promptly furnished to Borrower unless such
notice is legally prohibited) or requested or required by bank, securities,
insurance or investment company regulations or auditors or any administrative
body or commission (including the Securities Valuation Office of the NAIC) to
whose jurisdiction such Lender may be subject, (d) to any rating agency to the
extent required in connection with any rating to be assigned to such Lender, (e)
to assignees or participants or prospective assignees or participants who agree
to be bound by the provisions of this Section 12.11, (f) to the extent required
in connection with any litigation between any Obligor and any Creditor with
respect to the Loans or any Credit Document or (g) with Borrower's prior written
consent.
12.12. INDEPENDENCE OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants contained herein shall be independent
of each other and no exception to any representation, warranty or covenant shall
be deemed to be an exception to any other representation, warranty or covenant
contained herein unless expressly provided, nor shall any such exception be
deemed to permit any action or omission that would be in contravention of
applicable law.
12.13. SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
[Signature Pages Follow]
-1-
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.
QUEST DIAGNOSTICS INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
Address for Notices:
Xxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Contact Person: Treasurer
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
-2-
GUARANTORS:
SBCL, Inc. (DE)
SmithKline Xxxxxxx Clinical
Laboratories, Inc. (DE)
Quest Diagnostics Incorporated (CA)
Quest Holdings Incorporated (MD)
Quest Diagnostics Incorporated (MD)
Quest Holdings Incorporated (MI)
Quest Diagnostics LLC (IL)
Quest Diagnostics Incorporated (MI)
Quest Diagnostics Incorporated (CT)
Quest Diagnostics Incorporated (MA)
Quest Diagnostics of Pennsylvania Inc.
(DE)
Quest Diagnostics Incorporated (OH)
MetWest Inc. (DE)
Xxxxxxx Institute Diagnostics (CA)
DPD Holdings, Inc. (DE)
Diagnostics Reference Services Inc. (MD)
Laboratory Holding Incorporated (MA)
Quest MRL Inc. (DE)
Each as a Guarantor and Pledgor
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
QUEST DIAGNOSTICS INVESTMENTS
INCORPORATED
QUEST DIAGNOSTICS FINANCE
INCORPORATED
Each as a Guarantor and Pledgor
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
-3-
PATHOLOGY BUILDING PARTNERSHIP, by
Quest Diagnostics Incorporated (MD), as
General Partner
As a Guarantor and Pledgor
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
-0-
XXXXXXX XXXXX & XX.
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED,
as Joint Lead Arranger and Syndication
Agent
By:
--------------------------------------
Name:
Title:
Address for Notices:
Attention:
Facsimile No.:
Telephone No.:
-5-
BANC OF AMERICA SECURITIES
LLC, as Joint Lead Arranger
By:
--------------------------------------
Name:
Title:
Address for Notices:
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Mail Code: NC1-007-07-01
Attention: Xxxxxx Xxxxxxxxx
Facsimile No: (000) 000-0000
Telephone No: (000) 000-0000
-6-
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
--------------------------------------
Name:
Title:
Address for Notices:
One Independence Center
000 Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Mail Code: NCI-001-15-04
Attention: Xxxx Roof
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Mail Code: NC1-007-17-11
Attention: Xxxx Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
-7-
WACHOVIA BANK, N.A.,
as Co-Documentation Agent
By:
--------------------------------------
Name:
Title:
Address for Notices:
Facsimile No.:
Telephone No.:
-0-
XXX XXXX XX XXX XXXX,
as Co-Documentation Agent
By:
--------------------------------------
Name:
Title:
Address for Notices:
Facsimile No.:
Telephone No.:
-0-
XXXXXXX
XXXXXXX XXXXX CAPITAL CORPORATION,
as a Lender
By:
--------------------------------------
Name:
Title:
Lending Office for all Loans:
Address for Notices:
Attention:
Facsimile No.:
Telephone No.:
-10-
BANK OF AMERICA, N.A.,
as a Lender
By:
--------------------------------------
Name:
Title:
Lending Office for all Loans:
One Independence Center
000 Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Mail Code: NC1-001-15-04
Attention: Xxxx Roof
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Address for Notices:
One Independence Center
000 Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Mail Code: NC1-001-15-04
Attention: Xxxx Roof
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
-11-
WACHOVIA BANK, N.A.,
as a Lender
By:
--------------------------------------
Name:
Title:
Lending Office for all Loans:
Address for Notices:
-00-
XXX XXXX XX XXX XXXX,
as a Lender
By:
--------------------------------------
Name:
Title:
Lending Office for all Loans:
Address for Notices:
-13-
By:
--------------------------------------
Name:
Title:
Lending Office for all Loans:
Attention:
Facsimile No.:
Telephone No.:
Address for Notices:
Attention:
Facsimile No.:
Telephone No.:
