Exhibit (a)(6)
CREDIT AGREEMENT
among
UNIVERSAL HOSPITAL SERVICES, INC.
VARIOUS LENDING INSTITUTIONS,
and
BANKERS TRUST COMPANY,
As Administrative Agent
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Dated as of February 25, 1998
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$30,000,000
CREDIT AGREEMENT, dated as of February 25, 1998, among
UNIVERSAL HOSPITAL SERVICES, INC., a Minnesota corporation (the
"Borrower"), the lending institutions from time to time party hereto (each
a "Bank", and collectively, the "Banks") and BANKERS TRUST COMPANY, as
administrative agent (the "Administrative Agent"). Unless otherwise defined
herein, all capitalized terms used herein and defined in Section 10 are
used herein as so defined.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Banks are willing to make available to the Borrower the credit
facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees to make, at any
time and from time to time on and after the Effective Date and prior to the
Maturity Date, a revolving loan or revolving loans (each a "Revolving
Loan", and collectively, the "Revolving Loans") to the Borrower, which
Revolving Loans (i) except as otherwise specifically provided in Section
1.10(b), may, at the option of the Borrower, be incurred and maintained as,
and/or converted into, Base Rate Loans or Eurodollar Loans, provided that
all Revolving Loans made as part of the same Borrowing shall, unless
otherwise specifically provided herein, be of the same Type, (ii) may be
repaid and reborrowed in accordance with the provisions hereof, (iii) shall
not exceed for any Bank at any time outstanding that aggregate principal
amount which, when combined with the aggregate outstanding principal amount
of all other Revolving Loans of such Bank and with such Bank's Adjusted RC
Percentage, if any, of the sum of (I) the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (II) the outstanding principal amount of
Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time, equals (1) if such Bank is a
Non-Defaulting Bank, the Adjusted Revolving Commitment, if any, of such
Bank at such time and (2) if such Bank is a Defaulting Bank, the Revolving
Commitment, if any, of such Bank at such time and (iv) shall not exceed for
all Banks at any time that aggregate principal amount which, when added to
the sum of (I) the aggregate amount of all Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of
Revolving Loans) at such time and (II) the outstanding principal amount of
Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time, equals the lesser of (A) the
Adjusted Total Revolving Loan Commitment (after giving effect to any
reductions to the Adjusted Total Revolving Loan Commitment on such date)
and (B) the Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth
herein, the Swingline Bank, in its individual capacity, agrees to make at
any time and from time to time on and after the Effective Date and prior to
the Swingline Expiry Date, a revolving loan or revolving loans to the
Borrower (each a "Swingline Loan," and, collectively, the "Swingline
Loans"), which Swingline Loans (i) shall be made and maintained as Base
Rate Loans, (ii) may be repaid and reborrowed in accordance with the
provisions hereof, (iii) shall not exceed in aggregate principal amount at
any time outstanding, when combined with the aggregate principal amount of
all Revolving Loans made by Non-Defaulting Banks then outstanding and the
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Swingline Loans) at such time, an amount equal to
the Adjusted Total Revolving Commitment then in effect (after giving effect
to any reductions to the Adjusted Total Revolving Commitment on such date),
(iv) shall not exceed at any time that aggregate principal amount which,
when added to the sum of (I) the aggregate amount of all Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Swingline Loans) at such time and (II) the aggregate
principal amount of Revolving Loans made by Non-Defaulting Banks then
outstanding, equals the Borrowing Base at such time and (v) shall not
exceed in aggregate principal amount at any time outstanding the Maximum
Swingline Amount. The Swingline Bank will not make a Swingline Loan after
it has received written notice from the Required Banks that one or more of
the applicable conditions to Credit Events specified in Section 5B are not
then satisfied.
(c) On any Business Day, the Swingline Bank may, in its sole
discretion, give notice to the Banks that its outstanding Swingline Loans
shall be funded with a Borrowing of Revolving Loans (provided that each
such notice shall be deemed to have been automatically given upon the
occurrence of an Event of Default under Section 9.05 or upon the exercise
of any of the remedies provided in the last paragraph of Section 9), in
which case a Borrowing of Revolving Loans constituting Base Rate Loans
(each such Borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day from all Banks pro rata based on each
Bank's Adjusted RC Percentage, and the proceeds thereof shall be applied
directly to repay the Swingline Bank for such outstanding Swingline Loans.
Each Bank hereby irrevocably agrees to make Base Rate Loans upon one
Business Day's notice pursuant to each Mandatory Borrowing in the amount
and in the manner specified in the preceding sentence and on the date
specified in writing by the Swingline Bank notwithstanding (i) that the
amount of the Mandatory Borrowing may not comply with the Minimum Borrowing
Amount otherwise required hereunder, (ii) whether any conditions specified
in Section 5B are then satisfied, (iii) whether a Default or an Event of
Default has occurred and is continuing, (iv) the date of such Mandatory
Borrowing and (v) any reduction in the Total Revolving Commitment or the
Adjusted Total Revolving Commitment after any such Swingline Loans were
made. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under the Bankruptcy Code
in respect of the Borrower), each Bank (other than the Swingline Bank)
hereby agrees that it shall forthwith purchase from the Swingline Bank
(without recourse or warranty) such assignment of the outstanding Swingline
Loans as shall be necessary to cause the Banks to share in such Swingline
Loans ratably based upon their respective Adjusted RC Percentages, provided
that (x) all interest payable on the Swingline Loans shall be for the
account of the Swingline Bank until the date as of which the respective
participation is required to be purchased and, to the extent attributable
to the purchased participation, shall be payable to the participant from
and after such date and (y) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Bank shall be
required to pay the Swingline Bank interest on the principal amount of
participation purchased for each day from and including the day upon which
the Mandatory Borrowing would otherwise have occurred to but excluding the
date of payment for such participation, at the overnight Federal Funds Rate
for the first three days and at the rate otherwise applicable to Revolving
Loans maintained as Base Rate Loans hereunder for each day thereafter.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal
amount of each Borrowing of Revolving Loans shall not be less than the
Minimum Borrowing Amount and, if greater, shall be in integral multiples of
$100,000. The aggregate principal amount of each Borrowing of Swingline
Loans shall not be less than $100,000, and, if greater, shall be in
integral multiples of $50,000. More than one Borrowing may be incurred on
any day, provided that at no time shall there be outstanding more than
eight Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Borrowings of Revolving Loans
(excluding Borrowings of Revolving Loans incurred pursuant to a Mandatory
Borrowing) shall be made upon prior written notice (or telephonic notice
promptly confirmed in writing) from the Borrower to the Administrative
Agent which notice shall be given to the Administrative Agent at its Notice
Office no later than 1:00 P.M. (New York time), (x) in the case of any
proposed Borrowing of Base Rate Loans, on the date such proposed Borrowing
is requested to be incurred and (y) in the case of any proposed Borrowing
of Eurodollar Loans, on the third Business Day prior to the date such
proposed Borrowing is requested to be incurred. Each such notice (each a
"Notice of Borrowing") shall be in the form of Exhibit A and shall be
irrevocable and shall specify (i) the aggregate principal amount of the
Revolving Loans to be made pursuant to such Borrowing, (ii) the date of
Borrowing (which shall be a Business Day) and (iii) whether the respective
Borrowing shall consist of Base Rate Loans or Eurodollar Loans and, if
Eurodollar Loans, the Interest Period to be initially applicable thereto.
The Administrative Agent shall promptly give each Bank written notice (or
telephonic notice on that day promptly confirmed in writing) of each
proposed Borrowing, of such Bank's proportionate share thereof and of the
other matters covered by the Notice of Borrowing.
(b)(i) Whenever the Borrower desires to incur a Borrowing of
Swingline Loans hereunder, the Borrower shall give the Swingline Bank,
prior to 1:00 P.M. (New York time) on the day such Swingline Loan is to be
made, written notice (or telephonic notice promptly confirmed in writing)
of each Swingline Loan to be made hereunder. Each such notice shall be
irrevocable and shall specify in each case (x) the date of such Borrowing
(which shall be a Business Day) and (y) the aggregate principal amount of
the Swingline Loan to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice
specified in Section 1.01(c), with the Borrower irrevocably agreeing, by
its incurrence of any Swingline Loan, to the making of Mandatory Borrowings
as set forth in such Section 1.01(c).
1.04 Disbursement of Funds. (a) No later than 1:00 P.M.
(New York time) on the date specified in each Notice of Borrowing, each
Bank will make available its pro rata share of each Borrowing requested to
be made on such date in the manner provided below, provided that the full
amount of all Swingline Loans shall be made available by the Swingline Bank
no later than 3:00 P.M. (New York time) on the date so requested. All such
amounts shall be made available to the Administrative Agent in U.S. dollars
and immediately available funds at the Payment Office and the
Administrative Agent promptly will make available to the Borrower by
depositing to its account at the Payment Office the aggregate of the
amounts so made available by the Banks. Unless the Administrative Agent
shall have been notified by any Bank prior to the date of Borrowing that
such Bank does not intend to make available to the Administrative Agent its
portion of the Borrowing or Borrowings to be made on such date, the
Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such date of Borrowing, and the
Administrative Agent, in reliance upon such assumption, may (in its sole
discretion and without any obligation to do so) make available to the
Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent by such Bank and the
Administrative Agent has made available same to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount
from such Bank. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover on demand
from such Bank or, in the event that such Bank does not pay such
corresponding amount forthwith upon the Administration Agent's demand
therefor, from the Borrower, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent, at a rate
per annum equal to (x) if paid by such Bank, the overnight Federal Funds
Effective Rate or (y) if paid by the Borrower, the then applicable rate of
interest, calculated in accordance with Section 1.08, for the respective
Loans.
(b) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder or to prejudice any rights
which the Borrower may have against any Bank as a result of any default by
such Bank hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made to it by each Bank shall be evidenced
(i) if Revolving Loans, by a promissory note duly executed and delivered by
the Borrower substantially in the form of Exhibit B-1 with blanks
appropriately completed in conformity herewith (each a "Revolving Note",
and collectively, the "Revolving Notes") and (ii) if Swingline Loans, by a
promissory note duly executed and delivered by the Borrower substantially
in the form of Exhibit B-2 with blanks appropriately completed in
conformity herewith (the "Swingline Note").
(b) The Revolving Note issued to each Bank with a Revolving
Commitment shall (i) be executed by the Borrower, (ii) be payable to the
order of such Bank and be dated the Effective Date, (iii) be in a stated
principal amount equal to the Revolving Commitment of such Bank and be
payable in the principal amount of the Revolving Loans evidenced thereby,
(iv) mature on the Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment as provided in Section 4.01 and mandatory repayment as
provided in Section 4.02 and (vii) be entitled to the benefits of this
Agreement and the other Credit Documents.
(c) The Swingline Note issued to the Swingline Bank shall (i)
be executed by the Borrower, (ii) be payable to the order of the Swingline
Bank and be dated the Effective Date, (iii) be in a stated principal amount
equal to the Maximum Swingline Amount and be payable in the principal
amount of Swingline Loans evidenced thereby, (iv) mature on the Swingline
Expiry Date, (v) bear interest as provided in Section 1.08 in respect of
the Base Rate Loans evidenced thereby, (vi) be subject to voluntary
prepayment as provided in Section 4.01 and mandatory repayment as provided
in Section 4.02 and (vii) be entitled to the benefits of this Agreement and
the other Credit Documents.
(d) Each Bank will note on its internal records the amount of
each Loan made by it and each payment in respect thereof and will, prior to
any transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make
any such notation (or any error in such notation) shall not affect the
Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert
on any Business Day all or a portion at least equal to the Minimum
Borrowing Amount of the outstanding principal amount of Revolving Loans
made pursuant to one or more Borrowings of one or more Types of Revolving
Loans into a Borrowing of another Type of Revolving Loan, provided that (i)
except as otherwise specifically provided in Section 1.10(b), Eurodollar
Loans may be converted into Base Rate Loans only on the last day of an
Interest Period applicable thereto and no partial conversion of a single
Borrowing of Eurodollar Loans shall reduce the outstanding principal amount
of the Eurodollar Loans made pursuant to such Borrowing to less than the
Minimum Borrowing Amount, (ii) Base Rate Loans may not be converted into
Eurodollar Loans if a Default pursuant to Section 9.01 or 9.05 or an Event
of Default is in existence on the date of such conversion and (iii)
Borrowings of Eurodollar Loans resulting from this Section 1.06 shall be
limited in number as provided in Section 1.02. Each such conversion shall
be effected by the Borrower giving the Administrative Agent at its Notice
Office, prior to 11:00 A.M. (New York time), at least three Business Days'
(or two Business Days', in the case of a conversion into Base Rate Loans)
prior written notice (or telephonic notice promptly confirmed in writing)
(each a "Notice of Conversion") specifying the Revolving Loans to be so
converted, the Type of Revolving Loans to be converted into and, if to be
converted into a Borrowing of Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each Bank
prompt notice of any such proposed conversion affecting any of its
Revolving Loans. Swingline Loans may not be converted pursuant to this
Section 1.06.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans
under this Agreement shall be incurred from the Banks pro rata on the basis
of their Revolving Commitments provided that Revolving Loans made pursuant
to a Mandatory Borrowing shall be made by the Banks pro rata on the basis
of their Adjusted Revolving Commitments. It is understood that no Bank
shall be responsible for any default by any other Bank in its obligation to
make Revolving Loans hereunder and that each Bank shall be obligated to
make the Revolving Loans provided to be made by it hereunder, regardless of
the failure of any other Bank to fulfill its commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base
Rate Loan shall bear interest from the date of the Borrowing thereof until
maturity (whether by acceleration or otherwise) at a rate per annum which
shall at all times be the Applicable Margin for Base Rate Loans plus the
Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall
bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration or otherwise) at a rate per annum which shall at
all times be the Applicable Margin for Eurodollar Loans plus the Eurodollar
Rate for such Interest Period.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount
payable hereunder shall bear interest at a rate per annum equal to the
greater of (x) the Base Rate in effect from time to time plus the sum of
(i) 2% and (ii) the Applicable Margin for Base Rate Loans and (y) the rate
which is 2% in excess of the rate borne by such Loans. Interest which
accrues under this Section 1.08(c) shall be payable on demand.
(d) Interest shall accrue from and including
the date of any Borrowing to but excluding the date of any repayment
thereof and shall be payable (i) in respect of each Base Rate Loan,
quarterly in arrears on each Quarterly Payment Date, (ii) in respect of
each Eurodollar Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period in excess of three months,
on each date occurring at three month intervals after the first day of such
Interest Period and (iii) in respect of each Loan, on any prepayment or
conversion (other than the prepayment and conversion of Revolving Loans
that are maintained as Base Rate Loans) (on the amount prepaid or
converted), at maturity (whether by acceleration or otherwise) and, after
such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest
rate for any Borrowing of Eurodollar Loans for any Interest Period, shall
promptly notify the Borrower and the Banks thereof.
1.09 Interest Periods. (a) At the time the Borrower gives a
Notice of Borrowing or Notice of Conversion in respect of the making of, or
conversion into, a Borrowing of Eurodollar Loans (in the case of the
initial Interest Period applicable thereto) or prior to 11:00 A.M. (New
York time) on the third Business Day prior to the expiration of an Interest
Period applicable to a Borrowing of Eurodollar Loans (in the case of any
subsequent Interest Period), the Borrower shall have the right to elect by
giving the Administrative Agent written notice thereof (or telephonic
notice promptly confirmed in writing) the Interest Period applicable to
such Borrowing, which Interest Period shall, at the option of the Borrower,
be a one, two, three or six month period, or, to the extent available to
each Bank with a Revolving Commitment, a nine or twelve month period.
Notwithstanding anything to the contrary contained above:
(i) all Eurodollar Loans comprising a Borrowing shall at all
times have the same Interest Period;
(ii) the initial Interest Period for any
Borrowing of Eurodollar Loans shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing of
Base Rate Loans) and each Interest Period occurring thereafter in
respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(iii) if any Interest Period begins on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise
expire on a day which is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day, provided that if
any Interest Period would otherwise expire on a day which is not a
Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(v) no Interest Period shall extend beyond
the Maturity Date; and
(vi) no Interest Period may be elected at
any time when a Default pursuant to Section 9.01 or 9.05 or an Event
of Default is then in existence.
(b) If upon the expiration of any Interest Period, the Borrower
has failed to (or may not) elect a new Interest Period to be applicable to
the respective Borrowing of Eurodollar Loans as provided above, the
Borrower shall be deemed to have elected to convert such Borrowing into a
Borrowing of Base Rate Loans effective as of the expiration date of such
current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that
(x) in the case of clause (i) below, the Administrative Agent or (y) in the
case of clauses (ii) and (iii) below, any Bank shall have determined (which
determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for
any Interest Period that, by reason of any
changes arising after the Effective Date affecting the interbank
Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for
in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall
incur increased costs or reductions in the amounts received or
receivable hereunder with respect to any Eurodollar Loans because of
(x) any change since the Effective Date in any applicable law,
governmental rule, regulation, guideline, request or order (whether
or not having the force of law) or in the interpretation or
administration thereof and including the introduction of any new law
or governmental rule, regulation, guideline, request or order (such
as, for example, but not limited to, (A) a change in the basis of
taxation of payment to any Bank of the principal of or interest on
the Notes or any other amounts payable hereunder (except for changes
in the rate of tax on, or determined by reference to, the net income
or profits of such Bank pursuant to the laws of the jurisdiction in
which it is organized or in which its principal office or applicable
lending office is located or any subdivision thereof or therein) or
(B) a change in official reserve requirements, but, in all events,
excluding reserves required under Regulation D to the extent included
in the computation of the Eurodollar Rate) and/or (y) other
circumstances occurring after the Effective Date affecting such Bank,
the interbank Eurodollar market or the position of such Bank in such
market; or
(iii) at any time after the Effective
Date, that the making or continuance of any Eurodollar Loan has
become (x) unlawful by compliance by such Bank in good faith with any
law, governmental rule, regulation, guideline, request or order
(whether or not having the force of law) or (y) impracticable as a
result of a contingency occurring after the Effective Date which
materially and adversely affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent in the
case of clause (i) above) shall promptly give notice (by telephone
confirmed in writing) to the Borrower and to the Administrative Agent of
such determination (which notice the Administrative Agent shall promptly
transmit to each of the other Banks). Thereafter (x) in the case of clause
(i) above, Eurodollar Loans shall no longer be available until such time as
the Administrative Agent notifies the Borrower and the Banks that the
circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by
the Borrower with respect to Eurodollar Loans which have not yet been
incurred (including by way of conversion) shall be deemed rescinded by the
Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to
such Bank, upon written demand therefor, such additional amounts (in the
form of an increased rate of, or a different method of calculating,
interest or otherwise as such Bank in its reasonable discretion shall
determine) as shall be required to compensate such Bank for such increased
costs or reductions in amounts receivable hereunder (a written notice as to
the additional amounts owed to such Bank, showing the basis for the
calculation thereof, submitted to the Borrower by such Bank shall, absent
manifest error, be final and conclusive and binding upon all parties
hereto) and (z) in the case of clause (iii) above, the Borrower shall take
one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may
(and in the case of a Eurodollar Loan affected pursuant to Section
1.10(a)(iii), the Borrower shall) either (i) if the affected Eurodollar
Loan is then being made pursuant to a Borrowing, cancel said Borrowing by
giving the Administrative Agent telephonic notice (confirmed promptly in
writing) thereof on the same date that the Borrower was notified by a Bank
pursuant to Section 1.10(a)(ii) or (iii), or (ii) if the affected
Eurodollar Loan is then outstanding, upon at least three Business Days'
notice to the Administrative Agent, require the affected Bank to convert
each such Eurodollar Loan into a Base Rate Loan, provided that if more than
one Bank is so affected at any time, then all affected Banks must be
treated the same pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that the adoption or
effectiveness after the Effective Date of any applicable law, rule or
regulation regarding capital adequacy, or any change after the Effective
Date therein, or any change after the Effective Date in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank (or any corporation controlling such
Bank) with any such request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's (or such controlling corporation's) capital
or assets as a consequence of its commitments or obligations hereunder to a
level below that which such Bank (or such controlling corporation) could
have achieved but for such adoption, effectiveness, change or compliance
(taking into consideration such Bank's (or such controlling corporation's)
policies with respect to capital adequacy), then from time to time, within
15 days after written demand by such Bank (with a copy to the
Administrative Agent and accompanied by the notice described in the last
sentence of this Section 1.10(c)), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or such
controlling corporation) for such reduction. Each Bank, upon determining in
good faith that any additional amounts will be payable pursuant to this
Section 1.10(c), will give prompt written notice thereof to the Borrower,
which notice shall set forth the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish any of the Borrower's obligations to pay additional
amounts pursuant to this Section 1.10(c) upon the subsequent receipt of
such notice.
1.11 Compensation; Breakage. (a) The Borrower shall compensate
each Bank, upon its written request (which request shall set forth the
basis for requesting such compensation), for all losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other
funds required by such Bank to fund its Eurodollar Loans but excluding in
any event the loss of anticipated profits) which such Bank may sustain: (i)
if for any reason (other than a default by such Bank or the Administrative
Agent) a Borrowing of Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any prepayment, repayment or conversion of any of its Eurodollar
Loans occurs on a date which is not the last day of an Interest Period
applicable thereto; (iii) if any prepayment of any of its Eurodollar Loans
is not made on any date specified in a notice of prepayment given by the
Borrower; or (iv) as a consequence of (x) any other default by the Borrower
to repay its Eurodollar Loans when required by the terms of this Agreement
or (y) an election by the Borrower made pursuant to Section 1.10(b).
(b) The Borrower shall compensate BTCo, upon its written
request (which request shall set forth the basis for requesting such
compensation), for all losses, expenses and liabilities incurred prior to
the Syndication Date (including, without limitation, any loss, expense or
liability incurred by reason of the liquidation or reemployment of deposits
or other funds required by BTCo to fund its Eurodollar Loans but excluding
in any event the loss of anticipated profits) which BTCo may sustain by way
of any prepayment, repayment or conversion of any of its Eurodollar Loans
occurring on a date which is not the last day of an Interest Period
applicable thereto in connection with the primary syndication of the credit
facility provided for in this Agreement.
1.12 Change of Lending Office. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii)
or (iii), 1.10(c), 2.06 or 4.04 with respect to such Bank, it will, if
requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Bank) to designate another lending office for
any Revolving Loans or Letters of Credit, as the case may be, affected by
such event, provided that such designation is made on such terms that such
Bank and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event
giving rise to the operation of any such Section. Nothing in this Section
1.12 shall affect or postpone any of the obligations of the Borrower or the
right of any Bank provided in Section 1.10, 2.06 or 4.04.
1.13 Replacement of Banks. (x) Upon the occurrence of any event
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c), Section 2.06 or Section 4.04 with respect to any Bank which
results in such Bank charging to the Borrower increased costs in excess of
those being generally charged by the other Banks or becoming incapable of
making Eurodollar Loans, (y) if any Bank becomes a Defaulting Bank or
otherwise defaults in its obligations to make Revolving Loans or to fund
Unpaid Drawings and/or (z) in the case of a refusal by a Bank to consent to
a proposed change, waiver, discharge or termination with respect to this
Agreement which has been approved by the Required Banks as provided in
Section 12.12(b), the Borrower shall have the right, if no Default pursuant
to Section 9.01 or 9.05 or Event of Default then exists, to replace such
Bank (the "Replaced Bank") with one or more other Eligible Transferees
reasonably acceptable to the Administrative Agent, none of whom shall
constitute a Defaulting Bank at the time of such replacement (collectively,
the "Replacement Bank"), provided that (i) at the time of any replacement
pursuant to this Section 1.13, the Replacement Bank shall enter into one or
more Assignment Agreements pursuant to Section 12.04(b) (and with all fees
payable pursuant to said Section 12.04(b) to be paid by the Replacement
Bank) pursuant to which the Replacement Bank shall acquire the entire
Revolving Commitment and all outstanding Revolving Loans of, and
participations in Letters of Credit by, the Replaced Bank and, in
connection therewith, shall pay to (x) the Replaced Bank in respect thereof
an amount equal to the sum of (I) an amount equal to the principal of, and
all accrued interest on, all outstanding Revolving Loans of the Replaced
Bank, (II) an amount equal to all Unpaid Drawings that have been funded by
(and not reimbursed to) such Replaced Bank, together with all then unpaid
interest with respect thereto at such time and (III) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant
to Section 3.01, (y) the Letter of Credit Issuer an amount equal to such
Replaced Bank's Adjusted RC Percentage (for this purpose, determined as if
the adjustment described in clause (ii) of the succeeding sentence had been
made with respect to such Replaced Bank) of any Unpaid Drawing (which at
such time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Bank and (z) the Swingline Bank an
amount equal to such Replaced Bank's Adjusted RC Percentage (for this
purpose, determined as if the adjustment described in clause (ii) of the
succeeding sentence had been made with respect to such Replaced Bank) of
any Mandatory Borrowing to the extent such amount was not theretofore
funded by such Replaced Bank, and (ii) all obligations of the Borrower
owing to the Replaced Bank (other than those specifically described in
clause (i) above in respect of which the assignment purchase price has
been, or is concurrently being, paid) shall be paid in full to such
Replaced Bank concurrently with such replacement. Upon the execution of the
respective Assignment Agreement(s), the payment of amounts referred to in
clauses (i) and (ii) above and, if so requested by the Replacement Bank,
delivery to the Replacement Bank of the appropriate Note or Notes executed
by the Borrower, (A) the Replacement Bank shall become a Bank hereunder and
the Replaced Bank shall cease to constitute a Bank hereunder, except with
respect to indemnification provisions applicable to the Replaced Bank under
this Agreement (including, without limitation, Sections 1.10, 1.11, 2.06,
4.04, 11.06 and 12.01), which shall survive as to such Replaced Bank and
except that no such replacement shall prejudice any rights which the
Borrower may have against such Replaced Bank as a result of any default by
such Replaced Bank under this Agreement and (B) in the case of a
replacement of a Defaulting Bank, the Adjusted RC Percentage of the Banks
shall be automatically adjusted at such time to give effect to such
replacement (and to give effect to the replacement of a Defaulting Bank
with one or more Non-Defaulting Banks).
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request a Letter of Credit
Issuer at any time and from time to time on or after the Effective Date and
prior to the 30th day prior to the Maturity Date to issue a letter of
credit for the account of the Borrower and in support of (x) trade
obligations of the Borrower and/or its Subsidiaries, which shall be payable
at sight (each such letter of credit, a "Trade Letter of Credit" and,
collectively, the "Trade Letters of Credit") and/or (y), on a standby
basis, L/C Supportable Obligations (each such letter of credit, a "Standby
Letter of Credit" and, collectively, the "Standby Letters of Credit," and
together with the Trade Letters of Credit, the "Letters of Credit"), and
subject to and upon the terms and conditions set forth herein such Letter
of Credit Issuer agrees to issue from time to time, irrevocable Letters of
Credit in such form as may be approved by such Letter of Credit Issuer and
the Administrative Agent. Notwithstanding the foregoing, no Letter of
Credit Issuer shall be under any obligation to issue any Letter of Credit
if at the time of such issuance:
(i) any order, judgment or decree of any governmental
authority or arbitrator shall purport by its terms to
enjoin or restrain such Letter of Credit Issuer from issuing such
Letter of Credit or any requirement of law applicable to such Letter
of Credit Issuer or any request or directive (whether or not having
the force of law) from any governmental authority with jurisdiction
over such Letter of Credit Issuer shall prohibit, or request that
such Letter of Credit Issuer refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall
impose upon such Letter of Credit Issuer with respect to such Letter
of Credit any restriction or reserve or capital requirement (for
which such Letter of Credit Issuer is not otherwise compensated) not
in effect on the date hereof, or any unreimbursed loss, cost or
expense which was not applicable, in effect or known to such Letter
of Credit Issuer as of the date hereof and which such Letter of
Credit Issuer in good xxxxx xxxxx material to it; or
(ii) such Letter of Credit Issuer shall have received
notice from the Borrower or the Required Banks prior to
the issuance of such Letter of Credit of the type described in clause
(v) of Section 2.01(b).
(b) Notwithstanding the foregoing, (i) no Letter of
Credit shall be issued, the Stated Amount of which, when added to
the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid on the date of, and prior to the issuance of, the respective Letter
of Credit) at such time, would exceed either (x) $5,000,000 or (y) when
added to the aggregate principal amount of all Revolving Loans made by
Non-Defaulting Banks and Swingline Loans then outstanding, the lesser of
(I) the Adjusted Total Revolving Commitment at such time and (II) the
Borrowing Base at such time; (ii) (x) each Standby Letter of Credit shall
have an expiry date occurring not later than one year after the date of
issuance of such Letter of Credit (although any Standby Letter of Credit
may be extendible (whether automatically or otherwise) for successive
periods of up to 12 months, but not beyond the Business Day occurring five
Business Days prior to the Maturity Date), on terms acceptable to the
respective Letter of Credit Issuer and in no event shall any Standby Letter
of Credit have an expiry date occurring later than the Business Day
occurring five Business Days prior to the Maturity Date and (y) each Trade
Letter of Credit shall have an expiry date occurring no later than the
earlier of (a) 180 days after the issuance thereof or (b) 30 days prior to
the Maturity Date; (iii) each Letter of Credit shall be denominated in U.S.
dollars; (iv) each Letter of Credit shall be payable only on a sight basis;
and (v) no Letter of Credit Issuer shall issue any Letter of Credit after
it has received written notice from the Borrower that a Default or an Event
of Default exists until such time as the Letter of Credit Issuer shall have
received written notice of (x) rescission of such notice from the party or
parties originally delivering the same or (y) waiver of such Default or
Event of Default by the Required Banks.
2.02 Minimum Stated Amount. The initial Stated Amount of each
Letter of Credit shall be not less than $10,000 or such lesser amount
acceptable to the respective Letter of Credit Issuer.
2.03 Letter of Credit Requests; Notices of Issuance; Reports.
(a) Whenever the Borrower desires that a Letter of Credit be issued, the
Borrower shall give the Administrative Agent and the respective Letter of
Credit Issuer a written request (including by way of telecopier) in the
form of Exhibit C prior to 1:00 P.M. (New York time) at least one Business
Day (or such shorter period as may be acceptable to such Letter of Credit
Issuer) prior to the proposed date (which shall be a Business Day) of
issuance (each a "Letter of Credit Request"), which Letter of Credit
Request shall include any other documents that such Letter of Credit Issuer
customarily requires in connection therewith.
(b) The respective Letter of Credit Issuer shall, promptly
after each issuance of a Standby Letter of Credit by it, give the
Administrative Agent, each Bank and the Borrower written notice of the
issuance of such Standby Letter of Credit, accompanied by a copy of the
Standby Letter of Credit or Standby Letters of Credit issued by it.
(c) In the event that the Letter of Credit Issuer is other than
the Administrative Agent, such Letter of Credit Issuer will send by
facsimile transmission to the Administrative Agent, promptly on the first
Business Day of each week, its daily maximum amount available to be drawn
under the Letters of Credit issued by such Letter of Credit Issuer for the
previous week. The Administrative Agent shall deliver to each Bank upon
each calendar month end, and upon each Letter of Credit Fee payment, a
report setting forth the daily maximum amount available to be drawn for all
Letter of Credit Issuers during such period.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Letter of Credit Issuer,
by making payment to the Administrative Agent at the Payment Office (which
funds the Administrative Agent shall promptly forward to such Letter of
Credit Issuer), for any payment or disbursement made by such Letter of
Credit Issuer under any Letter of Credit issued by it (each such amount so
paid or disbursed until reimbursed, an "Unpaid Drawing") immediately after,
and in any event on the date on which, the Borrower is notified by such
Letter of Credit Issuer of such payment or disbursement with interest on
the amount so paid or disbursed by such Letter of Credit Issuer, to the
extent not reimbursed prior to 1:00 P.M. (New York time) on the date of
such payment or disbursement, from and including the date paid or disbursed
to but not including the date such Letter of Credit Issuer is reimbursed
therefor at a rate per annum which shall be the Applicable Margin for Base
Rate Loans then in effect plus the Base Rate as in effect from time to time
(plus an additional 2% per annum if not reimbursed (whether through the
proceeds of Revolving Loans or otherwise) by the third Business Day after
the date of such notice of payment or disbursement), such interest to be
payable on demand. Each Letter of Credit Issuer shall provide the Borrower
prompt notice of any payment or disbursement made by it under any Letter of
Credit issued by it, although the failure of, or delay in, giving any such
notice shall not release or diminish the obligations of the Borrower under
this Section 2.04 (a) or under any other Section of this Agreement.
(b) The Borrower's obligation under this Section 2.04 to
reimburse the respective Letter of Credit Issuer with respect to Unpaid
Drawings (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any
setoff, counterclaim or defense to payment which the Borrower may have or
have had against such Letter of Credit Issuer, the Administrative Agent or
any Bank, including, without limitation, any defense based upon the failure
of any payment 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 payment; provided, however, that the
Borrower shall not be obligated to reimburse any Letter of Credit Issuer
for any wrongful payment made by such Letter of Credit Issuer under a
Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence (as determined by a court of competent
jurisdiction) on the part of such Letter of Credit Issuer.
2.05 Letter of Credit Participations. (a) Immediately upon the
issuance by any Letter of Credit Issuer of a Letter of Credit, such Letter
of Credit Issuer shall be deemed to have sold and transferred to each other
Bank, and each such Bank (each a "Participant") shall be deemed irrevocably
and unconditionally to have purchased and received from such Letter of
Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Bank's Adjusted RC Percentage, in such
Letter of Credit, each substitute letter of credit, each payment made
thereunder and the obligations of the Borrower under this Agreement with
respect thereto (although the Letter of Credit Fee shall be payable
directly to the Administrative Agent for the account of the Banks as
provided in Section 3.01(b) and the Participants shall have no right to
receive any portion of any Facing Fees) and any security therefor or
guaranty pertaining thereto. Upon any change in the Revolving Commitments
or Adjusted RC Percentages of the Banks pursuant to Section 12.04(b) or
upon a Bank Default, it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be an
automatic adjustment to the participations pursuant to this Section 2.05 to
reflect the new Adjusted RC Percentages of the assigning and assignee Bank
or of all Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit,
the respective Letter of Credit Issuer shall not have any obligation
relative to the Participants other than to determine that any documents
required to be delivered under such Letter of Credit have been delivered
and that they substantially comply on their face with the requirements of
such Letter of Credit. Any action taken or omitted to be taken by any
Letter of Credit Issuer under or in connection with any Letter of Credit if
taken or omitted in the absence of gross negligence or willful misconduct
(as determined by a court of competent jurisdiction) shall not create for
such Letter of Credit Issuer any resulting liability.
(c) In the event that the respective Letter of Credit Issuer
makes any payment under any Letter of Credit and the Borrower shall not
have reimbursed such amount in full to such Letter of Credit Issuer
pursuant to Section 2.04(a), such Letter of Credit Issuer shall promptly
notify the Administrative Agent, and the Administrative Agent shall
promptly notify each Participant of such failure, and each Participant
shall promptly and unconditionally pay to the Administrative Agent for the
account of such Letter of Credit Issuer, the amount of such Participant's
Adjusted RC Percentage of such payment in U.S. dollars and in same day
funds; provided, however, that no Participant shall be obligated to pay to
the Administrative Agent its Adjusted RC Percentage of such unreimbursed
amount for any wrongful payment made by such Letter of Credit Issuer under
a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence (as determined by a court of competent
jurisdiction) on the part of such Letter of Credit Issuer. If the
Administrative Agent so notifies any Participant required to fund an Unpaid
Drawing under a Letter of Credit prior to 11:00 A.M. (New York time) on any
Business Day, such Participant shall make available to the Administrative
Agent for the account of the respective Letter of Credit Issuer (which
funds the Administrative Agent shall promptly forward to the Letter of
Credit Issuer) such Participant's Adjusted RC Percentage of the amount of
such payment on such Business Day in same day funds. If and to the extent
such Participant shall not have so made its Adjusted RC Percentage of the
amount of such Unpaid Drawing available to the Administrative Agent for the
account of such Letter of Credit Issuer, such Participant agrees to pay to
the Administrative Agent for the account of such Letter of Credit Issuer,
forthwith on demand such amount, together with interest thereon, for each
day from such date until the date such amount is paid to the Administrative
Agent for the account of such Letter of Credit Issuer at the overnight
Federal Funds Effective Rate. The failure of any Participant to make
available to the Administrative Agent for the account of the respective
Letter of Credit Issuer its Adjusted RC Percentage of any Unpaid Drawing
under any Letter of Credit shall not relieve any other Participant of its
obligation hereunder to make available to the Administrative Agent for the
account of the respective Letter of Credit Issuer its Adjusted RC
Percentage of any payment under any Letter of Credit on the date required,
as specified above, but no Participant shall be responsible for the failure
of any other Participant to make available to the Administrative Agent for
the account of such Letter of Credit Issuer such other Participant's
Adjusted RC Percentage of any such payment.
(d) Whenever the respective Letter of Credit Issuer receives a
payment of a reimbursement obligation as to which the Administrative Agent
has received for the account of such Letter of Credit Issuer any payments
from the Participants pursuant to clause (c) above, such Letter of Credit
Issuer shall pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each Participant which has paid its Adjusted RC
Percentage thereof, in U.S. dollars and in same day funds, an amount equal
to such Participant's Adjusted RC Percentage of the principal amount
thereof and interest thereon accruing at the overnight Federal Funds
Effective Rate after the purchase of the respective participations.
(e) The obligations of the Participants to make payments to the
Administrative Agent for the account of the respective Letter of Credit
Issuer with respect to Letters of Credit shall be irrevocable and not
subject to counterclaim, set-off or other defense or any other
qualification or exception whatsoever (provided that no Participant shall
be required to make payments resulting from the gross negligence or willful
misconduct (as determined by a court of competent jurisdiction) of such
Letter of Credit Issuer and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of
this Agreement or any of the other Credit Documents;
(ii) the existence of any claim, set-off,
defense or other right which the Borrower or any of it Subsidiaries
may have at any time against a beneficiary named in a Letter of
Credit, any transferee of any Letter of Credit (or any Person for
whom any such transferee may be acting), the Administrative Agent,
the respective Letter of Credit Issuer, any Bank or other Person,
whether in connection with this Agreement, any Letter of Credit, the
transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower or any of
its Subsidiaries and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or other
document presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of
Default.
(f) To the extent the respective Letter of Credit Issuer is not
indemnified for same by the Borrower, the Participants will reimburse and
indemnify the Letter of Credit Issuer, in proportion to their respective
Adjusted RC Percentages, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed
on, asserted against or incurred by such Letter of Credit Issuer in
performing its respective duties in any way relating to or arising out of
its issuance of Letters of Credit; provided that no Participant shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct (as determined by
a court of competent jurisdiction) of such Letter of Credit Issuer.
2.06 Increased Costs. If at any time after the Effective Date,
the adoption or effectiveness of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
the respective Letter of Credit Issuer or any Bank with any request or
directive (whether or not having the force of law) by any such authority,
central bank or comparable agency shall either (i) impose, modify or make
applicable any reserve, deposit, capital adequacy or similar requirement
against Letters of Credit issued by such Letter of Credit Issuer or such
Bank's participation therein, or (ii) shall impose on such Letter of Credit
Issuer or any Bank any other conditions affecting this Agreement, any
Letter of Credit or such Bank's participation therein; and the result of
any of the foregoing is to increase the cost to such Letter of Credit
Issuer or such Bank of issuing, maintaining or participating in any Letter
of Credit, or to reduce the amount of any sum received or receivable by
such Letter of Credit Issuer or such Bank hereunder (other than any
increased cost or reduction in the amount received or receivable resulting
from the imposition of or a change in the rate of taxes or similar
charges), then, upon demand to the Borrower by such Letter of Credit Issuer
or such Bank (a copy of which notice shall be sent by such Letter of Credit
Issuer or such Bank to the Administrative Agent), the Borrower shall pay to
such Letter of Credit Issuer or such Bank such additional amount or amounts
as will compensate such Letter of Credit Issuer or such Bank for such
increased cost or reduction. A certificate submitted to the Borrower by the
respective Letter of Credit Issuer or such Bank, as the case may be (a copy
of which certificate shall be sent by such Letter of Credit Issuer or such
Bank to the Administrative Agent), setting forth the basis for the
determination of such additional amount or amounts necessary to compensate
such Letter of Credit Issuer or such Bank as aforesaid shall be conclusive
and binding on the Borrower absent manifest error, although the failure to
deliver any such certificate shall not release or diminish any of the
Borrower's obligations to pay additional amounts pursuant to this Section
2.06 upon the subsequent receipt thereof.
SECTION 3. Fees; Commitments.
3.01 Fees. (a) The Borrower agrees to pay to the Administrative
Agent a commitment commission ("Commitment Commission") for the account of
each Non-Defaulting Bank with a Revolving Commitment for the period from
and including the Effective Date to, but not including, the date the Total
Revolving Commitment has been terminated, computed at a rate for each day
equal to 1/2 of 1% per annum on the daily average of such Bank's Unutilized
Revolving Commitment. Such Commitment Commission shall be due and payable
in arrears on each Quarterly Payment Date and on the date upon which the
Total Revolving Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Non-Defaulting Bank pro rata on the basis of its
Adjusted RC Percentage, a fee in respect of each Letter of Credit (the
"Letter of Credit Fee") in an amount equal to the Applicable Margin for
Eurodollar Loans then in effect on the daily Stated Amount of such Letter
of Credit. Accrued Letter of Credit Fees shall be due and payable quarterly
in arrears on each Quarterly Payment Date and on the date upon which the
Total Revolving Commitment is terminated.
(c) The Borrower agrees to pay to the Administrative Agent for
the account of each Letter of Credit Issuer a fee in respect of each Letter
of Credit (the "Facing Fee") issued by such Letter of Credit Issuer
computed at the rate equal to (A) in the case of Trade Letters of Credit,
1/4 of 1% per annum on the daily Stated Amount of such Trade Letter of
Credit, provided, that in any event, the minimum amount of the Facing Fee
payable for each Trade Letter of Credit shall be $100 and (B) in the case
of Standby Letters of Credit, 1/4 of 1% per annum on the daily Stated
Amount of such Standby Letter of Credit, provided, that in any event, the
minimum amount of the Facing Fee payable in any 12-month period for each
Standby Letter of Credit shall be $500. Accrued Facing Fees shall be due
and payable quarterly in arrears on each Quarterly Payment Date and upon
the first day on or after the termination of the Total Revolving Commitment
upon which no Letters of Credit remain outstanding.
(d) The Borrower agrees to pay directly to the respective
Letter of Credit Issuer upon each issuance of, payment under, and/or
amendment of, a Letter of Credit issued by such Letter of Credit Issuer
such amount as shall at the time of such issuance, payment or amendment be
the administrative charge and reasonable expenses which such Letter of
Credit Issuer is customarily charging for issuances of, payments under or
amendments of, letters of credit issued by it.
(e) The Borrower agrees to pay to the Administrative Agent such
other fees as agreed to between the Borrower and the Administrative Agent,
when and as due.
(f) All computations of Fees shall be made in accordance with
Section 12.07(b).
3.02 Voluntary Reduction of Commitments. Upon at least three
Business Days' prior written notice (or telephonic notice confirmed in
writing) to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Banks), the
Borrower shall have the right, without premium or penalty, to terminate or
partially reduce the Total Unutilized Revolving Commitment, provided that
(x) any such termination shall apply to proportionately and permanently
reduce the Revolving Commitment of each Bank, (y) no such reduction shall
reduce any Non-Defaulting Bank's Revolving Commitment to an amount that is
less than the sum of (I) the outstanding Revolving Loans of such Bank plus
(II) such Bank's Adjusted RC Percentage of outstanding Swingline Loans and
of Letter of Credit Outstandings and (z) any partial reduction pursuant to
this Section 3.02 shall be in integral multiples of $500,000.
3.03 Mandatory Reduction of Commitments. (a) The Total
Revolving Commitment (and the Revolving Commitment of each Bank) shall
terminate on April 30, 1998 unless the Effective Date has occurred on or
before such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Commitment (and the
Revolving Commitment of each Bank) shall terminate on the earlier of (x)
the Maturity Date and (y) unless the Required Banks otherwise agree in
writing, the date on which any Change of Control occurs.
(c) Each reduction to the Total Revolving Commitment pursuant
to this Section 3.03 shall be applied proportionately to reduce the
Revolving Loan Commitment of each Bank.
SECTION 4. Payments.
4.01 Voluntary Prepayments. The Borrower shall have the right
to prepay Loans in whole or in part, without premium or penalty, from time
to time on the following terms and conditions: (i) the Borrower shall give
the Administrative Agent at the Payment Office written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay
the Loans, whether such Loans are Revolving Loans or Swingline Loans, the
amount of such prepayment and (in the case of Eurodollar Loans) the
specific Borrowing or Borrowings pursuant to which made, which notice shall
be given by the Borrower (x) prior to 11:00 A.M. on the date of such
prepayment (in the case of Base Rate Loans) and (y) at least three Business
Days prior to the date of such prepayment (in the case of Eurodollar
Loans), which notice shall promptly be transmitted by the Administrative
Agent to each of the Banks; (ii) (x) each partial prepayment of any
Borrowing of Revolving Loans shall be in integral multiples of $250,000 and
(y) each partial prepayment of any Borrowing of Swingline Loans shall be in
integral multiples of $100,000, provided that no partial prepayment of
Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of Revolving Loans outstanding pursuant to such Borrowing
to an amount less than the Minimum Borrowing Amount; (iii) at the time of
any prepayment of Eurodollar Loans pursuant to this Section 4.01 on any
date other than the last day of the Interest Period applicable thereto, the
Borrower shall pay the amounts required pursuant to Section 1.11 and (iv)
each prepayment in respect of any Revolving Loans made pursuant to a
Borrowing shall be applied pro rata among such Revolving Loans, provided
that at the Borrower's election in connection with any prepayment of
Revolving Loans pursuant to this Section 4.01, such prepayment shall not be
applied to any Revolving Loans of a Defaulting Bank.
4.02 Mandatory Prepayments. (a) (i) If on any date the sum of
the aggregate outstanding principal amount of Revolving Loans made by
Non-Defaulting Banks, Swingline Loans and the Letter of Credit Outstandings
exceeds the Adjusted Total Revolving Commitment as then in effect, the
Borrower shall repay on such date the principal of Swingline Loans, and if
no Swingline Loans are or remain outstanding, Revolving Loans of
Non-Defaulting Banks, in an aggregate amount equal to such excess. If,
after giving effect to the repayment of all outstanding Swingline Loans and
Revolving Loans of Non-Defaulting Banks, the aggregate amount of Letter of
Credit Outstandings exceeds the Adjusted Total Revolving Commitment, the
Borrower shall pay to the Administrative Agent on such date an amount in
cash and/or Cash Equivalents equal to such excess (up to the aggregate
amount of the Letter of Credit Outstandings at such time) and the
Administrative Agent shall hold such payment as security for the
obligations of the Borrower hereunder pursuant to a cash collateral
agreement to be entered into in form and substance satisfactory to the
Administrative Agent (which shall permit certain investments in Cash
Equivalents satisfactory to the Administrative Agent, until the proceeds
are applied to the obligations so secured).
(ii) If on any date the aggregate outstanding principal amount
of the Revolving Loans made by a Defaulting Bank exceeds the Revolving
Commitment of such Defaulting Bank, the Borrower shall repay on such date
principal of Revolving Loans of such Defaulting Bank in an amount equal to
such excess.
(iii) If any Borrowing Base Certificate shall disclose the
existence of a Borrowing Base Deficiency, the Borrower shall on the date of
delivery thereof in accordance with Section 7.01(h) repay the principal of
the Swingline Loans outstanding in an aggregate amount equal to the
Borrowing Base Deficiency and, to the extent such Swingline Loans have been
repaid in full and, to the extent such Borrowing Base Deficiency continues
to exist after such repayment, the Borrower shall repay the principal of
the Revolving Loans of Non-Defaulting Banks outstanding in an aggregate
amount equal to such Borrowing Base Deficiency. To the extent the Borrowing
Base Deficiency exceeds the outstanding principal amount of Swingline Loans
and Revolving Loans of Non-Defaulting Banks, the Borrower shall pay to the
Administrative Agent at the Payment Office on such date an amount of cash
or Cash Equivalents equal to such excess to be held as security for all
Obligations of the Borrower hereunder in a cash collateral account
established and maintained by the Administrative Agent pursuant to a cash
collateral agreement in form and substance satisfactory to the
Administrative Agent (which shall permit certain investments in Cash
Equivalents satisfactory to the Administrative Agent until the proceeds are
applied to the Obligations so secured).
(iv) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, (i) all then outstanding Swingline Loans shall
be repaid in full on the Swingline Expiry Date, (ii) all then outstanding
Revolving Loans shall be repaid in full on the Maturity Date and (iii)
unless the Required Banks otherwise agree in writing, all then outstanding
Loans shall be repaid in full on the date on which a Change of Control
occurs.
(b) With respect to each prepayment of Revolving Loans required
by Section 4.02(a), the Borrower may designate the Types of Revolving Loans
which are to be prepaid and the specific Borrowing or Borrowings pursuant
to which made, provided that (i) Eurodollar Loans may so be designated for
prepayment pursuant to this Section 4.02 only on the last day of an
Interest Period applicable thereto unless all Eurodollar Loans with
Interest Periods ending on such date of required prepayment and all Base
Rate Loans have been paid in full; (ii) if any prepayment of Eurodollar
Loans made pursuant to a single Borrowing shall reduce the outstanding
Revolving Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount, such Borrowing shall be immediately converted
into Base Rate Loans; (iii) each prepayment of any Revolving Loans made by
Non-Defaulting Banks pursuant to a Borrowing shall be applied pro rata
among such Revolving Loans; and (iv) each prepayment of any Revolving Loans
made by Defaulting Banks pursuant to a Borrowing shall be applied pro rata
among such Revolving Loans. In the absence of a designation by the Borrower
as described in the preceding sentence, the Administrative Agent shall,
subject to the above, make such designation in its sole discretion with a
view, but no obligation, to minimize breakage costs owing under Section
1.11. Notwithstanding the foregoing provisions of this Section 4.02(b), if
at any time a mandatory or voluntary prepayment of Revolving Loans pursuant
to Sections 4.01 or 4.02(a) above would result, after giving effect to the
procedures set forth above, in the Borrower incurring breakage costs under
Section 1.11 as a result of Eurodollar Loans being prepaid other than on
the last day of an Interest Period applicable thereto (the "Affected
Eurodollar Loans"), then the Borrower may in its sole discretion initially
deposit a portion (up to 100%) of the amounts that otherwise would have
been paid in respect of the Affected Eurodollar Loans with the
Administrative Agent (which deposit must be equal in amount to the amount
of the Affected Eurodollar Loans not immediately prepaid) to be held in an
interest bearing account as security for the obligations of the Borrower
hereunder pursuant to a cash collateral arrangement satisfactory to the
Administrative Agent and shall provide for investments satisfactory to the
Administrative Agent, with such cash collateral to be directly applied upon
the first occurrence (or occurrences) thereafter of the last day of an
Interest Period applicable to the relevant Revolving Loans that are
Eurodollar Loans (or such earlier date or dates as shall be requested by
the Borrower), to repay an aggregate principal amount of such Revolving
Loans equal to the Affected Eurodollar Loans not initially prepaid pursuant
to this sentence. Notwithstanding anything to the contrary contained in the
immediately preceding sentence, all amounts deposited as cash collateral
pursuant to the immediately preceding sentence shall be held for the sole
benefit of the Banks whose Revolving Loans would otherwise have been
immediately prepaid with the amounts deposited and upon the taking of any
action by the Administrative Agent or the Banks pursuant to the remedial
provisions of Section 9, any amounts held as cash collateral pursuant to
this Section 4.02(b) shall, subject to the requirements of applicable law,
be immediately applied to repay Revolving Loans.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement shall be
made to the Administrative Agent for the ratable (based on their respective
pro rata shares) account of the Banks entitled thereto (which funds the
Administrative Agent shall promptly forward to such Banks), not later than
1:00 P.M. (New York time) on the date when due and shall be made in
immediately available funds and in lawful money of the United States of
America at the Payment Office, it being understood that written notice by
the Borrower to the Administrative Agent to make a payment from the funds
in the Borrower's account at the Payment Office shall constitute the making
of such payment to the extent of such funds held in such account. Any
payments under this Agreement which are made later than 1:00 P.M. (New York
time) shall be deemed to have been made on the next succeeding Business
Day. Whenever any payment to be made hereunder shall be stated to be due on
a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim or
other defense. Except as provided in Section 4.04(b), all such payments
will be made free and clear of, and without deduction or withholding for,
any present or future taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in
the second succeeding sentence, any tax imposed on or measured by the net
income or net profits of a Bank pursuant to the laws of the jurisdiction in
which it is organized or managed and controlled or the jurisdiction in
which the principal office or applicable lending office of such Bank is
located or any subdivision thereof or therein) and all interest, penalties
or similar liabilities with respect thereto (all such non-excluded taxes,
levies, imposts, duties, fees, assessments or other charges being referred
to collectively as "Taxes"). If any Taxes are so levied or imposed, the
Borrower agrees to pay the full amount of such Taxes, and such additional
amounts, if any, as may be necessary so that every payment of all amounts
due under this Agreement or under any Note, after withholding or deduction
for or on account of any Taxes, will not be less than the amount provided
for herein or in such Note. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, the Borrower agrees to reimburse each
Bank, upon the written request of such Bank, for taxes imposed on or
measured by the net income or net profits of such Bank pursuant to the laws
of the jurisdiction in which the principal office or applicable lending
office of such Bank is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction in which the
principal office or applicable lending office of such Bank is located and
for any withholding of taxes as such Bank shall determine are payable by,
or withheld from, such Bank in respect of such amounts so paid to or on
behalf of such Bank pursuant to the preceding sentence and in respect of
any amounts paid to or on behalf of such Bank pursuant to this sentence.
The Borrower will furnish to the Administrative Agent within 45 days after
the date the payment of any Taxes is due pursuant to applicable law
certified copies of tax receipts evidencing such payment by the Borrower.
The Borrower agrees to indemnify and hold harmless each Bank, and reimburse
such Bank upon written request, for the amount of any Taxes so levied or
imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Borrower and the Administrative Agent on or prior to the Effective Date, or
in the case of a Bank that is an assignee or transferee of an interest
under this Agreement pursuant to Section 1.13 or 12.04 (unless the
respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Bank, (i) two accurate and complete original signed copies of Internal
Revenue Service Form 4224 or 1001 (or successor forms) certifying to such
Bank's entitlement as of such date to a complete exemption from United
States withholding tax with respect to payments to be made under this
Agreement and under any Note, or (ii) if the Bank 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 D (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying to such Bank's entitlement to a complete
exemption from United States withholding tax with respect to payments of
interest to be made under this Agreement and under any Note. In addition,
each Bank agrees that from time to time after the Effective Date, when a
lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, it will deliver to the
Borrower and the Administrative Agent two new accurate and complete
original signed copies of Internal Revenue Service Form 4224 or 1001, or
Form W-8 and a Section 4.04(b)(ii) Certificate, as the case may be, and
such other forms as may be required in order to confirm or establish the
entitlement of such Bank to a continued exemption from or reduction in
United States withholding tax with respect to payments under this Agreement
and any Note, or it shall immediately notify the Borrower and the
Administrative Agent of its inability to deliver any such Form or
Certificate, in which case such Bank shall not be required to deliver any
such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to
Section 12.04(b) and the immediately succeeding sentence, (x) the Borrower
shall be entitled, to the extent it is required to do so by law, to deduct
or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from
interest, fees or other amounts payable hereunder for the account of any
Bank which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to
the extent that such Bank has not provided to the Borrower U.S. Internal
Revenue Service Forms that establish a complete exemption from such
deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) to gross-up payments to be made to a Bank in
respect of income or similar taxes imposed by the United States if (I) such
Bank is not a U.S. Person (defined as provided above) and has not provided
to the Borrower the Internal Revenue Service Forms required to be provided
to the Borrower pursuant to this Section 4.04(b) or (II) in the case of a
payment, other than interest, to a Bank described in clause (ii) above, to
the extent that such Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 4.04 and
except as set forth in Section 12.04(b), the Borrower agrees to pay
additional amounts and to indemnify each Bank in the manner set forth in
Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any amounts deducted
or withheld by it as described in the immediately preceding sentence as a
result of any changes that are effective after the Effective Date in any
applicable law, treaty, governmental rule, regulation, guideline or order,
or in the interpretation thereof, relating to the deducting or withholding
of such Taxes, provided such Bank shall provide to the Borrower and the
Administrative Agent, upon the request of the Borrower, any reasonably
available applicable IRS tax form (reasonably similar in its level of
detail to IRS Form 1001 or Form 4224 or a Section 4.04(b)(ii) Certificate)
necessary or appropriate for the exemption or reduction in the rate of such
U.S. federal withholding tax.
SECTION 5A. Conditions Precedent to the Effective Date. The
occurrence of the Effective Date pursuant to Section 12.10 is subject to
the satisfaction of the following conditions:
5A.01 Execution of Agreement. On or prior to the Effective
Date, (i) this Agreement shall have been executed and delivered as provided
in Section 12.10 and (ii) there shall have been delivered to the
Administrative Agent for the account of each Bank the appropriate Revolving
Note and to the Swingline Bank, the Swingline Note, in each case, executed
by the Borrower, and in the amount, maturity and as otherwise provided
herein.
5A.02 Officer's Certificate. On the Effective Date, the
Administrative Agent shall have received a certificate dated such date
signed by the President or any Vice President of the Borrower stating that
all of the applicable conditions set forth in Sections 5A.06, 5A.07, 5A.08,
5A.09, 5A.10, 5A.11, 5A.19 and 5A.20 and 5B.02 exist or have been satisfied
as of such date.
5A.03 Opinions of Counsel. On the Effective Date, the
Administrative Agent shall have received (i) an opinion, addressed to the
Administrative Agent and each of the Banks and dated the Effective Date,
from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Borrower, which opinion shall cover the matters contained in Exhibit E and
(ii) opinions of local counsel in form, scope and substance satisfactory to
the Administrative Agent.
5A.04 Corporate Proceedings. (a) On the Effective Date, the
Administrative Agent shall have received from each Credit Party a
certificate, dated the Effective Date, signed by the President or any Vice
President of such Credit Party, in each case in the form of Exhibit F with
appropriate insertions and deletions, together with copies of the articles
or certificate of incorporation, the by-laws and/or other organizational
documents (as appropriate) of each such Credit Party and the resolutions of
each such Credit Party referred to in such certificate and all of the
foregoing shall be in form and substance satisfactory to the Administrative
Agent.
(b) On the Effective Date, all corporate and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Documents shall be
satisfactory in form and substance to the Administrative Agent (except as
otherwise specifically provided herein), and the Administrative Agent shall
have received all information and copies of all certificates, documents and
papers, including good standing certificates and any other records of
corporate proceedings and governmental approvals, if any, which the
Administrative Agent may have reasonably requested in connection therewith,
such documents and papers, where appropriate, to be certified by proper
corporate or governmental authorities.
5A.05 Plans; Shareholders' Agreements; Management Agreement;
Employment Agreements; Existing Indebtedness Agreements; Affiliate
Contracts. On or prior to the Effective Date, there shall have been
delivered to the Banks copies, certified as true and correct by an
appropriate officer of the Borrower of:
(a) all Plans (and for each Plan that is required to file an
annual report on Internal Revenue Service Form 5500-series, a copy of
the most recent such report (including, to the extent required, the
related financial and actuarial statements and opinions and other
supporting statements, certifications, schedules and information),
and for each Plan that is a "single-employer plan," as defined in
Section 4001(a)(15) of ERISA, the most recently prepared actuarial
valuation therefor) and any other "employee benefit plans," as
defined in Section 3(3) of ERISA, and any other material agreements,
plans or arrangements, with or for the benefit of current or former
employees of the Borrower or any Subsidiary of the Borrower or any
ERISA Affiliate (provided that the foregoing shall apply in the case
of any multiemployer plan, as defined in Section 4001(a)(3) of ERISA,
only to the extent that any document described therein is in the
possession of the Borrower or any Subsidiary of the Borrower or any
ERISA Affiliate or reasonably available thereto from the sponsor or
trustee of any such plan);
(b) each agreement entered into by the Borrower and/or any
Subsidiary of the Borrower (after giving effect to the Transaction)
governing the terms and relative rights of such entity's capital
stock, and each agreement entered into by equityholders of any such
entity with respect to their equity interests therein (collectively,
the "Shareholders' Agreements");
(c) the Management Agreement;
(d) each material employment agreement entered into by the
Borrower and/or any Subsidiary of the Borrower (collectively the
"Employment Agreements");
(e) each agreement evidencing or relating to material
Indebtedness of the Borrower and/or any Subsidiary of the Borrower
that is to remain outstanding after the Effective Date (collectively,
the "Existing Indebtedness Agreements"); and
(f) each contract, agreement or understanding entered into
between the Borrower and/or any of its Subsidiaries on the one hand,
and any of its Affiliates on the other hand (collectively, the
"Affiliate Contracts");
all of which Plans, Shareholders' Agreements, Management Agreement,
Employment Agreements, Existing Indebtedness Agreements and Affiliate
Contracts shall be in form and substance satisfactory to the Administrative
Agent.
5A.06 Material Adverse Change, etc. (a) On the Effective Date,
there shall not have occurred since September 30, 1997 any change, event,
loss or development in the business of the Borrower and/or any of its
Subsidiaries (including the incurrence of any liability of any nature,
whether accrued, contingent or otherwise) that, taken together with other
changes, events, losses or developments with respect to such business, has
had or would be reasonably expected to have a "materially adverse effect"
on the Borrower and its Subsidiaries taken as a whole. Solely for purposes
of this Section 5A.06, "materially adverse effect" shall mean any effect,
change or event which is not disclosed on Schedule 5.8 to the
Recapitalization Agreement that individually or in the aggregate, when
taken together with all similar effects, (i) is or is reasonably likely to
be material and adverse to the assets, liabilities, condition (financial or
otherwise), results of operations, cash flows or business of the Borrower
and its Subsidiaries taken as a whole, or (ii) does or is reasonably likely
to impair materially the ability of the Borrower or any Subsidiary
Guarantor to perform its obligations under the Credit Documents or
otherwise to threaten materially or to impede materially the consummation
of the Recapitalization, the Refinancing and/or any other transaction
contemplated by the Documents.
(b) During the period from November 25, 1997 through the
Effective Date, the Borrower and its Subsidiaries shall have operated their
respective businesses in the ordinary course and shall not have sold any
substantial part thereof.
5A.07 Litigation. (a) On the Effective Date, there shall be no
actions, suits or proceedings by any entity (private or governmental) which
is pending or threatened (a) with respect to this Agreement or any other
Document or the transactions contemplated hereby or thereby (including,
without limitation, the Transaction) or (b) which the Administrative Agent
or the Required Banks shall reasonably determine is reasonably likely to
(i) have a materially adverse effect on the Transaction or on the business,
operations, property, assets, liabilities, condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole or (ii)
have a material adverse effect on the rights or remedies of the Banks or
the Administrative Agent hereunder or under any other Credit Document or on
the ability of any Credit Party to perform its respective obligations to
them hereunder or under any other Credit Document.
(b) On the Effective Date there shall not exist any judgment,
order, injunction or other restraint prohibiting or imposing materially
adverse conditions upon, or materially delaying the consummation of the
Recapitalization or the other transactions contemplated by the Documents.
5A.08 Approvals. Other than as set forth on Schedule XII, on or
prior to the Effective Date, all necessary governmental (domestic and
foreign), regulatory and third party approvals and/or consents in
connection with the Transaction and the other transactions contemplated by
this Agreement and the other Documents and otherwise referred to herein or
therein shall have been obtained and remain in effect, and all applicable
waiting periods shall have expired without any action being taken by any
competent authority which restrains or prevents such transactions or
imposes, in the reasonable judgment of the Required Banks or the
Administrative Agent, materially adverse conditions upon the consummation
of such transactions. Any state anti-takeover law regulating the
Recapitalization shall have been complied with or shall have been
reasonably determined by the Administrative Agent and the Required Banks to
be invalid or inapplicable to the Recapitalization.
5A.09 Consummation of the Recapitalization. (a) Except for
changes which are reasonably acceptable to the Administrative Agent and the
Required Banks, the Recapitalization Agreement shall be in the form
delivered to the Administrative Agent and the Banks prior to the Effective
Date. The Recapitalization Documents (and the transactions contemplated
thereby) shall have been duly approved by the boards of directors and, if
required by applicable law, the stockholders of the parties thereto, and
all Recapitalization Documents shall have been duly executed and delivered
by the parties thereto and shall be in full force and effect. Each of the
conditions precedent to the obligation of the parties to consummate the
Recapitalization as set forth in the Recapitalization Agreement shall have
been satisfied to the satisfaction of the Administrative Agent and the
Required Banks, or waived with the consent of the Administrative Agent and
the Required Banks and the Recapitalization shall have been consummated in
accordance with the Recapitalization Documents (without giving effect to
any amendment or modification of the Recapitalization Agreement or waiver
with respect thereto unless consented to by the Administrative Agent and
the Required Banks) and all applicable laws, rules and regulations.
(b) On or prior to the Effective Date the aggregate amount of
cash necessary to effectuate the Recapitalization shall have been reduced
by approximately $2,600,000 in connection with the exercise price of
outstanding options.
5A.10 Consummation of the Equity Financing. On or prior to the
Effective Date, (i) the Borrower shall have received at least $25,000,000
in common equity financing (the "Equity Financing"), (ii) as part of the
Equity Financing, the Borrower shall have received net cash proceeds (the
"Equity Financing Cash Proceeds") of at least $20,000,000 from the issuance
of Common Stock to X.X. Childs, its affiliates and other investors
reasonably satisfactory to the Administrative Agent (with (x) retained
shares of Common Stock, (y) the value of retained options held by members
of senior management of the Borrower and (z) shares of Common Stock
purchased by members of management of the Borrower with the proceeds of up
to $100,000 of loans made by the Borrower to such members of senior
management representing the remainder of the Equity Financing), (ii) the
Administrative Agent and the Banks shall have received copies of all
agreements governing, or relating to, the Equity Financing (the "Equity
Financing Documents") certified as true and correct by an Authorized
Officer of the Borrower and such Equity Financing Documents shall be in
full force and effect and (iii) all terms and conditions of the Equity
Financing and the Equity Financing Documents shall be reasonably
satisfactory to the Administrative Agent and the Required Banks. The Equity
Financing shall have occurred in accordance with the terms and conditions
of the Equity Financing Documents (without giving effect to any amendment,
modification or waiver with respect thereto unless consented to by the
Administrative Agent and the Required Bank) and all applicable law. The
Borrower shall have utilized the Equity Financing Cash Proceeds to finance,
in part, the Recapitalization as well as to pay fees and expenses in
connection with the Transaction and the Administrative Agent and the Banks
shall have received a certificate of an Authorized Officer of the Borrower
to such effect setting forth in reasonable detail the uses of such
proceeds.
5A.11 Senior Notes. On or prior to the Effective Date, (i) the
Borrower shall have issued the Senior Notes and shall have received gross
cash proceeds therefrom in an aggregate amount of at least $100,000,000,
(ii) the Administrative Agent and the Banks shall have received copies of
the Senior Notes Documents certified as true and correct by an Authorized
Officer of the Borrower and (iii) the Senior Notes Documents shall be in
full force and effect and the terms and conditions thereof (including,
without limitation, subordination provisions, amortization, maturities,
interest rates, covenants, defaults, securities, remedies, mandatory
repayments and offers to purchase, sinking fund provisions) shall be
reasonably satisfactory to the Administrative Agent and the Required Banks.
The Borrower shall have utilized the net cash proceeds received from the
issuance of the Senior Notes to make the payments described under the "Use
of Proceeds" section of the offering memorandum relating to the Senior
Notes. The issuance of the Senior Notes shall have occurred in accordance
with the terms and conditions of the Senior Notes Documents (without giving
effect to any amendment, modification or waiver with respect thereto unless
consented to by the Administrative Agent and the Required Banks) and all
applicable law.
5A.12 Corporate, Capital, Ownership Structure. On the Effective
Date (after giving effect to the Transaction) the corporate, capital and
ownership structure (including, without limitation, the terms of any
capital stock, options, warrants or other securities issued or to be issued
by the Borrower on the Effective Date and all agreements and organizational
documents related thereto) and management of the Borrower and its
Subsidiaries shall be reasonably satisfactory to the Administrative Agent
and the Required Banks.
5A.13 Fees. On or prior to the Effective Date, the Borrower
shall have paid to the Administrative Agent and the Banks all Fees and
expenses (including, without limitation, reasonable fees and expenses of
counsel and all expenses related to the equipment appraisals required
pursuant to this Agreement) agreed upon by such parties to be paid on or
prior to such date.
5A.14 Subsidiary Guaranty. On the Effective Date, each
Subsidiary Guarantor, if any, shall have duly authorized, executed and
delivered a guaranty in the form of Exhibit G (as modified, amended or
supplemented from time to time in accordance with the terms hereof and
thereof, the "Subsidiary Guaranty"), and the Subsidiary Guaranty shall be
in full force and effect.
5A.15 Security Documents. (a) On the Effective Date, the
Borrower and each Subsidiary Guarantor shall have (i) duly authorized,
executed and delivered a Pledge Agreement in the form of Exhibit H (as
modified, amended or supplemented from time to time in accordance with the
terms hereof and thereof, the "Pledge Agreement"), (ii) executed and
delivered to the Collateral Agent all Financing Statements (Form UCC-1) in
appropriate form for filing under the UCC of each jurisdiction as may be
necessary to perfect the pledge of all Pledged Securities and (iii)
delivered to the Collateral Agent, as pledgee thereunder, all of the
certificates representing the Pledged Securities referred to therein and
owned by such Credit Party on the Effective Date, endorsed in blank (in the
case of promissory notes) or accompanied by executed and undated stock
powers or other appropriate instruments of transfer (in the case of capital
stock or other equity interests), and the Pledge Agreement shall be in full
force and effect.
(b) On the Effective Date, the Borrower and each Subsidiary
Guarantor shall have duly authorized, executed and delivered a Security
Agreement in the form of Exhibit I (as modified, supplemented or amended
from time to time in accordance with the terms hereof and thereof, the
"Security Agreement") covering all of such Credit Party's present and
future Security Agreement Collateral, in each case together with:
(i) executed Financing Statements (Form
UCC-1) in appropriate form for filing under the UCC of each
jurisdiction as may be necessary to perfect the security interests
purported to be created by the Security Agreement;
(ii) certified copies of Requests for
Information or Copies (Form UCC-11), or equivalent reports, each of
recent date listing all effective financing statements that name each
Credit Party as debtor and that are filed in the jurisdictions
referred to in clause (i) above or in Section 5A.15(a)(ii) above,
together with copies of such other financing statements that name any
Credit Party as debtor (none of which shall cover the Collateral
except (x) those with respect to which appropriate termination
statements executed by the secured lender thereunder have been
delivered to the Administrative Agent and (y) to the extent
evidencing Permitted Liens);
(iii) evidence of the completion of (or
evidence of the making of arrangements satisfactory to the
Administrative Agent for the completion of) all other recordings and
filings of, or with respect to, the Security Agreement as may be
necessary or, in the reasonable opinion of the Collateral Agent,
desirable to perfect the security interests intended to be created by
the Security Agreement (including, without limitation, filings and
registrations with respect to copyrights, patents and trademarks);
and
(iv) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Security
Agreement have been taken; and the Security Agreement shall be in full
force and effect.
5A.16 Mortgages. On the Effective Date, the Borrower will, and
will cause each of its Subsidiaries to, deliver to the Collateral Agent (i)
fully executed counterparts of deeds of trust, mortgages and similar
documents in each case in form and substance satisfactory to the Collateral
Agent (each a "Mortgage" and, collectively, the "Mortgages") covering all
of the Mortgaged Properties, and counterparts of such Mortgages shall have
been duly recorded in all places to the extent necessary or, in the
judgment of the Collateral Agent, desirable, effectively to create a valid
and enforceable first priority mortgage Lien, subject only to Permitted
Encumbrances, on each such Mortgaged Property in favor of the Collateral
Agent (or such other trustee as may be required or desirable under local
law) for the benefit of the Banks, (ii) mortgage title insurance policies
issued by title insurers reasonably satisfactory to the Collateral Agent
(the "Mortgage Policies") in amounts reasonably satisfactory to the
Collateral Agent and assuring the Collateral Agent that the Mortgages in
respect of the Mortgaged Properties are valid and enforceable first
priority mortgage Liens on the respective Mortgaged Properties free and
clear of all defects and encumbrances except Permitted Encumbrances, and
such Mortgage Policies shall be in form and substance reasonably
satisfactory to the Collateral Agent and shall include an endorsement for
mechanic liens and for any other matter that the Collateral Agent in its
discretion may reasonably request and (iii) such opinions of counsel as the
Collateral Agent may reasonably request in connection with such Mortgages,
which opinions of counsel shall be in form and substance satisfactory to
the Collateral Agent.
5A.17 Solvency. On the Effective Date, the Borrower shall have
delivered to the Administrative Agent a solvency certificate in the form of
Exhibit J, addressed to the Administrative Agent and each of the Banks and
dated the Effective Date, from the chief executive officer or chief
financial officer of the Borrower.
5A.18 Insurance Coverage. On the Effective Date, the
Administrative Agent shall have received (i) evidence of insurance in
amount and scope reasonably satisfactory to the Administrative Agent and
otherwise complying with the requirements of Section 7.03 for the business
and properties of the Borrower and its Subsidiaries, (ii) and endorsements
in form and substance satisfactory to the Administrative Agent and (iii) a
summary of insurance coverage complying with the requirements of Section
7.03.
5A.19 Refinancing. (a) On the Effective Date, and after giving
effect to the Loans incurred on the Effective Date, the Refinancing, the
Recapitalization and the other transactions contemplated by the Documents,
neither the Borrower nor any of its Subsidiaries shall have any
Indebtedness or preferred stock outstanding except for such Loans and the
Existing Indebtedness. All of the Existing Indebtedness shall remain
outstanding after the transactions contemplated by this Agreement and the
other Documents without any defaults or events of default existing
thereunder or arising as a result of the transactions contemplated by this
Agreement and the other Documents. The amount, terms and conditions, and
the documentation for all Existing Indebtedness, shall be reasonably
satisfactory to the Administrative Agent and the Required Banks.
(b) (i) On the Effective Date, the commitments under each
Refinanced Agreement shall have been terminated, all loans thereunder shall
have been repaid in full, together with interest thereon (including,
without limitation, any prepayment premium), all letters of credit issued
thereunder shall have been terminated, and all other amounts owing pursuant
to each Refinanced Agreement shall have been repaid in full, and the
Administrative Agent shall have received evidence in form, scope and
substance satisfactory to the Administrative Agent that the matters set
forth in this Section 5A.19 have been satisfied at such time.
(ii) On the Effective Date, the creditors under each Refinanced
Agreement shall have terminated and released all applicable Liens on the
capital stock of, and assets owned by, the Borrower and its Subsidiaries.
(c) The Administrative Agent shall have received copies of all
documents executed in connection with the Refinancing and the release of
the Liens pursuant thereto (the "Debt Termination Documents"), all of which
shall be in form and substance satisfactory to the Administrative Agent.
5A.20 No Default Under Material Agreements. On the Effective
Date and after giving effect to the transactions contemplated by the
Documents, there shall be no conflict with, or default under, any material
agreement of the Borrower and its Subsidiaries (including, without
limitation, the Senior Notes Indenture and the other Senior Notes
Documents). For purposes of this Section 5A.20, "material agreement" shall
refer to each material contract involving annual revenues in excess of
$1,000,000 and each material license of the Borrower.
5A.21 Projections. On or prior to the Effective Date, there
shall have been delivered to the Administrative Agent detailed projected
financial statements of the Borrower certified by the chief financial
officer of the Borrower for the period from January 1, 1998 to December 31,
2003 (the "Projections"), which Projections (x) shall reflect the
forecasted income statements, balance sheets and cash flow (including all
relevant assumptions in connection therewith) of the Borrower after giving
affect to the Transaction and the related financing thereof and the other
transactions contemplated hereby and (y) shall be reasonably satisfactory
in form and substance to the Administrative Agent.
5A.22 Equipment Appraisal. On or prior to Effective Date, the
Administrative Agent and the each Bank shall have received, and the
Administrative Agent and the Required Banks shall be satisfied with the
form, substance and results of, a current complete appraisal analysis of
the rental equipment of the Borrower and its Subsidiaries conducted by
Xxxxx-Xxxxxx Appraisal Corporation on a valuation basis acceptable to the
Administrative Agent (the "Appraisal Analysis"). The Appraisal Analysis
shall support unutilized availability on the Effective Date which is
satisfactory to the Administrative Agent.
5A.23 Initial Borrowing Base Certificate. On or prior to the
Effective Date, the Borrower shall have delivered to the Administrative
Agent and to each Bank its initial Borrowing Base Certificate meeting the
requirements of Section 7.01(h).
The acceptance of the benefits of each Credit Event shall
constitute a representation and warranty by the Borrower to the
Administrative Agent and each of the Banks that all of the applicable
conditions specified above exist as of that time. All of the certificates,
legal opinions and other documents and papers referred to in this Section
5A, unless otherwise specified, shall be delivered to the Administrative
Agent at its Notice Office for the account of each of the Banks and, except
for the Notes, in sufficient counterparts or copies for each of the Banks
and shall be satisfactory in form and substance to the Administrative
Agent.
SECTION 5B. Conditions Precedent to All Credit Events. The
obligation of each Bank to make Loans (including Loans made on the
Effective Date) and the obligation of each Issuing Bank to issue Letters of
Credit, is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
5B.01 Effective Date. The Effective Date shall have occurred.
5B.02 No Default; Representations and Warranties. At the time
of each Credit Event and also after giving effect thereto, (i) there shall
exist no Default or Event of Default and (ii) all representations and
warranties contained herein and in the other Credit Documents in effect at
such time shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and
as of such dates, except to the extent that such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties will be true and correct in all material
respects as of such earlier date.
5B.03 Notice of Borrowing; Letter of Credit Request. (a) Prior
to the making of each Revolving Loan, the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 1.03(a).
Prior to the making of any Swingline Loan, the Swingline Bank shall have
received the notice required by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
respective Letter of Credit Issuer shall have received a Letter of Credit
Request meeting the requirements of Section 2.03(a).
SECTION 6. Representations, Warranties and Agreements. In order
to induce the Banks to enter into this Agreement and to make the Loans and
issue and/or participate in Letters of Credit provided for herein, the
Borrower makes the following representations and warranties to, and
agreements with, the Banks, in each case after giving effect to the
Transaction and any other transactions contemplated by the Documents, all
of which shall survive the execution and delivery of this Agreement and the
making of the Loans and the issuance and/or participation in Letters of
Credit (with the making of each Credit Event thereafter being deemed to
constitute a representation and warranty that the matters specified in this
Section 6 are true and correct in all material respects on and as of the
date of each such Credit Event unless such representation and warranty
expressly indicates that it is being made as of any specific date, in which
case such representation and warranty shall be true and correct in all
material respects as of such specific date):
6.01 Corporate Status. The Borrower and each of its
Subsidiaries (i) is a duly organized and validly existing corporation in
good standing under the laws of the jurisdiction of its organization and
has the corporate power and authority to own its property and assets and to
transact the business in which it is engaged and (ii) has duly qualified
and is authorized to do business and is in good standing in all
jurisdictions where it is required to be so qualified and where the failure
to be so qualified could reasonably be expected to have a Material Adverse
Effect.
6.02 Power and Authority. Each Credit Party has the corporate
power and authority to execute, deliver and carry out the terms and
provisions of the Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and
performance of the Documents to which it is a party. Each Credit Party has
duly executed and delivered each Document to which it is a party and each
such Document constitutes the legal, valid and binding obligation of such
Person enforceable in accordance with its terms, except to the extent that
the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
6.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Documents to which it is a party nor
compliance by it with the terms and provisions thereof, nor the
consummation of the transactions contemplated therein, (i) will contravene
any applicable provision of any law, statute, rule, regulation, order,
writ, injunction or decree of any court or governmental instrumentality,
(ii) other than as set forth on Schedule XII, will conflict or be
inconsistent with, or result in any breach of, any of the terms, covenants,
conditions or provisions of, or constitute a default under, or (other than
pursuant to the Security Documents) result in the creation or imposition of
(or the obligation to create or impose) any Lien upon any of the property
or assets of the Borrower or any of its Subsidiaries pursuant to the terms
of, any indenture, mortgage, deed of trust, agreement or other instrument
to which the Borrower or any of its Subsidiaries is a party or by which it
or any of its material property or assets are bound or to which it may be
subject or (iii) will violate any provision of the certificate of
incorporation or by-laws (or equivalent organizational documents) of the
Borrower or any of its Subsidiaries.
6.04 Litigation. There are no actions, suits or proceedings
pending or threatened with respect to the Borrower or any of its
Subsidiaries (i) that are likely to have a materially adverse effect on the
business, operations, property, assets, liabilities, condition (financial
or otherwise) of the Borrower and its Subsidiaries taken as a whole or (ii)
that could reasonably be expected to have a material adverse effect on (a)
the rights or remedies of the Banks or on the ability of any Credit Party
to perform its obligations to them hereunder and/or under the other Credit
Documents to which it is a party or (b) the ability to consummate the
Transaction.
6.05 Use of Proceeds; Margin Regulations. (a) The proceeds of
all Revolving Loans and the proceeds of all Swingline Loans shall be
utilized (i) on the Effective Date to effect the Refinancing, provided that
no more than $3,000,000 of such proceeds shall be utilized on such date to
repay indebtedness incurred after September 30, 1997 and prior to the
Effective Date, (ii) on the Effective Date to pay fees and expenses
relating to the Transaction, (iii) to make up to $3,300,000 of severance
and pension related payments in connection with the Recapitalization and
(iv) for the ongoing general corporate, working capital and equipment
purchase requirements of the Borrower and its Subsidiaries. Notwithstanding
anything to the contrary, no more than $9,000,000 of proceeds of Revolving
Loans and/or Swingline Loans shall be utilized for any purpose on the
Effective Date.
(b) Neither the making of any Loan hereunder, nor the use of
the proceeds thereof, nor the occurrence of any other Credit Event, nor the
incurrence of any other Indebtedness will violate or be inconsistent with
the provisions of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System and no part of any Credit Event (or the proceeds
thereof) will be used to purchase or carry any Margin Stock or to extend
credit for the purpose of purchasing or carrying any Margin Stock. At no
time shall the value (as determined in accordance with Regulation U) of
Margin Stock owned by the Borrower and its Subsidiaries exceed 25% of the
value (as determined in accordance with Section 221.2(g)(2) of Regulation
U) of the assets of the Borrower and its Subsidiaries taken as a whole.
6.06 Requisite Approvals. Except for filings and recordings in
connection with the Security Documents that have been or will be made, and
other than as set forth on Schedule XII, no material order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by (other than those that have otherwise
been obtained or made on or prior to the Effective Date and which remain in
full force and effect on the Effective Date), any foreign or domestic
governmental or public body or authority, or any subdivision thereof, or
any third Person, is required to authorize or is required in connection
with (i) the execution, delivery and performance of any Document or (ii)
the legality, validity, binding effect or enforceability of any Document.
6.07 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of
1940, as amended.
6.08 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company" or an "affiliate" of a "holding company" or
of a "subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
6.09 True and Complete Disclosure. All factual information
(taken as a whole) heretofore or contemporaneously furnished by or on
behalf of the Borrower or any of its Subsidiaries in writing to the
Administrative Agent or any Bank (including, without limitation, all
information contained in the Credit Documents) for purposes of or in
connection with this Agreement, the other Credit Documents or any
transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of any
Credit Party in writing to the Administrative Agent or any Bank will be
true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state
any material fact necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which such
information was provided. There is no fact known to the Borrower which
would be reasonably likely to have a Material Adverse Effect which has not
been disclosed herein or in such other documents, certificates and
statements furnished in writing to the Banks for use in connection with the
transactions contemplated hereby.
6.10 Financial Condition; Financial Statements. (a) On and as
of the Effective Date, on a pro forma basis after giving effect to the
Transaction and to all Indebtedness incurred, and to be incurred, and Liens
created, and to be created, by each Credit Party in connection therewith,
(x) the sum of the assets, at a fair valuation, of the Borrower and its
Subsidiaries taken as a whole will exceed its debts, (y) the Borrower and
its Subsidiaries taken as a whole will not have incurred or intended to, or
believe that they will, incur debts beyond their ability to pay such debts
as such debts mature and (z) the Borrower and its Subsidiaries taken as a
whole will not have unreasonably small capital with which to conduct its
business. For purposes of this Section 6.10 (a), "debt" means any liability
on a claim, and "claim" means (i) right to payment whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured; or (ii) right to an equitable remedy for breach of performance
if such breach gives rise to a payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
(b) (i) The consolidated balance sheet of the Borrower as of
December 31, 1996 and the related consolidated statements of income,
shareholders' equity and cash flows of the Borrower for the fiscal year
ended as of said date, which has been audited by Coopers & Xxxxxxx L.L.P.,
independent certified public accountants, who delivered an unqualified
audit opinion in respect therewith, (ii) the unaudited draft consolidated
balance sheet of the Borrower as of September 30, 1997 and the related
consolidated statements of income, shareholders' equity and cash flows of
the Borrower for the fiscal year ended as of said date and (iii) the pro
forma balance sheet of the Borrower as of September 30, 1997, copies of
which have heretofore been furnished to each Bank, present fairly the
financial position of the Borrower as of the dates of said statements and
the results for the periods covered thereby (or, in the case of the
aforesaid pro forma balance sheet, presents a good faith estimate of the
pro forma financial condition of the Borrower (after giving effect to the
Transaction and the related financing thereof) at the date thereof) in
accordance with GAAP (except, in the case of the aforesaid pro forma
balance sheet, to the extent provided therein), except to the extent
provided in the notes to said financial statements and, in the case of the
aforesaid pro forma balance sheet, subject to normal year end adjustments.
All such financial statements (other than the aforesaid pro forma balance
sheet) have been prepared in accordance with GAAP consistently applied
except to the extent provided in the notes to said financial statements.
(c) Since September 30, 1997, and after giving effect to the
Transaction and any other transactions contemplated by the Documents,
nothing has occurred that has had or could reasonably be expected to have a
Material Adverse Effect.
(d) The Projections and pro forma financial information
contained in such materials are based on good faith estimates and
assumptions believed by such Persons to be reasonable at the time made. On
the Effective Date, the Borrower believed that the Projections were
reasonable.
(e) Except as reflected in the financial statements and the
notes thereto described in Section 6.10(b), there were as of the Effective
Date no liabilities or obligations with respect to the Borrower or any of
its Subsidiaries of a nature (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in
aggregate, could reasonably be expected to be material to the Borrower and
its Subsidiaries taken as a whole. As of the Effective Date neither the
Borrower or any of its Subsidiaries knows of any basis for the assertion
against the Borrower or any of its Subsidiaries of any liability or
obligation of any nature whatsoever that is not fully disclosed (x) in the
financial statements described in Section 6.10(b) or (y) in the schedules
to the Recapitalization Agreement and/or this Agreement which, either
individually or in the aggregate, could reasonably be expected to be
material to the Borrower and its Subsidiaries taken as a whole.
6.11 Security Interests. On and after the Effective Date, each
of the Security Documents create, as security for the Obligations purported
to be secured thereby, a valid and enforceable (and, upon the filing of the
Form UCC-1 Financing Statements delivered pursuant to Section 5A.15(b)(i),
perfected) security interest in and Lien on all of the Collateral subject
thereto, superior to and prior to the rights of all third Persons and
subject to no other Liens (except (x) to the extent expressly set forth in
the Security Documents, (y) that the Collateral may be subject to the
security interests evidenced by Permitted Liens relating thereto and (z)
that the Mortgaged Properties also may be subject to Permitted Encumbrances
relating thereto), in favor of the Collateral Agent for the benefit of the
Secured Creditors. No filings or recordings are required in order to
perfect the security interests created under any Security Document except
for filings or recordings required in connection with any such Security
Document which shall have been made on or prior to the execution and
delivery thereof (or are the subject of arrangements, satisfactory to the
Administrative Agent, for filing on or promptly after the date of the
execution and delivery thereof).
6.12 Representations and Warranties in the Documents. All
representations and warranties of the Credit Parties and, to the best
knowledge of the Borrower, of all other Persons party thereto, set forth in
the Credit Documents, the Recapitalization Agreement and the Senior Notes
Documents were true and correct in all material respects as of the time
such representations and warranties were made and shall be true and correct
in all material respects as of the Effective Date as if such
representations and warranties were made on and as of such date, unless
stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date.
6.13 Consummation of Transaction. As of the Effective Date, the
Transaction shall have been consummated in accordance with the terms and
conditions of the Transaction Documents and all applicable laws. All
applicable waiting periods with respect thereto have or, prior to the time
when required, will have, expired without, in all such cases, any action
being taken by any competent authority which restrains, prevents, or
imposes material adverse conditions upon the consummation of the
Transaction. As of the Effective Date, there does not exist any judgment,
order, or injunction prohibiting the consummation of the Transaction, or
the making of the Loans or the issuance of Letters of Credit or the
performance by any Credit Party of its respective obligations under the
Documents.
6.14 Tax Returns and Payments. Each of the Borrower and each of
its Subsidiaries has filed all federal income tax returns and all other
material tax returns, domestic and foreign, required to be filed by it and
has paid, or properly accrued in accordance with GAAP, all material taxes
and assessments payable by it which have become due, other than those not
yet delinquent and those contested in good faith and for which adequate
reserves have been established in accordance with GAAP. The Borrower and
each of its Subsidiaries have paid, or have provided adequate reserves (in
the good faith judgment of the management of the Borrower) for the payment
of, all federal, state and foreign income taxes applicable for all prior
fiscal years and for the current fiscal year to the date hereof. There is
no material action, suit, proceeding, investigation, audit or claim now
pending or, to the best knowledge of the Borrower, threatened by any
authority regarding any taxes relating to the Borrower or any of its
Subsidiaries. Neither the Borrower nor any of its Subsidiaries has entered
into an agreement or waiver or been requested to enter into an agreement or
waiver extending any statute of limitations relating to the payment or
collection of taxes of the Borrower or any of its Subsidiaries, or is aware
of any circumstances that could cause the taxable years or other taxable
periods of the Borrower or any of its Subsidiaries not to be subject to the
normally applicable statute of limitations.
6.15 Compliance with ERISA. (a) Schedule III sets forth a list
of each Plan; each Plan (and each related trust, insurance contract or
fund) is in substantial compliance with its terms and with all applicable
laws, including without limitation, ERISA and the Code; each Plan (and each
related trust, if any) which is intended to be qualified under Section
401(a) of the Code, has received a determination letter from the Internal
Revenue Service to the effect that it meets the requirements of Sections
401(a) and 501(a) of the Code; no Reportable Event has occurred; to the
best knowledge of the Borrower, no Plan which is a multiemployer plan (as
defined in Section 4001(a)(3) of ERISA) is insolvent or in reorganization;
no Plan has an Unfunded Current Liability; no Plan which is subject to
Section 412 of the Code or Section 302 of ERISA has an accumulated funding
deficiency, within the meaning of such sections of the Code or ERISA or has
applied for or received a waiver of an accumulated funding deficiency or an
extension of any amortization period, within the meaning of Section 412 of
the Code or Section 303 or 304 of ERISA; all contributions required to be
made with respect to a Plan have been timely made; neither the Borrower,
nor any Subsidiary of the Borrower nor any ERISA Affiliate has incurred any
material liability (including any indirect, contingent or secondary
liability) to or on account of a Plan pursuant to Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code or, to the best knowledge of the
Borrower, expects to incur any such liability under any of the foregoing
sections with respect to any Plan; no condition exists which presents a
material risk to the Borrower or any Subsidiary of the Borrower or any
ERISA Affiliate of incurring a liability to or on account of a Plan
pursuant to the foregoing provisions of ERISA and the Code; no proceedings
have been instituted to terminate or appoint a trustee to administer any
Plan which is subject to Title IV of ERISA; no action, suit, proceeding,
hearing, audit or investigation with respect to the administration,
operation or the investment of assets of any Plan (other than routine
claims for benefits) is pending, or, to the best knowledge of the Borrower,
expected or threatened; using actuarial assumptions and computation methods
consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of the Borrower and its Subsidiaries and its ERISA Affiliates
to all Plans which are multiemployer plans (as defined in Section
4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom, as of
the close of the most recent fiscal year of each such Plan ended prior to
the date of the most recent Credit Event, would not exceed $500,000; each
group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) which covers or has covered employees or former
employees of the Borrower, any Subsidiary of the Borrower, or any ERISA
Affiliate has at all times been operated in compliance with the provisions
of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code
except to the extent that any failure to so comply would not result in a
material liability to the Borrower or any subsidiary of the Borrower or any
ERISA Affiliate; no material lien imposed under the Code or ERISA on the
assets of the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate exists or, to the best knowledge of the Borrower, is likely to
arise on account of any Plan; and the Borrower and its Subsidiaries do not
maintain or contribute to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) which provides benefits to retired employees or
other former employees (other than as required by Section 601 of ERISA) or
any Plan the obligations with respect to which could reasonably be expected
to have a material adverse effect on the ability of the Borrower to perform
its obligations under this Agreement.
(b) No Plan is a Foreign Pension Plan.
6.16 Subsidiaries; Subsidiary Restrictions. (a) Schedule IV
lists each Subsidiary of the Borrower (and the direct and indirect
ownership interest of the Borrower therein), in each case existing on the
Effective Date.
(b) There are no restrictions on the Borrower or any of its
Subsidiaries which prohibit or otherwise restrict the transfer of cash or
other assets from any Subsidiary of the Borrower to the Borrower, other
than prohibitions or restrictions existing under or by reason of (i) this
Agreement and the other Credit Documents, (ii) applicable law, (iii)
customary non-assignment provisions entered into in the ordinary course of
business and consistent with past practices, (iv) any restriction or
encumbrance with respect to a Subsidiary of the Borrower imposed pursuant
to an agreement which has been entered into for the sale or disposition of
all or substantially all of the capital stock or assets of such Subsidiary,
so long as such sale or disposition is permitted under this Agreement and
(v) any documents or instruments governing the terms of any Indebtedness or
other obligations secured by Permitted Liens, provided that such
prohibitions or restrictions apply only to the assets subject to such
Permitted Liens.
6.17 Patents, etc. The Borrower and each of its Subsidiaries
have obtained all patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from material restrictions,
that are necessary for the operation of their businesses taken as a whole
as presently conducted.
6.18 Pollution and Other Regulations. (A) (a) Each of the
Borrower and each of its Subsidiaries is in compliance with all applicable
Environmental Laws governing its business for which failure to comply is
likely to have a Material Adverse Effect, and neither the Borrower nor any
of its Subsidiaries is liable for any penalties, fines or forfeitures for
failure to comply with any of the foregoing in the manner set forth above,
(b) all licenses, permits, registrations or approvals required for the
business of the Borrower and each of its Subsidiaries, as conducted as of
the Effective Date, under any Environmental Law have been secured or
applied for and each of the Borrower and each of its Subsidiaries is in
substantial compliance therewith, except such licenses, permits,
registrations or approvals the failure to secure or to comply with is not
likely to have a Material Adverse Effect, (c) neither the Borrower nor any
of its Subsidiaries is in any respect in noncompliance with, breach of or
default under any applicable writ, order, judgment, injunction, or decree
relating to Environmental Law to which the Borrower or such Subsidiary is a
party and which would affect the ability of the Borrower or such Subsidiary
to conduct its business, and no event has occurred and is continuing which,
with the passage of time or the giving of notice or both, would constitute
noncompliance, breach of or default thereunder, except in each such case,
such noncompliance, breaches or defaults as are not likely, in the
aggregate, to have a Material Adverse Effect, (d) there are as of the
Effective Date no Environmental Claims pending or, to the best knowledge of
the Borrower, threatened, against the Borrower or any of its Subsidiaries,
which (a) question the validity, term or entitlement of the Borrower or any
of its Subsidiaries for any permit, license, order or registration required
for the operation of any facility which the Borrower or any of its
Subsidiaries currently operates or (b) wherein an unfavorable decision,
ruling or finding would be reasonably likely to have a Material Adverse
Effect, (e) there are no facts, circumstances, conditions or occurrences
regarding the business or operations of the Borrower or any of its
Subsidiaries, or any Real Property at any time owned or operated by the
Borrower or any of its Subsidiaries or, to the knowledge of the Borrower,
any property adjacent to any such Real Property that could reasonably be
expected (i) to form the basis of an Environmental Claim against the
Borrower, any of its Subsidiaries or any currently owned or operated Real
Property of the Borrower or any of its Subsidiaries, or (ii) (a) to cause
any such Real Property currently owned or operated to be subject to any
restrictions on the occupancy or use of such Real Property under any
Environmental Law or (b) to cause any such owned Real Property to be
subject to any restrictions on the ownership or transferability of such
owned Real Property under any Environmental Law, except in each such case,
such Environmental Claims or restrictions that individually or in the
aggregate are not reasonably likely to have a Material Adverse Effect.
(B) Hazardous Materials have not at any time been (i)
generated, used, treated or stored on, or transported to or from, any Real
Property at any time owned or operated by the Borrower or any of its
Subsidiaries or (ii) released on any such Real Property, in each case where
such occurrence or event individually or in the aggregate is reasonably
likely to have a Material Adverse Effect.
6.19 Properties. The Borrower and each of its Subsidiaries have
good title to all material properties owned by them, free and clear of all
Liens, other than (i) as referred to in the consolidated balance sheet
referred to in Section 6.10(b) or in the notes thereto or (ii) Permitted
Liens. Schedule V contains a true and complete list of each Real Property
owned or leased by the Borrower or any of its Subsidiaries on the Effective
Date and the type of interest therein held by the Borrower or the
respective Subsidiary.
6.20 Labor Relations. Neither the Borrower nor any of its
Subsidiaries is engaged in any unfair labor practice that could reasonably
be expected to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint pending against the Borrower or any Subsidiary of the
Borrower or to the Borrower's knowledge, threatened against any of them,
before the National Labor Relations Board, and no grievance or arbitration
proceeding arising out of or under any collective bargaining agreement is
so pending against the Borrower or any Subsidiary of the Borrower or, to
the Borrower's knowledge, threatened against any of them, (ii) no strike,
labor dispute, work slowdown or stoppage pending against the Borrower or
any Subsidiary of the Borrower or, to the Borrower's knowledge, threatened
against any of them and (iii) no union representation petition existing
with respect to the employees of the Borrower or any Subsidiary of the
Borrower and no union organizing activities are taking place, except with
respect to any matter specified in clause (i), (ii) or (iii) above, either
individually or in the aggregate, such as is not reasonably likely to have
a Material Adverse Effect.
6.21 Existing Indebtedness. Schedule VI sets forth a true and
complete list of all Indebtedness of the Borrower and each of its
Subsidiaries as of the Effective Date and which is to remain outstanding
after giving effect to the Transaction (excluding the Loans and the Letters
of Credit, the "Existing Indebtedness"), in each case showing the aggregate
principal amount thereof and the name of the respective borrower (or
issuer) and any other entity which directly or indirectly guaranteed such
debt.
6.22 Capitalization. On the Effective Date and after giving
effect to the Transaction and the other transactions contemplated by the
Documents, the authorized capital stock of the Borrower shall consist of
(i) 25,000,000 shares of Common Stock, of which 15,624,464.406 shares shall
be issued and outstanding, (ii) 100,000 shares of Series A Junior
Participating Preferred Stock, par value $.01 per share, of which no shares
shall be issued and outstanding and (iii) 4,900,000 shares of undesignated
preferred stock, par value $.01 per share, of which no shares shall be
issued and outstanding.. All such outstanding shares have been duly and
validly issued, are fully paid and nonassessable and are free of preemptive
rights. Except for such shares of Common Stock and any employee stock
options issued pursuant to the Borrower's employee stock option plan which
are exercisable solely for the future issuance of Common Stock to the
holders thereof, there are no shares of capital stock or other equity
securities of the Borrower outstanding, including, without limitation,
securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options for
the purchase of, or any agreements providing for the issuance (contingent
or otherwise) of, or any calls, commitments or claims of any character
relating to, its capital stock.
6.23 Senior Notes. As of the Effective Date, the Senior Notes
have been duly authorized, issued and delivered in accordance with
applicable law and the offering memorandum relating thereto, and such
offering memorandum, as of the date of its issue, does not contain any
untrue statement of a material fact nor omit to state a material fact
necessary in order to make the statements contained therein, in the light
of the circumstances under which they were made, not misleading.
SECTION 7. Affirmative Covenants. The Borrower covenants and
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until the Revolving Commitments have terminated,
no Letters of Credit or Notes are outstanding and the Loans and Unpaid
Drawings, together with interest, Fees and all other Obligations incurred
hereunder, are paid in full:
7.01 Information Covenants. The Borrower will furnish to each
Bank:
(a) Annual Financial Statements. Within 90 days after the close
of each fiscal year of the Borrower, the consolidated balance sheet
of the Borrower and its Subsidiaries, as at the end of such fiscal
year and the related consolidated statements of income, shareholders'
equity and cash flows for such fiscal year, in each case setting
forth comparative consolidated figures for the preceding fiscal year
and in each case examined by independent certified public accountants
of recognized national standing whose opinion shall not be qualified
as to the scope of audit or as to the status of the Borrower or any
of its Subsidiaries as a going concern, together with a certificate
of such accounting firm stating that in the course of its regular
audit of the business of the Borrower, which audit was conducted in
accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any Default or Event of
Default pursuant to Section 8.05, 8.10, 8.11 or 8.12 which has
occurred and is continuing or, if in the opinion of such accounting
firm such a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof.
(b) Quarterly Financial Statements. As soon as available and in
any event within 45 days after the close of each of the first three
quarterly accounting periods in each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries, as
at the end of such quarterly accounting period and the related
consolidated statements of income and cash flows for such quarterly
accounting period and for the elapsed portion of the fiscal year
ended with the last day of such quarterly accounting period, and in
each case setting forth comparative consolidated figures for the
related periods in the prior fiscal year, and comparative budgeted
figures for such quarterly accounting period, all of which shall be
certified by the chief financial officer or controller of the
Borrower, subject to changes resulting from audit and normal year-end
audit adjustments.
(c) Monthly Reports. As soon as practicable, and in any event
within 30 days after the end of each monthly accounting period of
each fiscal year of the Borrower (other than the last monthly
accounting period in each fiscal quarter and fiscal year of the
Borrower), monthly reports in a form reasonably satisfactory to the
Administrative Agent, which shall include the consolidated balance
sheet of the Borrower and its Subsidiaries, as at the end of such
monthly accounting period, and the related consolidated statements of
income and cash flows for such monthly accounting period, setting
forth comparative figures for the corresponding monthly accounting
period of the previous year and comparative budgeted figures for such
monthly accounting period.
(d) Budgets; etc. Not more than 30 days after the commencement
of each fiscal year of the Borrower, a budget of the Borrower and its
Subsidiaries in reasonable detail for each of the twelve months of
such fiscal year. In addition, the Borrower will furnish to each
Bank, together with each delivery of consolidated financial
statements pursuant to Sections 7.01(a), (b) and (c), a comparison of
the current year to date financial results against the budgets
required to be submitted pursuant to this clause (d).
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 7.01(a), (b) and (c), a
certificate of the chief financial officer, controller or other
Authorized Officer of the Borrower to the effect that no Default or
Event of Default exists or, if any Default or Event of Default does
exist, specifying the nature and extent thereof, which certificate,
in the case of a certificate delivered together with financial
statements delivered pursuant to (x) Sections 7.01(a) and (b), shall
set forth the calculations required to establish whether the Borrower
and its Subsidiaries were in compliance with the provisions of
Sections 8.04, 8.05, 8.10, 8.11 and 8.12 as at the end of such fiscal
quarter or year, as the case may be and (y) Section 7.01(b), shall
set forth the calculation of the Leverage Ratio, together with the
calculations required to establish such ratio.
(f) Notice of Default or Litigation. Promptly, and in any event
within three Business Days after the Borrower obtains knowledge
thereof, notice of (x) the occurrence of any event which constitutes
a Default or an Event of Default, which notice shall specify the
nature thereof, the period of existence thereof and what action the
Borrower proposes to take with respect thereto or (y) the
commencement of or any significant development in any litigation or
governmental proceeding pending against the Borrower or any of its
Subsidiaries which is likely to have a Material Adverse Effect or is
likely to have a material adverse effect on the ability of the
Borrower or any other Credit Party to perform its obligations
hereunder or under any other Credit Document.
(g) Auditors' Reports. Promptly upon receipt thereof, a copy of
each final report or "management letter" submitted to the Borrower by
its independent accountants in connection with any annual, interim or
special audit made by it of the books of the Borrower.
(h) Borrowing Base Certificates. (i) On or prior to the
Effective Date and (ii) thereafter, not later than 12:00 Noon (New
York time) on the fifteenth Business Day after each fiscal month-end,
a borrowing base certificate of the Borrower in the form of Exhibit K
(each a "Borrowing Base Certificate") with respect to the Eligible
Receivables and Eligible Equipment of the Borrower which shall be
executed and certified by the chief financial officer of the Borrower
and shall set forth the Borrowing Base as of (x) in the case of
clause (i), the Effective Date (after giving effect to the
Transaction) and (y) in the case of clause (ii), the last day of the
immediately preceding fiscal month.
(i) Environmental Matters. Promptly after obtaining knowledge
of any of the following, written notice of:
(i) any pending or threatened Environmental Claim against
he Borrower or any of its Subsidiaries or any Real Property
owned, operated or leased by the Borrower or any of its
Subsidiaries which, if successful, could reasonably be expected
to have a Material Adverse Effect;
(ii) any condition or occurrence that (x) results in
material noncompliance by the Borrower or any of its
Subsidiaries with any applicable Environmental Law, or (y)
could reasonably be anticipated to form the basis of a material
Environmental Claim against the Borrower or any of its
Subsidiaries or any Real Property owned, operated or leased by
the Borrower or any of its Subsidiaries with respect to, in the
case of both clauses (x) and (y) above, (A) any Mortgaged
Property or (B) to the extent such noncompliance or
Environmental Claim is material to the Borrower or to any other
Credit Party, any other Real Property;
(iii) any condition or occurrence on any Real Property
owned, operated or leased by the Borrower or any of its
Subsidiaries that could reasonably be anticipated to cause such
Real Property to be subject to any restrictions on the
ownership, occupancy, use or transferability by the Borrower or
its Subsidiary, as the case may be, of its interest in such
Real Property under any Environmental Law in the event such
restrictions apply with respect to a Mortgaged Property or, to
the extent such restrictions are material to the Borrower or
any other Credit Party, with respect to any other Real
Property; and
(iv) the taking of any material removal or remedial
action in response to the actual or alleged presence of any
Hazardous Material on any Real Property owned, operated or
leased by the Borrower or any of its Subsidiaries.
All such notices shall describe in reasonable detail the nature of
the claim, investigation, condition, occurrence or removal or
remedial action and the Borrower's response thereto. In addition, the
Borrower agrees to provide the Banks with copies of all material
communications with any government or governmental agency relating to
Environmental Laws, all material communications with any person
relating to Environmental Claims, and such detailed reports of any
Environmental Claim as may reasonably be requested by the
Administrative Agent or the Required Banks.
(j) Senior Notes. Promptly after the same are sent, copies of
all financial statements and reports which the Borrower or any of its
Subsidiaries sends to holders of the Senior Notes (to the extent not
otherwise delivered to the Banks pursuant to this Section 7.01) and
promptly after the same are filed, copies of all financial statements
and regular, periodical or special reports which the Borrower of any
of its Subsidiaries may make to, or file with, the SEC.
(k) Appraisal Updates Promptly, upon the request of the
Administrative Agent, which request shall be made in the commercially
reasonable judgment of the Administrative Agent (but unless provided
herein, no more frequently than annually), an update (an "Appraisal
Update") on a desk top basis of the Appraisal Analysis, which update
shall be conducted by a third party acceptable to the Borrower and
the Administrative Agent and on a valuation basis reasonably
acceptable to the Administrative Agent, provided that, if (i) a
Default or Event of Default has occurred and is continuing or (ii)
the Administrative Agent has determined in its reasonable discretion
that there may have been a materially negative change, since the
later of (x) the date of the Appraisal Analysis and (y) the date of
the most recent Appraisal Update conducted on a physical inspection
basis, in the orderly liquidation value or quality of the Rental
Equipment of the Borrower and the Subsidiary Guarantors, the
Administrative Agent shall be permitted, at any time, to request an
update on a desktop basis and/or an update on a physical inspection
basis of the Appraisal Analysis, which update(s), in each case, shall
be conducted by a third party acceptable to the Borrower and the
Administrative Agent and on a valuation basis which is (A) reasonably
acceptable to the Administrative Agent and (B) not less favorable to
the Borrower than the valuation basis upon which the Appraisal
Analysis delivered pursuant to Section 5A.22 was conducted.
(l) Other Information. From time to time, such other
information or documents (financial or otherwise) as the
Administrative Agent on its own behalf or on behalf of the Required
Banks may reasonably request from time to time.
7.02 Books, Records and Inspections; Bank Meetings. (a) The
Borrower will, and will cause each of its Subsidiaries to, permit, upon
reasonable notice to the chief financial officer, controller or any other
Authorized Officer of the Borrower, (x) officers and designated
representatives of the Administrative Agent or the Required Banks to visit
and inspect during regular business hours any of the properties or assets
of the Borrower or any of its Subsidiaries in whomsoever's possession, and
to examine the books of account of the Borrower or any of its Subsidiaries
and discuss the affairs, finances and accounts of the Borrower or of any of
its Subsidiaries with, and be advised as to the same by, its and their
officers and independent accountants, all at such reasonable times and
intervals and to such reasonable extent as the Administrative Agent or the
Required Banks may desire and (y) not more than once per year (and at any
time during the occurrence of a Default or an Event of Default) the
Administrative Agent, or a third party designated by the Administrative
Agent, to conduct, at the Borrower's expense, an audit of the accounts
receivable of the Borrower and its Subsidiaries at such times as the
Administrative Agent shall reasonably require.
(b) At the request of the Administrative Agent, the Borrower
shall within 120 days after the close of each fiscal year of the Borrower
hold a meeting at a time and place selected by the Borrower and acceptable
to the Administrative Agent with all of the Banks at which meeting shall be
reviewed the financial results of the previous fiscal year and the
financial condition of the Borrower and its Subsidiaries and the budgets
presented for the current fiscal year of the Borrower and its Subsidiaries.
7.03 Maintenance of Insurance. Schedule VII sets forth a true
and complete listing of all insurance maintained by the Borrower and each
of its Subsidiaries as of the Effective Date. At any time that insurance at
such levels and covering such risks and liabilities described in Schedule
VII is not being maintained by the Borrower and its Subsidiaries, the
Borrower will notify the Administrative Agent and each of the Banks in
writing thereof and, if thereafter notified by the Administrative Agent to
do so, the Borrower will, and will cause each of its Subsidiaries to,
obtain insurance at levels and covering such risks and liabilities at least
equal to those set forth on Schedule VII to the extent then generally
available, or otherwise as are acceptable to the Administrative Agent. The
Borrower will, and will cause each of its Subsidiaries to, furnish on the
Effective Date and annually thereafter to the Administrative Agent, upon
its request, a summary of the insurance carried together with certificates
of insurance and other evidence of such insurance naming (x) the Collateral
Agent, for the benefit of each Bank, as loss payee with respect to all
casualty coverages and containing other customary loss payable provisions
and (y) the Collateral Agent for the benefit of each Bank, as additional
insured for all general liability coverages.
7.04 Payment of Taxes. The Borrower will pay and discharge, and
will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the
date on which penalties attach thereto, and all lawful claims which, if
unpaid, might become a Lien not otherwise permitted pursuant to Section
8.03(a) or charge upon any properties of the Borrower or any of its
Subsidiaries, provided that neither the Borrower nor any Subsidiary of the
Borrower shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by proper proceedings if
it has maintained adequate reserves with respect thereto in accordance with
GAAP.
7.05 Corporate Franchises. The Borrower will do, and will cause
each of its Subsidiaries to do, or cause to be done, all things necessary
to preserve and keep in full force and effect its existence, material
rights and authority, provided that any transaction permitted by Section
8.02 will not constitute a breach of this Section 7.05.
7.06 Compliance with Statutes, etc. The Borrower will, and will
cause each of its Subsidiaries to, comply with all applicable statutes
(including, without limitation, all applicable Environmental Laws),
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property except for such non-compliances
which, individually or in the aggregate, would not have a Material Adverse
Effect or would not have a material adverse effect on the ability of any
Credit Party to perform its obligations under any Credit Document to which
it is party.
7.07 ERISA. As soon as possible and, in any event, within 10
Business Days after the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate knows or has reason to know of the occurrence of any of the
following, the Borrower will deliver to each of the Banks a certificate of
the chief financial officer of the Borrower setting forth the full details
as to such occurrence and the action, if any, which the Borrower, such
Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed with
or by the Borrower, the Subsidiary, the ERISA Affiliate, the PBGC, a Plan
participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred (except to the extent that the Borrower has
previously delivered to the Banks a certificate and notices (if any)
concerning such event pursuant to the next clause hereof); that a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA is subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62,
.63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is, to the
best knowledge of the Borrower, reasonably expected to occur with respect
to such Plan within the following 30 days; that an accumulated funding
deficiency within the meaning of Section 412 of the Code or Section 302 of
ERISA has been incurred or an application may be or has been made for a
waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period
under Section 412 of the Code or Section 303 or 304 of ERISA, with respect
to a Plan; that any contribution required to be made with respect to a Plan
has not been timely made except to the extent that any failure to make
timely contributions would not be reasonably expected to result in a
material liability to the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate; that a Plan has been or may be terminated, reorganized,
partitioned or declared insolvent under Title IV of ERISA; that a Plan has
an Unfunded Current Liability; that proceedings may reasonably be expected
to or have been instituted to terminate or appoint a trustee to administer
a Plan which is subject to Title IV of ERISA; that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent
contribution to a Plan; that the Borrower, any Subsidiary of the Borrower
or any ERISA Affiliate will or, to the best knowledge of the Borrower, may
reasonably be expected to incur any material liability (including any
indirect, contingent, or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section
401(a)(29), 4971, 4975 or 4980 of the Code or Section 409, 502(i) or 502(l)
of ERISA or with respect to a group health plan (as defined in Section
607(1) of ERISA or Section 4980B(g)(2) of the Code) under Section 4980B of
the Code; or that the Borrower or any Subsidiary of the Borrower may
reasonably be expected to incur any material liability pursuant to any
employee welfare benefit plan (as defined in Section 3(l) of ERISA) that
provides benefits to retired employees or other former employees (other
than as required by Section 601 of ERISA) or any Plan. The Borrower will
deliver to each of the Banks, upon request, a complete copy of the most
recent annual report (on Internal Revenue Service Form 5500-series) of each
Plan (including, to the extent required, the related financial and
actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service. In addition to any certificates or notices
delivered to the Banks pursuant to the first sentence hereof, copies of
annual reports and any records, documents or other information required to
be furnished to the PBGC, and any material notices received by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate with
respect to a Plan shall be delivered to the Banks no later than 10 Business
Days after the date such report has been filed with the Internal Revenue
Service or such records, documents and/or information has been furnished to
the PBGC or such notice has been received by the Borrower, the Subsidiary
or the ERISA Affiliate, as applicable.
7.08 Maintenance of Properties; Good Repair. The Borrower will,
and will cause each of its Subsidiaries to, ensure that its properties and
equipment used or useful in its business in whomsoever's possession they
may be, are kept in good repair, working order and condition, normal wear
and tear excepted, and, subject to Section 8.05, that from time to time
there are made in such properties and equipment all needful and proper
repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto, to the extent and in the manner useful or customary
for companies in similar businesses.
7.09 Compliance with Environmental Laws. (a) The Borrower and
each of its Subsidiaries: (i) will comply in all material respects, and
will cause each of its Subsidiaries to comply in all material respects,
with all Environmental Laws applicable to the operation of their business
and the ownership of use of any Real Property; (ii) will pay, and will
cause each of its Subsidiaries to pay, all costs and expenses incurred in
such compliance; (iii) will keep or cause to be kept all Real Properties
owned, operated or leased by the Borrower or any of its Subsidiaries free
and clear of any material Liens imposed pursuant to such Environmental
Laws; and (iv) neither the Borrower nor any of its Subsidiaries will
generate, use, treat, store, release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of, Hazardous
Materials on any Real Property, or transport or permit the transportation
of Hazardous Materials to or from any such Real Property except in
compliance with applicable law. If the Borrower or any of its Subsidiaries,
or any tenant or occupant of any Real Property, causes or permits any
intentional or unintentional act or omission resulting in the material
presence or release of any Hazardous Material (except in compliance with
applicable Environmental Laws), the Borrower agrees to undertake, and/or to
cause any of its Subsidiaries to undertake, and/or to use its best efforts
to cause any such tenants or occupants to undertake, at their sole expense,
any clean up, removal, remedial or other action required pursuant to
Environmental Laws to remove and clean up any Hazardous Materials from any
Real Property provided that neither the Borrower nor any of its
Subsidiaries shall be required to comply with any such 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.
(b) At the written request of the Administrative Agent upon the
occurrence and during the continuance of an Event of Default relating to
(x) the failure of any representation, warranty or statement contained in
Section 6.18 to be true and correct or (y) any violation of this Section
7.09 or any event for which the Borrower is required to give the
Administrative Agent notice under Section 7.01(i), the Borrower will
provide, at the Borrower's sole cost and expense, an environmental site
assessment report concerning any Real Property the subject of such notice,
prepared by an environmental consulting firm approved by the Administrative
Agent indicating the presence or absence of Hazardous Materials and the
potential cost of any removal or remedial action in connection with any
Hazardous Materials on such Real Property. If the Borrower fails to provide
the same 45 days after such request was made, the Administrative Agent may
order the same, and the Borrower shall grant and hereby grants to the
Administrative Agent and its agents access to such Real Property and
specifically grants the Administrative Agent an irrevocable non-exclusive
license, subject to the rights of tenants, to undertake such an assessment,
all at the Borrower's expense.
7.10 End of Fiscal Years; Fiscal Quarters. The Borrower will,
for financial reporting and tax purposes, cause (i) each of its, and each
of its Subsidiaries' fiscal years to end on December 31 of each year and
(ii) each of its, and each of its Subsidiaries' fiscal quarters to end on
March 31, June 30, September 30 and December 31 of each year.
7.11 Use of Proceeds. All proceeds of the Loans shall be used
as provided in Section 6.05.
7.12 Additional Security; Further Assurances. (a) The Borrower
will, and will cause each of its Subsidiaries to, grant to the Collateral
Agent security interests and mortgages (each an "Additional Mortgage") in
such owned Real Property of the Borrower and its Subsidiaries acquired
after the Effective Date as may be requested from time to time by the
Administrative Agent. Such Additional Mortgages shall be granted pursuant
to documentation reasonably satisfactory in form and substance to the
Administrative Agent and shall constitute valid and enforceable Liens
superior to and prior to the rights of all third Persons and subject to no
other Liens except as are permitted by Section 8.03. The Additional
Mortgages or instruments related thereto shall be duly recorded or filed in
such manner and in such places as are required by law to establish,
perfect, preserve and protect the Liens in favor of the Collateral Agent
required to be granted pursuant to the Additional Mortgages and all taxes,
fees and other charges payable in connection therewith shall have been paid
in full by the Borrower.
(b) The Borrower will, and will cause each of its Subsidiaries
to, at the expense of the Borrower, make, execute, endorse, acknowledge,
file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, continuations, amendments, transfer endorsements,
powers of attorney, certificates, real property surveys, reports and other
assurances or instruments and take such further steps relating to the
Collateral covered by any of the Security Documents as the Collateral Agent
may reasonably require. Furthermore, the Borrower will cause to be
delivered to the Collateral Agent such opinions of counsel, title insurance
and other related documents as may be reasonably requested by the
Administrative Agent to assure themselves that this Section 7.12 has been
complied with.
(c) The Borrower agrees that each action required by clauses
(a) and (b) above in this Section 7.12 shall be completed as soon as
possible, but in no event later than 60 days after such action is requested
to be taken by the Administrative Agent, provided that in no event shall
the Borrower be required to take any action, other than using its
reasonable commercial efforts without any material expenditure, to obtain
consents from third parties with respect to its compliance with such
clauses (a) and (b).
(d) In the event that the Administrative Agent or the Required
Banks at any time after the Effective Date determine in its or their good
faith discretion that real estate appraisals satisfying the requirements of
FIRREA (any such appraisal a "Required Appraisal") are or were required to
be obtained, or should be obtained, in connection with the Mortgaged
Properties, then, within 120 days after receiving written notice thereof
from the Administrative Agent or the Required Banks, as the case may be,
such Required Appraisal shall be delivered, at the expense of the Borrower,
to the Administrative Agent which Required Appraisal, and the respective
appraiser, shall be satisfactory to the Administrative Agent.
7.13 Foreign Subsidiary Guaranty, etc. If following a change in
the relevant sections of the Code or the regulations, rules, rulings,
notices or other official pronouncements issued or promulgated thereunder,
counsel for the Borrower reasonably acceptable to the Administrative Agent
does not within 30 days after a request from the Administrative Agent or
the Required Banks deliver evidence, in form and substance mutually
satisfactory to the Administrative Agent and the Borrower, with respect to
any Foreign Subsidiary of the Borrower which has not already had 100% of
its stock pledged pursuant to the Pledge Agreement that (i) a pledge of
66-2/3% or more of the total combined voting power of all classes of
capital stock of such Foreign Subsidiary entitled to vote, and (ii) the
entering into by such Foreign Subsidiary of a guaranty in substantially the
form of the Subsidiary Guaranty, in any such case could reasonably be
expected to cause (I) the undistributed earnings of such Foreign Subsidiary
as determined for federal income tax purposes to be treated as a deemed
dividend to such Foreign Subsidiary's United States parent for federal
income tax purposes or (II) other material adverse federal income tax
consequences to the Credit Parties, then in the case of a failure to
deliver the evidence described in clause (i) above, that portion of such
Foreign Subsidiary's outstanding capital stock owned by any Credit Party
and not theretofore pledged pursuant to the Pledge Agreement shall be
pledged to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the Pledge Agreement and in the case of a failure to deliver
the evidence described in clause (ii) above, such Foreign Subsidiary shall
execute and deliver (x) the Subsidiary Guaranty (or another guaranty in
substantially similar form if needed), guaranteeing the Obligations of the
Borrower under the Credit Documents and under any Interest Rate Agreement,
(y) the Pledge Agreement (or another pledge agreement in substantially
similar form if needed) securing such Foreign Subsidiary's obligations
under the Subsidiary Guaranty and (z) the Security Agreement (or another
security agreement in substantially similar form if needed) securing such
Foreign Subsidiary's obligations under the Subsidiary Guaranty, in each
case to the extent that the entering into the Subsidiary Guaranty and
Pledge Agreement is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 7.13
to be in form and substance reasonably satisfactory to the Administrative
Agent.
7.14 Post-Closing Mortgage Obligation. In the event that the
Borrower shall not have sold or otherwise disposed of its Real Property
located at 0000 00xx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx on or prior to
the 180th day following the Effective Date, the Borrower shall, upon the
request of the Administrative Agent, grant to the Collateral Agent a
mortgage in such Real Property in accordance with the requirements of
Section 7.12 (as such requirements would apply to an Additional Mortgage of
Real Property acquired after the Effective Date).
SECTION 8. Negative Covenants. The Borrower covenants and
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until the Commitments have terminated, no
Letters of Credit or Notes are outstanding and the Loans and Unpaid
Drawings, together with interest, Fees and all other Obligations incurred
hereunder, are paid in full:
8.01 Changes in Business. The Borrower will not, and will not
permit any of its Subsidiaries to, materially alter the character of the
business of the Borrower and its Subsidiaries from that conducted on the
Effective Date (after giving effect to the consummation of the Transaction)
or conduct such business in a manner which is not consistent with past
practice.
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc.
The Borrower will not, and will not permit any of its Subsidiaries to, wind
up, liquidate or dissolve its affairs, or enter into any transaction of
merger or consolidation, or sell or otherwise dispose of all or any part of
its property or assets (including, without limitation, capital stock or
other securities of, or equity interests in, another Person), or enter into
any partnerships, joint ventures or sale-leaseback transactions, or
purchase, lease or otherwise acquire all or any part of the property or
assets of any Person (other than leases, purchases or other acquisitions of
materials and equipment in the ordinary course of business), or agree to do
any of the foregoing at any future time, except that the following shall be
permitted:
(a) any Wholly-Owned Subsidiary of the Borrower may be merged
or consolidated with or into the Borrower or a Subsidiary Guarantor
that is a Wholly-Owned Subsidiary of the Borrower (so long as the
Borrower or such Subsidiary Guarantor, as the case may be, is the
surviving corporation), or all or any part of the business,
properties or assets of any Wholly-Owned Subsidiary of the Borrower
may be conveyed, leased, sold or transferred to the Borrower or any
Subsidiary Guarantor that is a Wholly-Owned Subsidiary of the
Borrower;
(b) Capital Expenditures to the extent within the limitations
set forth in Section 8.05;
(c) the investments, acquisitions and transfers or dispositions
of properties permitted pursuant to Section 8.06;
(d) the Borrower and its Subsidiaries may lease (as lessee) and
license real or personal property in the ordinary course of business
(so long as such lease does not create a Capitalized Lease Obligation
not otherwise permitted by Section 8.04(c));
(e) so long as there exists no Default under Section 9.01 or
9.05 or Event of Default (both before and after giving effect to such
disposition), the Borrower and its Subsidiaries may effect sales,
transfers or other dispositions of equipment of the Borrower and its
Subsidiaries in the ordinary course of business;
(f) other sales or dispositions of assets, provided that (x)
the aggregate Net Sale Proceeds received from all such sales and
dispositions shall not exceed $1,000,000 in any fiscal year of the
Borrower and (y) each such sale shall be in an amount at least equal
to the fair market value thereof (as determined in good faith by the
Borrower) and for proceeds consisting solely of not less than (A) 75%
cash and (B) seller indebtedness evidenced by promissory notes, which
promissory notes shall be pledged and delivered to the Collateral
Agent pursuant to the Pledge Agreement; provided further, that the
sale or disposition of the capital stock of (i) any Subsidiary
Guarantor shall be prohibited and (ii) any other Subsidiary of the
Borrower shall be prohibited unless it is for all of the outstanding
capital stock of such Subsidiary owned by the Borrower and its
Subsidiaries;
(g) any Subsidiary of the Borrower (including any Subsidiary
Guarantor so long as the assets of such Subsidiary Guarantor are
transferred pursuant to Section 8.02(i)) may be liquidated into the
Borrower or a Subsidiary Guarantor that is a Wholly-Owned Subsidiary
of the Borrower;
(h) the Borrower and each of its Subsidiaries may lease
equipment in the ordinary course of business;
(i) any Subsidiary of the Borrower may transfer assets to the
Borrower or to a Subsidiary Guarantor that is a Wholly-Owned
Subsidiary of the Borrower so long as the security interests granted
to the Collateral Agent pursuant to the Security Documents in the
assets so transferred shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior
to such transfer);
(j) the Borrower and its Subsidiaries may consummate
sale-leaseback transactions so long as (i) no Default pursuant to
Section 9.01 or 9.05 or Event of Default then exists or would result
therefrom, (ii) each such sale-leaseback transaction is an
arms-length transaction, (iii) the aggregate consideration received
by the Borrower and its Subsidiaries in connection with all such
sale-leaseback transactions does not exceed $2,500,000 in any fiscal
year of the Borrower and (iv) such sale-leaseback transaction is
permitted under the terms of the Senior Notes Indenture; and
(k) the Borrower and its Subsidiaries may enter into joint
marketing arrangements with suppliers (including joint ventures
resulting therefrom).
To the extent the Required Banks waive the provisions of this Section 8.02
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
8.02, such Collateral (unless sold to the Borrower or a Subsidiary of the
Borrower) shall be sold or otherwise disposed of free and clear of the
Liens created by the Security Documents, and the Administrative Agent and
Collateral Agent shall be authorized to take any actions deemed appropriate
in order to effect the foregoing.
8.03 Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
or with respect to any property or assets of any kind (real or personal,
tangible or intangible) of the Borrower or any such Subsidiary whether now
owned or hereafter acquired, or sell any such property or assets subject to
an understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with
recourse to the Borrower or any of its Subsidiaries) or assign any right to
receive income, or file or permit the filing of (other than with respect to
Permitted Liens) any financing statement under the UCC or any other similar
notice of Lien under any similar recording or notice statute; provided that
the provisions of this Section 8.03 shall not prevent the creation,
incurrence, assumption or existence of the following (with such Liens
described below being herein referred to as "Permitted Liens"):
(a) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves (in the good
faith judgment of the management of the Borrower) have been
established;
(b) Liens in respect of property or assets of the Borrower or
any of its Subsidiaries imposed by law which were incurred in the
ordinary course of business, such as carriers', warehousemen's and
mechanics' Liens, statutory landlord's Liens, and other similar Liens
arising in the ordinary course of business, and (x) which do not in
the aggregate materially detract from the value of such property or
assets or materially impair the use thereof in the operation of the
business of the Borrower or any such Subsidiary or (y) which are
being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of
the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement and the other
Credit Documents;
(d) Liens existing on the Effective Date to the extent listed,
and the property subject thereto described, on Schedule VIII without
giving effect to any subsequent extensions or renewals thereof;
(e) Liens arising from judgments, decrees or attachments (or
securing of appeal bonds with respect thereto) in circumstances not
constituting an Event of Default under Section 9.09, so long as no
cash or property (other than proceeds of insurance payable by reason
of such judgments, decrees or attachments) is deposited or delivered
to secure any respective judgment or award, or any appeal bond in
respect thereof, the fair market value of which exceeds $1,000,000;
(f) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory
obligations, surety bonds (other than appeal bonds), bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for borrowed
money);
(g) licenses, leases or subleases granted to other Persons not
interfering in any material respect with the business of the Borrower
or any of its Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases permitted by this Agreement;
(j) purchase money Liens securing payables arising from the
purchase by the Borrower or any of its Subsidiaries of any equipment
or goods in the normal course of business, provided that such
payables shall not constitute Indebtedness;
(k) any interest or title of a lessor under any lease permitted
by this Agreement;
(l) Liens upon assets of the Borrower or any of its
Subsidiaries subject to Capital Leases to the extent such Capitalized
Lease Obligations are permitted by Section 8.04(c), provided that (x)
such Liens only serve to secure the payment of Indebtedness arising
under such Capitalized Lease Obligations and (y) the Liens
encumbering the assets giving rise to such Capital Leases do not
encumber any other assets of the Borrower or any Subsidiary of the
Borrower;
(m) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its
Subsidiaries at the time of the acquisition thereof by the Borrower
or any such Subsidiary or within 90 days thereafter to secure
Indebtedness incurred to pay all or a portion of the purchase price
thereof or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of any such equipment or machinery or
extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount, provided that (x) such Indebtedness is
permitted by Section 8.04(c) and (y) in all events, the Lien
encumbering the equipment or machinery so acquired does not encumber
any other asset of the Borrower or such Subsidiary;
(n) Permitted Encumbrances;
(o) so long as the Indebtedness secured by such Liens is
permitted under Section 8.04, Liens on the assets of a Subsidiary of
the Borrower if such Liens existed at the time such Subsidiary was
first acquired by the Borrower; and
(p) Liens securing Indebtedness not in excess of $500,000 at any
time outstanding.
8.04 Indebtedness. The Borrower
will not, and will not permit any of its Subsidiaries to, contract, create,
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(b) Indebtedness owing by (i) any Subsidiary Guarantor to
another Subsidiary Guarantor or to the Borrower, (ii) any Subsidiary
of the Borrower that is not a Subsidiary Guarantor to another
Subsidiary of the Borrower that is not a Subsidiary Guarantor and
(iii) the Borrower to any Subsidiary Guarantor;
(c) Capitalized Lease Obligations of the Borrower and its
Subsidiaries incurred by the Borrower or any of its Subsidiaries
(including any Capitalized Lease Obligations incurred in connection
with any joint marketing arrangements with suppliers which are
permitted pursuant to Section 8.02(k)) after the Effective Date and
Indebtedness incurred pursuant to purchase money mortgages permitted
by Sections 8.03(l) and (m), provided that the aggregate amount of
Indebtedness incurred pursuant to this clause (c) shall not exceed
$10,000,000 at any time outstanding;
(d) Existing Indebtedness without giving effect to any
subsequent extension, renewal or refinancing thereof;
(e) Indebtedness under Interest Rate Agreements relating to
Indebtedness otherwise permitted under this Section 8.04;
(f) Contingent Obligations of the Borrower or any Subsidiary
Guarantor with respect to Indebtedness and lease obligations of the
Borrower or any Subsidiary Guarantor otherwise permitted under this
Agreement;
(g) Indebtedness of the Borrower under the Senior Notes in an
aggregate principal amount of $100,000,000 without giving effect to
any subsequent extensions, renewals, or refinancings thereof;
(h) up to $5,000,000 of Indebtedness of the Borrower
outstanding at any time under subordinated notes issued to Management
Holders pursuant to Section 2.3(f) of the Stockholders Agreement as
in effect on the date of this Agreement; and
(i) Additional Indebtedness of the Borrower and its
Subsidiaries not to exceed an aggregate outstanding principal amount
of $2,500,000 at any time.
No provisions of the foregoing shall permit any Subsidiary of the Borrower
to guaranty amounts owing in connection with the Senior Notes.
8.05 Capital Expenditures. (a) The Borrower will not, and will
not permit any of its Subsidiaries to, make Capital Expenditures, provided
that the Borrower and its Subsidiaries may make Capital Expenditures during
each fiscal period set forth below (taken as one accounting period) so long
as the aggregate amount of Capital Expenditures made under this section
8.05(a) does not exceed for any period set forth below the amount set forth
opposite such period:
Period Amount
Effective Date through December 31, 1998 $23,000,000
Fiscal Year ending December 31, 1999 $25,500,000
Fiscal Year ending December 31, 2000 $24,500,000
Fiscal Year ending December 31, 2001 $28,500,000
Fiscal Year ending December 31, 2002 $33,000,000
January 1, 2003 through the Maturity Date $ 6,500,000
(b) In the event that the maximum amount which is permitted to
be expended in respect of Capital Expenditures during any fiscal period set
forth in Section 8.05(a) (without giving effect to this clause (b)) is not
fully expended during such fiscal period, the maximum amount which may be
expended during the immediately succeeding fiscal period set forth in
Section 8.05(a) shall be increased by such unutilized amount (the
"Carryover Amount"), provided that such increase shall not exceed
$4,000,000 in any such fiscal period, provided further that any such
Carryover Amount, if not utilized in such immediately succeeding fiscal
period shall not be carried forward to subsequent fiscal periods (it being
understood that during each fiscal period set forth in Section 8.05(a) the
Capital Expenditures made or incurred shall be applied first to the Capital
Expenditure limit set forth for such fiscal period in Section 8.05(a) and
thereafter to the Carryover Amount from the prior fiscal period.
8.06 Advances, Investments and Loans. The Borrower will not,
and will not permit any of its Subsidiaries to, directly or indirectly,
lend money or credit or make advances to any Person, or purchase or acquire
any stock, obligations or securities of, or any other interest in, or make
any capital contribution to, any Person or purchase or own a futures
contract or otherwise become liable for the purchase or sale of currency or
other commodities at a future date in the nature of a futures contract, or
hold cash or Cash Equivalents (each of the foregoing, an "Investment" and,
collectively, the "Investments") except:
(a) the Borrower and its Subsidiaries may hold the Investments
held by them on the Effective Date and described on Schedule IX,
provided that any additional Investments made with respect thereto
shall be permitted only if independently justified under the other
provisions of this Section 8.06;
(b) the Borrower and its Subsidiaries may acquire and hold
receivables owing to them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms;
(c) the intercompany Indebtedness described in Section 8.04(b)
shall be permitted;
(d) loans and advances in the ordinary course of business to
employees (including, without limitation, loans to officers of the
Borrower in connection with the purchase or retention of shares of
Common Stock by such officers in connection with the
Recapitalization) in an aggregate principal amount not to exceed
$500,000 (determined without regard to any write-downs or write-offs
of such loans and advances) at any time outstanding shall be
permitted;
(e) the Borrower and its Subsidiaries may acquire and own
investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(f) Interest Rate Agreements permitted by Section 8.04(e) shall
be permitted;
(g) the Borrower may hold any promissory notes acquired in
accordance with Section 8.02(f);
(h) the Borrower and its Subsidiaries may acquire and hold cash
and Cash Equivalents;
(i) the Borrower may make investments in its Wholly-Owned
Subsidiaries that are Subsidiary Guarantors and such Subsidiary
Guarantors may make investments in their respective Wholly-Owned
Subsidiaries which are Subsidiary Guarantors; and
(j) the Borrower and its Subsidiaries may make additional
Investments in an aggregate amount not to exceed $2,000,000.
8.07 Prepayments of Indebtedness, etc. The Borrower will not,
and will not permit any of its Subsidiaries to, (x) make (or give any
notice in respect thereof) any voluntary or optional payment or prepayment
or redemption or acquisition for value of (including, without limitation,
by way of depositing with the trustee with respect thereto money or
securities before due for the purpose of paying when due) or exchange or
refinancing of the Senior Notes or any Existing Indebtedness, (y) amend,
modify or change the Senior Notes Documents or any Existing Indebtedness
Agreement (other than in a manner which is neither material nor reasonably
likely to be in any way adverse to the interests of the Banks) or (z)
amend, modify or change in any manner materially adverse to the interests
of the Banks, the Certificate or Articles of Incorporation (including,
without limitation, by the filing of any additional certificate of
designation) or By-Laws of the Borrower or any of its Subsidiaries, the
terms of any of its capital stock or any agreement entered into by the
Borrower with respect to its capital stock, or enter into any new agreement
in any manner materially adverse to the interests of the Banks with respect
to the capital stock of the Borrower.
8.08 Dividends, etc. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, declare or pay any dividends (other than
dividends payable solely in capital stock of such Person) or return any
capital to its stockholders or authorize or make any other distribution,
payment or delivery of property or cash to its stockholders as such, or
redeem, retire, purchase or otherwise acquire, directly or indirectly, for
a consideration, any shares of any class of its capital stock now or
hereafter outstanding (or any warrants for or options or stock appreciation
or similar rights in respect of any of such shares), or set aside any funds
for any of the foregoing purposes, or permit any of its Subsidiaries to
purchase or otherwise acquire for consideration any shares of any class of
the capital stock of the Borrower or any other Subsidiary, as the case may
be, now or hereafter outstanding (or any options or warrants or stock
appreciation or similar rights issued by such Person with respect to its
capital stock) (all of the foregoing "Dividends"), except that:
(i) any Subsidiary of the Borrower may pay cash dividends to
the Borrower or to a Wholly-Owned Subsidiary of the Borrower which is
a Subsidiary Guarantor;
(ii) so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, (x) the Borrower may
repurchase shares of Common Stock from Management Holders so long as
the sole consideration paid by the Borrower and its Subsidiaries in
connection with such repurchases is the issuance of the subordinated
notes described in Section 8.04(h) and (y) the Borrower may pay
interest on such subordinated notes, provided that the sum of all
such interest payments under this clause (ii) together with the
amount of all repurchases permitted under clause (iii) below, shall
not exceed $500,000 in any given year; and
(iii) so long as no Default pursuant to Section 9.01 or 9.05 or
Event of Default has occurred and is continuing or would result
therefrom, the Borrower may redeem or repurchase for cash, at fair
value, the capital stock of the Borrower (or options to purchase
capital stock) from any employee of the Borrower upon the death,
disability, retirement or other termination of such employee,
provided, that all such repurchases under this clause (iii) together
with all interest payments under clause (ii) above, shall not exceed
$500,000 in any given year.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist any
encumbrance or restriction which prohibits or otherwise restricts (A) the
ability of any Subsidiary of the Borrower to (a) pay dividends or make
other distributions or pay any Indebtedness owed to the Borrower or any
other Subsidiary of the Borrower, (b) make loans or advances to the
Borrower or any other Subsidiary of the Borrower, (c) transfer any of its
properties or assets to the Borrower or any other Subsidiary of the
Borrower or (B) the ability of the Borrower or any other Subsidiary of the
Borrower to create, incur, assume or suffer to exist any Lien upon its
property or assets to secure the Obligations, other than prohibitions or
restrictions existing under or by reason of:
(i) this Agreement and the other Credit Documents;
(ii) the Senior Notes Documents;
(iii) applicable law;
(iv) customary non-assignment provisions entered into in the
ordinary course of business and consistent with past practices;
(v) any restriction or encumbrance with respect to a Subsidiary
of the Borrower imposed pursuant to an agreement which has been
entered into for the sale or disposition of all or substantially all
of the capital stock or assets of such Subsidiary, so long as such
sale or disposition is permitted under this Agreement; and
(vi) Liens permitted under Section 8.03 and any documents or
instruments governing the terms of any Indebtedness or other
obligations secured by any such Liens, provided that such
prohibitions or restrictions apply only to the assets subject to such
Liens.
8.09 Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any transaction or
series of transactions after the Effective Date whether or not in the
ordinary course of business, with any Affiliate other than on terms and
conditions substantially as favorable to the Borrower or such Subsidiary as
would be obtainable by the Borrower or such Subsidiary at the time in a
comparable arm's length transaction with a Person other than an Affiliate;
provided, that the foregoing restrictions shall not apply to (i) advances
to officers or employees of the Borrower and its Subsidiaries to the extent
permitted by Section 8.06(d), (ii) Dividends permitted under Section 8.08,
(iii) transactions between the Borrower and its Subsidiaries to the extent
otherwise expressly permitted under this Agreement, (iv) employment
arrangements (including arrangements made with respect to bonuses) entered
into in the ordinary course of business with members of the Board of
Directors and officers of the Borrower and of its Subsidiaries, (v) the
Stockholders Agreement as in effect on the Effective Date and (vi) so long
as no Default or Event of Default has occurred or is continuing or would
result therefrom, the payment of management fees to Childs and/or its
Affiliates in an aggregate amount not to exceed $240,000 in any fiscal year
of the Borrower plus the reimbursement of reasonable out-of-pocket fees and
expenses.
8.10 Interest Coverage Ratio. The Borrower will not permit the
Interest Coverage Ratio for any Test Period ending on a date set forth
below to be less than the ratio set forth opposite such date:
Date Ratio
June 30, 1998 2.00:1.00
September 30, 1998 2.00:1.00
December 31, 1998 2.00:1.00
March 31, 1999 2.05:1.00
June 30, 1999 2.05:1.00
September 30, 1999 2.05:1.00
December 31, 1999 2.10:1.00
March 31, 2000 2.10:1.00
June 30, 2000 2.15:1.00
September 30, 2000 2.15:1.00
December 31, 2000 2.15:1.00
March 31, 2001 2.20:1.00
June 30, 2001 2.25:1.00
September 30, 2001 2.25:1.00
December 31, 2001 2.30:1.00
March 31, 2002 2.35:1.00
June 30, 2002 2.35:1.00
September 30, 2002 2.40:1.00
December 31, 2002 2.40:1.00
8.11 Fixed Charge Coverage Ratio. The Borrower will not permit
the Fixed Charge Coverage Ratio for any Test Period ending on a date set
forth below to be less than the ratio set forth opposite date:
Date Ratio
June 30, 1998 1.15:1.00
September 30, 1998 1.15:1.00
December 31, 1998 1.15:1.00
March 31, 1999 1.15:1.00
June 30, 1999 1.15:1.00
September 30, 1999 1.15:1.00
December 31, 1999 1.15:1.00
March 31, 2000 1.20:1.00
June 30, 2000 1.20:1.00
September 30, 2000 1.30:1.00
December 31, 2000 1.30:1.00
March 31, 2001 1.35:1.00
June 30, 2001 1.35:1.00
September 30, 2001 1.35:1.00
December 31, 2001 1.35:1.00
March 31, 2002 1.40:1.00
June 30, 2002 1.40:1.00
September 30, 2002 1.40:1.00
December 31, 2002 1.40:1.00
8.12 Leverage Ratio. The Borrower will not permit the Leverage
Ratio at any time during a period set forth below to be greater than the
ratio set forth opposite such period below:
Period Ratio
Fiscal quarter ending
June 30, 1998 5.35:1.00
Fiscal quarterending
September 30, 1998 5.35:1.00
Fiscal quarter ending
December 31, 1998 5.35:1.00
Fiscal quarter ending
March 31, 1999 5.25:1.00
Fiscal quarter ending
June, 30, 1999 5.25:1.00
Fiscal quarter ending
September 30, 1999 5.25:1.00
Fiscal quarter ending
December 31, 1999 5.25:1.00
Fiscal quarter ending
March 31, 2000 5.10:1.00
Fiscal quarter ending
June 30, 2000 5.10:1.00
Fiscal quarter ending
September 30, 2000 5.10:1.00
Fiscal quarter ending
December 31, 2000 5.10:1.00
Fiscal quarter ending
March 31, 2001 4.90:1.00
Fiscal quarter ending
June 30, 2001 4.90:1.00
Fiscal quarter ending
September 30, 2001 4.90:1.00
Fiscal quarter ending
December 31, 2001 4.90:1.00
Fiscal quarter ending
March 31, 2002 4.75:1.00
Fiscal quarter ending
June 30, 2002 4.75:1.00
Fiscal quarter ending
September 30, 2002 4.75:1.00
Fiscal quarter ending
December 31, 2002 4.60:1.00
January 1, 2003 through
the Maturity Date 4.60:1.00
8.13 Limitation on Issuance of Capital Stock. The Borrower will
not permit any of its Subsidiaries to issue any capital stock (including by
way of sales of treasury stock) or any options or warrants to purchase, or
securities convertible into, capital stock, except to the Borrower and
except (i) for transfers and replacements of then outstanding shares of
capital stock, (ii) for stock splits, stock dividends and issuances which
do not decrease the percentage ownership of the Borrower or any of its
Subsidiaries in any class of the capital stock of such Subsidiary, (iii) to
qualify directors to the extent required by applicable law or (iv) for
issuances by newly created or acquired Subsidiaries in accordance with the
terms of this Agreement.
8.14 Limitation on Creation of Subsidiaries. The Borrower shall
not, and shall not permit any of its Subsidiaries to, establish, create or
acquire any additional Subsidiaries without the prior written consent of
the Required Banks, provided that the Borrower and its Wholly-Owned
Subsidiaries shall be permitted to establish or create Wholly-Owned
Subsidiaries so long as (i) at least 10 Business Days' prior written notice
thereof (or such lesser notice as is acceptable to the Administrative
Agent) is given to the Administrative Agent, (ii) such new Subsidiaries
shall execute and deliver such guarantees and security documents as the
Administrative Agent and/or the Required Banks shall request (including
documents substantially similar to or amendments to each of the Pledge
Agreement and the Security Agreement), and in such forms as shall be
satisfactory to them, (iii) the holders of the capital stock of such new
Subsidiaries shall execute and deliver additional pledge agreements, in
form and substance satisfactory to the Administrative Agent and (iv) such
new Subsidiaries shall execute and deliver, or cause to be executed and
delivered, all other relevant documentation of the type described in
Section 5A as such new Subsidiaries would have had to deliver if such new
Subsidiaries were Credit Parties on the Effective Date.
SECTION 9. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment
when due of any principal of the Loans or (ii) default, and such default
shall continue for three or more Business Days, in the payment when due of
any Unpaid Drawing, any interest on the Loans or any Fees or any other
amounts owing hereunder or under any other Credit Document; or
9.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document
or in any statement or certificate delivered or required to be delivered
pursuant hereto or thereto shall prove to be untrue in any material respect
on the date as of which made or deemed made; or
9.03 Covenants. The Borrower or any of its Subsidiaries shall
(a) default in the due performance or observance by it of any term,
covenant or agreement contained in Sections 7.01(f), 7.12 or 8, or (b)
default in the due performance or observance by it of any term, covenant or
agreement (other than those referred to in Section 9.01, 9.02 or clause (a)
of this Section 9.03) contained in this Agreement and such default shall
continue unremedied for a period of at least 30 days after notice to the
defaulting party by the Administrative Agent or the Required Banks; or
9.04 Default Under Other Agreements. (a) The Borrower or any of
its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if
any, applicable thereto or (ii) default in the observance or performance of
any agreement or condition relating to any such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which default
or other event or condition is to cause, or to permit the holder or holders
of such Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, any such Indebtedness to become due prior to its stated
maturity or (b) any such Indebtedness of the Borrower or any of its
Subsidiaries shall be declared to be due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to
the stated maturity thereof, provided that it shall not constitute an Event
of Default pursuant to this Section 9.04 unless the aggregate amount of all
Indebtedness referred to in clauses (a) and (b) above exceeds $1,000,000 at
any one time; or
9.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries
shall commence a voluntary case concerning itself under Title 11 of the
United States Code entitled "Bankruptcy," as now or hereafter in effect, or
any successor thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against the Borrower or any of its Subsidiaries and the petition
is not controverted within 10 days, or is not dismissed within 60 days,
after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially
all of the property of the Borrower or any of its Subsidiaries; or the
Borrower or any of its Subsidiaries commences any other proceeding under
any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Borrower or any of its
Subsidiaries; or there is commenced against the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of
60 days; or the Borrower or any of its Subsidiaries is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any
such case or proceeding is entered; the Borrower or any of its Subsidiaries
suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or the Borrower or any of its Subsidiaries makes a
general assignment for the benefit of creditors; or any corporate action is
taken by the Borrower or any of its Subsidiaries for the purpose of
effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section
412 of the Code or Section 302 of ERISA or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412
of the Code or Section 303 or 304 of ERISA, a Reportable Event shall have
occurred, a contributing sponsor (as defined in Section 4001(a)(13) of
ERISA) of a Plan subject to Title IV of ERISA shall be subject to the
advance reporting requirement of PBGC Regulation Section 4043.61 (without
regard to subparagraph (b)(1) thereof) and an event described in subsection
.62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 shall
be reasonably expected to occur with respect to such Plan within the
following 30 days, any Plan which is subject to Title IV of ERISA shall
have had or is likely to have a trustee appointed to administer such Plan,
any Plan which is subject to Title IV of ERISA is, shall have been or is
likely to be terminated or to be the subject of termination proceedings
under ERISA, any Plan shall have an Unfunded Current Liability, a
contribution required to be made with respect to a Plan has not been timely
made, the Borrower or a Subsidiary of the Borrower or any ERISA Affiliate
has incurred or is likely to incur any liability to or on account of a Plan
under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on
account of a group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) under Section 4980B of the Code, or the
Borrower or any of its Subsidiaries has incurred or is likely to incur
liabilities pursuant to one or more employee welfare benefit plans (as
defined in Section 3(1) of ERISA) that provide benefits to retired
employees or other former employees (other than as required by Section 601
of ERISA) or Plans; and (b) there shall result from any such event or
events the imposition of a lien, the granting of a security interest, or a
liability or a material risk of incurring a liability; and (c) such lien,
security interest or liability, individually, and/or in the aggregate, in
the opinion of the Required Banks, has had, or could reasonably be expected
to have, a Material Adverse Effect; or
9.07 Security Documents. Any Security Document shall cease to
be in full force and effect or, except as expressly set forth in the
Security Agreement, shall cease to give the Collateral Agent any perfected
Lien encumbering Collateral, or shall cease to give the Collateral Agent
any rights, powers and privileges purported to be created thereby in favor
of the Collateral Agent or any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to
be performed or observed pursuant to any such Security Document and such
default shall continue unremedied for a period of 30 days after notice to
the Borrower by the Administrative Agent, the Collateral Agent of the
Required Banks; or
9.08 Subsidiary Guaranty. The Subsidiary Guaranty or any
provision thereof shall cease to be in full force or effect, or any
Subsidiary Guarantor or any Person acting by or on behalf of any Subsidiary
Guarantor shall deny or disaffirm in writing such guarantor's obligations
under such Subsidiary Guaranty or any Subsidiary Guarantor shall default in
the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to the Subsidiary Guaranty and
such default shall continue unremedied for a period of 30 days after notice
to the Borrower by the Administrative Agent or the Required Banks; or
9.09 Judgments. One or more judgments or decrees shall be
entered against the Borrower or any of its Subsidiaries involving a
liability of $1,000,000 in the aggregate for all such judgments and decrees
for the Borrower and its Subsidiaries (in each case, not paid or to the
extent not covered by insurance) and any such judgments or decrees shall
not have been vacated, discharged or stayed or bonded pending appeal within
90 days from the entry thereof; or
9.10 Change of Control. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent shall, upon the
written request of the Required Banks, by written notice to the Borrower,
take any or all of the following actions, without prejudice to the rights
of the Administrative Agent or any Bank to enforce its claims against the
Borrower, except as otherwise specifically provided for in this Agreement
(provided that, if an Event of Default specified in Section 9.05 shall
occur with respect to the Borrower, the result which would occur upon the
giving of written notice by the Administrative Agent as specified in
clauses (i) and (ii) below shall occur automatically without the giving of
any such notice): (i) declare the Total Revolving Commitment terminated,
whereupon the Revolving Commitment of each Bank shall forthwith terminate
immediately and any Commitment Commission shall forthwith become due and
payable without any other notice of any kind; (ii) declare the principal of
and any accrued interest in respect of all Loans and all Obligations owing
hereunder (including Unpaid Drawings) and thereunder to be, whereupon the
same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; (iii) enforce, as Collateral Agent (or direct the Collateral
Agent to enforce), any or all of the Liens and security interests created
pursuant to the Security Documents; (iv) terminate any Letter of Credit
which may be terminated in accordance with its terms; (v) direct the
Borrower to pay (and the Borrower hereby agrees upon receipt of such
notice, or upon the occurrence of any Event of Default specified in Section
9.05 in respect of the Borrower, it will pay) to the Collateral Agent at
the Payment Office such additional amounts of cash, to be held as security
for the Borrower's reimbursement obligations in respect of Letters of
Credit then outstanding equal to the aggregate Stated Amount of all Letters
of Credit then outstanding; and (vi) apply any cash collateral held
pursuant to this Agreement to repay the Obligations.
SECTION 10. Definitions. As used herein, the following terms
shall have the meanings herein specified unless the context otherwise
requires. Defined terms in this Agreement shall include in the singular
number the plural and in the plural the singular:
"Acquired Entity or Business" shall have the meaning provided
in the definition of Consolidated Net Income.
"Additional Mortgage" shall have the meaning provided in Section
7.12(a).
"Adjusted RC Percentage" shall mean (x) at a time when no Bank
Default exists, for each Bank such Bank's Revolving Percentage and (y) at a
time when a Bank Default exists (i) for each Bank that is a Defaulting
Bank, zero and (ii) for each Bank that is a Non-Defaulting Bank, the
percentage determined by dividing such Bank's Revolving Commitment at such
time by the Adjusted Total Revolving Commitment at such time, it being
understood that all references herein to Revolving Commitments and the
Adjusted Total Revolving Commitment at a time when the Total Revolving
Commitment or Adjusted Total Revolving Commitment, as the case may be, has
been terminated shall be references to the Revolving Commitments or
Adjusted Total Revolving Commitment, as the case may be, in effect
immediately prior to such termination, provided that (A) no Bank's Adjusted
RC Percentage shall change upon the occurrence of a Bank Default from that
in effect immediately prior to such Bank Default if, after giving effect to
such Bank Default and any repayment of Revolving Loans and Swingline Loans
at such time pursuant to Section 4.02(a) or otherwise, the sum of (i) the
aggregate outstanding principal amount of Revolving Loans of all
Non-Defaulting Banks plus (ii) the aggregate outstanding principal amount
of Swingline Loans plus (iii) the Letter of Credit Outstandings, exceeds
the Adjusted Total Revolving Commitment, (B) the changes to the Adjusted RC
Percentage that would have become effective upon the occurrence of a Bank
Default but that did not become effective as a result of the preceding
clause (A) shall become effective on the first date after the occurrence of
the relevant Bank Default on which the sum of (i) the aggregate outstanding
principal amount of the Revolving Loans of all Non-Defaulting Banks plus
(ii) the aggregate outstanding principal amount of the Swingline Loans plus
(iii) the Letter of Credit Outstandings is equal to or less than the
Adjusted Total Revolving Commitment and (C) if (i) a Non-Defaulting Bank's
Adjusted RC Percentage is changed pursuant to the preceding clause (B) and
(ii) any repayment of such Bank's Revolving Loans, or of Unpaid Drawings
with respect to Letters of Credit or of Swingline Loans, that were made
during the period commencing after the date of the relevant Bank Default
and ending on the date of such change to its Adjusted RC Percentage must be
returned to any Borrower as a preferential or similar payment in any
bankruptcy or similar proceeding of such Borrower, then the change to such
Non-Defaulting Bank's Adjusted RC Percentage effected pursuant to said
clause (B) shall be reduced to that positive change, if any, as would have
been made to its Adjusted RC Percentage if (x) such repayments had not been
made and (y) the maximum change to its Adjusted RC Percentage would have
resulted, in the sum of the outstanding principal of Revolving Loans made
by such Bank plus such Bank's new Adjusted RC Percentage of the outstanding
principal amount of Swingline Loans and of Letter of Credit Outstandings
equaling such Bank's Revolving Commitment at such time.
"Adjusted Revolving Commitment" for each Non-Defaulting Bank
shall mean at any time the product of such Bank's Adjusted RC Percentage
and the Adjusted Total Revolving Commitment.
"Adjusted Total Revolving Commitment" shall mean at any time
the Total Revolving Commitment less the aggregate Revolving Commitments of
all Defaulting Banks.
"Administrative Agent" shall have the meaning provided in the
first paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
"Affected Eurodollar Loans" shall have the meaning provided in
Section 4.02(b).
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlling (including, but not limited to,
all directors and officers of such Person), controlled by, or under direct
or indirect common control with such Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
such corporation, whether through the ownership of voting securities, by
contract or otherwise.
"Affiliate Contracts" shall have the meaning provided in Section
5A.05(f).
"Agreement" shall mean this Credit Agreement, as the same may
be from time to time modified, amended and/or supplemented.
"Applicable Margin" shall mean (A) for the period from the
Effective Date through but not including the first Start Date described
below, (x) 1.00% for Base Rate Loans and (y) 2.25% for Eurodollar Loans and
(B) from and after each day of delivery of any certificate delivered in
accordance with the following sentence (each a "Start Date") to and
including the applicable End Date described below, a percentage per annum
based on the then-existing Leverage Ratio as set forth below:
Base Rate Eurodollar
Leverage Ratio Loans Loans
Greater than 4.50:1.00 1.25% 2.50%
Less than or equal to
4.50:1.00 and greater
than 4.00:1.00 1.00% 2.25%
Less than or equal to
4.00:1.00 and greater
than 3.50:1.00 0.75% 2.00%
Less than or equal to
3.50:1.00 and greater
than 3:00:1.00 0.50% 1.75%
Less than or equal to
3.00:1.00 0.25% 1.50%
The Leverage Ratio, for purposes of calculating the Applicable
Margin, shall be determined based on the delivery of a certificate of the
Borrower to the Administrative Agent (with a copy to be sent by the
Administrative Agent to each Bank), certified by an Authorized Officer of
the Borrower within 45 days after the last day of any fiscal quarter of the
Borrower (commencing with its fiscal quarter ending September 30, 1998),
which certificate shall set forth the calculation of the Leverage Ratio for
the Test Period ended immediately prior to the relevant Start Date and the
Applicable Margin which shall be thereafter applicable (until same is
changed or ceases to apply in accordance with the following sentences). The
Applicable Margin so determined shall apply, except as set forth in the
succeeding sentence, from the Start Date to the earlier of (x) the date on
which the next certificate is delivered to the Administrative Agent and (y)
the date which is 45 days following the last day of the fiscal quarter in
which the previous Start Date occurred (the "End Date"), at which time, if
no certificate has been delivered to the Administrative Agent indicating an
entitlement to an Applicable Margin other than in the case of Base Rate
Loans, 1.00%, and in the case of Eurodollar Loans, 2.25% (and thus
commencing a new Start Date), the Applicable Margin shall be, in the case
of Base Rate Loans, 1.00%, and, in the case of Eurodollar Loans, 2.25%.
Notwithstanding anything to the contrary contained above in this
definition, the Applicable Margin shall be, in the case of Base Rate Loans,
1.00% and, in the case of Eurodollar Loans, 2.25% at all times during which
there shall exist a Default under Section 9.01 or 9.05 or an Event of
Default.
"Appraisal Analysis" shall have the meaning provided in Section
5A.22.
"Appraisal Update" shall have the meaning provided in Section
7.01(k).
"Assignment Agreement" shall have the meaning provided in Section
12.04(b).
"Authorized Officer" shall mean any senior officer of the
Borrower designated as such in writing to the Administrative Agent by the
Borrower in each case to the extent acceptable to the Administrative Agent.
"Bank" shall have the meaning provided in the first paragraph of
this Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of a Bank to make available its portion of any incurrence of
Loans (including pursuant to a Mandatory Borrowing) or to fund its portion
of any unreimbursed payment under Section 2.05(c) or (ii) a Bank having
notified the Administrative Agent and/or the Borrower that it does not
intend to comply with its obligations under Section 1.01 or under Section
2.05(c).
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher of (i) the rate
which is 1/2 of 1% in excess of the Federal Funds Effective Rate and (ii)
the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the
rates provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph
of this Agreement.
"Borrowing" shall mean the incurrence of (i) Swingline Loans by
the Borrower from the Swingline Bank on a given date or (ii) one Type of
Revolving Loan by the Borrower from all of the Banks having Revolving
Commitments on a pro rata basis on a given date (or resulting from
conversions on a given date), having in the case of Eurodollar Loans the
same Interest Period; provided that Base Rate Loans incurred pursuant to
Section 1.10(b) shall be considered part of any related Borrowing of
Eurodollar Loans.
"Borrowing Base" shall mean as at any date on which the amount
thereof is being determined, an amount equal to the sum of (x) up to 85% of
Eligible Receivables and (y) up to 50% of Eligible Rental Equipment, each
as determined from the Borrowing Base Certificate most recently delivered
pursuant to Section 7.01(h), provided, that the Administrative Agent shall
be entitled, in each case in the exercise of its reasonable discretion, at
any time after the Effective Date, to (i) establish, eliminate, increase or
decrease reserves against Eligible Rental Equipment and/or (ii) impose
additional restrictions (or eliminate the same) with respect to the
standard set forth in the definition of Eligible Rental Equipment if, in
the reasonable discretion of the Administrative Agent, the results of any
Appraisal Update reveal a materially adverse change in the orderly
liquidation value of the Rental Equipment of the Borrower and the
Subsidiary Guarantors.
"Borrowing Base Certificate" shall have the meaning provided in
Section 7.01(h).
"Borrowing Base Deficiency" shall mean, at any time, the
amount, if any, by which the sum of (x) the aggregate principal amounts of
then outstanding Revolving Loans and Swingline Loans and (y) the aggregate
amount of Letter of Credit Outstandings at such time exceeds the Borrowing
Base then in effect.
"BTCo" shall mean Bankers Trust Company.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and any
day which shall be in the City of New York a legal holiday or a day on
which banking institutions are authorized by law or other governmental
actions to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar
Loans, any day which is a Business Day described in clause (i) and which is
also a day for trading by and between banks in U.S. dollar deposits in the
interbank Eurodollar market.
"Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including in all events all amounts expended or capitalized
under Capital Leases by the Borrower and its Subsidiaries during that
period) that, in conformity with GAAP, are or are required to be included
in the property, plant or equipment reflected in the consolidated balance
sheet of the Borrower and its Subsidiaries.
"Capital Lease" as applied to any Person shall mean any lease
of any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of the Borrower or any of its Subsidiaries in each
case taken at the amount thereof accounted for as liabilities in accordance
with GAAP.
"Carryover Amount" shall have the meaning provided in Section
8.05(b).
"Cash Equivalents" shall mean (i) securities issued or directly
and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit
of the United States of America is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (ii)
U.S. dollar denominated time deposits, certificates of deposit and bankers'
acceptances of (x) any Bank, (y) any domestic commercial bank of recognized
standing having capital and surplus in excess of $250,000,000 or (z) any
bank (or the parent company of such bank) whose short-term commercial paper
rating from Standard & Poor's Ratings Services ("S&P") is at least A-2 or
the equivalent thereof or from Xxxxx'x Investors Service, Inc. ("Xxxxx'x")
is at least P-2 or the equivalent thereof (any such bank, an "Approved
Bank"), in each case with maturities of not more than six months from the
date of acquisition, (iii) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause
(i) above entered into with any bank meeting the qualifications specified
in clause (ii) above, (iv) commercial paper issued by any Bank or Approved
Bank or by the parent company of any Bank or Approved Bank and commercial
paper issued by, or guaranteed by, any industrial or financial company with
a short-term commercial paper rating of at least A-2 or the equivalent
thereof by S&P or at least P-2 or the equivalent thereof by Moody's (any
such company, an "Approved Company"), or guaranteed by any industrial
company with a long term unsecured debt rating of at least A or A2, or the
equivalent of each thereof, from S&P or Moody's, as the case may be, and in
each case maturing within six months after the date of acquisition and (v)
investments in money market funds substantially all of whose assets are
comprised of securities of the type described in clauses (i) through (iv)
above.
"Cash Taxes" for any period shall mean all Taxes paid in cash
during such period by the Borrower and its Subsidiaries, provided, that for
the Test Period (i) ended June 30, 1998, Cash Taxes shall be deemed to be
the product of (x) the Cash Taxes for the fiscal quarter of the Borrower
ended June 30, 1998 and (y) 4, (ii) ended September 30, 1998, Cash Taxes
shall be deemed to be the product of (x) the Cash Taxes for the two
consecutive fiscal quarters of the Borrower ended September 30, 1998 and
(y) 2 and (iii) ended December 31, 1998, Cash Taxes shall be deemed to be
the product of (x) the Cash Taxes for the three consecutive fiscal quarters
of the Borrower ended December 31, 1998 and (y) 4/3.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 et
seq.
"Change of Control" shall mean (i) prior to a Public Offering
(w) X.X. Childs and its Affiliates shall cease to own, beneficially and of
record (not taking into account any securities exercisable, convertible or
exchangeable for or into such Voting Stock which are owned by X.X. Childs
and its Affiliates), Voting Stock representing more than 50% of the
Borrower's Voting Stock on a fully-diluted basis assuming the exercise of
all securities exercisable, convertible or exchangeable for or into such
Voting Stock, (x) X.X. Childs and its Affiliates shall cease to have the
right to elect a majority of the members of the Board of Directors of the
Borrower or (y) for any reason whatsoever, any "Person" or "group" (as such
terms are defined in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5
under the Exchange Act), directly or indirectly, of more than 35% of the
outstanding Voting Securities of the Borrower, (ii) after a Public
Offering, (x) X.X. Childs and its Affiliates shall cease to own,
beneficially and of record (not taking into account any securities
exercisable, convertible or exchangeable for or into such Voting Stock
which are owned by X.X. Childs and its Affiliates), Voting Stock
representing more than 35% of the Borrower's Voting Stock on a
fully-diluted basis assuming the exercise of all securities exercisable,
convertible or exchangeable for or into such Voting Stock or (y) for any
reason whatsoever, any "Person" or "group" (as such terms are defined in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of more than 30% of the outstanding Voting
Securities of the Borrower and (iii) the occurrence of a Senior Note Change
of Control.
"Childs" shall mean X.X. Childs Associates, L.P., a Delaware
limited partnership.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at
the date of this Agreement and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each
of the Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting
as collateral agent for the Banks pursuant to the Security Documents.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Common Stock" shall mean the common stock of the Borrower, par
value $.01 per share.
"Consolidated EBIT" shall mean, for any period, Consolidated
Net Income for such period before Consolidated Interest Expense and
provision for taxes for such period taking into account the tax effect
associated with any adjustments made to Consolidated Net Income pursuant to
clauses (i) through (vii) inclusive of the provisio to the definition of
Consolidated Net Income.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT for such period, adjusted by adding thereto the amount of all
amortization of intangibles and depreciation that were deducted in arriving
at Consolidated EBIT for such period and the amount of any management or
similar fee paid to Childs during such period pursuant to the Management
Agreement or otherwise. For purposes of determining compliance with
Sections 8.10, 8.11 and 8.12, Consolidated EBITDA for each monthly
accounting period from July 1997 through February 1998 shall be deemed to
be as set forth on Schedule XI.
"Consolidated Indebtedness" shall mean, as at any date of
determination, the aggregate amount of all Indebtedness of the Borrower and
its Subsidiaries on a consolidated basis determined in conformity with
GAAP.
"Consolidated Interest Expense" shall mean, for any period,
total interest expense (including that attributable to Capital Leases in
accordance with GAAP) of the Borrower and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of the
Borrower and its Subsidiaries, including, without limitation, all
capitalized interest, but excluding (x) all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate Agreements and (y)
Transaction Expenses, and net of cash interest income, provided, that for
the Test Period (i) ended June 30, 1998, Consolidated Interest Expense
shall be deemed to be the product of (x) the Consolidated Interest Expense
for the fiscal quarter of the Borrower ended June 30, 1998 and (y) 4, (ii)
ended September 30, 1998, Consolidated Interest Expense shall be deemed to
be the product of (x) the Consolidated Interest Expense for the two
consecutive fiscal quarters of the Borrower ended September 30, 1998 and
(y) 2 and (iii) ended December 31, 1998, Consolidated Interest Expense
shall be deemed to be the product of (x) the Consolidated Interest Expense
for the three consecutive fiscal quarters of the Borrower ended December
31, 1998 and (y) 4/3.
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of the Borrower and its Subsidiaries on a consolidated
basis for such period taken as a single accounting period determined in
conformity with GAAP, provided that there shall be excluded (i) the income
(or loss) of any Person (other than Subsidiaries of the Borrower) in which
any other Person (other than the Borrower or any of its Subsidiaries) has a
joint interest, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or any of its Subsidiaries by
such Person during such period, (ii) the income of any Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (iii) compensation expense
resulting from the issuance of capital stock, stock options or stock
appreciation rights issued to employees, including officers, of the
Borrower or any Subsidiary of the Borrower, or the exercise of such options
or rights, in each case to the extent the obligation (if any) associated
therewith is not expected to be settled by the payment of cash by the
Borrower or any Affiliate of the Borrower, (iv) any extraordinary gains or
losses (as determined in conformity with GAAP), (v) any non-recurring gains
or losses (as determined in conformity with GAAP), (vi) any gains or losses
from sales of assets other than from sales of inventory or Rental Equipment
sold in the ordinary course of business, and (vii) compensation expense
resulting from the repurchase of capital stock, options and rights
described in clause (iii) of this definition of Consolidated Net Income,
provided that for purposes of Section 8.12, there shall be included (to the
extent not already included) in determining Consolidated Net Income for any
period the net income (or loss) of any Person, business, property or asset
acquired during such period and not subsequently sold or otherwise disposed
of by the Borrower or one of its Subsidiaries during such period (each such
Person, business, property or asset acquired and not subsequently disposed
of during such period, an "Acquired Entity or Business"), in each case
based on the actual net income (or loss) of such Acquired Entity or
Business for the entire period (including the portion thereof occurring
prior to such acquisition) but adjusted for the identifiable pro forma cost
savings for such period that are directly attributable to the acquisition
of such Acquired Entity or Business (which pro forma adjustments shall be
made on a basis consistent with Regulation S-X under the Securities Act).
"Consolidated Net Indebtedness" shall mean, at any date of
determination, an amount equal to the amount of Consolidated Indebtedness
at such time less the amount of cash and Cash Equivalents held by the
Borrower and its Subsidiaries at such time.
"Contingent Obligations" shall mean, as to any Person, any
obligation of such Person guaranteeing or intending to guarantee any
Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (a) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for the purchase or
payment of any such primary obligation or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (d) otherwise to assure or hold
harmless the owner of such primary obligation against loss in respect
thereof, provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Contingent Obligation is made
or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, each of the
Notes, each of the Security Documents, the Subsidiary Guaranty and any
other documents executed in connection herewith or therewith.
"Credit Event" shall mean and include the making of a Loan or
the issuance of a Letter of Credit.
"Credit Party" shall mean the Borrower and each of the Subsidiary
Guarantors.
"Debt Termination Documents" shall have the meaning provided in
Section 5A.19(c).
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a
Bank Default is in effect.
"Dividends" shall have the meaning provided in Section 8.08.
"Documents" shall mean, collectively, (a) the Credit Documents
and (b) the Transaction Documents.
"Domestic Subsidiary" shall have the meaning provided in the
definition of Subsidiary Guarantor.
"Effective Date" shall have the meaning provided in Section
12.10.
"Eligible Receivables" shall mean the total face amount of the
receivables of the Borrower and the Subsidiary Guarantors arising from the
rental of Rental Equipment by the Borrower or any Subsidiary Guarantor in
the ordinary course of business or the sale of Inventory by the Borrower or
any Subsidiary Guarantor in the ordinary course of business so long as such
receivables conform to the representations and warranties contained in the
Security Agreement (including, without limitation, that the Collateral
Agent shall have and maintain a first priority perfected security interest
in all such receivables) and at all times continue to be acceptable to the
Collateral Agent in its reasonable judgment less any returns, discounts,
claims, credit and allowances of any nature (whether issued, owing, granted
or outstanding) and less reserves for chargebacks, deferred revenue,
contras and any other matter which affects the creditworthiness of account
debtors owing the receivables and excluding (i) receivables from the rental
of Rental Equipment or the sale of Inventory to any Affiliate, (ii) all
receivables which are not due by their terms or have not been paid in full
within 180 days of the invoice date thereof (and all other receivables due
from any account debtor whose receivables are past due if 50% or more of
such account debtor's receivables are so past due) or which have been
disputed or made subject to set-off (to the extent thereof), (iii) all
receivables from any party subject to any bankruptcy, receivership,
insolvency or like proceedings by the account debtor, (iv) receivables
owing by account debtors outside the United States and Canada, (v)
receivables arising out of a sale, lease or rental for which no invoice has
been provided to the account debtor and (vi) receivables due from an
account debtor whose receivables constitute 15% or more of all receivables
of the Borrower and the Subsidiary Guarantors unless supported or secured
by insurance acceptable to the Administrative Agent or an irrevocable
letter of credit in form and substance acceptable to the Administrative
Agent, issued by financial institution satisfactory to the Administrative
Agent and duly pledged to the Collateral Agent (together with sufficient
documentation to permit direct draws by the Collateral Agent).
"Eligible Rental Equipment" shall mean all Rental Equipment of
the Borrower and the Subsidiary Guarantors which (i) is held by the
Borrower or any Subsidiary Guarantor (other than for sale) or is rented to
third Persons in the ordinary course of business by the Borrower or any
Subsidiary Guarantor or which is the subject of an equipment rental program
or similar equipment outsourcing program, (ii) conforms to the
representations and warranties contained in the Security Agreement and
(iii) at all times, continues to be acceptable to the Collateral Agent in
its reasonable discretion. In any event, Eligible Rental Equipment shall
(i) exclude the net book value of the Borrower's "Bazooka Bed" inventory
and (ii) account for reserves for Rental Equipment that is unrentable,
obsolete, slow moving or under repair. In determining the amount to be so
included, such Rental Equipment shall be valued on a net book value basis
consistent with the Borrower's consolidated month-end balance sheet, less
any reserves required by the Administrative Agent pursuant to the proviso
contained in the definition of Borrowing Base.
"Eligible Transferee" shall mean and include a commercial bank,
financial institution or other "accredited investor" (as defined by
Regulation D of the Securities Act of 1933, as amended).
"Employment Agreements" shall have the meaning provided in
Section 5A.05(d).
"End Date" shall have the meaning provided in the definition of
Applicable Margin.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, administrative investigations
or proceedings relating in any way to any Environmental Law or any permit
issued, or any approval given, under any such Environmental Law (hereafter,
"Claims"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any applicable Federal, state,
foreign or local statute, law, rule, regulation, ordinance, code, rule of
common law or written and binding policy or guide, now or hereafter in
effect and in each case as amended, and any final and applicable judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the
environment, health, safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. ss. 1251 et seq.; the Toxic Substances Control Act, 15
U.S.C. ss. 7401 et seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the
Sa Drinking Water Act, 42 U.S.C. ss. 3808 et seq.; the Oil Pollution Act of
1990, 33 U.S.C. ss. 2701 et seq.; and any applicable state and local or
foreign counterparts or equivalents.
"Equity Financing" shall have the meaning provided in Section
5A.10.
"Equity Financing Documents" shall have the meaning provided in
Section 5A.10.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of
ERISA, amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section
3(9) of ERISA) which together with the Borrower or a Subsidiary of the
Borrower would be deemed to be a "single employer" (i) within the meaning
of Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of the
Borrower or a Subsidiary of the Borrower being or having been a general
partner of such person.
"Eurodollar Loans" shall mean each Loan bearing interest at the
rates provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest
Period for a Eurodollar Loan, (i) the offered quotation to first-class
banks in the New York interbank Eurodollar market by the Administrative
Agent for dollar deposits of amounts in same day funds comparable to the
outstanding principal amount of the Eurodollar Loan of the Administrative
Agent for which an interest rate is then being determined with maturities
comparable to the Interest Period to be applicable to such Eurodollar Loan,
determined as of 10:00 A.M. (New York time) on the date which is two
Business Days prior to the commencement of such Interest Period divided
(and rounded upward to the next whole multiple of 1/32 of 1%) by (ii) a
percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including without limitation any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of
the Federal Reserve System in respect of Eurocurrency liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Indebtedness" shall have the meaning provided in
Section 6.21.
"Existing Indebtedness Agreements" shall have the meaning
provided in Section 5A.05(e).
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate equal for each day during such period to the
weighted average of the rates on overnight Federal Funds transactions with
members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of recognized
standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to
in, Section 3.01.
"FIRREA" shall mean Financial Institution Reform, Recovery and
Enforcement Act of 1989, as amended.
"Fixed Charge Coverage Ratio" for any period shall mean the
ratio of (x) Consolidated EBITDA minus Cash Taxes for such period minus the
greater of (i) Maintenance Capital Expenditures for such period or (ii) the
product of (A) 0.50 and Capital Expenditures for such period to (y) Fixed
Charges for such period.
"Fixed Charges" for any period shall mean the sum of (i)
Consolidated Interest Expense for such period and (ii) the aggregate
principal amount of all scheduled payments of Indebtedness (excluding
repayment of Revolving Loans not accompanied by a permanent reduction to
the Total Revolving Commitment) required to be made during such period.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by the
Borrower or any one or more of its Subsidiaries primarily for the benefit
of employees of the Borrower or such Subsidiaries residing outside the
United States of America, which plan, fund or other similar program
provides, or results in, retirement income, a deferral of income in
contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall have the meaning provided in the
definition of Subsidiary Guarantor.
"GAAP" shall mean generally accepted accounting principles in
the United States of America as in effect on the date of this Agreement; it
being understood and agreed that determinations in accordance with GAAP for
purposes of Section 8, including defined terms as used therein, are subject
(to the extent provided therein) to Section 12.07(a).
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could
become friable, urea formaldehyde foam insulation, transformers or other
equipment that contained, electric fluid containing levels of
polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or
substances defined as or included in the definition of "hazardous
substances," "hazardous waste," "hazardous materials," "extremely hazardous
waste," "restricted hazardous waste," "toxic substances," "toxic
pollutants," "contaminants," or "pollutants," or words of similar meaning
and regulatory effect, under any applicable Environmental Law; and (c) any
other chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority.
"Indebtedness" of any Person shall mean, without duplication,
(i) all indebtedness of such Person for borrowed money, (ii) the deferred
purchase price of assets or services which in accordance with GAAP would be
shown on the liability side of the balance sheet of such Person, (iii) the
face amount of all letters of credit issued for the account of such Person
and, without duplication, all drafts drawn thereunder, (iv) all
Indebtedness of a second Person secured by any Lien on any property owned
by such first Person, whether or not such indebtedness has been assumed,
(v) all Capitalized Lease Obligations of such Person, (vi) all obligations
of such Person to pay a specified purchase price for goods or services
whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, (vii) all net obligations of such Person under Interest Rate
Agreements and (viii) all Contingent Obligations of such Person (other than
Contingent Obligations arising from the guaranty by such Person of the
obligations of the Borrower and/or its Subsidiaries to the extent such
guaranteed obligations do not constitute Indebtedness), provided that
Indebtedness shall not include trade payables, deferred revenue, taxes and
accrued expenses, in each case arising in the ordinary course of business.
"Interest Coverage Ratio" shall mean, for any Test Period, the
ratio of (i) Consolidated EBITDA for such Test Period to (ii) Consolidated
Interest Expense for such Test Period.
"Interest Period" with respect to any Eurodollar Loan shall
mean the interest period applicable thereto, as determined pursuant to
Section 1.09.
"Interest Rate Agreement" shall mean any interest rate swap
agreement, any interest rate cap agreement, any interest rate collar
agreement or other similar agreement or arrangement designed to hedge the
position of the Borrower or any Subsidiary with respect to interest rates.
"Inventory" shall mean all of the Borrower's and the Subsidiary
Guarantors' now owned and existing and hereafter arising or acquired
inventory, wherever located and whether in the possession of Borrower or
any Subsidiary Guarantor or any other Person, including, without
limitation, (a) all raw materials, work in process, parts, components,
assemblies, supplies and materials used or consumed in the Borrower's and
the Subsidiary Guarantors' business and (b) all goods, wares and
merchandise, finished or unfinished, held for sale or lease or furnished or
to be furnished under contracts of services, in all cases, excluding the
Rental Equipment.
"Investment" shall have the meaning provided in Section 8.06.
"X.X. Childs" shall mean X.X. Childs Equity Partners, L.P., a
Delaware limited partnership.
"L/C Supportable Obligations" shall mean and include
obligations of the Borrower or its Subsidiaries incurred in the ordinary
course of business (including, without limitation, pursuant to lease
obligations in respect of real property leased by the Borrower or any of
its Subsidiaries) and such other obligations of the Borrower or any of its
Subsidiaries as are reasonably acceptable to the Administrative Agent and
the Letter of Credit Issuer and otherwise permitted to exist pursuant to
the terms of this Agreement.
"Leasehold" of any Person shall mean all of the right, title
and interest of such Person as lessee or licensee in, to and under leases
or licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean BTCo and any Bank which at
the request of the Borrower and with the consent of the Administrative
Agent agrees, in such Bank's sole discretion, to become a Letter of Credit
Issuer for the purpose of issuing Letters of Credit pursuant to Section 2.
The sole Letter of Credit Issuer on the Effective Date is BTCo.
"Letter of Credit Outstandings" shall mean, at any time, the
sum of, without duplication, (i) the aggregate Stated Amount of all
outstanding Letters of Credit and (ii) the aggregate amount of all Unpaid
Drawings in respect of all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in
Section 2.03(a).
"Leverage Ratio" shall mean, at any time, the ratio of (i)
Consolidated Net Indebtedness at such time to (ii) Consolidated EBITDA for
the Test Period most recently ended (taken as one accounting period).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention
agreement or any lease in the nature thereof).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
"Maintenance Capital Expenditures", with respect to any Test
Period ending on a date set forth below, shall mean the amount set forth
opposite such date:
Date Maintenance Capital Expenditures
June 30, 1998 $10,800,000
September 30, 1998 $ 9,700,000
December 31, 1998 $ 8,600,000
March 31, 1999 $ 8,800,000
June 30, 1999 $ 9,000,000
September 30, 1999 $ 9,200,000
December 31, 1999 $ 9,400,000
March 31, 2000 $ 9,000,000
June 30, 2000 $ 8,600,000
September 30, 2000 $ 8,200,000
December 31, 2000 $ 7,800,000
March 31, 2001 $ 8,100,000
June 30, 2001 $ 8,500,000
September 30, 2001 $ 8,800,000
December 31, 2001 $ 9,200,000
March 31, 2002 $10,200,000
June 30, 2002 $11,300,000
September 30, 2002 $12,400,000
December 31, 2002 $13,400,000
"Management Agreement" shall mean the management agreement
dated the date hereof between the Borrower and Childs.
"Management Holder" shall have the meaning provided in the
Stockholders Agreement as in effect on the date hereof.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(c).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect
on the business, property, assets, liabilities, operations, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries
taken as a whole, after giving effect to the Transaction and any other
transactions contemplated by the Documents.
"Maturity Date" shall mean February 25, 2003.
"Maximum Swingline Amount" shall mean $500,000.
"Minimum Borrowing Amount" shall mean $250,000.
"Mortgage" shall have the meaning provided in Section 5A.16(i),
provided that after the execution and delivery thereof, the mortgage
delivered pursuant to Section 7.13 and each Additional Mortgage shall also
constitute Mortgages.
"Mortgage Policies" shall have the meaning provided in Section
5A.16(ii).
"Mortgaged Properties" shall mean each of the Real Properties
listed on Schedule V hereto and designated as a "Mortgaged Property"
thereon.
"Net Sale Proceeds" shall mean, for any asset sale, the gross
cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and
when received) received from such asset sale, net of the reasonable costs
of such sale (including fees and commissions, payments of unassumed
liabilities relating to the assets sold and required payments of any
Indebtedness which is secured by the respective assets which were sold),
and the incremental taxes paid or payable as a result of such asset sale.
"Non-Defaulting Bank" shall mean each Bank other than a
Defaulting Bank.
"Note" shall mean and include each Revolving Note and the
Swingline Note.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other
office as the Administrative Agent may designate to the Borrower from time
to time.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time
existing, owing to the Administrative Agent, the Collateral Agent or any
Bank pursuant to the terms of this Agreement or any other Credit Document.
"Participant" shall have the meaning provided in Section 2.05(a).
"Payment Office" shall mean the office of the Administrative
Agent located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx or such other
office as the Administrative Agent may designate to the Borrower from time
to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Encumbrances" shall mean, with respect to any Real
Property subject to a Mortgage or an Additional Mortgage, such exceptions
to title as are set forth in the title insurance policy or title commitment
delivered with respect thereto, all of which exceptions must be reasonably
acceptable to the Administrative Agent.
"Permitted Liens" shall have the meaning provided in Section 8.03.
"Person" shall mean any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or other
enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower, a Subsidiary of the Borrower or
an ERISA Affiliate, and each such plan for the five-year period immediately
following the latest date on which the Borrower, a Subsidiary of the
Borrower, or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section
5A.15(a).
"Pledged Securities" shall mean all the Pledged Securities as
defined in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces
from time to time as its prime lending rate, the Prime Lending Rate to
change when and as such prime lending rate changes. The Prime Lending Rate
is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. BTCo may make commercial loans or
other loans at rates of interest at, above or below the Prime Lending Rate.
"Projections" shall have the meaning set forth in Section 5A.21.
"Public Offering" shall mean a widely distributed sale of
Common Stock pursuant to an underwritten (on a firm commitment basis)
public offering pursuant to an effective registration statement filed with
the SEC pursuant to the Securities Act of 1933, as amended, which yields at
least $20,000,000 of net cash proceeds to the Borrower.
"Quarterly Payment Date" shall mean the last Business Day of
each March, June, September and December occurring after the Effective
Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all of the right,
title and interest of such Person in and to land, improvements and
fixtures, including Leaseholds.
"Recapitalization" shall mean the recapitalization of the
Borrower pursuant to and in accordance with the terms and conditions of the
Recapitalization Documents.
"Recapitalization Agreement" shall mean the Agreement and Plan
of Merger dated November 25, 1997, by and among the Borrower, X.X. Childs,
and UHS Acquisition Corp., a Minnesota corporation.
"Recapitalization Documents" shall mean the Recapitalization
Agreement and all other documents required to be entered into or delivered
pursuant to the terms and conditions of the Recapitalization Agreement.
"Refinanced Agreements" shall mean those agreements listed on
Schedule X and all instruments, documents and agreements relating thereto,
in all cases as in effect on the Effective Date.
"Refinancing" shall mean the termination of the commitments
under each Refinanced Agreement and the repayment of all loans outstanding
thereunder.
"Register" shall have the meaning provided in Section 12.16.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof establishing reserve
requirements.
"Regulation G, T, U and X" shall mean Regulations G, T, U and X
of the Board of Governors of the Federal Reserve System as from time to
time in effect and any successor to all or a portion thereof establishing
margin requirements.
"Rental Equipment" shall mean all moveable medical equipment of
the Borrower and the Subsidiary Guarantors generally consisting of, but not
limited to, critical care equipment, monitoring equipment, newborn care
equipment and respiratory therapy equipment (but excluding Inventory).
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section
1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of
ERISA other than those events as to which the 30-day notice period is
waived under subsection .22, .23, .25, .27, or .28 of PBGC Regulation
Section 4043.
"Required Appraisal" shall have the meaning set forth in Section
7.12(d).
"Required Banks" shall mean Non-Defaulting Banks whose
outstanding Revolving Commitments (or, if after the Total Revolving
Commitment has been terminated, outstanding Revolving Loans and Adjusted RC
Percentage of outstanding Swingline Loans and Letter of Credit
Outstandings) constitute greater than 50% of the Adjusted Total Revolving
Commitment (or, if after the Total Revolving Commitment has been
terminated, the total outstanding Revolving Loans of Non-Defaulting Banks
and the aggregate Adjusted RC Percentages of all Non-Defaulting Banks of
the total outstanding Swingline Loans and Letter of Credit Outstandings at
such time).
"Revolving Commitment" shall mean, with respect to each Bank,
the amount set forth opposite such Bank's name in Schedule I directly below
the column entitled "Revolving Commitment", (x) as the same may be reduced
from time to time pursuant to Sections 3.02, 3.03 and/or 9 or (y) adjusted
from time to time as a result of assignments to or from such Bank pursuant
to Section 12.04.
"Revolving Loan" shall have the meaning provided in Section
1.01(a).
"Revolving Note" shall have the meaning provided in Section
1.05(a)(i).
"Revolving Percentage" shall mean at any time for each Bank
with a Revolving Commitment, the percentage obtained by dividing such
Bank's Revolving Commitment by the Total Revolving Commitment, provided
that if the Total Revolving Commitment has been terminated, the Revolving
Percentage of each Bank shall be determined by dividing such Bank's
Revolving Commitment immediately prior to such termination by the Total
Revolving Commitment immediately prior to such termination.
"SEC" shall mean the Securities and Exchange Commission and/or
any successor thereto.
"Secured Creditors" shall have the meaning assigned to that
term in each of the Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Security Agreement" shall have the meaning provided in Section
5A.15(b).
"Security Agreement Collateral" shall mean all "Collateral" as
defined in the Security Agreement.
"Security Documents" shall mean the Pledge Agreement, the
Security Agreement, each Mortgage and each Additional Mortgage, if any.
"Senior Notes" mean the unsecured senior notes, issued by the
Borrower, as in effect on the Effective Date and after giving effect to any
changes, amendments or supplements thereto (and shall include any unsecured
senior notes into which the Senior Notes are exchanged pursuant to the
Senior Notes Documents).
"Senior Notes Change of Control" shall mean a "Change of
Control" under, and as defined in, the Senior Notes Indenture.
"Senior Notes Documents" shall mean and include each of the
Senior Notes, the Senior Notes Indenture and all securities purchase
agreements and other documents and agreements related thereto, as in effect
on the Effective Date and after giving effect to any changes, amendments or
supplements thereto.
"Senior Notes Indenture" shall mean the indenture dated on or
about the Effective Date, between the Borrower and a trustee satisfactory
to the Administrative Agent, as in effect on the Effective Date and after
giving effect to any changes, amendments or supplements thereto.
"Shareholders' Agreements" shall have the meaning provided in
Section 5A.05(b).
"Standby Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Start Date" shall have the meaning provided in the definition
of Applicable Margin.
"Stated Amount" of each Letter of Credit shall mean the maximum
amount available to be drawn thereunder (regardless of whether any
conditions for drawing could then be met).
"Stockholders Agreement" shall mean the Stockholders' Agreement
dated as of February 25, 1998 by and among the Borrower and the
stockholders of the Borrower party thereto.
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having by
the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time
stock of any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries and (ii)
any partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries, has more than a 50%
equity interest at the time. Unless otherwise expressly provided, all
references herein to "Subsidiary" shall mean a Subsidiary of the Borrower.
"Subsidiary Guarantors" shall mean each Subsidiary of the
Borrower organized under the laws of the United States or any State or
territory thereof (each a "Domestic Subsidiary") and, to the extent
provided in Section 7.13, each Wholly-Owned Subsidiary of the Borrower
which is not a Domestic Subsidiary (each a "Foreign Subsidiary").
"Subsidiary Guaranty" shall have the meaning provided in Section
5A.14.
"Swingline Bank" shall mean BTCo.
"Swingline Expiry Date" shall mean the date which is five
Business Days prior to the Maturity Date.
"Swingline Loan" shall have the meaning provided in Section
1.01(b).
"Swingline Note" shall have the meaning provided in Section
1.05(a)(ii).
"Syndication Date" shall mean the earlier of (i) the 90th day
after the Effective Date and (ii) that date upon which the Administrative
Agent determines (and notifies the Borrower) that the primary syndication
(and resultant addition of Persons as Banks pursuant to Section 12.04(b))
has been completed.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Period" shall mean the four consecutive fiscal quarters
of the Borrower then last ended (in each case taken as one accounting
period), provided, any calculation of Consolidated Interest Expense and/or
Cash Taxes required in determining compliance with Section 8.10 or 8.11
will be made in accordance with the last sentence contained in the
definition of Consolidated Interest Expense or Cash Taxes, as the case may
be.
"Total Revolving Commitment" shall mean the sum of the
Revolving Commitments of each of the Banks.
"Total Unutilized Revolving Commitment" shall mean, at any
time, (i) the Total Revolving Commitment at such time less (ii) the sum of
the aggregate principal amount of all Revolving Loans and Swingline Loans
outstanding at such time plus the Letter of Credit Outstandings at such
time.
"Trade Letter of Credit" shall have the meaning provided in
Section 2.01(a).
"Transaction" shall mean, collectively, (i) the Refinancing,
(ii) the Recapitalization, (iii) the Equity Financing, (iv) the issuance of
the Senior Notes on the Effective Date and (v) the incurrence of Loans on
the Effective Date.
"Transaction Documents" shall mean, collectively, (i) the
Recapitalization Documents, (ii) the Debt Termination Documents, (iii) the
Equity Financing Documents, (iv) the Senior Notes Documents and (v) all
other documents and agreements (other than the Credit Documents) entered
into in connection with the Transaction.
"Transaction Expenses" shall mean all fees and expenses
incurred in connection with and arising out of the Transaction and the
transactions contemplated thereby and hereby, including, without
limitation, attorney's fees, accountants' fees, placement agents' fees,
discounts and commissions and brokerage, and consultant fees. Transaction
Expenses shall include the amortization of any such fees and expenses that
are capitalized and not classified as an expense on the date incurred.
"Type" shall mean any type of Revolving Loan determined with
respect to the interest option applicable thereto, i.e., a Base Rate Loan
or Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code, as in effect from
time to time in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount,
if any, by which the actuarial present value of the accumulated plan
benefits under the Plan as of the close of its most recent plan year,
determined in accordance with actuarial assumptions at such time consistent
with Statement of Financial Accounting Standards No. 87, exceeds the market
value of the assets allocable thereto.
"Unpaid Drawing" shall have the meaning provided in Section
2.04(a).
"Unutilized Revolving Commitment" for any Bank with a Revolving
Commitment at any time shall mean the excess of (i) the Revolving
Commitment of such Bank over (ii) the sum of (x) the aggregate outstanding
principal amount of Revolving Loans made by such Bank plus (y) an amount
equal to such Bank's Adjusted RC Percentage of the Letter of Credit
Outstandings at such time.
"Voting Stock" shall mean, with respect to any corporation, the
outstanding stock of all classes (or equivalent interests) which
ordinarily, in the absence of contingencies, entitles holders thereof to
vote for the election of directors (or Persons performing similar
functions) of such corporation, even though the right so to vote has been
suspended by the happening of such a contingency.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100%
equity interest at such time.
"Written" or "in writing" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
SECTION 11. The Administrative Agent.
11.01 Appointment. The Banks hereby designate Bankers Trust
Company as Administrative Agent (for purposes of this Section 11, the term
"Administrative Agent" shall include BTCo in its capacity as Collateral
Agent pursuant to the Security Documents) to act as specified herein and in
the other Credit Documents. Each Bank hereby irrevocably authorizes, and
each holder of any Note by the acceptance of such Note shall be deemed
irrevocably to authorize, the Administrative Agent to take such action on
its behalf under the provisions of this Agreement, the other Credit
Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder
and thereunder as are specifically delegated to or required of the
Administrative Agent by the terms hereof and thereof and such other powers
as are reasonably incidental thereto. The Administrative Agent may perform
any of its duties hereunder or under the other Credit Documents by or
through its respective officers, directors, agents, employees or
affiliates.
11.02 Nature of Duties. The Administrative Agent shall not have
any duties or responsibilities except those expressly set forth in this
Agreement and the Security Documents. Neither the Administrative Agent nor
any of its respective officers, directors, agents, employees or affiliates
shall be liable for any action taken or omitted by it or them hereunder or
under any other Credit Document or in connection herewith or therewith,
unless caused by its or their gross negligence or willful misconduct (as
determined by a court of competent jurisdiction). The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any
other Credit Document a fiduciary relationship in respect of any Bank or
the holder of any Note; and nothing in this Agreement or any other Credit
Document, expressed or implied, is intended to or shall be so construed as
to impose upon the Administrative Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein
or therein.
11.03 Lack of Reliance on the Administrative Agent.
Independently and without reliance upon the Administrative Agent, each Bank
and the holder of each Note, to the extent it deems appropriate, has made
and shall continue to make (i) its own independent investigation of the
financial condition and affairs of the Borrower and its Subsidiaries in
connection with the making and the continuance of the Loans and the taking
or not taking of any action in connection herewith and (ii) its own
appraisal of the creditworthiness of the Borrower and its Subsidiaries and,
except as expressly provided in this Agreement, the Administrative Agent
shall not have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank or the holder of any Note with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times
thereafter. The Administrative Agent shall not be responsible to any Bank
or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or
other writing delivered in connection herewith or for the execution,
effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other
Credit Document or the financial condition of the Borrower and its
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of
this Agreement or any other Credit Document, or the financial condition of
the Borrower and its Subsidiaries or the existence or possible existence of
any Default or Event of Default.
11.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Banks
with respect to any act or action (including failure to act) in connection
with this Agreement or any other Credit Document, the Administrative Agent
shall be entitled to refrain from such act or taking such action unless and
until the Administrative Agent shall have received instructions from the
Required Banks; and the Administrative Agent shall not incur liability to
any Person by reason of so refraining. Without limiting the foregoing,
neither any Bank nor the holder of any Note shall have any right of action
whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder or under
any other Credit Document in accordance with the instructions of the
Required Banks.
11.05 Reliance. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cablegram, radiogram, order or other document or telephone message
signed, sent or made by any Person that the Administrative Agent believed
to be the proper Person, and, with respect to all legal matters pertaining
to this Agreement and any other Credit Document and its duties hereunder
and thereunder, upon advice of counsel selected by the Administrative Agent
(which may be counsel for the Borrower).
11.06 Indemnification. To the extent the Administrative Agent
is not reimbursed and indemnified by the Borrower or the Subsidiary
Guarantors, the Banks will reimburse and indemnify the Administrative
Agent, in proportion to their respective "percentages" as used in
determining the Required Banks, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, costs,
expenses or disbursements of whatsoever kind or nature which may be imposed
on, asserted against or incurred by the Administrative Agent in performing
its respective duties hereunder or under any other Credit Document, in any
way relating to or arising out of this Agreement or any other Credit
Document; provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's gross negligence or willful misconduct (as determined by a court of
competent jurisdiction).
11.07 The Administrative Agent in Its Individual Capacity. With
respect to its obligation to make Loans under this Agreement, the
Administrative Agent shall have the rights and powers specified herein for
a "Bank" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Banks," "Required
Banks," "holders of Notes" or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with any Credit Party or any Affiliate of any Credit Party as if
it were not performing the duties specified herein, and may accept fees and
other consideration from the Borrower or any other Credit Party for
services in connection with this Agreement or otherwise without having to
account for the same to the Banks.
11.08 Holders. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment, transfer or endorsement thereof,
as the case may be, shall have been filed with the Administrative Agent.
Any request, authority or consent of any Person who, at the time of making
such request or giving such authority or consent, is the holder of any Note
shall be conclusive and binding on any subsequent holder, transferee,
assignee or indorsee, as the case may be, of such Note or of any Note or
Notes issued in exchange therefor.
11.09 Resignation by the Administrative Agent. (a) The
Administrative Agent may resign from the performance of all its functions
and duties hereunder and/or under the other Credit Documents at any time by
giving 30 Business Days' prior written notice to the Borrower and the
Banks. Such resignation shall take effect upon the appointment of a
successor Administrative Agent pursuant to clauses (b) and (c) below or as
otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks
shall appoint a successor Administrative Agent hereunder or thereunder who
shall be a commercial bank or trust company reasonably acceptable to the
Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 30 Business Day period, the Administrative Agent,
with the consent of the Borrower (which consent shall not be unreasonably
withheld), shall then appoint a successor Administrative Agent who shall
serve as Administrative Agent hereunder or thereunder until such time, if
any, as the Required Banks appoint a successor Administrative Agent as
provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) above by the 30th Business Day after the date
such notice of resignation was given by the Administrative Agent, the
Administrative Agent's resignation shall become effective and the Required
Banks shall thereafter perform all the duties of the Administrative Agent
hereunder and/or under any other Credit Document until such time, if any,
as the Banks appoint a successor Administrative Agent as provided above.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay
all reasonable out-of-pocket costs and expenses of the Administrative Agent
in connection with the negotiation, preparation, execution and delivery of
the Credit Documents and the documents and instruments referred to therein
and any amendment, waiver or consent relating thereto (including, without
limitation, the reasonable fees and disbursements of White & Case) and of
the Administrative Agent and each of the Banks in connection with the
enforcement of the Credit Documents and the documents and instruments
referred to therein (including, without limitation, the reasonable fees and
disbursements of counsel for the Administrative Agent and one counsel (or
in-house counsel) for each of the Banks); (ii) pay and hold each of the
Banks harmless from and against any and all present and future stamp and
other similar taxes with respect to the foregoing matters and save each of
the Banks harmless from and against any and all liabilities with respect to
or resulting from any delay or omission (other than to the extent
attributable to such Bank) to pay such taxes; and (iii) indemnify each Bank
(including in its capacity as the Administrative Agent or a Letter of
Credit Issuer), its officers, directors, employees, representatives and
agents from and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses incurred by any of them (whether
asserted by the Borrower or otherwise) as a result of, or arising out of,
or in any way related to, or by reason of, (a) any investigation,
litigation or other proceeding (whether or not any Bank is a party thereto)
related to the entering into and/or performance of any Credit Document or
the use of the proceeds of any Loans hereunder or the Recapitalization or
the consummation of any other transactions contemplated in any Credit
Document or other Document, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding (but excluding any such
losses, liabilities, claims, damages or expenses to the extent incurred by
reason of the gross negligence or willful misconduct (as determined by a
court of competent jurisdiction) of the Person to be indemnified) or (b)
the actual or alleged presence of Hazardous Materials in the air, surface
water, groundwater, surface or subsurface of any Real Property owned or at
any time operated by the Borrower or any of its Subsidiaries, the
generation, storage, transportation or disposal of Hazardous Materials at
any location whether or not owned or operated by the Borrower or any of its
Subsidiaries, the non-compliance of any Real Property owned or at any time
operated by the Borrower or any of its Subsidiaries with federal, state and
local laws, regulations, and ordinances (including applicable permits
thereunder) applicable to any such Real Property, or any Environmental
Claim asserted against the Borrower, any of its Subsidiaries, or any such
Real Property, including, in each case, without limitation, the reasonable
fees and disbursements of counsel and other consultants incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct (as
determined by a court of competent jurisdiction) of the Person to be
indemnified). To the extent that the undertaking to indemnify, pay or hold
harmless the Administrative Agent or any Bank set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible
under applicable law.
12.02 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, if an Event of Default then exists, each
Bank is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to any Credit
Party or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing
by such Bank (including without limitation by branches and agencies of such
Bank wherever located) to or for the credit or the account of any Credit
Party against and on account of the Obligations and liabilities of such
Credit Party to such Bank under this Agreement or under any of the other
Credit Documents, including, without limitation, all interests in
Obligations of such Credit Party purchased by such Bank pursuant to Section
12.06(b), and all other claims of any nature or description arising out of
or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Bank shall have made any demand hereunder and
although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured.
12.03 Notices. (a) Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall
be in writing (including telegraphic, telex, telecopier or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered, if to a Credit Party, at the address specified opposite its
signature below or in the other relevant Credit Documents, as the case may
be, if to the Administrative Agent, at its Notice Office; if to any Bank,
at its address specified for such Bank on Schedule II; or, at such other
address as shall be designated by any party in a written notice to the
other parties hereto. All such notices and communications shall be mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier,
and shall be effective when received.
(b) Without in any way limiting the obligation of the Borrower
to confirm in writing any telephonic notice permitted to be given
hereunder, the Administrative Agent or the Swingline Bank (in the case of a
Borrowing of Swingline Loans) or any Letter of Credit Issuer, as the case
may be, may prior to receipt of written confirmation act without liability
upon the basis of such telephonic notice, believed by the Administrative
Agent or the Swingline Bank or such Letter of Credit Issuer in good faith
to be from an Authorized Officer of the Borrower. In each such case, the
Borrower hereby waives the right to dispute the Administrative Agent's or
the Swingline Bank's or such Letter of Credit Issuer's record of the terms
of such telephonic notice.
12.04 Assignments; Participations; etc. (a) This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto, provided that the
Borrower may not assign or transfer any of its rights or obligations
hereunder without the prior written consent of each of the Banks. Each Bank
may at any time grant participations in any of its rights hereunder or
under any of the Notes to another financial institution, provided that in
the case of any such participation, the participant shall not have any
rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to
be those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower
hereunder shall be determined as if such Bank had not sold such
participation, except that the participant shall be entitled to the
benefits of Sections 1.10, 2.06 and 4.04 to the extent that such Bank would
be entitled to such benefits if the participation had not been entered into
or sold, and, provided further, that no Bank shall transfer, grant or
assign any participation under which the participant shall have rights to
approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend the
final scheduled maturity of any Loan or Note or Letter of Credit (unless
such Letter of Credit is not extended beyond the Maturity Date) in which
such participant is participating, or reduce the rate or extend the time of
payment of interest or Fees thereon (except in connection with a waiver of
the applicability of any post-default increase in interest rates), or
reduce the principal amount thereof (it being understood that any amendment
or modification to the financial definitions in this Agreement shall not
constitute a reduction in the rate of interest for purposes of this clause
(i)), or increase such participant's participating interest in any
Revolving Commitment over the amount thereof then in effect (it being
understood that (x) a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Revolving Commitment, or a mandatory
prepayment, shall not constitute a change in the terms of such
participation and (y) an increase in any Revolving Commitment or Revolving
Loan shall be permitted without the consent of any participant if the
participant's participation is not increased as a result thereof), (ii)
release all or substantially all of the Collateral which support the
Revolving Loans in which such participant is participating (except as
expressly permitted in any Credit Document) or (iii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement.
(b) Notwithstanding the foregoing, (x) any Bank may assign all
or a portion of its Revolving Commitment and its rights and obligations
hereunder to (i) an Affiliate of such Bank or to one or more other Banks or
(ii) in the case of any Bank that is a fund that invests in bank loans, any
other fund that invests in bank loans and is managed by the same investment
advisor of such Bank or by an Affiliate of such investment advisor or (y)
with the consent of the Administrative Agent and the Borrower (which
consents shall not be unreasonably withheld), any Bank may assign all or a
portion of its Revolving Commitment and its rights and obligations
hereunder to one or more Eligible Transferees (treating any fund that
invests in bank loans and any other fund that invests in bank loans and is
managed by the same investment advisor of such fund or by an Affiliate of
such investment advisor as a single Eligible Transferee). No assignment
pursuant to the immediately preceding sentence shall, to the extent such
assignment represents an assignment to an institution other than one or
more Banks hereunder or an Affiliate of any Bank, be in an aggregate amount
less than $5,000,000 unless the entire Commitment and outstanding Revolving
Loans of the assigning Bank is so assigned. If any Bank so sells or assigns
all or a part of its rights hereunder or under the Notes, any reference in
this Agreement or the Notes to such assigning Bank shall thereafter refer
to such Bank and to the respective assignee to the extent of their
respective interests and the respective assignee shall have, to the extent
of such assignment (unless otherwise provided therein), the same rights,
benefits and obligations as it would if it were such assigning Bank. Each
assignment pursuant to this Section 12.04(b) shall be effected by the
assigning Bank and the assignee Bank executing an Assignment Agreement (the
"Assignment Agreement") substantially in the form of Exhibit L
(appropriately completed). In the event of (and at the time of) any such
assignment (other than an assignment to one or more Banks or an Affiliate
of a Bank), either the assigning or the assignee Bank shall pay to the
Administrative Agent a nonrefundable assignment fee of $3,500, and at the
time of any assignment pursuant to this Section 12.04(b), (i) Schedule I
shall be deemed to be amended to reflect the Revolving Commitment of the
respective assignee (which shall result in a direct reduction to the
Revolving Commitment of the assigning Bank) and of the other Banks, and
(ii) if any such assignment occurs after the Effective Date, the Borrower
will issue new Notes to the respective assignee and to the assigning Bank
in conformity with the requirements of Section 1.05. No transfer or
assignment under this Section 12.04(b) will be effective until recorded by
the Administrative Agent on the Register pursuant to Section 12.16. To the
extent of any assignment pursuant to this Section 12.04(b), the assigning
Bank shall be relieved of its obligations hereunder with respect to its
assigned Revolving Commitments. At the time of each assignment pursuant to
this Section 12.04(b) to a Person which is not already a Bank hereunder and
which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the respective
assignee Bank shall provide to the Borrower and the Administrative Agent
the appropriate Internal Revenue Service Forms (and, if applicable, a
Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the
extent that an assignment of all or any portion of a Bank's Revolving
Commitment and related outstanding Obligations pursuant to Section 1.13 or
this Section 12.04(b) would, at the time of such assignment, result in
increased costs under Section 1.10, 1.11, 2.06 or 4.04 which exceed those
being charged, if any, by the respective assigning Bank prior to such
assignment, then the Borrower shall not be obligated to pay such excess
increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes giving
rise to such increased costs after the date of the respective assignment).
Each Bank and the Borrower agree to execute such documents (including,
without limitation, amendments to this Agreement and the other Credit
Documents) as shall be necessary to effect the foregoing.
(c) Nothing in this Agreement shall prevent or prohibit any
Bank from pledging its Notes or Loans to a Federal Reserve Bank in support
of borrowings made by such Bank from such Federal Reserve Bank and, with
the consent of the Administrative Agent, any Bank which is a fund may
pledge all or any portion of its Loans and Notes to its trustee in support
of its obligations to its trustee.
(d) Notwithstanding any other provisions of this Section 12.04,
no transfer or assignment of the interests or obligations of any Bank
hereunder or any grant of participation therein shall be permitted if such
transfer, assignment or grant would require the Borrower to file a
registration statement with the SEC or to qualify the Loans under the "Blue
Sky" laws of any State.
(e) Each Bank initially party to this Agreement hereby
represents, and each Person that became a Bank pursuant to an assignment
permitted by this Section 12 will, upon its becoming party to this
Agreement, represent that it is an Eligible Transferee which makes or
invests in loans in the ordinary course of its business and that it will
make, invest in or acquire Revolving Loans for its own account in the
ordinary course of such business, provided that subject to the preceding
clauses (a) and (b), the disposition of any promissory notes or other
evidences of or interests in Indebtedness held by such Bank shall at all
times be within its exclusive control.
12.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or any Bank in exercising any right,
power or privilege hereunder or under any other Credit Document and no
course of dealing between any Credit Party and the Administrative Agent or
any Bank shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies herein expressly provided are cumulative and not
exclusive of any rights or remedies which the Administrative Agent or any
Bank would otherwise have. No notice to or demand on any Credit Party in
any case shall entitle any Credit Party to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the
rights of the Administrative Agent or the Banks to any other or further
action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees
that promptly after its receipt of each payment from or on behalf of any
Credit Party in respect of any Obligations of such Credit Party hereunder,
it shall distribute such payment to the Banks (other than any Bank that has
expressly waived its right to receive its pro rata share thereof) pro rata
based upon their respective shares, if any, of the Obligations with respect
to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon
security, by the exercise of the right of setoff or banker's lien, by
counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise) which is applicable to the payment of the
principal of, or interest on, the Revolving Loans or Fees, of a sum which
with respect to the related sum or sums received by other Banks is in a
greater proportion than the total of such Obligation then owed and due to
such Bank bears to the total of such Obligation then owed and due to all of
the Banks immediately prior to such receipt, then such Bank receiving such
excess payment shall purchase for cash without recourse or warranty from
the other Banks an interest in the Obligations of the respective Credit
Party to such Banks in such amount as shall result in a proportional
participation by all of the Banks in such amount, provided that if all or
any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 12.06(a) and (b) shall be subject
to the express provisions of this Agreement which require, or permit,
differing payments to be made to Non-Defaulting Banks as opposed to
Defaulting Banks.
12.07 Calculations; Computations. (a) The financial statements
to be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in
writing by the Borrower to the Banks), provided that (x) except as
otherwise specifically provided herein, all computations determining
compliance with Section 8, including definitions used therein shall utilize
accounting principles and policies in effect at the time of the preparation
of, and in conformity with those used to prepare, the September 30, 1997
historical financial statements of the Borrower delivered to the Banks as
described in Section 6.10(b) but shall not give effect to purchase
accounting adjustments arising in connection with the Recapitalization, to
the extent required or permitted by APB 16 and APB 17 and their
interpretations and (y) if at any time the computations determining
compliance with Section 8, including definitions used therein utilize
accounting principles different from those utilized in the financial
statements furnished to the Banks, such financial statements shall be
accompanied by reconciliation work-sheets.
(b) All computations of interest, Commitment Commission and
Fees hereunder shall be made on the actual number of days elapsed over a
year of 365 days (except, in the case of interest payable on Eurodollar
Loans which shall be made on the actual number of days elapsed over a year
of 360 days), in each case including the first day, but excluding the last
day, occurring in the period for which such interest, Commitment Commission
or Fees are payable.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (A) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH CREDIT PARTY HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH CREDIT
PARTY TO THIS AGREEMENT HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT
ANY SUCH COURTS LACK JURISDICTION OVER SUCH CREDIT PARTY, AND AGREES NOT TO
PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID
COURTS, THAT ANY SUCH COURT LACKS JURISDICTION OVER SUCH CREDIT PARTY. EACH
CREDIT PARTY TO THIS AGREEMENT FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO EACH CREDIT PARTY LOCATED OUTSIDE NEW YORK CITY
AND BY HAND DELIVERY TO EACH CREDIT PARTY LOCATED WITHIN NEW YORK CITY, AT
ITS ADDRESS FOR NOTICES PURSUANT TO SECTION 12.03, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH CREDIT PARTY TO THIS AGREEMENT
HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION
OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT
SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY BANK TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER
JURISDICTION.
(B) EACH CREDIT PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall
be lodged with the Borrower and the Administrative Agent.
12.10 Effectiveness. The Agreement shall become effective on
the date (the "Effective Date") on which (i) the Borrower, the
Administrative Agent and each of the Banks shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have
delivered the same to the Administrative Agent at the Notice Office or, in
the case of the Banks, shall have given to the Administrative Agent
telephonic (confirmed in writing, written or telex notice (actually
received) at such office that the same has been signed and mailed to it and
(ii) the conditions set forth in Section 5A are met to the satisfaction of
the Administrative Agent and the Required Banks. Unless the Administrative
Agent has received actual notice from any Bank that the conditions
contained in Section 5A have not been met to its satisfaction, upon the
satisfaction of the condition described in clause (i) of the immediately
preceding sentence and upon the Administrative Agent's good faith
determination that the conditions described in clause (ii) of the
immediately preceding sentence have been met, then the Effective Date shall
have been deemed to have occurred, regardless of any subsequent
determination that one or more of the conditions thereto had not been met
(although the occurrence of the Effective Date shall not release the
Borrower from any liability for failure to satisfy one or more of the
applicable conditions contained in Section 5A). The Administrative Agent
will give the Borrower and each Bank prompt written notice of the
occurrence of the Effective Date.
12.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
12.12 Amendment or Waiver. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the Borrower and the Required Banks,
provided that no such change, waiver, discharge or termination shall,
without the consent of each Bank (other than a Defaulting Bank) (with
Obligations being directly affected thereby in the case of the following
clause(i)), (i) extend the Maturity Date, as the case may be, or reduce the
rate or extend the time of payment of interest (other than as a result of
waiving the applicability of any post-default increase in interest rates)
or Fees thereon, or reduce the principal amount thereof (it being
understood that any amendment or modification to the financial definitions
in this Agreement shall not constitute a reduction in the rate of interest
for purposes of this clause (i)), (ii) release all or substantially all of
the Collateral (in each case except as expressly provided in the Credit
Documents), (iii) amend, modify or waive any provision of this Section
12.12(a), (iv) reduce the percentage specified in the definition of
Required Banks (it being understood that, with the consent of the Required
Banks, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Banks on substantially the
same basis as Revolving Commitments are included on the Effective Date) or
(v) consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement; provided further, that no such
change, waiver, discharge or termination shall (v) increase the Commitments
of any Bank over the amount thereof then in effect without the consent of
such Bank (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the Total Revolving Commitment shall not constitute an
increase of the Revolving Commitment of any Bank, and that an increase in
the available portion of any Revolving Commitment of any Bank shall not
constitute an increase in the Revolving Commitment of such Bank), (w)
without the consent of each Letter of Credit Issuer, amend, modify or waive
any provision of Section 2 or alter its rights or obligations with respect
to Letters of Credit, (x) without the consent of the Administrative Agent,
amend, modify or waive any provision of Section 11 as the same applies to
the Administrative Agent or any other provision as same relates to the
rights or obligations of the Administrative Agent, (y) without the consent
of the Collateral Agent, amend, modify or waive any provision relating to
the rights or obligations of the Collateral Agent or (z) without the
consent of the Swingline Bank, alter its rights or obligations with respect
to Swingline Loans.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (a)(i) through (v), inclusive, of this Section
12.12, the consent of the Required Banks is obtained but the consent of one
or more of the other Banks whose consent is required is not obtained, then
the Borrower shall have the right to replace each such non-consenting Bank
or Banks (so long as all non-consenting Banks are so replaced) with one or
more Replacement Banks pursuant to Section 1.13 so long as at the time of
such replacement, each such Replacement Bank consents to the proposed
change, waiver, discharge or termination, provided that the Borrower shall
not have the right to replace a Bank solely as a result of the exercise of
such Bank's rights (and the withholding of any required consent by such
Bank) pursuant to the second proviso of Section 12.12(a).
12.13 Survival. All indemnities set forth herein including,
without limitation, in Section 1.10, 1.11, 2.06, 4.04, 11.06 or 12.01 shall
survive the execution and delivery of this Agreement and the making and
repayment of the Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry its
Loans at, to or for the account of any branch office, subsidiary or
affiliate of such Bank, provided that the Borrower shall not be responsible
for costs arising under Section 1.10, 2.06 or 4.04 resulting from any such
transfer (other than a transfer pursuant to Section 1.12) to the extent not
otherwise applicable to such Bank prior to such transfer.
12.15 Confidentiality. Subject to Section 12.04, the Banks
shall hold all non-public information obtained pursuant to the requirements
of this Agreement which has been identified as such by the Borrower in
accordance with its customary procedure for handling confidential
information of this nature and in accordance with safe and sound banking
practices and in any event may make disclosure reasonably required by any
bona fide actual or potential transferee or participant in connection with
the contemplated transfer of any Loans or participation therein or an
Affiliate of such Bank (including attorneys, legal advisors and consultants
of such Bank) (so long as such transferee, participant or Affiliate agrees
to be bound by the provisions of this Section 12.15) or as required or
requested by any governmental agency or representative thereof or pursuant
to legal process, provided that, unless specifically prohibited by
applicable law or court order, each Bank shall notify the Borrower of any
request by any governmental agency or representative thereof (other than
any such request in connection with an examination of the financial
condition of such Bank by such governmental agency) for disclosure of any
such non-public information prior to disclosure of such information, and
provided further that in no event shall any Bank be obligated or required
to return any materials furnished by the Borrower or any Subsidiary.
12.16 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes
of this Section 12.16, to maintain a register (the "Register") on which it
will record the Revolving Commitments from time to time of each of the
Banks, the Loans made by each of the Banks and each repayment in respect of
the principal amount of the Loans of each Bank. Failure to make any such
recordation, or any error in such recordation shall not affect the
Borrower's obligations in respect of such Revolving Loans. With respect to
any Bank, the transfer of the Revolving Commitments of such Bank and the
rights to the principal of, and interest on, any Revolving Loan made
pursuant to such Revolving Commitments shall not be effective until such
transfer is recorded on the Register maintained by the Administrative Agent
with respect to ownership of such Revolving Commitments and Revolving Loans
and prior to such recordation all amounts owing to the transferor with
respect to such Revolving Commitments and Revolving Loans shall remain
owing to the transferor. The registration of assignment or transfer of all
or part of any Revolving Commitments and Revolving Loans shall be recorded
by the Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment
Agreement pursuant to Section 12.04(b). Coincident with the delivery of
such an Assignment Agreement to the Administrative Agent for acceptance and
registration of assignment or transfer of all or part of a Revolving Loan,
or as soon thereafter as practicable, the assigning or transferor Bank
shall surrender the Revolving Note evidencing such Revolving Loan, and
thereupon one or more new Notes in the same aggregate principal amount
shall be issued to the assigning or transferor Bank and/or the new Bank.
The Borrower agrees to indemnify the Administrative Agent from and against
any and all losses, claims, damages and liabilities of whatsoever nature
which may be imposed on, assorted against or incurred by the Administrative
Agent in performing its duties under this Section 12.16.
12.17 Limitation on Additional Amounts, etc. Notwithstanding
anything to the contrary contained in Section 1.10, 1.11 or 2.06 of this
Agreement, unless a Bank gives notice to the Borrower that it is obligated
to pay an amount under the respective Section within 180 days after the
later of (x) the date the Bank incurs the respective increased costs,
Taxes, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital or (y) the date such Bank has
actual knowledge of its incurrence of the respective increased costs,
Taxes, loss, expense or liability, reductions in amounts received or
receivable or reduction in return on capital, then such Bank shall only be
entitled to be compensated for such amount by the Borrower pursuant to said
Section 1.10, 1.11 or 2.06, as the case may be, to the extent the costs,
Taxes, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital are incurred or suffered on or
after the date which occurs one year prior to such Bank giving notice to
the Borrower that it is obligated to pay the respective amounts pursuant to
said Section 1.10, 1.11 or 2.06, as the case may be. This Section 12.17
shall have no applicability to any Section of this Agreement other than
said Sections 1.10, 1.11 and 2.06.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the
date first above written.
Address: UNIVERSAL HOSPITAL SERVICES, INC.
0000 Xxxxxxxxx Xxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000 By /s/ Xxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000 --------------------------
Attention: Xxxxx Xxxxxx, Name: Xxxxx X. Xxxxxxxxx
Chief Financial Officer Title: President and CEO
with a copy to:
X.X. Childs Equity Partners, L.P. BANKERS TRUST COMPANY,
One Federal Street, 21st Floor Individually and as
Administrative Agent
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, By /s/ Xxxxx X. Xxxx
Managing Director --------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SCHEDULE I
COMMITMENTS
Revolving
Bank Commitment
Bankers Trust Company $30,000,000
Total: $30,000,000
SCHEDULE II
BANK ADDRESSES
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Schedule III
Plans
Name Type
Universal Hospital Defined Benefit Pension Plan
Services, Inc. Employees'
Pension Plan
Universal Hospital 401(k) Profit Sharing Plan
Services, Inc. Employees'
Lomg-Term Savings Plan
Universal Hospital Supplemental Pension Plan
Services, Inc. Supplemental
Pension Plan*
UHS Executive Benefit Benefit Restoration Plan
Restoration Plan*
* Executive Programs
Schedule IV
Subsidiaries
None
Schedule V
Real Property
I. Mortgaged Properties
None
II. Properties Leased
Location Address
Phoenix, AZ 0000 X. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 0000 X. Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxxxx, XX 0000 Xxxxxx Xxxxx
Xxxxxx, XX 000 Xxxxxxxxx Xxxxx Xxxx
Xx. Xxxxxxxxxx, XX 0000 XX 00xx Xxxxxx
Xxxxxxxxxxxx, XX 0000 Xxxxxxx Xxx
Xxxxx, XX 0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00 Xxxxxxx Xxxxx
Xxxx Xxxx, XX 0000 Xxxxx Xxxx
Xxxxxxx, XX 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 0000 Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 0000 Xxxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 0000 Xxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX 000 Xxxxx Xxxxx Xxxx
Xxxxxx, XX 000 Xxxxxx Xxxx
Xxxxxxxxx, XX 0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000 Center Oaks Court
Marquette, MI 0000 X.X. 00 Xxxx, #0
Xxxxxxxxxxx, XX 0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX 0000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 0000 00xx Xxxxxx Xxxxx
Xx. Xxxxx, XX 00000 Lakefront Drive
Charlotte, NC 0000 Xxxxx X00 Xxxxxxx Xxxx
Xxxxxxx, XX 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 000 Xxxxxxx Xxxx
Xxxxx, XX 0000 Xxxxxxxxx Xxxxx
Xxxxx, XX 2417 & 0000 Xxxxx 000 Xxxxxx
Xxx Xxxx, XX 000X Xxxxxxxx Xxx
Xxxxxxxxx, XX 000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Miles Road
Portland, OR 0000 X.X. Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 0000 Xxxx Xxxxx
Xxxxxxx, XX 0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 0000 Xxxxxxxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 0000 Xxxxxxxx Xxxxx
Xxx Xxxxxxx, XX 0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000 Interurban Avenue South
Madison, WI 0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX W226 X000 Xxxxxxxxx Xxxxx
INSURANCE DIGEST
POLICY YEAR 1997-98
This report has been prepared so that key personnel might be better
informed regarding the types of insurance being carried by UHS. The
obligation of the insurance companies' to pay claims arise from the terms
and conditions of the insurance policy, not from the summary information
presented herein.
Information contained in this report is to be considered confidential.
TABLE OF CONTENTS
Property............................................................1
Fiduciary...........................................................2
Fidelity............................................................3
Automobile..........................................................4
Workers' Compensation/Employer Liability............................5
General Liability...................................................6
Excess Liability....................................................7
Premium Summary.....................................................8
-------------------------------------------------------------------------------
Type of Policy: Property
-------------------------------------------------------------------------------
Form: Blanket by type of Property
Includes: real property, personal property,
improvements/betterments, and
rental equipment at UHS site
Limits: $5,000,000 Any owned or occupied location
6,000,000 Rental equipment on premises of
renter
2,000,000 Ordinance Coverage
1,000,000 Unscheduled Locations
1,000,000 Newly Acquired Locations
250,000 Property in Transit
409,000 Additional Expense per location
4,000,000 Flood
4,000,000 Earthquake (except CA)
2,000,000 Earthquake (CA)
1,000,000 Errors and Omissions
1,100,000 EDP and hardware
Deductible: $ 30,000 Equipment on rental
25,000 Flood
25,000 Earthquake - All States except
California
25,000 Water Backup
10,000 All over occurrences
10,000 EDP Coverages
1,000 Equipment in transit
Named Insured: Universal Hospital Services, Inc.
Insurance Company: Liberty Mutual Insurance Company
Policy Term: March 1, 1997 - March 1, 1998
Policy Number MC2-K4P-408021-067
Rates: .051
Annual Premium: $51,236
Insurance Broker Liberty Mutual Insurance Company
0000 Xxxxx Xxxxxxx 000
Xxxxxxxxxxx, XX 00000
(000) 000-0000
-------------------------------------------------------------------------------
Type of Policy: Fiduciary
-------------------------------------------------------------------------------
Form: Comprehensive
Limits: $3,000,000 Annual Aggregate
Defense: $3,000,000 Annual Aggregate; defense costs
included
Deductible: $ 0 non-indemnifiable loss
$250 indemnifiable loss
Named Insured: Universal Hospital Services, Inc. (UHS)
UHS Employees' Pension Plan
UHS Employees' Thrift and Savings Plan
UHS Employees' Medical Benefit Plan
UHS Flexible Benefit Plan
UHS Health Care Spending Account
UHS Dependant Care Spending Account
UHS Employee Stock Purchase Plan and any
Employee Benefit Plan, Benefit Program or
Insured Plan sponsored or maintained by
the Insured
Exclusions:
Insurance Company: Federal Insurance Company
Policy Term: March 1, 1997 - March 1, 1998
Policy Number: 8137 75 19 C
Annual Premium: $2,048
Insurance Broker: Helmsman Insurance Agency
00 X. Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
-------------------------------------------------------------------------------
Type of Policy: Fidelity
-------------------------------------------------------------------------------
Form: Comprehensive Dishonesty, Disappearance and
Destruction
Limits: $1,000,000 Forgery or Alteration
1,000,000 Employee Dishonesty
1,000,000 Computer Fraud
Special Extensions: Welfare and Pension Plan Rider
Computer Fraud Endorsement
Deductible: $1,000 Dishonesty
1,000 Computer Fraud
0 Forgery or Alteration
Named Insured: Universal Hospital Services, Inc.
UHS Employee's Pension Plan
UHS Employee's Dental Plan
UHS Employee's Long Term Savings Plan
UHS Employee's Life Insurance Plan
UHS Employee's Flexible Benefits Plan
UHS Employee's Short Term Disability Plan
UHS Employee's Long Term Disability Plan
UHS Employee's Medical Benefit Plan
Insurance Company: National Union Fire Insurance Company
Policy Term: March 1, 1996 - March 1, 1999
Policy Number: 000-00-00
Annual Premium: $6,726-three year prepaid premium
Insurance Broker Helmsman Insurance Agency
00 X. Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
-------------------------------------------------------------------------------
Type of Policy: Automobile
-------------------------------------------------------------------------------
Form: Comprehensive
Special Extensions: Fleet Automatic for liability and physical
damage
Hired (short term rentals) - physical damage
and liability
Non-owned autos - liability only
Broad form Drive Other Car coverage
Limits: $1,000,000 Bodily injury and property damage
Broad form Drive Other Car coverage
Statutory Limits - Personal Injury Protection
$ 5,000 Medical Payments
1,000,000 Uninsured/Underinsured Motorist
coverage
Comprehensive - Actual Value
Collision - Actual Value
Deductible: $ 1,000 Collision
500 Comprehensive
Named Insured: Universal Hospital Services, Inc.
Insurance Company: Liberty Mutual Fire Insurance Company
Policy Term: March 1, 1997 - March 1, 1998
Policy Number: AS7-141-408021-137
Annual Premium: $108,675 (575/vehicle) (flat charge)
2,000 hired physical damage (flat)
Broker: Liberty Mutual Insurance Company
0000 Xxxxx Xxxxxxx 000
Xxxxxxxxxxx, XX 00000
(000) 000-0000
-------------------------------------------------------------------------------
Type of Policy: Worker's Compensation
-------------------------------------------------------------------------------
Form: Worker's Compensation/Employer Liability
Special Extensions: Other States Endorsement
Foreign Coverage
Repatriation and Endemic Diseases Coverage
Stop Gap - Monopolistic States
Voluntary Compensation Endorsement
U.S. Longshoremen & Harbor Workers Act
Limits: Worker's Compensation: Statutory
Employer's Liability:
$500,000 each accident
500,000 each employee
500,000 policy limit
Experience Modification: .83
Named Insured: Universal Hospital Services, Inc.
Insurance Company: Liberty Mutual Insurance Company
Policy Term: March 1, 1997 - March 1, 1998
Policy Number: WC7-141-408021-017
Annual Premium: $ 95,675
Auditable
Broker: Liberty Mutual Insurance Company
0000 Xxxxx Xxxxxxx 000
Xxxxxxxxxxx, XX 00000
(000) 000-0000
-------------------------------------------------------------------------------
Type of Policy: General Liability
-------------------------------------------------------------------------------
Form: Commercial
Policy Territory: Worldwide - except suit occurring in Cuba,
Cambodia, Iran, Laos, Libya, North Korea,
Vietnam, and Iraq must be brought outside
such country(s)
Special Extensions: 1) Contractual Liability
2) Additionally Insured - Vendors
3) Additionally Insured - Lessors of
Premises
4) Cancellation Provisions
5) Clinical Testing
Special Exclusions: 1) Patent Infringement
2) Punitive Damages
3) Unfair Employment Practices
4) Pollution/Hazardous Waste
5) Broad Form Nuclear Energy Liability
Limits: $5,000,000 General Aggregate
5,000,000 Products - Completed Operations,
Aggregate
5,000,000 Personal & Advertising
5,000,000 Each Occurrence
200,000 Fire Damage
10,000 Medical Expense
Retention: $100,000/occurrence
500,000/aggregate
Retroactive Date: June 1, 1986
Named Insured: Universal Hospital Services, Inc.
Insurance Company Medmarc Casualty Insurance Company
Policy Term: March 1, 1997 - March 1, 1998
Policy Number: 97MN020002
Annual Premium: $154,301
$116,786 minimum
Rate: Rental - 2.63/1000 rentals
Sales - 1.54/1000 sales
Broker: Xxxxxxxx Resources, Inc.
000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
-------------------------------------------------------------------------------
Type of Policy: Excess Liability
-------------------------------------------------------------------------------
Form: Comprehensive
Special Extensions: None
Special Exclusions: Asbestos Exclusion
Pollution Exclusion
Wrongful Termination, Harassment,
Discrimination
Exclusion
Limits: $5,000,000 General Aggregate
5,000,000 Each Occurrence
5,000,000 Products-Completed Operations
Aggregate
Self-Insured Retention: $10,000
Retroactive Date: January 1, 1986
Named Insured: Universal Hospital Services, Inc.
Insurance Company: National Union Fire Insurance Company of
Pittsburgh, Pennsylvania
Policy Term: March 1, 1997 - March 1, 1998
Policy Number: BE-932-32-50
Annual Premium: $65,000
Rate: flat
Broker: Xxxxx & McLennan, Inc.
0000 X Xxxxxx X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
(000) 000-0000
PREMIUM SUMMARY
Property 51,236
Fiduciary 2,048
Fidelity prepaid
Automobile 108,675
Workers' Compensation/Employer Liability 95,675
General Liability 154,301
Excess Liability 65,000
-------
Total 476,935
Schedule VI
Existing Indebtedness
Amount Owed Creditor
$495, 342.30 Xxxxxx
X.X. Xxx 00000
Xxxxxxxxxxx, XX
$134,392.38 Abbot Laboratories
Stone Mountain, GA
Schedule VII
Insurance
Type of Policy Form Insurance Company Policy Term
Property Blanket by type of Property Liberty Mutual Insurance 3/1/97-3/1/98
Company
Fiduciary Comprehensive Federal Insurance Company 3/1/97-3/1/98
Fidelity Comprehensive Dishonesty, National Union Fire
Disappearance and Destru- Insurance Company 3/1/96-3/1/99
ction
Automobile Comprehensive Liberty Mutual Fire 3/1/97-3/1/98
Insurance Company
Worker's Worker's Compensation/ Liberty Mutual Insurance 3/1/97-3/1/98
Compensation Employer Liability Company
General Commercial Medmarc Casualty Insurance 3/1/97-3/1/98
Liability Company
Excess Comprehensive National Union Fire 3/1/97-3/1/98
Liability Insurance Company of
Pittsburgh,
Pennsylvania
Directors Directors and Officers National Union Fire 10/28/97-10/28/98
and Officers Liability Insurance Company of
Liability Pittsburgh, Pennsylvania
Please see also attached Insurance Digest for a comprehensive summary.
Schedule VIII
Existing Liens
None
Schedule IX
Existing Investments
Lender Borrower Amount Maturity
Universal Hospital Xxxxxx Xxxxxx $20,000 2/25/08
Services, Inc.
Universal Hospital Xxxxx Xxxxxxxxx $98,000 2/25/08
Services, Inc.
Universal Hospital Xxxx Xxxxxxx $65,100 4/25/98
Services, Inc.
Schedule X
Refinanced Agreements
1. Amended and Restated Credit Agreement, dated as of June 30, 1996,
between the Borrower and First Bank National Association, as amended on
February 28, 1997.
2. Note Purchase and Private Shelf Agreement, dated as of July 24, 1996,
between the Borrower and the Prudential Insurance Company of America, as
amended on September 19, 1996 and February 20, 1997.
3. Note Purchase Agreement, dated as of November 24, 1992, among the
Borrower, Reliastar Life Insurance Company, formerly known as Northwestern
National Life Insurance Company, Northern Life Insurance Company and
Reliastar Life Insurance Company of New York, formerly known as North
Atlantic Life Insurance Company of America, as amended on December 15,
1993, February 15, 1995, June 30, 1996 and February 21, 1997.
4. Note Purchase Agreement, dated as of March 1, 1995, between the
Borrower and Northern Life Insurance Company, as amended on June 30, 1996
and February 21, 1997.
SCHEDULE XI
CONSOLIDATED EBITDA
Monthly Accounting Period Consolidated EBITDA
July 1997 $ 2,201,356
August 1997 $ 2,122,930
September 1997 $ 2,074,537
October 1997 $ 2,133,061
November 1997 $ 2,048,690
December 1997 $ 2,328,566
January 1998 $ 2,295,205 (estimated)
February 1998 $ 2,143,131 (estimated)
Schedule XII
The consummation of the Recapitalization may result in a
violation of certain change of control and/or non-assignability provisions
contained in the Management Partnership Program Agreement between the
Borrower and Xxxxxx Health Systems.
TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit......................................1
1.01 Commitments.....................................................1
1.02 Minimum Borrowing Amounts, etc..................................3
1.03 Notice of Borrowing.............................................3
1.04 Disbursement of Funds...........................................4
1.05 Notes...........................................................4
1.06 Conversions.....................................................5
1.07 Pro Rata Borrowings.............................................5
1.08 Interest........................................................6
1.09 Interest Periods................................................6
1.10 Increased Costs, Illegality, etc................................7
1.11 Compensation; Breakage..........................................9
1.12 Change of Lending Office.......................................10
1.13 Replacement of Banks...........................................10
SECTION 2. Letters of Credit..............................................11
2.01 Letters of Credit..............................................11
2.02 Minimum Stated Amount..........................................12
2.03 Letter of Credit Requests; Notices of Issuance; Reports........12
2.04 Agreement to Repay Letter of Credit Drawings...................13
2.05 Letter of Credit Participations................................13
2.06 Increased Costs................................................16
SECTION 3. Fees; Commitments..............................................16
3.01 Fees...........................................................16
3.02 Voluntary Reduction of Commitments.............................17
3.03 Mandatory Reduction of Commitments.............................17
SECTION 4. Payments.......................................................18
4.01 Voluntary Prepayments..........................................18
4.02 Mandatory Prepayments..........................................18
4.03 Method and Place of Payment....................................20
4.04 Net Payments...................................................20
SECTION 5A. Conditions Precedent to the Effective Date..................22
5A.01 Execution of Agreement.........................................22
5A.02 Officer's Certificate..........................................22
5A.03 Opinions of Counsel............ ...............................22
5A.04 Corporate Proceedings........... ..............................23
5A.05 Plans; Shareholders Agreements; Management Agreement;
Employment Agreements; Existing Indebtedness Agreements;
Affiliate Contracts............................................23
5A.06 Material Adverse Change, etc...................................24
5A.07 Litigation.....................................................24
5A.08 Approvals......................................................25
5A.09 Consummation of the Recapitalization...........................25
5A.10 Consummation of the Equity Financing...........................25
5A.11 Senior Notes...................................................26
5A.12 Corporate, Capital, Ownership Structure........................26
5A.13 Fees...........................................................26
5A.14 Subsidiary Guaranty............................................26
5A.15 Security Documents.............................................26
5A.16 Mortgages......................................................27
5A.17 Solvency.......................................................28
5A.18 Insurance Coverage.............................................28
5A.19 Refinancing....................................................28
5A.20 No Default Under Material Agreements...........................29
5A.21 Projections....................................................29
5A.22 Equipment Appraisal............................................29
5A.23 Initial Borrowing Base Certificate.............................29
SECTION 5B. Conditions Precedent to All Credit Events......................30
5B.01 Effective Date.................................................30
5B.02 No Default; Representations and Warranties.....................30
5B.03 Notice of Borrowing; Letter of Credit Request..................30
SECTION 6.Representations, Warranties and Agreements.......................30
6.01 Corporate Status...............................................30
6.02 Power and Authority.............................................31
6.03 No Violation....................................................31
6.04 Litigation......................................................31
6.05 Use of Proceeds; Margin Regulations.............................31
6.06 Requisite Approvals.............................................32
6.07 Investment Company Act..........................................32
6.08 Public Utility Holding Company Act.............................32
6.09 True and Complete Disclosure....................................32
6.10 Financial Condition; Financial Statements.......................32
6.11 Security Interests..............................................34
6.12 Representations and Warranties in the Documents.................34
6.13 Consummation of Transaction.....................................34
6.14 Tax Returns and Payments........................................34
6.15 Compliance with ERISA...........................................35
6.16 Subsidiaries; Subsidiary Restrictions...........................36
6.17 Patents, etc....................................................36
6.18 Pollution and Other Regulations.................................36
6.19 Properties......................................................37
6.20 Labor Relations.................................................37
6.21 Existing Indebtedness...........................................38
6.22 Capitalization..................................................38
6.23 Senior Notes....................................................38
SECTION 7. Affirmative Covenants..........................................38
7.01 Information Covenants...........................................38
7.02 Books, Records and Inspections; Bank Meetings...................42
7.03 Maintenance of Insurance........................................42
7.04 Payment of Taxes................................................42
7.05 Corporate Franchises............................................43
7.06 Compliance with Statutes, etc...................................43
7.07 ERISA...........................................................43
7.08 Maintenance of Properties; Good Repair..........................44
7.09 Compliance with Environmental Laws..............................44
7.10 End of Fiscal Years; Fiscal Quarters............................45
7.11 Use of Proceeds.................................................45
7.12 Additional Security; Further Assurances.........................45
7.13 Foreign Subsidiary Guaranty, etc..............................46
7.14 Post-Closing Mortgage Obligation..............................47
SECTION 8. Negative Covenants.............................................47
8.01 Changes in Business.............................................47
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc..........47
8.03 Liens...........................................................49
8.04 Indebtedness....................................................51
8.05 Capital Expenditures............................................52
8.06 Advances, Investments and Loans.................................52
8.07 Prepayments of Indebtedness, etc................................53
8.08 Dividends, etc..................................................53
8.09 Transactions with Affiliates....................................55
8.10 Interest Coverage Ratio.........................................55
8.11 Fixed Charge Coverage Ratio.....................................56
8.12 Leverage Ratio.................................................56
8.13 Limitation on Issuance of Capital Stock.........................57
8.14 Limitation on Creation of Subsidiaries..........................57
SECTION 9. Events of Default..............................................57
9.01 Payments........................................................57
9.02 Representations, etc............................................58
9.03 Covenants.......................................................58
9.04 Default Under Other Agreements..................................58
9.05 Bankruptcy, etc.................................................58
9.06 ERISA...........................................................59
9.07 Security Documents..............................................59
9.08 Subsidiary Guaranty.............................................59
9.09 Judgments.......................................................60
9.10 Change of Control...............................................60
SECTION 10. Definitions...................................................60
SECTION 11. The Administrative Agent......................................81
11.01 Appointment.....................................................81
11.02 Nature of Duties................................................81
11.03 Lack of Reliance on the Administrative Agent....................82
11.04 Certain Rights of the Administrative Agent......................82
11.05 Reliance........................................................82
11.06 Indemnification.................................................83
11.07 The Administrative Agent in Its Individual Capacity.............83
11.08 Holders.........................................................83
11.09 Resignation by the Administrative Agent.........................83
SECTION 12. Miscellaneous.................................................84
12.01 Payment of Expenses, etc........................................84
12.02 Right of Setoff.................................................85
12.03 Notices.........................................................85
12.04 Assignments; Participations; etc................................86
12.05 No Waiver; Remedies Cumulative..................................88
12.06 Payments Pro Rata...............................................88
12.07 Calculations; Computations......................................89
SECTION 12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL .......................................89
12.09 Counterparts....................................................90
12.10 Effectiveness...................................................90
12.11 Headings Descriptive............................................91
12.12 Amendment or Waiver.............................................91
12.13 Survival........................................................92
12.14 Domicile of Loans...............................................92
12.15 Confidentiality.................................................92
12.16 Register......................................................92
12.17 Limitation on Additional Amounts, etc...........................93
SCHEDULE I -- Commitments
SCHEDULE II -- Bank Addresses
SCHEDULE III -- Plans
SCHEDULE IV -- Subsidiaries
SCHEDULE V -- Real Property
SCHEDULE VI -- Existing Indebtedness
SCHEDULE VII -- Insurance
SCHEDULE VIII -- Existing Liens
SCHEDULE IX -- Existing Investments
SCHEDULE X -- Refinanced Agreements
SCHEDULE XI -- Consolidated EBITDA
EXHIBIT A -- Form of Notice of Borrowing
EXHIBIT B-1 -- Form of Revolving Note
EXHIBIT B-2 -- Form of Swingline Note
EXHIBIT C -- Form of Letter of Credit Request
EXHIBIT D -- Form of Section 4.04(b)(ii) Certificate
EXHIBIT E -- Form of Opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
EXHIBIT F -- Form of Officer's Certificate
EXHIBIT G -- Form of Subsidiary Guaranty
EXHIBIT H -- Form of Pledge Agreement
EXHIBIT I -- Form of Security Agreement
EXHIBIT J -- Form of Solvency Certificate
EXHIBIT K -- Form of Borrowing Base Certificate
EXHIBIT L -- Form of Assignment Agreement
Exhibit A
FORM OF NOTICE OF BORROWING
[Date]
Bankers Trust Company, as Administrative
Agent for the Banks party to the
Credit Agreement referred to below
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Ladies and Gentlemen:
The undersigned, Universal Hospital Services, Inc. (the
"Borrower"), refers to the Credit Agreement, dated as of February 25, 1998
(as amended, modified or supplemented from time to time, the "Credit
Agreement", the capitalized terms defined therein being used herein as
therein defined), among the Borrower, the lending institutions from time to
time party thereto (the "Banks") and you, as Administrative Agent and,
pursuant to Section 1.03(a) of the Credit Agreement, hereby gives you
irrevocable notice that the undersigned hereby requests a Borrowing under
the Credit Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed Borrowing") as
required by Section 1.03(a) of the Credit Agreement:
(i) The aggregate principal amount of the Proposed Borrowing is
$______.
(ii) The Business Day of the Proposed Borrowing is [insert
date].1
(iii) The Revolving Loans to be made pursuant to the Proposed
Borrowing shall be initially maintained as [Base Rate Loans] [Eurodollar
Loans].
[(iv) The initial Interest Period for the Proposed Borrowing is
_____ month(s).]2
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in the Credit
Agreement and in the other Credit Documents are and will be true and correct
in all material respects, both before and after giving effect to the Proposed
Borrowing and to the application of the proceeds thereof, as though made on
such date, unless stated to relate to a specific earlier date, in which case
such representations and warranties shall be true and correct in all material
respects as of such earlier date; and
(B) no Default or Event of Default has occurred and is
continuing, or would result from such Proposed Borrowing or from the
application of the proceeds thereof.
Very truly yours,
UNIVERSAL HOSPITAL SERVICES, INC.
By:______________________________
Name:
Title:
________________________
1 Shall be a Business Day, which is, in the case of Eurodollar Loans, at
least three Business Days after the date hereof.
2 To be included for a Proposed Borrowing of Eurodollar Loans.
EXHIBIT B-1
FORM OF REVOLVING NOTE
$_________ New York, New York
February __, 1998
FOR VALUE RECEIVED, UNIVERSAL HOSPITAL SERVICES, INC.,
a Minnesota corporation (the "Borrower"), hereby promises to pay to the
order of _______________________ (the "Bank"), in lawful money of the
United States of America in immediately available funds, at the office of
Bankers Trust Company (the "Administrative Agent") located at One Bankers
Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the
Maturity Date (as defined in the Agreement referred to below), the
principal sum of _________________ DOLLARS ($_________) or, if less, the
then unpaid principal amount of all Revolving Loans (as defined in the
Agreement referred to below) made by the Bank pursuant to the Agreement.
The Borrower promises also to pay interest on the
unpaid principal amount hereof in like money at said office from the date
hereof until paid at the rates and at the times provided in Section 1.08
of the Agreement.
This Note is one of the Revolving Notes referred to in
the Credit Agreement, dated as of February 25, 1998, among the Borrower,
the lending institutions from time to time party thereto (including the
Bank) and Bankers Trust Company, as Administrative Agent (as from time to
time in effect, the "Agreement"), and is entitled to the benefits thereof
and of the other Credit Documents (as defined in the Agreement). This
Note is secured by the Security Documents (as defined in the Agreement)
and is entitled to the benefits of the Subsidiary Guaranty (as defined in
the Agreement). As provided in the Agreement, this Note is subject to
voluntary prepayment and mandatory repayment prior to the Maturity Date,
in whole or in part.
In case an Event of Default (as defined in the
Agreement) shall occur and be continuing, the principal of and accrued
interest on this Note may be declared to be due and payable in the manner
and with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest
or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
UNIVERSAL HOSPITAL SERVICES, INC.
By__________________________________
Name:
Title:
EXHIBIT B-2
FORM OF SWINGLINE NOTE
$________ New York, New York
February __, 1998
FOR VALUE RECEIVED, UNIVERSAL HOSPITAL SERVICES, INC.,
a Minnesota corporation (the "Borrower"), hereby promises to pay to the
order of BANKERS TRUST COMPANY (the "Bank"), in lawful money of the
United States of America in immediately available funds, at the office of
Bankers Trust Company (the "Administrative Agent") located at Xxx Xxxxxxx
Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Swingline Expiry Date (as
defined in the Agreement referred to below), the principal sum of FIVE
HUNDRED THOUSAND DOLLARS ($500,000) or, if less, the unpaid principal
amount of all Swingline Loans (as defined in the Agreement referred to
below) made by the Bank pursuant to the Agreement.
The Borrower promises also to pay interest on the
unpaid principal amount hereof in like money at said office from the date
hereof until paid at the rates and at the times provided in Section 1.08
of the Agreement.
This Note is the Swingline Note referred to in the
Credit Agreement, dated as of February 25, 1998, among the Borrower, the
lending institutions from time to time party thereto (including the Bank)
and Bankers Trust Company, as Administrative Agent (as from time to time
in effect, the "Agreement") and is entitled to the benefits thereof and
of the other Credit Documents (as defined in the Agreement). This Note is
secured by the Security Documents (as defined in the Agreement) and is
entitled to the benefits of the Subsidiary Guaranty (as defined in the
Agreement). As provided in the Agreement, this Note is subject to
voluntary prepayment and mandatory repayment prior to the Swingline
Expiry Date, in whole or in part.
In case an Event of Default (as defined in the
Agreement) shall occur and be continuing, the principal of and accrued
interest on this Note may be declared to be due and payable in the manner
and with the effect provided in the Agreement.
The Borrower hereby waives presentment, demand, protest
or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
UNIVERSAL HOSPITAL SERVICES, INC.
By____________________________________
Name:
Title:
EXHIBIT C
FORM OF LETTER OF CREDIT REQUEST
No.___1 Dated ___________2
Bankers Trust Company, as
Administrative Agent under the
Credit Agreement referred to below
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
[Name and Address of the respective
Letter of Credit Issuer]
Attention: ___________3
Ladies and Gentlemen:
The undersigned, Universal Hospital Services, Inc.,
(the "Borrower"), refers to the Credit Agreement, dated as of February
25, 1998 (as amended, modified or supplemented from time to time, the
"Credit Agreement", the capitalized terms defined therein being used
herein as therein defined), among the Borrower, the lending institutions
from time to time party thereto (the "Banks") and Bankers Trust Company,
as Administrative Agent.
The undersigned hereby requests that [insert name of
Letter of Credit Issuer], as Letter of Credit Issuer, issue a [Standby]
[Trade] Letter of Credit on _______________ (the "Date of Issuance") in
the aggregate amount of $_______.
The beneficiary of the requested [Standby] [Trade]
Letter of Credit will be __________,4 and such [Standby] [Trade] Letter
of Credit will be in support of ______________5 and will have a stated
expiry date of ____________.6
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the Date of
Issuance:
(A) the representations and warranties contained in the
Credit Agreement and in the other Credit Documents are and will be true
and correct in all material respects, both before and after giving effect
to the issuance of the [Standby] [Trade] Letter of Credit requested
hereby, as though made on the Date of Issuance, unless stated to relate
to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such
earlier date; and
(B) no Default or Event of Default has occurred and is
continuing, or would result after giving effect to the issuance of the
[Standby] [Trade] Letter of Credit requested hereby.
Copies of all documentation with respect to the
supported transaction are attached hereto.
UNIVERSAL HOSPITAL SERVICES, INC.
By: _____________________________
Name:
Title:
------------------------
1 Letter of Credit Request number.
2 Prior to 1:00 P.M. (New York time) at least one Business Day prior to
the proposed Date of Issuance (or such shorter period as may be
acceptable to the respective Letter of Credit Issuer) and at least 30
days prior to the Maturity Date.
3 In the case of BTCo as Letter of Credit Issuer, attention for Standby
Letters of Credit should be directed to the "Commercial Loan Standby LC
Unit" and attention for Trade Letters of Credit should be directed to
"GIS LC Operations".
4 Insert name and address of beneficiary.
5 Insert description of the supported obligations including the name of
agreement and/or the commercial transaction to which this Letter of
Credit Request relates.
6 Insert last date upon which drafts may be presented (which may not be
later than (i) in the case of Standby Letters of Credit, twelve months
after the Date of Issuance or beyond the Business Day occurring five
Business Days prior to the Maturity Date or (ii) in the case of Trade
Letters of Credit, 180 days after the Date of Issuance or beyond the 30th
day preceding the Maturity Date).
EXHIBIT D
FORM OF SECTION 4.04(b)(ii) CERTIFICATE
Reference is hereby made to the Credit Agreement, dated
as of February 25, 1998, among Universal Hospital Services, Inc., various
lenders from time to time party thereto and Bankers Trust Company, as
Administrative Agent (as amended, modified or supplemented from time to
time, the "Credit Agreement"). Pursuant to the provisions of Section
4.04(b)(ii) of the Credit Agreement, the undersigned hereby certifies
that it is not a "bank" as such term is used in Section 881(c)(3)(A) of
the Internal Revenue Code of 1986, as amended.
[NAME OF BANK]
By___________________________
Title:
Date: _________ ___, ____
EXHIBIT E
February 25, 1998
Bankers Trust Company,
as Administrative Agent
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Each Lending Institution named
on Schedule I hereto (the "Lenders")
Re: Universal Hospital Services, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Universal Hospital Services,
Inc., a Minnesota corporation (the "Borrower"), in connection with the
preparation, execution and delivery of the Credit Agreement, dated as of
February 25, 1998 (the "Credit Agreement"), among the Borrower, the lending
institutions from time to time party thereto (the "Banks"), and Bankers
Trust Company, as administrative agent (in such capacity, the
"Administrative Agent"). Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement. This opinion is being delivered to you pursuant to Section 5A.03
of the Credit Agreement.
For purposes of this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of the
following records, documents or instruments:
(a) the Credit Agreement;
(b) the Notes;
(c) the Security Agreement;
(d) the Pledge Agreement;
(e) an unfiled, but signed copy of a financing statement naming
Universal Hospital Services, Inc. as debtor and Bankers
Trust Company, as Collateral Agent, as secured party, which
we understand will be filed within ten (10) days of the
transfer of the security interest in the office of the
Secretary of State of the State of New York (such filing
office, the "Filing Office" and such financing statement,
the "Financing Statement");
(f) certified copies of resolutions adopted by unanimous written
consent of the Board of Directors of the Borrower relating
to the transactions contemplated by the Credit Agreement;
and
(g) such other documents as we have deemed necessary or
appropriate as a basis for the opinions set forth below.
The documents listed in clauses (a) - (d) above are referred to
herein collectively as the "Loan Documents." The documents listed in
clauses (c) - (d) above are referred to herein collectively as the
"Collateral Documents."
In rendering our opinions, we have assumed (a) the genuineness of
all signatures, the legal capacity of all natural persons, the authority of
all persons signing each of the documents on behalf of the parties thereto,
the conformity to authentic original documents of all documents submitted
to us as copies and the authenticity of all documents submitted to us as
originals, (b) as to all parties, the due authorization, execution and
delivery of all documents, (c) the validity and enforceability of all
documents against all parties other than the Borrower and (d) that each
Person which is a party to the Loan Documents has full power, authority and
legal right, under its charter and other governing documents and laws
applicable to it, and is in good standing in all relevant jurisdictions, to
perform its respective obligations under the Loan Documents. We have
examined originals, or copies identified to our satisfaction, of such
corporate records of the Borrower, and certificates of public officials and
of officers of the Borrower and other documents as we have deemed relevant
or proper as a basis for the opinions expressed below. We have also relied
on a certificate of an officer of the Borrower as to certain factual
matters, and a copy of such certificate has been delivered to you (the
"Officer's Certificate"). As to any facts material to this opinion which we
did not independently establish or verify, we have relied upon statements
and representations of the Borrower and their respective officers and other
representatives and of public officials.
Unless otherwise indicated, references to the "UCC" shall mean
the Uniform Commercial Code as in effect on the date hereof in the State of
New York.
In rendering our opinions expressed below, we express no opinion
herein (i) as to the applicability or effect of any fraudulent transfer or
similar law on the opinions expressed below, the Loan Documents or any
transactions contemplated thereby, or (ii) whether obligations owing to a
Bank under an Interest Rate Agreement will be entitled to the benefits of
the security interests under the Collateral Documents to the extent such
Bank becomes a Bank under the Credit Agreement subsequent to the date
hereof.
In rendering the opinions expressed below, we have assumed,
without any independent investigation or verification of any kind, that:
(a) The Borrower has been duly incorporated and is
validly existing and in good standing under the laws of Minnesota and has
requisite power and authority to execute, deliver and perform its
obligations under the Loan Documents. The execution, delivery and
performance by the Borrower of the Loan Documents has been duly authorized
by all necessary corporate action on the part of the Borrower and such
documents have been duly executed and delivered by the Borrower.
(b) None of (i) the execution and delivery by the
Borrower of the Loan Documents or (ii) the grant of the security interests
by the Borrower provided for in the Collateral Documents or (iii) the
performance of the terms of the Loan Documents by the Borrower (A)(x) will
conflict with or result in a breach or violation of any of the provisions
of the Certificate of Incorporation or By-laws of the Borrower or (y) other
than with respect to Applicable Contracts as provided in numbered paragraph
2 below, will (or, with notice or lapse of time or both, will) violate,
conflict with or constitute a default under, or result in the termination
of, or accelerate the performance required by, or result in there being
declared void, voidable or without further binding effect any of the
provisions of, any note, deed of trust, license, franchise, permit,
agreement or other instrument or obligation to which the Borrower is a
party, or by which the Borrower or any of its properties may be bound or
affected, or (B) will result in the creation of any lien or security
interest upon any of the properties or assets of the Borrower under any
agreement referred to in clause (A)(y) of this paragraph other than as
contemplated by the Collateral Documents and except with respect to the
Applicable Contracts as provided in numbered paragraph 2 below.
(c) Except as expressly set forth with respect to the
Governmental Approvals referred to in paragraph 4 hereof, no authorization,
consent or other approval of, notice to or filing with any court,
governmental authority or regulatory body is required to authorize or is
required in connection with the execution, delivery or performance by the
Borrower of any Loan Document or the transactions contemplated thereby.
We understand that you have received and are relying upon the
opinion of Xxxxxx & Xxxxxxx with respect to certain of the foregoing
matters. We express no opinion with respect to the effect on the opinions
set forth herein of any limitations, assumptions or qualifications
contained in such opinion.
We express no opinion as to the effect on the opinions expressed
herein of (i) the compliance or noncompliance of the Administrative Agent,
the Banks or any other Bank Creditor (as such term is defined in the
Collateral Documents; such term being used herein as therein defined) with
any state, federal or other laws or regulations applicable to them or (ii)
the legal or regulatory status or nature of the business of the
Administrative Agent, the Banks or any other Bank Creditor.
In addition, for purposes of this opinion, (i) the term
"Applicable Contracts" means those agreements, instruments or licenses set
forth on Schedule II hereto, which have been identified to us as
agreements, instruments or licenses which are material to the business or
financial condition of the Borrower; (ii) the term "Applicable Laws" means
those laws, rules and regulations of the State of New York and of the
United States of America (including, without limitation, Regulations G, U
and X of the Board of Governors of the Federal Reserve System) which, in
our experience, are normally applicable to transactions of the type
provided for in the Loan Documents but without our having made any special
investigation concerning any other law, rule or regulation; (iii) the term
"Applicable Orders" means those orders or decrees of Governmental
Authorities set forth on Schedule III hereto which have been identified to
us by the Borrower as being all of the orders, judgments or decrees against
the Borrower or which are otherwise applicable to the Borrower and/or its
properties or assets; (iv) the term "Governmental Approval" means any
consent, approval, license, authorization or validation of, or filing,
recording or registration with, any Governmental Authority pursuant to
Applicable Laws; and (v) the term "Governmental Authority" means any New
York or federal executive, legislative, judicial, administrative or
regulatory body.
We express no opinion as to the laws of any jurisdiction other
than (i) the laws of the State of New York and (ii) to the extent referred
to herein, the federal laws of the United States of America.
Based upon the foregoing and subject to the limitations,
exceptions, assumptions and qualifications set forth herein, we are of the
opinion that:
1. Each of the Loan Documents constitutes the valid and binding
obligation of the Borrower enforceable against the Borrower in accordance
with its respective terms, except that (i) enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in equity
or at law), (ii) certain of the remedial provisions, including waivers,
with respect to the exercise of remedies against the collateral contained
in the Collateral Documents may be unenforceable in whole or in part, but
the inclusion of such provisions does not affect the validity of each of
the Collateral Documents, each taken as a whole, and each of the Collateral
Documents, each taken as a whole, together with applicable law, contains
adequate provisions for the practical realization of the benefits of the
security created thereby (subject to clause (i) of this sentence and the
other qualifications set forth herein), and (iii) enforcement of the
Security Agreement may be subject to the terms of instruments, leases,
contracts or other agreements between the Borrower and the other parties to
such agreements, the rights of such other parties and any claims or
defenses of such other parties against the Borrower arising under or
outside such agreements. We express no opinion, however, as to (a) the
enforceability of any rights to indemnification or contribution provided
for in the Loan Documents to the extent any such rights are violative of
federal or state laws, rules or regulations (including, without limitation,
any federal or state securities law, rule or regulation) or public policy,
(b) the enforceability of those provisions of the Loan Documents which
purport to grant to participants of the Banks rights to set-off with
respect to participations purchased by such participants, or (c) any
provision with respect to governing law to the extent that it purports to
affect the choice of law governing perfection and the effect of perfection
and non-perfection of the security interests.
2. The execution and delivery by the Borrower of each of the
Loan Documents and the performance by the Borrower of its obligations under
each of the Loan Documents, each in accordance with its terms will not (i)
violate, conflict with or constitute a default under, or result in the
termination of, or accelerate the performance required by, or result in
there being declared void, voidable or without further binding effect, any
Applicable Contracts or any provision of any Applicable Contract or (ii)
cause or require the creation of any security interest or lien (other than
the liens granted under or created by the Loan Documents) upon any of the
properties or assets of the Borrower pursuant to any Applicable Contracts.
We do not express any opinion, however, as to whether the execution,
delivery or performance by the Borrower of the Loan Documents will
constitute a violation of or a default under any covenant, restriction or
provision with respect to financial ratios or tests or any aspect of the
financial condition or results of operations of the Borrower.
3. Neither the execution and delivery by the Borrower of the
Loan Documents nor performance by the Borrower of its obligations
thereunder will contravene any provision of any Applicable Law or
Applicable Order.
4. No Governmental Approval (which has not been obtained or
taken and is not in full force and effect) is required to authorize or is
required in connection with the execution, delivery or performance of any
of the Loan Documents by the Borrower, except the filing of financing
statements in the appropriate filing offices.
5. The Borrower is not required to register under the
Investment Company Act of 1940, as amended.
6. The Borrower is not a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
7. Assuming the proceeds of the Loans are used solely for the
purposes set forth in and in accordance with the provisions of the Credit
Agreement, neither the making of the Loans, the application of the proceeds
thereof nor the pledge of the collateral under the Collateral Documents
violates Regulation G, U, or X of the Board of Governors of the Federal
Reserve System under the Securities Exchange Act of 1934, as amended.
8. The provisions of the Security Agreement are effective to
create, in favor of the Collateral Agent for the benefit of the Bank
Creditors (as such term is defined therein) to secure the Obligations (as
defined in the Security Agreement), a valid security interest in the
Borrower's rights in that portion of the Collateral described therein which
is subject to Article 9 of the UCC (the "Article 9 Collateral").
9. The Financing Statement is in appropriate form for
filing in the Filing Office. With respect to that portion of the Article 9
Collateral as to which the filing of a financing statement is a permissible
method of perfection (the "UCC Filing Collateral"), the security interest
in favor of the Collateral Agent for the benefit of the Bank Creditors in
that portion of the UCC Filing Collateral which is described in the
Financing Statement will be perfected upon filing of the Financing
Statement in the Filing Office.
Our opinions in paragraphs 9 and 10 are subject to the following
additional assumptions and qualifications:
(a) we have assumed that the Borrower owns, or with respect to
after-acquired property will own, the Collateral, and we express no opinion
as to the nature or extent of the Borrower's rights in, or title to, any of
the Collateral and we note that with respect to any after-acquired
property, the security interest will not attach until the Borrower acquires
ownership thereof;
(b) our opinion with respect to the interest of the Collateral
Agent for the benefit of the Bank Creditors is limited to Article 9 of the
UCC, and such opinion does not address (i) laws of jurisdictions other than
New York, and of New York except for Article 9 of the UCC; (ii) collateral
of a type not subject to Article 9 of the UCC and (iii) under Section 9-
103, what law governs perfection of the security interests granted in the
collateral covered by this opinion;
(c) we call to your attention that under the UCC, events
occurring subsequent to the date hereof may affect any security interest
subject to the UCC including, but not limited to, factors of the type
identified in Section 9-306 with respect to proceeds; Section 9-402 with
respect to changes in name, structure and corporate identity; Section 9-103
with respect to changes in the location of the collateral and the location
of a debtor; Section 9-316 with respect to subordination agreements;
Section 9-403 with respect to continuation statements; and Sections 9-307,
9-308 and 9-309 with respect to subsequent purchasers of the collateral.
In addition, actions taken by a secured party (e.g., releasing or assigning
the security interest, delivering possession of the collateral to a debtor
or another person and voluntarily subordinating a security interest) may
affect any security interest subject to the UCC;
(d) we express no opinion with respect to the priority of the
security interest of the Collateral Agent for the benefit of the Bank
Creditors in any of the Collateral;
(e) in the case of any instrument, chattel paper, account or
general intangible which is itself secured by other property, we express no
opinion with respect to the rights of the Collateral Agent for the benefit
of the Bank Creditors in and to such underlying property;
(f) in the case of chattel paper, accounts or general
intangibles, we call to your attention that the security interest of the
Collateral Agent for the benefit of the Bank Creditors may be subject to
the rights of account debtors, claims and defenses of account debtors and
the terms of agreements with account debtors;
(g) we express no opinion with respect to the security interest
of the Collateral Agent for the benefit of the Bank Creditors in any of the
following types of property (i) any option or similar obligation issued by
a clearing corporation to its participants; (ii) any commodity contract;
(iii) an ownership interest evidenced by certificates of stock or other
instruments and a leasehold evidenced by a proprietary lease, or either of
the foregoing, from a corporation or partnership formed for the purpose of
cooperative ownership of real estate; (iv) any interest in a trust,
partnership or limited liability company or (v) property of a type
constituting financial assets not subject to Article 9 of the UCC;
(h) in the case of goods, we express no opinion regarding the
security interest of the Collateral Agent for the benefit of the Bank
Creditors in any goods which are (i) an accession to, or commingled or
processed with other goods to the extent that the security interest of the
Collateral Agent is limited by Section 9-314 or 9-315 of the UCC or (ii)
subject to a certificate of title or a document of title;
(i) we express no opinion regarding the security interest of the
Collateral Agent for the benefit of the Bank Creditors in any items which
are subject to a statute, regulation or treaty of the United States of
America which provides for a national or international registration or a
national or international certificate of title for the perfection of a
security interest therein or which specifies a place of filing different
from the place specified in the UCC for filing to perfect such security
interest;
(j) we express no opinion regarding the security interest of the
Collateral Agent for the benefit of the Bank Creditors in any of the
Collateral consisting of claims against any government or governmental
agency (including without limitation the United States of America or any
state thereof or any agency or department of the United States of America
or any state thereof);
(k) we have assumed that (i) the Borrower has a place of
business in more than one county in the State of New York and (ii) the
Collateral is and will be located in more than one county in the State of
New York;
(l) we express no opinion with respect to the security interest
in any of the Collateral consisting of goods which are or are to become
fixtures, equipment used in farming operations, or farm products, or
accounts or general intangibles arising from or relating to the sale of
farm products by a xxxxxx, consumer goods, crops growing or to be grown,
timber to be cut or minerals or the like (including oil and gas) or
accounts subject to subsection 5 of Section 9-103 of the UCC; and
(m) we express no opinion regarding the security interest of the
Collateral Agent in any copyrights, patents, trademarks, service marks or
other intellectual property, the proceeds thereof or any rights (including
accounts or general intangibles) with respect to the lease, license or use
thereof.
This opinion is being furnished only to the addressees named
above in connection with the Credit Agreement and is solely for their
benefit and is not to be relied upon by any other Person or used for any
other purpose without our prior written consent; provided that any Person
that becomes a Bank pursuant to the transfer provisions of the Credit
Agreement may rely on this opinion as if it were addressed to such person
and delivered on the date hereof.
Very truly yours,
/s/ Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
Schedule I
LENDERS
Bankers Trust Company
Schedule II
Applicable Contracts
1. The Equipment Lease Agreement between Universal Hospital Services,
Inc., as Lessee, and Xxxxxx Healthcare Corporation, as Lessor, dated
as of December 31, 1996.
2. The Lease Agreement between Universal Hospital Services, Inc., as
successor to Biomedical Equipment Rental and Sales, Inc., as Lessee,
and Abbot Laboratories as Lessor, dated as of November 1, 1990, as
amended on June 25, 1991, April 5, 1993, July 7, 1994 and January 1,
1996.
3. The Indenture, dated as of February 25, 1998, between Universal
Hospital Services, Inc. and First Trust National Association, as
Trustee.
4. The Purchase Agreement, dated as of February 23, 1998, between
Universal Hospital Services, Inc., as Issuer, and BT Alex. Xxxxx
Incorporated, as Initial Purchaser.
Schedule III
Applicable Orders
None
Exhibit F
[NAME OF CREDIT PARTY]
Officer's Certificate
I, the undersigned, [President/Vice President] of [NAME
OF CREDIT PARTY], a corporation organized and existing under the laws of
the State of __________ (the "Company"), do hereby certify that:
1. This Certificate is furnished pursuant to Section
5A.03 of the Credit Agreement, dated as of February 25, 1998, among
[Universal Hospital Services, Inc.] [the Company] (the "Borrower"), the
various lending institutions party thereto from time to time and Bankers
Trust Company, as Administrative Agent (such Credit Agreement, as in
effect on the date of this Certificate, being herein called the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used in
this Certificate shall have the meanings set forth in the Credit
Agreement.
2. The following named individuals are elected officers
of the Company, each holds the office of the Company set forth opposite
his name and has held such office since __________, 19__.1 The signature
written opposite the name and title of each such officer is his correct
signature.
Name2 Office Signature
--------------- --------------- ---------------
--------------- --------------- ---------------
--------------- --------------- ---------------
3. Attached hereto as Exhibit A is a certified copy of
the Certificate of Incorporation of the Company as filed in the Office of
the Secretary of State of the State of __________ on __________, 19__,
together with all amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct
copy of the By-Laws of the Company which were duly adopted, are in full
force and effect on the date hereof, and have been in effect since
__________, 19__.
5. Attached hereto as Exhibit C is a true and correct
copy of resolutions which were duly adopted on __________, 19__ [by
unanimous written consent of the Board of Directors of the Company] [by a
meeting of the Board of Directors of the Company at which a quorum was
present and acting throughout], and said resolutions have not been
rescinded, amended or modified. Except as attached hereto as Exhibit C,
no resolutions have been adopted by the Board of Directors of the Company
which deal with the execution, delivery or performance of any of the
Credit Documents or any other Documents to which the Company is party.
[6. Attached hereto as Exhibit D are true and correct
copies of all Plans and all other items described in Section 5A.06(a) of
the Credit Agreement.
7. Attached hereto as Exhibit E are true and correct
copies of all Shareholders' Agreements.
8. Attached hereto as Exhibit F is a true and correct
copy of the Management Agreement.
9. Attached hereto as Exhibit G are true and correct
copies of all Employment Agreements.
10. Attached hereto as Exhibit H are true and correct
copies of all Existing Indebtedness Agreements.
11. Attached hereto as Exhibit I are true and correct
copies of all Affiliate Contracts.
12. Attached hereto as Exhibit J are true and correct
copies of the Equity Financing Documents.
13. Attached hereto as Exhibit K are true and correct
copies of the Senior Notes Documents.
14. Attached hereto as Exhibit L are true and correct
copies of the Recapitalization Documents.
15. On the date hereof, all of the conditions in
Sections 5A.06, 5A.07, 5A.08, 5A.09, 5A.10, 5A.11, 5A.19, and 5A.20 and
5B.02 of the Credit Agreement have been satisfied.]3
6[16]. On the date hereof, the representations and
warranties contained in the Credit Agreement and in the other Credit
Documents are true and correct in all material respects, both before and
after giving effect to each Credit Event to occur on the date hereof and
the application of the proceeds thereof (it being understood and agreed
that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material
respects only as of such specified date).
7[17]. On the date hereof, no Default or Event of
Default has occurred and is continuing or would result from the Credit
Events to occur on the date hereof or from the application of the
proceeds thereof.
8[18]. There is no proceeding for the dissolution or
liquidation of the Company or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this
25th day of February, 1998.
[NAME OF CREDIT PARTY]
By:_________________________
Name:
Title:
[NAME OF CREDIT PARTY]
I, the undersigned, [Secretary/Assistant Secretary] of the Company, do
hereby certify that:
1. [Name of Person making above certifications] is the
duly elected and qualified [President/Vice President] of the Company and
the signature above is [his] [her] genuine signature.
2. The certifications made by [name of Person making
above certifications] in Items 2, 3, 4, 5 and 8[18] above are true and
correct.
IN WITNESS WHEREOF, I have hereunto set my hand this
25th day of February, 1998.
By:____________________________
Name:
Title:
------------------------
1 Insert a date prior to the time of any corporate action relating to
the Credit Agreement or any other Credit Document.
2 Include name, office and signature of each officer who will sign
any Credit Document, including the officer who will sign the
certification at the end of this Certificate.
3 Insert only in the Officer's Certificate of the Borrower
Exhibit G
FORM OF SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY, dated as of February 25, 1998 (as
amended, modified or supplemented from time to time, this "Guaranty"),
made by each of the undersigned guarantors (each a "Guarantor" and,
together with any other entity that becomes a party hereto pursuant to
Section 24 hereof, the "Guarantors"). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as
defined below) shall have their respective meanings as set forth therein.
W I T N E S S E T H :
WHEREAS, Universal Hospital Services, Inc. (the
"Borrower"), the lending institutions from time to time party thereto
(the "Banks") and Bankers Trust Company, as Administrative Agent
(together with any successor Administrative Agent, the "Administrative
Agent"), have entered into a Credit Agreement, dated as of February 25,
1998 (as amended, modified or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans and the issuance of, and
participation in, Letters of Credit as contemplated therein (the Banks,
the Collateral Agent and the Administrative Agent are herein called the
"Bank Creditors");
WHEREAS, the Borrower may from time to time be party to
one or more Interest Rate Agreements with any Bank or any affiliate of
any Bank (each such Bank or affiliate, even if the respective Bank
subsequently ceases to be a Bank under the Credit Agreement for any
reason, together with such Bank's or affiliate's successors and
subsequent assigns, if any, collectively, the "Interest Rate Creditors",
and together with the Bank Creditors, the "Secured Creditors");
WHEREAS, each Guarantor is a Subsidiary of the
Borrower;
WHEREAS, it is a condition to the making of Loans and
the issuance of, and participation in, Letters of Credit under the Credit
Agreement that each Guarantor shall have executed and delivered this
Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the
extensions of credit to the Borrower under the Credit Agreement and the
entering into of Interest Rate Agreements and, accordingly, desires to
execute this Guaranty in order to satisfy the condition described in the
preceding paragraph.
NOW, THEREFORE, in consideration of the foregoing and
other benefits accruing to each Guarantor, the receipt and sufficiency of
which are hereby acknowledged, each Guarantor hereby makes the following
representations and warranties to the Secured Creditors and hereby
covenants and agrees with each Secured Creditor as follows:
1. Each Guarantor irrevocably, absolutely and
unconditionally, and jointly and severally guarantees:
(i) to the Bank Creditors, the full and prompt payment
when due (whether at the stated maturity, by acceleration or
otherwise) of (a) the principal of and interest on the Notes
issued by, and the Loans made to, the Borrower under the Credit
Agreement, (b) all reimbursement obligations and Unpaid Drawings
with respect to Letters of Credit issued under the Credit
Agreement and (c) all other obligations (including obligations
which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities owing by the
Borrower to the Bank Creditors under the Credit Agreement and
the other Credit Documents (including, without limitation,
indemnities, Fees and interest thereon) now existing or
hereafter incurred under, arising out of or in connection with
the Credit Agreement or any other Credit Document and the due
performance and compliance by the Borrower with all of the terms
of the Credit Agreement and the other Credit Documents (all such
principal, interest, indemnities, Fees, liabilities and
obligations, the "Credit Document Obligations"); and
(ii) to the Interest Rate Creditors, the full and
prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all obligations (including
obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due) and liabilities
owing by the Borrower under any Interest Rate Agreement, whether
now in existence or hereafter arising, and the due performance
and compliance by the Borrower with all terms, conditions and
agreements contained therein (all such obligations and
liabilities, the "Interest Rate Obligations", and together with
the Credit Document Obligations, are herein called the
"Guaranteed Obligations").
Each Guarantor understands, agrees and confirms that the Secured
Creditors may enforce this Guaranty up to the full amount of the
Guaranteed Obligations against each Guarantor without proceeding against
the Borrower, any other Guarantor or any security for the Guaranteed
Obligations, or under any other guaranty covering all or a portion of the
Guaranteed Obligations. All payments by each Guarantor under this
Guaranty shall be made on the same basis as payments by the Borrower are
made under Sections 4.03 and 4.04 of the Credit Agreement.
2. Additionally, each Guarantor, jointly and severally,
and unconditionally, absolutely and irrevocably, guarantees the payment
of any and all Guaranteed Obligations upon the occurrence in respect of
the Borrower of any of the events specified in Section 9.05 of the Credit
Agreement, and unconditionally and irrevocably promises to pay such
Guaranteed Obligations to the Secured Creditors, or order, on demand in
such event.
3. Each Guarantor hereby waives notice of acceptance of
this Guaranty and notice of any liability to which it may apply, and
waives promptness, diligence, presentment, demand of payment, protest,
notice of dishonor or nonpayment of any such liabilities, suit or taking
of other action by the Administrative Agent or any other Secured Creditor
against, and any other notice to, any party liable thereon (including
each Guarantor or any other guarantor of the Borrower).
4. Any Secured Creditor may (except as shall be
required by applicable statute and cannot be waived) at any time and from
time to time without the consent of, or notice to, each Guarantor,
without incurring responsibility to each Guarantor, without impairing or
releasing the obligations of each Guarantor hereunder, upon or without
any terms or conditions and in whole or in part:
(i) change the manner, place or terms of payment of,
and/or change or extend the time of payment of, renew or alter,
any of the Guaranteed Obligations, any security therefor, or any
liability incurred directly or indirectly in respect thereof,
and the guaranty herein made shall apply to the Guaranteed
Obligations as so changed, extended, renewed or altered;
(ii) sell, exchange, release, surrender, realize upon
or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Guaranteed Obligations or any
liabilities (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(iii) exercise or refrain from exercising any rights
against the Borrower, any other guarantor or others or otherwise
act or refrain from acting;
(iv) settle or compromise any of the Guaranteed
Obligations, any security therefor or any liability (including
any of those hereunder) incurred directly or indirectly in
respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether
due or not) of the Borrower to creditors of the Borrower;
(v) apply any sums by whomsoever paid or howsoever
realized to any liability or liabilities of the Borrower to the
Secured Creditors regardless of what liabilities of the Borrower
remain unpaid;
(vi) consent to or waive any breach of, or any act,
omission or default under, any of the Credit Documents, the
Interest Rate Agreements or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement
any of the Credit Documents, the Interest Rate Agreements or any
of such other instruments or agreements; and/or
(vii) act or fail to act in any manner referred to in
this Guaranty which may deprive such Guarantor of its right to
subrogation against the Borrower to recover full indemnity for
any payments made pursuant to this Guaranty.
5. No invalidity, irregularity or unenforceability of
all or any part of the Guaranteed Obligations or of any security therefor
shall affect, impair or be a defense to this Guaranty, and this Guaranty
shall be primary, absolute and unconditional notwithstanding the
occurrence of any event or the existence of any other circumstances which
might constitute a legal or equitable discharge of a surety or guarantor
except payment in full of the Guaranteed Obligations.
6. This Guaranty is a continuing one and all
liabilities to which it applies or may apply under the terms hereof shall
be conclusively presumed to have been created in reliance hereon. No
failure or delay on the part of any Secured Creditor in exercising any
right, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein
expressly specified are cumulative and not exclusive of any rights or
remedies which any Secured Creditor would otherwise have. No notice to or
demand on each Guarantor in any case shall entitle each Guarantor to any
other further notice or demand in similar or other circumstances or
constitute a waiver of the rights of any Secured Creditor to any other or
further action in any circumstances without notice or demand. It is not
necessary for any Secured Creditor to inquire into the capacity or powers
of the Borrower or any of its Subsidiaries or the officers, directors,
partners or agents acting or purporting to act on its behalf, and any
indebtedness made or created in reliance upon the professed exercise of
such powers shall be guaranteed hereunder.
7. Any indebtedness of the Borrower now or hereafter
held by each Guarantor is hereby subordinated to the indebtedness of the
Borrower to the Secured Creditors; and such indebtedness of the Borrower
to each Guarantor, if the Administrative Agent, after an Event of Default
has occurred and is continuing, so requests, shall be collected, enforced
and received by each Guarantor as trustee for the Secured Creditors and
be paid over to the Secured Creditors on account of the indebtedness of
the Borrower to the Secured Creditors, but without affecting or impairing
in any manner the liability of each Guarantor under the other provisions
of this Guaranty. Prior to the transfer by each Guarantor of any note or
negotiable instrument evidencing any indebtedness of the Borrower to each
Guarantor, each Guarantor shall xxxx such note or negotiable instrument
with a legend that the same is subject to this subordination. Without
limiting the generality of the foregoing, each Guarantor hereby agrees
with the Secured Creditors that it will not exercise any right of
subrogation which it may at any time otherwise have as a result of this
Guaranty (whether contractual, under Section 509 of the Bankruptcy Code
or otherwise) until all Guaranteed Obligations have been irrevocably paid
in full in cash.
8. (a) Each Guarantor hereby waives any right (except
as shall be required by applicable statute and cannot be waived) to
require the Secured Creditors to: (i) proceed against the Borrower, any
other Guarantor, any other guarantor of the Borrower or any other party;
(ii) proceed against or exhaust any security held from the Borrower, any
other Guarantor, any other guarantor of the Borrower or any other party;
or (iii) pursue any other remedy in the Secured Creditors' power
whatsoever. Each Guarantor waives any (to the fullest extent permitted by
applicable law) defense based on or arising out of any defense of the
Borrower, any other Guarantor, any other guarantor of the Borrower or any
other party other than payment in full of the Guaranteed Obligations,
including, without limitation, any defense based on or arising out of the
disability of the Borrower, any other Guarantor, any other guarantor of
the Borrower or any other party, or the unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Borrower other than
payment in full of the Guaranteed Obligations. The Secured Creditors may,
at their election, foreclose on any security held by the Administrative
Agent, the Collateral Agent or the other Security Creditors by one or
more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Secured Creditors may have against the Borrower or any other party, or
any security, without affecting or impairing in any way the liability of
each Guarantor hereunder except to the extent the Guaranteed Obligations
have been paid in full. Each Guarantor waives any defense arising out of
any such election by the Administrative Agent, the Collateral Agent and
the Secured Creditors, even though such election operates to impair or
extinguish any right of reimbursement or subrogation or other right or
remedy of each Guarantor against the Borrower or any other party or any
security.
(b) Each Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices
of nonperformance, notices of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation or
incurring of new or additional indebtedness. Each Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower's
financial condition and assets, and of all other circumstances bearing
upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks which each Guarantor assumes and incurs
hereunder, and agrees that the Secured Creditors shall have no duty to
advise each Guarantor of information known to them regarding such
circumstances or risks.
9. If and to the extent that each Guarantor makes any
payment to any Secured Creditor or to any other Person pursuant to or in
respect of this Guaranty, any claim which each Guarantor may have against
the Borrower by reason thereof shall be subject and subordinate to the
prior payment in full of the Guaranteed Obligations to each Secured
Creditor. Prior to the transfer by any Guarantor of any note or
negotiable instrument evidencing any indebtedness of the Borrower to such
Guarantor, such Guarantor shall xxxx such note or negotiable instrument
with a legend that the same is subject to this subordination.
10. Each Guarantor hereby jointly and severally agrees
to pay all reasonable out-of-pocket costs and expenses (including,
without limitation, the reasonable fees and disbursement of counsel) of
each Secured Creditor in connection with the enforcement of this Guaranty
and of the Administrative Agent in connection with any amendment, waiver
or consent relating hereto.
11. This Guaranty shall be binding upon each Guarantor
and its successors and assigns and shall inure to the benefit of the
Secured Creditors and their successors and assigns to the extent
permitted under the Credit Agreement.
12. Neither this Guaranty nor any provision hereof may
be changed, waived, discharged or terminated except with the written
consent of the Required Banks (or to the extent required by Section 12.12
of the Credit Agreement, with the written consent of each Bank) and each
Guarantor directly affected thereby.
13. Each Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents has been made available
to its principal executive officers and such officers are familiar with
the contents thereof.
14. In addition to any rights now or hereafter granted
under applicable law (including, without limitation, Section 151 of the
New York Debtor and Creditor Law) and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event
of Default (such term to mean and include any "Event of Default" as
defined in the Credit Agreement), each Secured Creditor is hereby
authorized, to the extent not prohibited by applicable law, at any time
or from time to time, without notice to each Guarantor or to any other
Person, any such notice being expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any
other indebtedness at any time held or owing by such Secured Creditor to
or for the credit or the account of each Guarantor, against and on
account of the obligations and liabilities of each Guarantor to such
Secured Creditor under this Guaranty, irrespective of whether or not such
Secured Creditor shall have made any demand hereunder and although said
obligations, liabilities, deposits or claims, or any of them, shall be
contingent or unmatured. Each Secured Creditor agrees to promptly notify
each Guarantor after any such set off and application, provided, however,
that the failure to give such notice shall not affect the validity of
such set off and application.
15. All notices, requests, demands or other
communications provided for hereunder made in writing (including telexed
or telecopier communication) shall be deemed to have been duly given or
made when delivered to the Person to which such notice, request, demand
or other communication is required or permitted to be given or made under
this Guaranty, addressed to such party at (i) in the case of any Bank
Creditor, as provided in the Credit Agreement, (ii) in the case of each
Guarantor, at its address set forth opposite its signature below and
(iii) in the case of any Interest Rate Creditor, at such address as such
Interest Rate Creditor shall have specified in writing to each Guarantor;
or in any case at such other address as any of the Persons listed above
may hereafter notify the others in writing.
16. If claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on
account of any of the Guaranteed Obligations and any of the aforesaid
Secured Creditors repays all or part of said amount by reason of (i) any
judgment, decree or order of any court or administrative body having
jurisdiction over such Secured Creditor or any of its property or (ii)
any settlement or compromise of any such claim effected by such Secured
Creditor with any such claimant (including the Borrower), then and in
such event each Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding upon each Guarantor,
notwithstanding any revocation hereof or other instrument evidencing any
liability of the Borrower, and each Guarantor shall be and remain liable
to the aforesaid payees hereunder for the amount so repaid or recovered
to the same extent as if such amount had never originally been received
by any such Secured Creditor.
17. The liability of each Guarantor hereunder is
exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of the Borrower whether executed by such
Guarantor, any other Guarantor, any other guarantor or by any other
party, and the liability of each Guarantor hereunder shall not be
affected or impaired by (a) any direction as to application of payment by
the Borrower or by any other party, (b) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other
party as to the Guaranteed Obligations of the Borrower, (c) any payment
on or in reduction of any such other guaranty or undertaking, (d) any
dissolution, termination or increase, decrease or change in personnel by
the Borrower or (e) any payment made to any Secured Creditor on the
Guaranteed Obligations which any Secured Creditor repays the Borrower
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Guarantor waives
any right to the deferral or modification of its obligations hereunder by
reason of any such proceeding.
18. The obligations of each Guarantor hereunder are
independent of the obligations of any other Guarantor, any other
guarantor or the Borrower, and a separate action or actions may be
brought and prosecuted against each Guarantor whether or not action is
brought against any other Guarantor, any other guarantor or the Borrower
and whether or not any other Guarantor, any other guarantor of the
Borrower or the Borrower be joined in any such action or actions. Each
Guarantor waives, to the fullest extent permitted by law, the benefit of
any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by the Borrower or other circumstance
which operates to toll any statute of limitations as to the Borrower
shall operate to toll the statute of limitations as to each Guarantor.
19. Each Guarantor covenants and agrees that on and
after the date hereof and until the termination of the Total Revolving
Commitment and all Interest Rate Agreements and when no Note or Letter of
Credit remains outstanding (other than Letters of Credit which have been
supported in a manner satisfactory to the respective Letter of Credit
Issuer in its sole and absolute discretion) and all Guaranteed
Obligations have been paid in full, such Guarantor shall take, or will
refrain from taking, as the case may be, all actions that are necessary
to be taken or not taken so that no violation of any provision, covenant
or agreement contained in Section 7 or 8 of the Credit Agreement, and so
that no Default or Event of Default, is caused by the actions of such
Guarantor or any of its Subsidiaries.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF
THE SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any
legal action or proceeding with respect to this Guaranty may be brought
in the courts of the State of New York or of the United States of America
for the Southern District of New York, and, by execution and delivery of
this Guaranty, each Guarantor hereby irrevocably accepts for itself and
in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. Each Guarantor hereby further
irrevocably waives any claim that any such courts lack jurisdiction over
such Guarantor, and agrees not to plead or claim, in any legal action or
proceeding with respect to this Guaranty or any other Credit Document to
which such Guarantor is a party brought in any of the aforesaid courts,
that any such court lacks jurisdiction over such Guarantor. Each
Guarantor further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage
prepaid, to each Guarantor at its address set forth opposite its
signature below, such service to become effective 30 days after such
mailing. Each Guarantor hereby irrevocably waives any objection to such
service of process and further irrevocably waives and agrees not to plead
or claim in any action or proceeding commenced hereunder or under any
other Credit Document to which such Guarantor is a party that service of
process was in any way invalid or ineffective. Nothing herein shall
affect the right of any of the Secured Creditors to serve process in any
other manner permitted by law or to commence legal proceedings or
otherwise proceed against each Guarantor in any other jurisdiction.
(b) Each Guarantor hereby irrevocably waives any
objection which it may now or hereafter have to the laying of venue of
any of the aforesaid actions or proceedings arising out of or in
connection with this Guaranty or any other Credit Document brought in the
courts referred to in clause (a) above and hereby further irrevocably
waives and agrees not to plead or claim in any such court that such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the capital stock of one
or more Guarantors is sold or otherwise disposed of or liquidated in
compliance with the requirements of Section 8.02 of the Credit Agreement
(or such sale or other disposition or liquidation has been approved in
writing by the Required Banks (or all Banks if required by Section 12.12
of the Credit Agreement)) and the proceeds of such sale, disposition or
liquidation are applied in accordance with the provisions of the Credit
Agreement, to the extent applicable, such Guarantor shall be released
from this Guaranty and this Guaranty shall, as to each such Guarantor or
Guarantors, terminate, and have no further force or effect (it being
understood and agreed that the sale of one or more Persons that own,
directly or indirectly, all of the capital stock or partnership interests
of any Guarantor shall be deemed to be a sale of such Guarantor for the
purposes of this Section 21).
22. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto
shall be lodged with the Borrower and the Administrative Agent.
23. All payments made by any Guarantor hereunder will
be made without setoff, counterclaim or other defense.
24. It is understood and agreed that any Subsidiary of
the Borrower that is required to execute a counterpart of this Guaranty
pursuant to the Credit Agreement shall automatically become a Guarantor
hereunder by executing a counterpart hereof and delivering the same to
the Administrative Agent.
25. The Secured Creditors agree that this Guaranty may
be enforced only by the action of the Administrative Agent or the
Collateral Agent, in each case acting upon the instructions of the
Required Banks (or, after the date on which all Credit Document
Obligations have been paid in full, the holders of at least a majority of
the outstanding Interest Rate Obligations) and that no other Secured
Creditor shall have any right individually to seek to enforce or to
enforce this Guaranty or to realize upon the security to be granted by
the Security Documents, it being understood and agreed that such rights
and remedies may be exercised by the Administrative Agent or the
Collateral Agent or the holders of at least a majority of the outstanding
Interest Rate Obligations, as the case may be, for the benefit of the
Secured Creditors upon the terms of this Guaranty and the Security
Documents.
26. Each Guarantor hereby confirms that it is its
intention that this Guaranty not constitute a fraudulent transfer or
conveyance for purposes of any bankruptcy, insolvency or similar law, the
Uniform Fraudulent Conveyance Act or any similar Federal, state of
foreign law. To effectuate the foregoing intention, each Guarantor hereby
irrevocably agrees that, notwithstanding anything to the contrary
contained herein, the Guaranteed Obligations shall be limited to the
maximum amount as will, after giving effect to such maximum amount and
all other (contingent or otherwise) liabilities of such Guarantor that
are relevant under such laws, result in the Guaranteed Obligations of
such Guarantor in respect of such maximum amount not constituting a
fraudulent transfer or conveyance.
27. By accepting the benefits of this Guaranty, each
Secured Creditor acknowledges and agrees that its rights under this
Guaranty shall be as set forth in this Guaranty.
* * * *
IN WITNESS WHEREOF, each Guarantor has caused this
Guaranty to be executed and delivered as of the date first above written.
Addresses:
[Name of Subsidiary Guarantor] [NAME OF SUBSIDIARY GUARANTOR]
[Address of Subsidiary Guarantor]
Attention:
Tel: By ___________________________
Fax: Title:
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Administrative Agent
By____________________________
Title:
Exhibit H
FORM OF PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, modified or supplemented
from time to time, this "Agreement"), dated as of February 25, 1998, made
by each of the undersigned pledgors (each a "Pledgor" and, together with
any other entity that becomes a pledgor hereunder pursuant to Section 23
hereof, the "Pledgors") to BANKERS TRUST COMPANY, as Collateral Agent
(the "Pledgee"), for the benefit of the Secured Creditors (as defined
below). Except as otherwise defined herein, capitalized terms used herein
and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, Universal Hospital Services, Inc. (the
"Borrower"), the lenders from time to time party thereto (the "Banks")
and Bankers Trust Company, as Administrative Agent (together with any
successor Administrative Agent, the "Administrative Agent"), have entered
into a Credit Agreement, dated as of February 25, 1998 (as amended,
modified or supplemented from time to time, the "Credit Agreement"),
providing for the making of Loans to, and the issuance of, and
participation in, Letters of Credit as contemplated therein (the Banks,
the Administrative Agent and the Pledgee are herein called the "Bank
Creditors");
WHEREAS, the Borrower may from time to time be party to
one or more Interest Rate Agreements with any Bank or any affiliate of
any Bank (each such Bank or affiliate, even if the respective Bank
subsequently ceases to be a Bank under the Credit Agreement for any
reason, together with such Bank's or affiliate's successors and
subsequent assigns, if any, collectively, the "Interest Rate Creditors",
and together with the Bank Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Subsidiary Guaranty, each
Subsidiary Guarantor has jointly and severally guarantied to the Secured
Creditors the payment when due of all Guaranteed Obligations as described
therein;
WHEREAS, it is a condition precedent to the making of
Loans and the issuance of, and participation in, Letters of Credit under
the Credit Agreement that each Pledgor shall have executed and delivered
to the Pledgee this Agreement; and
WHEREAS, each Pledgor desires to enter into this
Agreement in order to satisfy the condition described in the preceding
paragraph;
NOW, THEREFORE, in consideration of the foregoing and
other benefits accruing to each Pledgor, the receipt and sufficiency of
which are hereby acknowledged, each Pledgor hereby makes the following
representations and warranties to the Pledgee for the benefit of the
Secured Creditors and hereby covenants and agrees with the Pledgee for
the benefit of the Secured Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by
each Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at
stated maturity, by acceleration or otherwise) of all
obligations (including, without limitation, obligations which,
but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due), liabilities and indebtedness
(including, without limitation, indemnities, Fees and interest)
of such Pledgor to the Bank Creditors, whether now existing or
hereafter incurred under, arising out of, or in connection with
the Credit Agreement and the other Credit Documents to which
such Pledgor is a party (including, in the case of each
Subsidiary Guarantor, all such obligations and indebtedness of
such Subsidiary Guarantor under the Subsidiary Guaranty) and the
due performance and compliance by such Pledgor with all of the
terms, conditions and agreements contained in the Credit
Agreement and such other Credit Documents (all such obligations,
liabilities and indebtedness under this clause (i), except to
the extent consisting of obligations, liabilities or
indebtedness with respect to Interest Rate Agreements, being
herein collectively called the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at
the stated maturity, by acceleration or otherwise) of all
obligations, liabilities and indebtedness owing by such Pledgor
to the Interest Rate Creditors now existing or hereafter
incurred under, arising out of or in connection with (including
by reason of such Pledgor's guaranty under the Subsidiary
Guaranty), any Interest Rate Agreement, whether such Interest
Rate Agreement is now in existence or hereafter arising, and the
due performance and compliance by such Pledgor with all of the
terms, conditions and agreements contained therein (all such
obligations and liabilities described in this clause (ii) being
herein collectively called the "Interest Rate Obligations");
(iii)any and all sums advanced by the Pledgee in order
to preserve the Collateral (as hereinafter defined) or preserve
its security interest in the Collateral;
(iv) in the event of any proceeding for the collection
or enforcement of any indebtedness, obligations, or liabilities
of such Pledgor referred to in clauses (i), (ii) and (iii)
above, after an Event of Default (which term shall mean and
include any Event of Default under, and as defined in, the
Credit Agreement or any payment default by the Borrower under
any Interest Rate Agreement and shall, in any event, include,
without limitation, any payment default on any of the
Obligations (as hereinafter defined)) shall have occurred and be
continuing, the reasonable expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing of
or realizing on the Collateral, or of any exercise by the
Pledgee of its rights hereunder, together with reasonable
attorneys' fees and court costs; and
(v) all amounts paid by any Secured Creditor as to
which such Secured Creditor has the right to reimbursement under
Section 11 of this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses
(i) through (v) of this Section 1 being herein collectively called the
"Obligations", it being acknowledged and agreed that the "Obligations"
shall include extensions of credit of the types described above, whether
outstanding on the date of this Agreement or extended from time to time
after the date of this Agreement.
2. DEFINITION OF STOCK, NOTES, PARTNERSHIP INTERESTS,
MEMBERSHIP INTERESTS, SECURITIES, ETC. (a) As used herein: (i) the term
"Stock" shall mean all of the issued and outstanding shares of capital
stock of any Subsidiary of any Pledgor at any time owned by any Pledgor
and all certificates and instruments evidencing the same; (ii) the term
"Notes" shall mean all promissory notes from time to time issued to the
Pledgor by any of its Subsidiaries; (iii) the term "Partnership Interest"
shall mean the entire partnership interest whether general and/or limited
at any time owned by any Pledgor in any Subsidiary of such Pledgor (each
such partnership, a "Pledged Partnership"); (iv) the term "Membership
Interest" shall mean the entire limited liability company membership
interest at any time owned by any Pledgor in any Subsidiary of such
Pledgor (each such limited liability company, a "Pledged LLC", and
together with any Pledged Partnership, each, a "Pledged Entity"); (v) the
term "Securities" shall mean all of the Stock, Notes, Partnership
Interests and Membership Interests; and (vi) the term "Collateral" shall
mean all Securities, together with all proceeds thereof, including any
securities and moneys received and at any time held by the Pledgee
hereunder. Except as provided in the last sentence of this Section 2, no
Pledgor shall be required to pledge hereunder (and the terms Stock,
Partnership Interests, Membership Interests, Securities and Collateral
shall not include) more than 65% of the total combined voting power of
all classes of capital stock or other equity interests of any Foreign
Subsidiary of any Pledgor. Each Pledgor represents and warrants, that on
the date hereof, (A) the Stock held by such Pledgor consists of the
number and type of shares of the stock of the corporations as described
in Annex A hereto for such Pledgor, (B) such Stock constitutes that
percentage of the issued and outstanding capital stock of the issuing
corporation as is set forth in Annex A hereto, (C) the Notes held by such
Pledgor consist of the promissory notes described in Annex B hereto for
such Pledgor, (D) such Pledgor is the holder of record and sole
beneficial owner of the Stock and the Notes held by such Pledgor and
there exists no options or preemptive or similar rights in respect of the
Stock, (E) the Membership Interests held by such Pledgor constitute that
percentage of the entire limited liability company interests of the
respective Pledged LLC as is set forth on Annex C hereto, (F) the
Partnership Interests held by such Pledgor constitute that percentage of
the entire partnership interest of the respective Pledged Partnership as
is set forth on Annex D hereto for such Pledgor and (G) on the date
hereof, such Pledgor owns or possesses no other Securities. In the
circumstances and to the extent provided in Section 7.13 of the Credit
Agreement, the 65% limitation set forth above in this Section 2 and in
Section 3.2 hereof shall no longer be applicable and such Pledgor shall
duly pledge and deliver to the Pledgee such of the Securities not
therefore required to be pledged hereunder.
(b) All Stock at any time pledged or required to be
pledged hereunder is hereinafter called the "Pledged Stock;" all Notes at
any time pledged or required to be pledged hereunder are hereinafter
called the "Pledged Notes;" all Partnership Interests at any time pledged
or required to be pledged hereunder are hereinafter called the "Pledged
Partnership Interests;" all Membership Interests at any time pledged or
required to be pledged hereunder are hereinafter called the "Pledged
Membership Interests;" all Pledged Stock, Pledged Notes, Pledged
Partnership Interests and Pledged Membership Interests together are
hereinafter called the "Pledged Securities".
3. PLEDGE OF SECURITIES, ETC.
3.1. Pledge. (a) To secure the Obligations of such
Pledgor and for the purposes set forth in Section 1 hereof, each Pledgor
hereby (i) grants to the Pledgee a first priority continuing security
interest in all of the Collateral owned by such Pledgor, (ii) pledges and
deposits as security with the Pledgee, the Securities owned by such
Pledgor on the date hereof, and delivers to the Pledgee certificates or
instruments therefor (in the case of certificated Securities), duly
endorsed in blank by such Pledgor in the case of Notes and accompanied by
undated stock or other powers duly executed in blank by such Pledgor (and
accompanied by any transfer tax stamps required in connection with the
pledge of such Securities) in the case of other certificated Securities
or such other instruments of transfer as are reasonably acceptable to the
Pledgee, (iii) assigns, transfers, hypothecates, mortgages, charges and
sets over to the Pledgee all of such Pledgor's right, title and interest
in and to such Securities (and in and to all certificates or instruments
evidencing such Securities), to be held by the Pledgee upon the terms and
conditions set forth in this Agreement and (iv) transfers and assigns to
the Pledgee all of such Pledgor's (x) Partnership Interests and all of
such Pledgor's right, title and interest in each Pledged Partnership and
(y) Membership Interests and all of such Pledgor's right, title and
interest in each Pledged LLC, in each case including, without limitation:
(i) all of the capital thereof and its interest in all
profits, income, surplus, losses, Partnership Assets (as defined
below), LLC Assets (as defined below) and other distributions to
which such Pledgor shall at any time be entitled in respect of
any such Collateral;
(ii) all other payments due or to become due to such
Pledgor in respect of any such Collateral, whether under any
partnership agreement, limited liability company agreement or
otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(iii) all of its claims, rights, powers, privileges,
authority, options, security interest, liens and remedies, if
any, under any partnership agreement, limited liability company
agreement or other agreement or at law or otherwise in respect
of any such Collateral;
(iv) all present and future claims, if any, of such
Pledgor against any Pledged Partnership or any Pledged LLC for
moneys loaned or advanced, for services rendered or otherwise;
(v) all of such Pledgor's rights under any partnership
agreement, limited liability company agreement or at law to
exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to any Partnership
Interest or Membership Interest, including any power, if any, to
terminate, cancel or modify any general or limited partnership
agreement or any limited liability company agreement, to execute
any instruments and to take any and all other action on behalf
of and in the name of such Pledgor in respect of such
Partnership Interest or Membership Interest and any Pledged
Entity to make determinations, to exercise any election
(including, but not limited to, election of remedies) or option
or to give or receive any notice, consent, amendment, waiver or
approval, together with full power and authority to demand,
receive, enforce, collect, or receipt for any of the foregoing
or for any Partnership Asset (as defined below) or LLC Asset (as
defined below), to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any action
in connection with any of the foregoing;
(vi) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
distributions, rights and other property at any time and from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof; and
(vii) to the extent not otherwise included, all
proceeds of any or all of the foregoing.
(b) As used herein, the term "Partnership Assets" and
"LLC Assets" shall mean, respectively, all assets, whether tangible or
intangible and whether real, personal or mixed (including, without
limitation, all partnership and limited liability company capital and
interests in other partnerships and limited liability companies), at any
time owned by any Pledged Partnership or Pledged LLC or represented by
any Partnership Interest or Membership Interest.
3.2. Subsequently Acquired Securities. If any Pledgor
shall acquire (by purchase, stock dividend, distribution or otherwise)
any additional Securities at any time or from time to time after the date
hereof, such Pledgor will promptly thereafter pledge and deposit such
Securities (or certificates or instruments representing such Securities)
as security with the Pledgee and deliver to the Pledgee certificates or
instruments therefor, duly endorsed in blank, in the case of Notes, and
accompanied by undated stock or other powers duly executed in blank by
such Pledgor or such other instruments of transfer as are reasonably
acceptable to the Pledgee, in the case of other Securities, and will
promptly thereafter deliver to the Pledgee a certificate executed by a
principal executive officer of such Pledgor describing such Securities
and certifying that the same has been duly pledged with the Pledgee
hereunder. No Pledgor shall be required at any time to pledge hereunder
any Securities which represents more than 65% of the total combined
voting power of all classes of capital stock or other equity interests of
any Foreign Subsidiary entitled to vote except to the extent provided in
the last sentence of Section 2(a) of this Agreement.
3.3. Uncertificated Securities and Partnership
Interests. Notwithstanding anything to the contrary contained in Sections
3.1 and 3.2 hereof, if any Securities (whether now owned or hereafter
acquired) are uncertificated securities, the relevant Pledgor shall
promptly notify the Pledgee thereof, and shall promptly take all actions
required to perfect the security interest of the Pledgee under applicable
law (including, without limitation, under Sections 8-313 and 8-321 or
Sections 8-106 (Revised), 8-301 (Revised) and 9-115 (Revised) of the
Uniform Commercial Code, as applicable). Each Pledgor further agrees to
take such actions as the Pledgee deems necessary or desirable to effect
the foregoing and to permit the Pledgee to exercise any of its rights and
remedies hereunder, and agrees to provide an opinion of counsel
reasonably satisfactory to the Pledgee with respect to any such pledge of
uncertificated Securities promptly upon the request of the Pledgee.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The
Pledgee shall have the right to appoint one or more sub-agents for the
purpose of retaining physical possession of the Pledged Securities, which
may be held (in the discretion of the Pledgee) in the name of the
relevant Pledgor, endorsed or assigned in blank or in favor of the
Pledgee or any nominee or nominees of the Pledgee or a sub-agent
appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and
until there shall have occurred and be continuing an Event of Default,
each Pledgor shall be entitled to exercise any and all voting, consent,
administration, management and other rights and remedies pertaining to
the Pledged Securities owned by it, and to give consents, waivers or
ratifications in respect thereof; provided, that no vote shall be cast or
any consent, waiver or ratification given or any action taken or omitted
to be taken which would violate or be inconsistent with any of the terms
of this Agreement, the Credit Agreement, any other Credit Document or any
Interest Rate Agreement (collectively, the "Secured Debt Agreements"), or
which would have the effect of impairing the value of the Collateral or
any part thereof or the position or interests of the Pledgee or any other
Secured Creditor in the Collateral. All such rights of each Pledgor to
vote and to give consents, waivers and ratifications shall cease in case
an Event of Default has occurred and is continuing, and Section 7 hereof
shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until
there shall have occurred and be continuing an Event of Default, (i) all
cash dividends and distributions payable in respect of the Pledged Stock
and all payments in respect of the Pledged Notes shall be paid to the
respective Pledgor and (ii) all cash distributions and other amounts
payable in respect of the Pledged Partnership Interests and Pledged
Membership Interests shall be paid to the respective Pledgor. The Pledgee
shall be entitled to receive directly, and to retain as part of the
Collateral:
(i) all other or additional stock or other securities
or property (other than cash) paid or distributed by way of
dividend, distribution or otherwise in respect of the
Collateral;
(ii) all other or additional stock or other securities
or property paid or distributed in respect of the Collateral by
way of merger, consolidation, conveyance of assets, liquidation,
exchange of stock, stock-split, spin-off, split-up,
reclassification, combination of shares or similar
rearrangement; and
(iii) all other property (other than cash) paid or
distributed by way of dividend or distribution in respect of the
Collateral.
Nothing contained in this Section 6 shall limit or restrict in any way
the Pledgee's right to receive proceeds of the Collateral in any form in
accordance with Section 3 of this Agreement. All dividends,
distributions, proceeds or other payments which are received by any
Pledgor contrary to the provisions of this Section 6 and Section 7 hereof
shall be received in trust for the benefit of the Pledgee, shall be
segregated from other property or funds of such Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so
received (with any necessary endorsement).
7. REMEDIES IN CASE OF DEFAULT OR EVENT OF DEFAULT. If
there shall have occurred and be continuing an Event of Default, then and
in every such case, the Pledgee shall be entitled to exercise all of the
rights, powers and remedies (whether vested in it by this Agreement, any
other Secured Debt Agreement or by law) for the protection and
enforcement of its rights in respect of the Collateral, and the Pledgee
shall be entitled to exercise all the rights and remedies of a secured
party under the Uniform Commercial Code and also shall be entitled,
without limitation, to exercise the following rights, which each Pledgor
hereby agrees to be commercially reasonable:
(a) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 hereof to the
respective Pledgor;
(b) to transfer all or any part of the Collateral into
the Pledgee's name or the name of its nominee or nominees;
(c) to accelerate any Pledged Note which may be
accelerated in accordance with its terms, and take any other
lawful action to collect upon any Pledged Note (including,
without limitation, to make any demand for payment thereon);
(d) to vote all or any part of the Pledged Securities
(whether or not transferred into the name of the Pledgee) and
give all consents, waivers and ratifications in respect of the
Collateral and otherwise act with respect thereto as though it
were the outright owner thereof (each Pledgor hereby irrevocably
constituting and appointing the Pledgee the proxy and
attorney-in-fact of such Pledgor, with full power of
substitution to do so); and
(e) at any time and from time to time to sell, assign
and deliver, or grant options to purchase, all or any part of
the Collateral, or any interest therein, at any public or
private sale, without demand of performance, advertisement or
notice of intention to sell or of the time or place of sale or
adjournment thereof or to redeem or otherwise (all of which are
hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any
assumption of credit risk, and for such price or prices and on
such terms as the Pledgee in its absolute discretion may
determine, provided that at least 10 days' written notice of the
time and place of any such sale shall be given to the respective
Pledgor. The Pledgee shall not be obligated to make any such
sale of Collateral regardless of whether any such notice of sale
has theretofore been given. Each Pledgor hereby waives and
releases to the fullest extent permitted by law any right or
equity of redemption with respect to the Collateral, whether
before or after sale hereunder, and all rights, if any, of
marshalling the Collateral and any other security for the
Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors
may bid for and purchase all or any part of the Collateral so
sold free from any such right or equity of redemption. Neither
the Pledgee nor any other Secured Creditor shall be liable for
failure to collect or realize upon any or all of the Collateral
or for any delay in so doing nor shall any of them be under any
obligation to take any action whatsoever with regard thereto.
8. REMEDIES, ETC., CUMULATIVE. Each and every right,
power and remedy of the Pledgee provided for in this Agreement or in any
other Secured Debt Agreement, or now or hereafter existing at law or in
equity or by statute shall be cumulative and concurrent and shall be in
addition to every other such right, power or remedy. The exercise or
beginning of the exercise by the Pledgee or any other Secured Creditor of
any one or more of the rights, powers or remedies provided for in this
Agreement or any other Secured Debt Agreement or now or hereafter
existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any other
Secured Creditor of all such other rights, powers or remedies, and no
failure or delay on the part of the Pledgee or any other Secured Creditor
to exercise any such right, power or remedy shall operate as a waiver
thereof. No notice to or demand on any Pledgor in any case shall entitle
it to any other or further notice or demand in similar or other
circumstances or constitute a waiver of any of the rights of the Pledgee
or any other Secured Creditor to any other or further action in any
circumstances without notice or demand. The Secured Creditors agree that
this Agreement may be enforced only by the action of the Administrative
Agent or the Pledgee, in each case acting upon the instructions of the
Required Banks (or, after the date on which all Credit Document
Obligations have been paid in full, the holders of at least the majority
of the outstanding Interest Rate Obligations) and that no other Secured
Creditor shall have any right individually to seek to enforce or to
enforce this Agreement or to realize upon the security to be granted
hereby, it being understood and agreed that such rights and remedies may
be exercised by the Administrative Agent or the Pledgee or the holders of
at least a majority of the outstanding Interest Rate Obligations, as the
case may be, for the benefit of the Secured Creditors upon the terms of
this Agreement.
9. APPLICATION OF PROCEEDS. All moneys and other
proceeds collected by the Pledgee upon any sale or other disposition of
the Collateral pursuant to the terms of this Agreement, together with all
other moneys and other proceeds received by the Pledgee hereunder, shall
be applied to the payment of the Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the
Collateral by the Pledgee hereunder (whether by virtue of the power of
sale herein granted, pursuant to judicial process or otherwise), the
receipt of the Pledgee or the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so
sold, and such purchaser or purchasers shall not be obligated to see to
the application of any part of the purchase money paid over to the
Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally
agrees (i) to indemnify and hold harmless the Pledgee and each other
Secured Creditor and their respective successors, assigns, employees,
officers, affiliates, agents and servants (individually an "Indemnitee,"
and collectively the "Indemnitees") from and against any and all claims,
demands, losses, judgments and liabilities (including liabilities for
penalties) of whatsoever kind or nature, and (ii) to reimburse each
Indemnitee for all costs and expenses, including reasonable attorneys'
fees, in each case arising out of or resulting from this Agreement or the
exercise by any Indemnitee of any right or remedy granted to it hereunder
or under any other Secured Debt Agreement (but excluding any claims,
demands, losses, judgments and liabilities or expenses to the extent
incurred by reason of gross negligence or willful misconduct of such
Indemnitee). In no event shall any Indemnitee be liable, in the absence
of gross negligence or willful misconduct on its part, for any matter or
thing in connection with this Agreement other than to account for monies
actually received by it in accordance with the terms hereof. If and to
the extent that the obligations of any Pledgor under this Section 11 are
unenforceable for any reason, such Pledgor hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law. The indemnity obligations of
each Pledgor contained in this Section 11 shall continue in full force
and effect notwithstanding the full payment of all the Notes issued under
the Credit Agreement, the termination of all Interest Rate Agreements and
Letters of Credit and the payment of all other Obligations and
notwithstanding the discharge thereof.
12. PLEDGEE NOT BOUND. (a) Nothing herein shall be
construed to make the Pledgee or any other Secured Creditor liable as a
general partner or limited partner of any Pledged Partnership or as a
member of any Pledged LLC and the Pledgee or any other Secured Creditor
by virtue of this Agreement or otherwise (except as referred to in the
following sentence) shall not have any of the duties, obligations or
liabilities of a general partner or limited partner of any Pledged
Partnership or of a member of any Pledged LLC. The parties hereto
expressly agree that, unless the Pledgee shall become the absolute owner
of a Pledged Partnership Interest or a Pledged Membership Interest
pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured
Creditor and/or any Pledgor.
(b) Except as provided in the last sentence of
paragraph (a) of this Section, the Pledgee, by accepting this Agreement,
did not intend to become a general partner or limited partner of any
Pledged Partnership or of a member of any Pledged LLC or otherwise be
deemed to be a co-venturer with respect to any Pledgor or any Pledged
Partnership or any Pledged LLC either before or after an Event of Default
shall have occurred. The Pledgee shall have only those powers set forth
herein and shall assume none of the duties, obligations or liabilities of
a general partner or limited partner of any Pledged Partnership or of a
member of any Pledged LLC or of any Pledgor.
(c) The Pledgee shall not be obligated to perform or
discharge any obligation of any Pledgor as a result of the collateral
assignment hereby effected.
(d) The acceptance by the Pledgee of this Agreement,
with all the rights, powers, privileges and authority so created, shall
not at any time or in any event obligate the Pledgee to appear in or
defend any action or proceeding relating to the Collateral to which it is
not a party, or to take any action hereunder or thereunder, or to expend
any money or incur any expenses or perform or discharge any obligation,
duty or liability under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each
Pledgor agrees that it will join with the Pledgee in executing and, at
such Pledgor's own expense, file and refile under the Uniform Commercial
Code or other applicable law such financing statements, continuation
statements and other documents in such offices as the Pledgee may deem
necessary or appropriate and wherever required or permitted by law in
order to perfect and preserve the Pledgee's security interest in the
Collateral and hereby authorizes the Pledgee to file financing statements
and amendments thereto relative to all or any part of the Collateral
without the signature of such Pledgor where permitted by law, and agrees
to do such further acts and things and to execute and deliver to the
Pledgee such additional conveyances, assignments, agreements and
instruments as the Pledgee may reasonably require or deem necessary to
carry into effect the purposes of this Agreement or to further assure and
confirm unto the Pledgee its rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such
Pledgor's attorney-in-fact, with full authority in the place and stead of
such Pledgor and in the name of such Pledgor or otherwise, to act from
time to time solely after the occurrence and during the continuance of an
Event of Default in the Pledgee's discretion to take any action and to
execute any instrument which the Pledgee may deem necessary or advisable
to accomplish the purposes of this Agreement.
14. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will
hold in accordance with this Agreement all items of the Collateral at any
time received under this Agreement. It is expressly understood and agreed
by each Secured Creditor that by accepting the benefits of this Agreement
each such Secured Creditor acknowledges and agrees that the obligations
of the Pledgee as holder of the Collateral and interests therein and with
respect to the disposition thereof, and otherwise under this Agreement,
are only those expressly set forth in this Agreement. The Pledgee shall
act hereunder on the terms and conditions set forth herein and in Section
11 of the Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or
otherwise dispose of, grant any option with respect to, or mortgage,
pledge or otherwise encumber any of the Collateral or any interest
therein (except as may be permitted in accordance with the terms of the
Credit Agreement).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PLEDGORS. Each Pledgor represents, warrants and covenants that (i) it is
the legal, record and beneficial owner of and has good and marketable
title to all Pledged Securities pledged by it hereunder, subject to no
Lien (except the Lien created by this Agreement); (ii) it has full power,
authority and legal right to pledge all the Pledged Securities pledged by
it pursuant to this Agreement; (iii) this Agreement has been duly
authorized, executed and delivered by such Pledgor and constitutes a
legal, valid and binding obligation of such Pledgor enforceable in
accordance with its terms except to the extent that the enforceability
hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law); (iv) except as have been
obtained by the Pledgors as of the date hereof and which remain in full
force and effect on the date hereof, no consent of any other party
(including, without limitation, any stockholder, member, partner or
creditor of such Pledgor or any of its Subsidiaries or any Pledged
Entity) and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration
with, any governmental authority is required to be obtained by such
Pledgor in connection with the execution, delivery or performance of this
Agreement, the validity or enforceability of this Agreement, the
perfection or enforceability of the Pledgee's security interest in the
Collateral or, except for compliance with or as may be required by
applicable securities laws, the exercise by the Pledgee of any of its
rights or remedies provided herein; (v) the execution, delivery and
performance of this Agreement by such Pledgor will not violate any
provision of any applicable law or regulation or of any order, judgment,
writ, award or decree of any court, arbitrator or governmental authority,
domestic or foreign, applicable to such Pledgor, or of the certificate or
articles of incorporation or by-laws (or equivalent organizational
documents) of such Pledgor or of any securities issued by such Pledgor or
any of its Subsidiaries, or of any mortgage, indenture, lease, deed of
trust, loan agreement, credit agreement or other material contract,
agreement or instrument or undertaking to which such Pledgor or any of
its Subsidiaries is a party or which purports to be binding upon such
Pledgor or any of its Subsidiaries or upon any of their respective assets
and will not result in the creation or imposition of (or the obligation
to create or impose) any lien or encumbrance on any of the assets of such
Pledgor or any of its Subsidiaries except as contemplated by this
Agreement; (vi) all the shares of Stock have been duly and validly
issued, are fully paid and non-assessable and are subject to no options
to purchase or similar rights; (vii) each of the Pledged Notes
constitutes, or when executed by the obligor thereof will constitute, the
legal, valid and binding obligation of such obligor, enforceable in
accordance with its terms except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law); (viii) the pledge, assignment
and delivery to the Pledgee of the Securities (other than uncertificated
securities) pursuant to this Agreement creates a valid and perfected
first priority Lien in the Securities, and the proceeds thereof, subject
to no other Lien or to any agreement purporting to grant to any third
party a Lien on the property or assets of the Pledgor which would include
the Securities; (ix) each Pledged Partnership Interest and Pledged
Membership Interest has been validly acquired and is fully paid for (to
the extent applicable) and is duly and validly pledged hereunder; (x)
each general or limited partnership agreement and limited liability
company agreement delivered to the Pledgee in respect of any Pledged
Entity is an original signed counterpart (or a copy thereof) of the
complete and entire such agreement in effect on the date hereof; (xi)
each partnership agreement and limited liability company agreement in
respect of any Pledged Entity is the legal, valid and binding obligation
of each Pledgor, and to each Pledgor's knowledge, the other parties
thereto, enforceable in accordance with its terms and, together with this
Agreement, contains the entire agreement between the Pledgors relating to
the subject matter thereof; (xii) no Pledgor is in default in the payment
of any portion of any mandatory capital contribution, if any, required to
be made under any general or limited partnership agreement or limited
liability company agreement in respect of any Pledged Entity to which
such Pledgor is a party, and no Pledgor is in violation of any other
material provisions of any such partnership agreement or limited
liability company agreement to which such Pledgor is a party, or
otherwise in default or violation thereunder; (xiii) no Pledged
Partnership Interest or Pledged Membership Interest is subject to any
defense, offset or counterclaim, nor have any of the foregoing been
asserted or alleged against such Pledgor by any Person with respect
thereto; (xiv) the pledge and assignment of the Pledged Partnership
Interests and Pledged Membership Interests pursuant to this Agreement,
together with the relevant filings or recordings under the Uniform
Commercial Code (which filings and recordings have been or will be made),
creates a valid, perfected and continuing first priority security
interest in such Partnership Interests and Membership Interests and the
proceeds thereof, subject to no prior lien or encumbrance or to any
agreement purporting to grant to any third party a lien or encumbrance on
the property or assets of such Pledgor which would include the
Collateral; (xv) there are no currently effective financing statements
under the Uniform Commercial Code covering any property which is now or
hereafter may be included in the Collateral and such Pledgor will not,
without the prior written consent of the Pledgee, execute and, until the
Termination Date (as hereinafter defined), there will not ever be on file
in any public office any enforceable financing statement or statements
covering any or all of the Collateral, except financing statements filed
or to be filed in favor of the Pledgee as secured party; (xvi) each
Pledgor shall give the Pledgee prompt notice of any written claim it
receives relating to the Collateral; (xvii) each Pledgor shall deliver to
the Pledgee a copy of each other demand, notice or document received by
it which may adversely affect the Pledgee's interest in the Collateral
promptly upon, but in any event within 10 days after, such Pledgor's
receipt thereof; (xviii) no Pledgor shall withdraw as a partner of any
Pledged Partnership or member of any Pledged LLC, or file or pursue or
take any action which may, directly or indirectly, cause a dissolution or
liquidation of or with respect to any Pledged Entity or seek a partition
of any property of any Pledged Entity, except as permitted by the Credit
Agreement; (xix) a notice in the form set forth in Annex E attached
hereto and by this reference made a part hereof (such notice the "Pledge
Notice"), appropriately completed, notifying each Pledged Entity of the
existence of this Agreement and a certified copy of this Agreement have
been delivered by each Pledgor to the relevant Pledged Entity, and each
such Pledgor has received and delivered to the Collateral Agent an
acknowledgment in the form set forth in Annex F attached hereto (such
acknowledgment, the "Pledge Acknowledgment"), duly executed by the
relevant Pledged Entity; (xx) the chief executive office and principal
place of business of such Pledgor and the sole location where the records
of such Pledgor with respect to any Pledged Partnership Interests and
Pledged Membership Interests are kept are located at the address set
forth for such Pledgor on Annex G hereto, and such Pledgor shall not move
its chief executive office, principal place of business, or location of
records unless (x) it shall have given to the Pledgee no less than 30
days prior written notice of its intention to do so clearly describing
such new location and providing such other information in connection
therewith as the Pledgee may reasonably request and (y) with respect to
such new location, it shall have taken all action, reasonably
satisfactory to the Pledgee, to maintain the security interest of the
Pledgee in the Collateral intended to be granted hereby at all times
fully perfected and in full force and effect; (xxi) such Pledgor shall
not change its legal name as set forth on the signature pages hereto or
assume or operate in any jurisdiction under any trade, fictitious or
other name unless (x) it shall have given to the Pledgee no less than 30
days prior written notice of its intention to do so clearly describing
such new name and the jurisdictions in which such new name shall be used
and providing such other information in connection therewith as the
Pledgee may reasonably request and (y) with respect to such new name, it
shall have taken all action, reasonably satisfactory to the Pledgee, to
maintain the security interest of the Pledgee in the Collateral intended
to be granted hereby at all times fully perfected and in full force and
effect; and (xxii) all filings, registrations and recordings necessary or
appropriate to create, preserve, protect and perfect the security
interest granted by such Pledgor to the Pledgee hereby in respect of the
Collateral have been, or promptly will be, accomplished and the security
interest granted to the Pledgee pursuant to this Agreement in and to the
Collateral constitutes a perfected security interest therein prior to the
rights of all other Persons therein and subject to no other Liens and is
entitled to all the rights, priorities and benefits afforded by the
Uniform Commercial Code or other relevant law as enacted in any relevant
jurisdiction to perfect security interests. Each Pledgor covenants and
agrees that it will defend the Pledgee's right, title and security
interest in and to the Collateral against the claims and demands of all
persons whomsoever; and such Pledgor covenants and agrees that it will
have like title to and right to pledge any other property at any time
hereafter pledged to the Pledgee as Collateral hereunder and will
likewise defend the right thereto and security interest therein of the
Pledgee and the other Secured Creditors.
17. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The
obligations of each Pledgor under this Agreement shall be absolute and
unconditional and shall remain in full force and effect without regard
to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (i) any renewal, extension, amendment or
modification of or addition or supplement to or deletion from any Secured
Debt Agreement or any other instrument or agreement referred to therein,
or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of
any such agreement or instrument including, without limitation, this
Agreement; (iii) any furnishing of any additional security to the Pledgee
or its assignee or any acceptance thereof or any release of any security
by the Pledgee or its assignee; (iv) any limitation on any party's
liability or obligations under any such instrument or agreement or any
invalidity or unenforceability, in whole or in part, of any such
instrument or agreement or any term thereof; or (v) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any
Subsidiary of any Pledgor, or any action taken with respect to this
Agreement by any trustee or receiver, or by any court, in any such
proceeding, whether or not such Pledgor shall have notice or knowledge of
any of the foregoing.
18. TERMINATION; RELEASE. (a) After the Termination
Date (as defined below), this Agreement and the security interest created
hereby shall terminate (provided that all indemnities set forth herein
including, without limitation, in Section 11 hereof shall survive any
such termination), and the Pledgee, at the request and expense of any
Pledgor, will execute and deliver to such Pledgor a proper instrument or
instruments acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty) such of the
Collateral as has not theretofore been sold or otherwise applied or
released pursuant to this Agreement, together with any moneys at the time
held by the Pledgee or any of its sub-agents hereunder. As used in this
Agreement, "Termination Date" shall mean the date upon which the Total
Revolving Commitment and all Interest Rate Agreements have been
terminated, no Note under the Credit Agreement is outstanding (and all
Loans have been repaid in full), all Letters of Credit have been
terminated and all Obligations then owing have been paid in full.
(b) In the event that any part of the Collateral is
sold in connection with a sale permitted by Section 8.02 of the Credit
Agreement (other than a sale to any Pledgor or any Subsidiary thereof) or
is otherwise released at the direction of the Required Banks (or all
Banks if required by Section 12.12 of the Credit Agreement) and the
proceeds of such sale or sales or from such release are applied in
accordance with the provisions of the Credit Agreement, to the extent
required to be so applied, the Pledgee, at the request and expense of any
Pledgor, will duly assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the
Collateral (and releases therefor) as is then being (or has been) so sold
or released and has not theretofore been released pursuant to this
Agreement.
(c) At any time that a Pledgor desires that the Pledgee
assign, transfer and deliver Collateral (and releases therefor) as
provided in Section 18(a) or (b) hereof, it shall deliver to the Pledgee
a certificate signed by the principal executive officer of such Pledgor
stating that the release of the respective Collateral is permitted
pursuant to such Section 18(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with this Section 18.
19. NOTICES, ETC. All such notices and communications
hereunder shall be sent or delivered by mail, telecopy or overnight
courier service and all such notices and communications shall, when
mailed, telecopied or sent by overnight courier, be effective when
delivered by overnight courier, or sent by telecopier or three Business
Days following deposit in the mail with proper postage, when mailed,
except that notices and communications to the Pledgee shall not be
effective until received by the Pledgee. All notices and other
communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at:
Universal Hospital Services, Inc.
0000 Xxxxxxxxx Xxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx, Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Pledgee, at:
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000;
(c) if to any Bank Creditor, either (x) to the
Administrative Agent, at the address of the Administrative Agent
specified in the Credit Agreement or (y) at such address as such Bank
Creditor shall have specified in the Credit Agreement;
(d) if to any Interest Rate Creditor at such address as
such Interest Rate Creditor shall have specified in writing to the
Pledgors and the Pledgee; or at such other address as shall have been
furnished in writing by any Person described above to the party required
to give notice hereunder.
20. WAIVER; AMENDMENT. None of the terms and conditions
of this Agreement may be changed, waived, modified or varied in any
manner whatsoever unless in writing duly signed by each Pledgor directly
affected thereby and the Pledgee (with the written consent of either (x)
the Required Banks (or all of the Banks to the extent required by Section
12.12 of the Credit Agreement) at all times prior to the time on which
all Credit Document Obligations have been paid in full or (y) the holders
of at least a majority of the outstanding Interest Rate Obligations at
all times after the time on which all Credit Document Obligations have
been paid in full); provided, that any change, waiver, modification or
variance affecting the rights and benefits of a single Class (as defined
below) of Secured Creditors (and not all Secured Creditors in a like or
similar manner) shall also require the written consent of the Requisite
Creditors (as defined below) of such affected Class. For the purpose of
this Agreement, the term "Class" shall mean each class of Secured
Creditors, i.e., whether (i) the Bank Creditors as holders of the Credit
Document Obligations or (ii) the Interest Rate Creditors as the holders
of the Interest Rate Obligations. For the purpose of this Agreement, the
term "Requisite Creditors" of any Class shall mean each of (i) with
respect to the Credit Document Obligations, the Required Banks and (ii)
with respect to the Interest Rate Obligations, the holders of at least a
majority of all obligations outstanding from time to time under the
Interest Rate Agreements.
21. MISCELLANEOUS. This Agreement shall be binding upon
the parties hereto and their respective successors and assigns and shall
inure to the benefit of and be enforceable by each of the parties hereto
and its successors and assigns, provided that no Pledgor may assign any
of its rights or obligations under this Agreement without the prior
consent of the Collateral Agent. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAW OF THE STATE
OF NEW YORK. The headings in this Agreement are for purposes of reference
only and shall not limit or define the meaning hereof. This Agreement may
be executed in any number of counterparts, each of which shall be an
original, but all of which shall constitute one instrument. In the event
that any provision of this Agreement shall prove to be invalid or
unenforceable, such provision shall be deemed to be severable from the
other provisions of this Agreement which shall remain binding on all
parties hereto.
22. RECOURSE. This Agreement is made with full recourse
to the Pledgors and pursuant to and upon all the representations,
warranties, covenants and agreements on the part of the Pledgors
contained herein and in the other Secured Debt Agreements and otherwise
in writing in connection herewith or therewith.
23. ADDITIONAL PLEDGORS. It is understood and agreed
that any Subsidiary of the Borrower that is required to execute a
counterpart of this Agreement after the date hereof pursuant to the
Credit Agreement shall automatically become a Pledgor hereunder by
executing a counterpart hereof and delivering the same to the Pledgee.
24. PLEDGE NOTICES; PLEDGE ACKNOWLEDGMENTS.
Notwithstanding anything to the contrary contained herein or in the
Credit Agreement, each Pledgor hereby covenants and agrees that with
respect to any Pledged Partnership Interest and/or Pledged Membership
Interest pledged by it hereunder, such Pledgor will deliver to the
respective Pledged Partnerships and Pledged LLCs (with copies to the
Pledgee) a Pledge Notice (appropriately completed) and such Pledgor will
deliver to the Pledgee a Pledge Acknowledgment signed by the respective
Pledged Partnerships and/or Pledged LLCs, (x) in the case of any Pledged
Partnership Interests or Pledged Membership Interests required to be
pledged hereunder on the date hereof, on or before the date hereof and
(y) in all other cases, within 10 days following the date on which any
such Pledged Partnership Interests and/or Pledged Membership Interests
are pledged hereunder.
25. SECURED CREDITORS ACKNOWLEDGMENT. By accepting the
benefits of this Agreement, each Secured Creditor acknowledges and agrees
(i) that the rights and obligations of the Pledgee shall be as set forth
in Section 11 of the Credit Agreement and (ii) that its rights under this
Agreement shall be as set forth in this Agreement. Notwithstanding
anything to the contrary contained in this Agreement or the Credit
Agreement, this Section 25, and the duties and obligations of the Pledgee
set forth in this Section 25, may not be amended or modified without the
consent of the Pledgee.
* * * *
IN WITNESS WHEREOF, each Pledgor and the Pledgee have
caused this Agreement to be executed by their duly elected officers duly
authorized as of the date first above written.
UNIVERSAL HOSPITAL SERVICES, INC.,
as a Pledgor
By__________________________________
Title:
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Pledgee and Collateral Agent
By__________________________
Title:
Annex A
TO
PLEDGE AGREEMENT
LIST OF STOCK
Percentage of
Outstanding
Name of Issuing Certificate Type of Number of Shares of
Corporation Number Shares Shares Capital Stock
-None-
ANNEX B
to
PLEDGE AGREEMENT
LIST OF NOTES
Obligor Principal Amount Maturity Date
- None -
ANNEX C
to
PLEDGE AGREEMENT
PARTNERSHIP INTERESTS
- None -
ANNEX D
to
PLEDGE AGREEMENT
MEMBERSHIP INTERESTS
Limited Liability Company Ownership Percentage
- None -
Annex E
to
PLEDGE AGREEMENT
FORM OF PLEDGE NOTICE
[Letterhead of Pledgor]
[Date]
TO: [Name of Pledged Entity]
Notice is hereby given that, pursuant to the Pledge
Agreement (a true and correct copy of which is attached hereto), dated as
of February 25, 1998 (as amended, modified or supplemented from time to
time in accordance with the terms thereof, the "Pledge Agreement"),
between [NAME OF PLEDGOR] (the "Pledgor"), the other pledgors from time
to time party thereto and Bankers Trust Company (the "Pledgee") on behalf
of the Secured Creditors described therein, the Pledgor has pledged and
assigned to the Pledgee for the benefit of the Secured Creditors, and
granted to the Pledgee for the benefit of the Secured Creditors a
continuing security interest in, all right, title and interest of the
Pledgor, whether now existing or hereafter arising or acquired, as a
[[limited partner] [general partner]] [member] in [NAME OF PLEDGED
ENTITY] (the ["Partnership"] ["LLC"]), and in, to and under the [TITLE OF
APPLICABLE AGREEMENT] (the "[Partnership] [LLC] Agreement"), including,
without limitation:
(i) all the capital of the [Partnership] [LLC] and the
Pledgor's interest in all profits, income, surplus, losses,
[Partnership] [LLC] Assets and other distributions to which the
Pledgor shall at any time be entitled in respect of such
[Partnership] [Membership] Interest;
(ii) all other payments due or to become due to the
Pledgor in respect of such [partnership] [limited liability
company] interest, whether under the [Partnership] [LLC]
Agreement or otherwise, whether as contractual obligations,
damages, insurance proceeds or otherwise;
(iii) all of its claims, rights, powers, privileges,
authority, options, security interest, liens and remedies, if
any, under the [Partnership] [LLC] Agreement or at law or
otherwise in respect of such [Partnership] [Membership]
Interest;
(iv) all present and future claims, if any, of the
Pledgor against the [Partnership] [LLC] for moneys loaned or
advanced, for services rendered or otherwise;
(v) all of the Pledgor's rights under the [Partnership]
[LLC] Agreement or at law to exercise and enforce every right,
power, remedy, authority, option and privilege of the Pledgor
relating to the [Partnership] [Membership] Interest, including
any power to terminate, cancel or modify the [Partnership] [LLC]
Agreement, to execute any instruments and to take any and all
other action on behalf of and in the name of the Pledgor in
respect of the [Partnership] [Membership] Interest and the
[Partnership] [LLC], to make determinations, to exercise any
election (including, but not limited, election of remedies) or
option or to give or receive any notice, consent, amendment,
waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the
foregoing, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any action
in connection with any of the foregoing;
(vi) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof; and
(vii) to the extent not otherwise included, all
proceeds of any or all of the foregoing.
Pursuant to the Pledge Agreement, the [Partnership]
[LLC] is hereby authorized and directed to register the Pledgor's pledge
to the Pledgee on behalf of the Secured Creditors of the interest of the
Pledgor on the [Partnership's] [LLC's] books.
The Pledgor hereby requests the [Partnership] [LLC] to
indicate the [Partnership's] [LLC's] acceptance of this Notice and
consent to and confirmation of its terms and provisions by signing a copy
hereof where indicated on the attached page and returning the same to the
Pledgee on behalf of the Secured Creditors.
[NAME OF PLEDGOR]
By_________________________________
Name:
Title:
ANNEX F
to
PLEDGE AGREEMENT
FORM OF PLEDGE ACKNOWLEDGMENT
[NAME OF PLEDGED ENTITY] (the ["Partnership"] ["LLC"])
hereby acknowledges receipt of a copy of the assignment by [NAME OF
PLEDGOR] ("Pledgor") of its interest under the [TITLE OF APPLICABLE
AGREEMENT] (the "[Partnership] [LLC] Agreement") pursuant to the terms of
the Pledge Agreement, dated as of February 25, 1998 (as amended, modified
or supplemented from time to time in accordance with the terms thereof,
the "Pledge Agreement"), among the Pledgor, the other pledgors from time
to time party thereto, and Bankers Trust Company (the "Pledgee") on
behalf of the Secured Creditors described therein. The undersigned hereby
further confirms the registration of the Pledgor's pledge of its interest
to the Pledgee on behalf of the Secured Creditors on the [Partnership's]
[LLC's] books.
Dated: ______________ __, ____
[NAME OF PLEDGED ENTITY]
By____________________________
Name:
Title:
ANNEX G
to
PLEDGE AGREEMENT
SCHEDULE OF OFFICE LOCATIONS
Address County/State
EXHIBIT I
FORM OF SECURITY AGREEMENT
among
UNIVERSAL HOSPITAL SERVICES, INC.,
CERTAIN OF ITS SUBSIDIARIES
and
BANKERS TRUST COMPANY,
as Collateral Agent
Dated as of February 25, 1998
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of February 25, 1998,
among UNIVERSAL HOSPITAL SERVICES, INC. (the "Borrower"), the Subsidiary
Guarantors listed on the signature pages hereto and each other Subsidiary
of the Borrower that becomes an assignor hereunder pursuant to Section
10.11 of this Agreement (each an "Assignor", and collectively, the
"Assignors") and BANKERS TRUST COMPANY, as Collateral Agent (together
with any successor Collateral Agent, the "Collateral Agent") for the
benefit of the Secured Creditors (as defined below). Capitalized terms
used herein shall have the meanings specified in Article IX or, if not
defined therein, such terms shall have the meanings specified in the
Credit Agreement (as defined below).
W I T N E S S E T H :
WHEREAS, the Borrower, the lending institutions from
time to time party thereto (the "Banks"), and Bankers Trust Company, as
Administrative Agent (together with any successor Administrative Agent,
the "Administrative Agent"), have entered into a Credit Agreement, dated
as of February 25, 1998 (as amended, modified or supplemented from time
to time, the "Credit Agreement"), providing for the making of Loans and
the issuance of, and participation in, Letters of Credit as contemplated
therein (the Banks, the Administrative Agent and the Collateral Agent are
hereinafter called the "Bank Creditors");
WHEREAS, the Borrower may from time to time be party to
one or more Interest Rate Agreements with any Bank or any affiliate of
any Bank (each such Bank or affiliate, even if the respective Bank
subsequently ceases to be a Bank under the Credit Agreement for any
reason, together with such Bank's or affiliate's successors and
subsequent assigns, if any, collectively the "Interest Rate Creditors",
and together with the Bank Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Subsidiary Guaranty, each
Assignor (other than the Borrower) has jointly and severally guaranteed
to the Secured Creditors the payment when due of all Guaranteed
Obligations (as defined in the Subsidiary Guaranty);
WHEREAS, it is a condition precedent to the making of
Loans and the issuance of, and participation in, Letters of Credit under
the Credit Agreement that each Assignor shall have executed and delivered
to the Collateral Agent this Agreement; and
WHEREAS, each Assignor desires to execute this
Agreement to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the benefits
accruing to each Assignor, the receipt and sufficiency of which are
hereby acknowledged, each Assignor hereby makes the following
representations and warranties to the Collateral Agent and hereby
covenants and agrees with the Collateral Agent as follows:
ARTICLE I
SECURITY INTERESTS
1.1 Grant of Security Interests. (a) As security for
the prompt and complete payment and performance when due of all of the
Obligations, each Assignor does hereby sell, assign and transfer unto the
Collateral Agent, and does hereby grant to the Collateral Agent for the
benefit of the Secured Creditors a continuing security interest of first
priority in, all of the right, title and interest of such Assignor in, to
and under all of the following, whether now existing or hereafter from
time to time acquired: (i) each and every Receivable, (ii) all Contracts
(other than Excluded Contracts except to the extent provided in the
definition thereof), together with all Contract Rights arising
thereunder, (iii) all Inventory, (iv) all Equipment, (v) all Marks,
together with the registrations and right to all renewals thereof, and
the goodwill of the business of such Assignor symbolized by the Marks,
(vi) the Cash Collateral Account established for such Assignor and all
monies, securities, Financial Assets, Investment Property and instruments
deposited in or credited to or required to be deposited in or credited to
such Cash Collateral Account, (vii) all Patents and Copyrights and all
reissues, renewals or extensions thereof, (viii) all computer programs of
such Assignor and all intellectual property rights therein (to the extent
not constituting Excluded Contracts) and all other proprietary
information of such Assignor, including, but not limited to, Trade
Secrets Rights, (ix) all insurance policies, (x) all other Goods, General
Intangibles, Chattel Paper, Documents and Instruments (other than the
Pledged Securities), and (xi) all Proceeds and products of any and all of
the foregoing (all of the above collectively, the "Collateral").
(b) The security interest of the Collateral Agent under
this Agreement extends to all Collateral of the kind which is the subject
of this Agreement which each Assignor may acquire at any time during the
continuation of this Agreement.
1.2 Power of Attorney. Each Assignor hereby constitutes
and appoints the Collateral Agent its true and lawful attorney,
irrevocably, with full power after the occurrence of and during the
continuance of an Event of Default (in the name of such Assignor or
otherwise) to act, require, demand, receive, compound and give
acquittance for any and all monies and claims for monies due or to become
due to such Assignor under or arising out of the Collateral, to endorse
any checks or other instruments or orders in connection therewith and to
file any claims or take any action or institute any proceedings which the
Collateral Agent may deem to be necessary or advisable in the premises,
which appointment as attorney is coupled with an interest.
ARTICLE II
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and
delivery of this Agreement, as follows:
2.1 Necessary Filings. All filings, registrations and
recordings necessary or appropriate to create, preserve, protect and
perfect the security interest granted by each Assignor to the Collateral
Agent hereby in respect of the Collateral have been accomplished and the
security interest granted to the Collateral Agent pursuant to this
Agreement in and to the Collateral constitutes a perfected security
interest therein superior and prior to the rights of all other Persons
therein and subject to no other Liens (other than Permitted Liens) and is
entitled to all the rights, priorities and benefits afforded by the
Uniform Commercial Code or other relevant law as enacted in any relevant
jurisdiction to perfected security interests.
2.2 No Liens. Each Assignor is, and as to Collateral
acquired by it from time to time after the date hereof such Assignor will
be, the owner of all Collateral free from any Lien, security interest,
encumbrance or other right, title or interest of any Person (other than
Permitted Liens), and such Assignor shall defend the Collateral against
all claims and demands of all Persons at any time claiming the same or
any interest therein adverse to the Collateral Agent.
2.3 Other Financing Statements. As of the date hereof,
there is no financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) covering or purporting to
cover any interest of any kind in the Collateral (other than financing
statements filed in respect of Permitted Liens and those for which
termination statements have been delivered to the Collateral Agent on the
Effective Date), and so long as the Total Revolving Commitment has not
been terminated or any Note remains unpaid or any Letter of Credit
remains outstanding or any of the Obligations remain unpaid or any
Interest Rate Agreement or Letter of Credit remains in effect, such
Assignor will not execute or authorize to be filed in any public office
any financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) or statements relating to
the Collateral, except financing statements filed or to be filed in
respect of and covering the security interests granted hereby by such
Assignor or in respect of Permitted Liens.
2.4 Chief Executive Office; Records. The chief
executive office of each Assignor is located at the address or addresses
indicated on Annex A hereto. Such Assignor will not move its chief
executive office except to such new location as such Assignor may
establish in accordance with the last sentence of this Section 2.4. The
originals of all documents evidencing all Receivables and Contract Rights
of such Assignor and the only original books of account and records of
such Assignor relating thereto are, and will continue to be, kept at such
chief executive office and/or one or more of the other locations shown on
Annex A hereto, or at such new locations as such Assignor may establish
in accordance with the last sentence of this Section 2.4. All Receivables
and Contract Rights of such Assignor are, and will continue to be,
maintained at, and controlled and directed (including, without
limitation, for general accounting purposes) from, the office locations
described above, or such new locations as such Assignor may establish in
accordance with the last sentence of this Section 2.4. Such Assignor
shall not establish new locations for such offices until (i) it shall
have given to the Collateral Agent not less than 30 days' prior written
notice of its intention so to do, clearly describing such new location
and providing such other information in connection therewith as the
Collateral Agent may reasonably request, (ii) with respect to such new
location, it shall have taken all action, satisfactory to the Collateral
Agent, to maintain the security interest of the Collateral Agent in the
Collateral intended to be granted hereby at all times fully perfected and
in full force and effect, and (iii) at the reasonable request of the
Collateral Agent, it shall have furnished an opinion of counsel
reasonably acceptable to the Collateral Agent to the effect that all
financing statements and amendments or supplements thereto have been
filed in the appropriate filing office or offices, and all other actions
(including, without limitation, the payment of all filing fees and taxes,
if any, payable in connection with such filings) have been taken, in
order to perfect (and maintain the perfection and priority of) the
security interest granted hereby.
2.5 Location of Inventory and Equipment. All Inventory
and Equipment held on the date hereof by each Assignor is located at one
of the locations shown on Annex B hereto. Each Assignor agrees that all
Inventory and Equipment now held or subsequently acquired by it shall be
kept at (or shall be in transport to or from) any one of the locations
shown on Annex B hereto, or such new location as such Assignor may
establish in accordance with the last sentence of this Section 2.5. Such
Assignor may establish a new location for Inventory and Equipment only if
(i) with respect to such new location, it shall have taken all action to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full
force and effect, in all cases, after due investigation and (ii) at the
reasonable request of the Collateral Agent, it shall have furnished an
opinion of counsel reasonably acceptable to the Collateral Agent to the
effect that all financing statements and amendments or supplements
thereto have been filed in the appropriate filing office or offices, and
all other actions (including, without limitation, the payment of all
filing fees and taxes, if any, payable in connection with such filings)
have been taken, in order to perfect (and maintain the perfection and
priority of) the security interest granted hereby.
2.6 Trade Names; Change of Name. Each Assignor does not
have or operate in any jurisdiction under, or in the preceding 5 years
has not had or has not operated in any jurisdiction under, any trade
names, fictitious names or other names (including, without limitation,
any names of divisions or operations) except its legal name and such
other trade, fictitious or other names as are listed on Annex C hereto.
Such Assignor has only operated under each name set forth on Annex C
hereto in the jurisdiction or jurisdictions set forth opposite each such
name on such Annex C. Such Assignor shall not change its legal name or
assume or operate on any jurisdiction under any trade, fictitious or
other name except those names listed on Annex C hereto in the
jurisdictions listed with respect to such names and new names (including,
without limitation, any names of divisions or operations) and/or
jurisdictions established in accordance with the last sentence of this
Section 2.6. Such Assignor shall not assume or operate in any
jurisdiction under any new trade, fictitious or other name or operate
under any existing name in any additional jurisdiction until (i) it shall
have given to the Collateral Agent not less than 30 days' prior written
notice of its intention so to do, clearly describing such new name and/or
jurisdiction and, in the case of a new name, the jurisdictions in which
such new name shall be used and providing such other information in
connection therewith as the Collateral Agent may reasonably request, (ii)
with respect to such new name and/or new jurisdiction, it shall have
taken all action to maintain the security interest of the Collateral
Agent in the Collateral intended to be granted hereby at all times fully
perfected and in full force and effect, and (iii) at the reasonable
request of the Collateral Agent, it shall have furnished an opinion of
counsel reasonably acceptable to the Collateral Agent to the effect that
all financing statements and amendments or supplements thereto have been
filed in the appropriate filing office or offices, and all other actions
(including, without limitation, the payment of all filing fees and taxes,
if any, payable in connection with such filings) have been taken, in
order to perfect (and maintain the perfection and priority of) the
security interest granted hereby.
2.7 Recourse. This Agreement is made with full recourse
to each Assignor and pursuant to and upon all the warranties,
representations, covenants, and agreements on the part of such Assignor
contained herein, in the other Credit Documents, in the Interest Rate
Agreements and otherwise in writing in connection herewith or therewith.
ARTICLE III
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
3.1 Additional Representations and Warranties. As of
the time when each of its Receivables arises, each Assignor shall be
deemed to have represented and warranted that each such Receivable, and
all records, papers and documents relating thereto (if any) (i) will
represent the genuine, legal, valid and binding obligation of the account
debtor evidencing indebtedness unpaid and owed by the respective account
debtor arising out of the performance of labor or services or the sale,
lease or rental and delivery of the merchandise listed therein, or both,
(ii) will be the only original writings evidencing and embodying such
obligation of the account debtor named therein (other than copies created
for general accounting purposes), (iii) will evidence true and valid
obligations, enforceable in accordance with their respective terms and
(iv) will be in compliance and will conform in all material respects with
all applicable federal, state and local laws and applicable laws of any
relevant foreign jurisdiction.
3.2 Maintenance of Records. Each Assignor will keep and
maintain at its own cost and expense accurate and complete records of its
Receivables and Contracts, including, without limitation, the originals
of all documentation (including each Contract) with respect thereto,
records of all payments received, all credits granted thereon, all
merchandise returned and all other dealings therewith, and such Assignor
will make the same available to the Collateral Agent for inspection, at
such Assignor's own cost and expense, at any and all reasonable times
upon demand during normal business hours. If requested by the Collateral
Agent while an Event of Default is in existence, such Assignor shall, at
its own cost and expense, deliver all tangible evidence of its
Receivables and Contract Rights (including, without limitation, copies of
all documents evidencing the Receivables and all Contracts, such copies
to be certified as true and complete by an Authorized Officer of such
Assignor) and such books and records to the Collateral Agent or to its
representatives (copies of which evidence and books and records may be
retained by such Assignor). If the Collateral Agent so directs while an
Event of Default is in existence, such Assignor shall legend, in form and
manner reasonably satisfactory to the Collateral Agent, the Receivables
and Contracts, as well as books, records and documents of such Assignor
evidencing or pertaining to the Receivables with an appropriate reference
to the fact that the Receivables and Contracts have been assigned to the
Collateral Agent and that the Collateral Agent has a security interest
therein.
3.3 Modification of Terms; etc. No Assignor shall
rescind or cancel any indebtedness evidenced by any Receivable or under
any Contract, or modify any term thereof or make any adjustment with
respect thereto, or extend or renew the same, or compromise or settle any
material dispute, claim, suit or legal proceeding relating thereto, or
sell any Receivable or Contract, or interest therein, without the prior
written consent of the Collateral Agent, except (i) as permitted by
Section 3.4 hereof and (ii) so long as no Event of Default is then in
existence, and absent prior written consent of the Collateral Agent, such
Assignor may modify, make adjustments with respect to, settle claims with
respect to, extend or renew any Contracts in the ordinary course of
business. Each Assignor will duly fulfill all obligations on its part to
be fulfilled under or in connection with the Receivables and Contracts
and will do nothing to impair the rights of the Collateral Agent in the
Receivables or Contracts.
3.4 Collection. Each Assignor shall endeavor to cause
to be collected from the account debtor named in each of its Receivables
or obligor under any Contract, as and when due (including, without
limitation, amounts which are delinquent, such amounts to be collected in
accordance with generally accepted lawful collection procedures) any and
all amounts owing under or on account of such Receivable or Contract, and
apply forthwith upon receipt thereof all such amounts as are so collected
to the outstanding balance of such Receivable or under such Contract,
except that, so long as no Event of Default has occurred and is
continuing, any Assignor may allow in the ordinary course of business as
adjustments to amounts owing under its Receivables and Contracts (i) an
extension or renewal of the time or times of payment, or settlement for
less than the total unpaid balance, which such Assignor finds appropriate
in accordance with its sound business judgment and (ii) a refund or
credit due as a result of returned or damaged merchandise or improperly
performed services. The costs and expenses (including, without
limitation, attorneys' fees) of collection, whether incurred by an
Assignor or the Collateral Agent, shall be borne by such Assignor.
3.5 Direction to Account Debtors; etc. Upon the
occurrence and during the continuance of an Event of Default, and if the
Collateral Agent so directs any Assignor, to the extent permitted by
applicable law, such Assignor agrees (x) to cause all payments on account
of the Receivables to be made directly to the Cash Collateral Account,
(y) that the Collateral Agent may, at its option, directly notify the
obligors with respect to any Receivables to make payments with respect
thereto as provided in preceding clause (x) and (z) that the Collateral
Agent may enforce collection of any such Receivables and may adjust,
settle or compromise the amount of payment thereof. The Collateral Agent
may apply any or all amounts then in, or thereafter deposited in, the
Cash Collateral Account in the manner provided in Section 7.4 of this
Agreement. The costs and expenses (including attorneys' fees) of
collection, whether incurred by any Assignor or the Collateral Agent,
shall be borne by such Assignor.
3.6 Instruments. If any Assignor owns or acquires any
Instrument with a face value in excess of $500,000, such Assignor will
within 10 Business Days notify the Collateral Agent thereof, and upon
request by the Collateral Agent promptly deliver such Instrument to the
Collateral Agent appropriately endorsed to the order of the Collateral
Agent as further security hereunder.
3.7 Further Actions. Each Assignor will, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, reports and other
assurances or instruments and take such further steps relating to its
Receivables, Contracts, Instruments and other property or rights covered
by the security interest hereby granted, as the Collateral Agent may
reasonably require to give effect to the purposes of this Agreement.
ARTICLE IV
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1 Additional Representations and Warranties. Each
Assignor represents and warrants that it is the true and lawful owner of,
or otherwise has the right to use, the Marks listed on Annex D hereto and
that said listed Marks constitute all the marks registered in the United
States Patent and Trademark Office that such Assignor now owns or uses in
connection with its business. Each Assignor represents and warrants that
it owns, is licensed to use or otherwise has the right to use all Marks
that it uses. Each Assignor further warrants that it has no knowledge of
any third party claim that any aspect of such Assignor's present or
contemplated business operations infringes or will infringe any
trademark, service xxxx or trade name. Each Assignor represents and
warrants that it is the beneficial and record owner of all trademark
registrations and applications listed on Annex D hereto for such Assignor
and that said registrations are valid and subsisting, and that such
Assignor is not aware of any third-party claim that any of said
registrations is invalid or unenforceable, or is not aware that there is
any reason that any of said applications will not pass to registration.
4.2 Licenses and Assignments. Each Assignor hereby
agrees not to divest itself of any right under a Xxxx other than in the
ordinary course of business absent prior written approval of the
Collateral Agent.
4.3 Infringements. Each Assignor agrees, promptly upon
learning thereof, to notify the Collateral Agent in writing of the name
and address of, and to furnish such pertinent information that may be
available with respect to, any party who such Assignor believes to be
infringing or diluting or otherwise violating any of such Assignor's
rights in and to any Xxxx, or with respect to any party claiming that
such Assignor's use of any Xxxx violates any property right of that third
party. Each Assignor further agrees, unless otherwise directed by the
Collateral Agent, diligently to prosecute any Person infringing any Xxxx.
4.4 Preservation of Marks. Each Assignor agrees to use
its material Marks in interstate commerce during the time in which this
Agreement is in effect, sufficiently to preserve such Marks (and any
registrations thereto) as trademarks or service marks registered under
the laws of the United States.
4.5 Maintenance of Registration. Each Assignor shall,
at its own expense, diligently process all documents required by the
Trademark Act of 1946, 15 U.S.C. xx.xx. 1051 et seq. to maintain
trademark registrations, including, but not limited to, affidavits of use
and applications for renewals of registration in the United States Patent
and Trademark Office, for all of its registered Marks pursuant to 15
U.S.C. xx.xx. 1058(a), 1059 and 1065, and shall pay all fees and
disbursements in connection therewith, and shall not abandon any such
filing of affidavit of use or any such application of renewal prior to
the exhaustion of all administrative and judicial remedies without prior
written consent of the Collateral Agent. Each Assignor agrees to notify
the Collateral Agent three months prior to the dates on which the
affidavits of use or the application for renewal registration are due
with respect to any registered Xxxx that the affidavits of use or the
renewal is being processed or abandoned as the case may be.
4.6 Future Registered Marks. If any Xxxx registration
issues hereafter to any Assignor as a result of any application now or
hereafter pending before the United States Patent and Trademark Office,
within 30 days of receipt of such certificate, such Assignor shall
deliver to the Collateral Agent a copy of such certificate, and an
assignment for security in such Xxxx, to the Collateral Agent and at the
expense of such Assignor, confirming the assignment for security in such
Xxxx to the Collateral Agent hereunder, the form of such security to be
substantially the same as the form hereof or in such other form as may be
reasonably satisfactory to the Collateral Agent.
4.7 Remedies. (a) If an Event of Default shall occur
and be continuing, the Collateral Agent may, by written notice to the
relevant Assignor, take any or all of the following actions: (i) declare
the entire right, title and interest of such Assignor in and to each of
the Marks, together with all trademark rights and rights of protection to
the same, vested, in which event such rights, title and interest shall
immediately vest, in the Collateral Agent for the benefit of the Secured
Creditors pursuant to the assignment of security interest in trademarks
in the form of Annex G hereto, executed by such Assignor and filed on the
date hereof, pursuant to which all of such Assignor's rights, title and
interest in and to the Marks are assigned to the Collateral Agent for the
benefit of the Secured Creditors; (ii) take and use or sell the Marks and
the goodwill of such Assignor's business symbolized by the Marks and the
right to carry on the business and use the assets of such Assignor in
connection with which the Marks have been used; and (iii) direct such
Assignor to refrain, in which event such Assignor shall refrain, from
using the Marks in any manner whatsoever, directly or indirectly, and, if
requested by the Collateral Agent, change such Assignor's corporate name
to eliminate therefrom any use of any Xxxx and execute such other and
further documents that the Collateral Agent may request to further
confirm this and to transfer ownership of the Marks and registrations and
any pending trademark application in the United States Patent and
Trademark Office to the Collateral Agent.
(b) Each Assignor hereby grants to the Collateral Agent
an absolute power of attorney to sign, upon the occurrence and during the
continuance of an Event of Default, any document which may be required by
the United States Patent and Trademark Office in order to effect an
absolute assignment of all right, title and interest in and to each Xxxx
and associated goodwill, and record the same.
ARTICLE V
SPECIAL PROVISIONS CONCERNING
PATENTS AND COPYRIGHTS
5.1 Additional Representations and Warranties. Each
Assignor represents and warrants that it is the true and lawful owner of,
or otherwise has the right to use, all rights in (i) all trade secrets
and proprietary information necessary to operate the business of such
Assignor (the "Trade Secret Rights"), (ii) the Patents listed on Annex E
hereto and (iii) the Copyrights listed on Annex F hereto, that said
Patents constitute all the United States patents and applications for
patents that such Assignor now owns or is licensed to use and that said
Copyrights constitute all the United States registered copyrights that
such Assignor now owns or is licensed to use. Each Assignor represents
and warrants that it owns or is licensed to use all Patents and
Copyrights that it now owns or uses. Each Assignor further represents and
warrants that it has no knowledge of any third party claim that any
aspect of such Assignor's present or contemplated business operations
infringe or will infringe any patent or any copyright or misappropriates
any trade secret or proprietary information.
5.2 Licenses and Assignments. Each Assignor hereby
agrees not to divest itself of Trade Secret Rights or any right under a
Patent or Copyright other than in the ordinary course of business absent
prior written approval of the Collateral Agent.
5.3 Infringements. Each Assignor agrees, promptly upon
learning thereof, to furnish the Collateral Agent in writing with all
pertinent information available to such Assignor with respect to any
infringement, contributing infringement or active inducement to infringe
any of such Assignor's rights in any Patent or Copyright, or with respect
to any claim that practice of any Patent or Copyright violates any
property right of a third party or with respect to any misappropriation
of any Trade Secret Rights or any claim that the practice of a Trade
Secret Right violates any property right of a third party. Each Assignor
further agrees, absent direction of the Collateral Agent to the contrary,
diligently to prosecute any Person infringing any Patent or Copyright or
misappropriating any Trade Secret Right.
5.4 Maintenance of Patents. At its own expense, each
Assignor shall make timely payment of all post-issuance fees required
pursuant to 35 U.S.C. ss. 41 to maintain in force rights under each
Patent.
5.5 Prosecution of Patent Application. Other than with
respect to immaterial Patents which are not essential to the business of
the Borrower and its Subsidiaries, at its own expense, each Assignor
shall diligently prosecute all applications for United States patents
listed on Annex E hereto, and shall not abandon any such application
prior to exhaustion of all administrative and judicial remedies, absent
prior written consent of the Collateral Agent.
5.6 Other Patents and Copyrights. Within 30 days of the
acquisition or issuance of a United States Patent, registration of a
Copyright, or acquisition of a registered Copyright, or of filing of an
application for a United States Patent or Copyright, the relevant
Assignor shall deliver to the Collateral Agent a copy of said Copyright
or certificate or registration of, or application therefor, said Patents,
as the case may be, with an assignment for security as to such Patent or
Copyright, as the case may be, to the Collateral Agent and at the expense
of such Assignor, confirming the assignment for security, the form of
such assignment for security to be substantially the same as the form
hereof or in such other form as may be reasonably satisfactory to the
Collateral Agent.
5.7 Remedies. (a) If an Event of Default shall occur
and be continuing, the Collateral Agent may by written notice to the
relevant Assignor take any or all of the following actions: (i) declare
the entire right, title and interest of such Assignor in each of the
Patents and Copyrights vested, in which event such right, title and
interest shall immediately vest in the Collateral Agent for the benefit
of the Secured Creditors, pursuant to the assignment of security interest
in Patents in the form of Annex H hereto, and the assignment of security
interest in Copyrights in the form of Annex I hereto, in each case,
executed by such Assignor and filed on the date hereof, pursuant to which
all of such Assignor's right, title, and interest to such Patents and
Copyrights are assigned to the Collateral Agent for the benefit of the
Secured Creditors; (ii) take and practice or sell the Patents and
Copyrights; (iii) direct such Assignor to refrain, in which event such
Assignor shall refrain, from practicing the Patents and Copyrights
directly or indirectly, and such Assignor shall execute such other and
further documents as the Collateral Agent may request further to confirm
this and to transfer ownership of the Patents and Copyrights to the
Collateral Agent for the benefit of the Secured Creditors.
(b) Each Assignor hereby grants to the Collateral Agent
an absolute power of attorney to sign, upon the occurrence and during the
continuance of an Event of Default, any document which may be required by
the United States Patent and Trademark Office in order to effect an
absolute assignment of all right, title and interest in and to each
Patent, and record the same.
ARTICLE VI
PROVISIONS CONCERNING ALL COLLATERAL
6.1 Protection of Collateral Agent's Security. Each
Assignor will do nothing (except as otherwise expressly permitted herein)
to impair the rights of the Collateral Agent in the Collateral. Each
Assignor will at all times keep its Inventory and Equipment insured in
favor of the Collateral Agent, at its own expense, to the extent required
by the Credit Agreement; all policies or certificates with respect to
such insurance shall be endorsed to the Collateral Agent's satisfaction
for the benefit of the Collateral Agent (including, without limitation,
by naming the Collateral Agent as loss payee). If any Assignor shall fail
to insure such Inventory and Equipment to the extent required by the
Credit Agreement, or if any Assignor shall fail to so endorse and deposit
all policies or certificates with respect thereto, the Collateral Agent
shall have the right (but shall be under no obligation) to procure such
insurance and such Assignor agrees to reimburse the Collateral Agent for
all costs and expenses of procuring such insurance. The Collateral Agent
may apply any proceeds of such insurance required after an Event of
Default in accordance with Section 7.4 hereof or in accordance with the
Credit Agreement. Each Assignor assumes all liability and responsibility
in connection with the Collateral acquired by it and the liability of
such Assignor to pay its Obligations shall in no way be affected or
diminished by reason of the fact that such Collateral may be lost,
destroyed, stolen, damaged or for any reason whatsoever unavailable to
such Assignor.
6.2 Warehouse Receipts Non-negotiable. Each Assignor
agrees that if any warehouse receipt or receipt in the nature of a
warehouse receipt is issued with respect to any of its Inventory, such
warehouse receipt or receipt in the nature thereof shall not be
"negotiable" (as such term is used in Section 7-104 of the Uniform
Commercial Code as in effect in any relevant jurisdiction or under other
relevant law).
6.3 Further Actions. Each Assignor will, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such lists, descriptions and
designations of its Collateral, warehouse receipts, receipts in the
nature of warehouse receipts, bills of lading, documents of title,
vouchers, invoices, schedules, confirmatory assignments, conveyances,
financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such
further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Collateral
Agent deems reasonably appropriate or advisable to perfect, preserve or
protect its security interest in the Collateral.
6.4 Financing Statements. Each Assignor agrees to sign
and deliver to the Collateral Agent such financing statements, in form
acceptable to the Collateral Agent, as the Collateral Agent may from time
to time request or as are necessary or desirable in the opinion of the
Collateral Agent to establish and maintain a valid, enforceable, first
priority perfected security interest in the Collateral as provided herein
and the other rights and security contemplated hereby all in accordance
with the Uniform Commercial Code as enacted in any and all relevant
jurisdictions or any other relevant law. Each Assignor will pay any
applicable filing fees and related expenses. Each Assignor authorizes the
Collateral Agent to file any such financing statements without the
signature of such Assignor where permitted by law.
ARTICLE VII
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1 Remedies; Obtaining the Collateral Upon Default.
Each Assignor agrees that, if any Event of Default shall have occurred
and be continuing, then and in every such case, subject to any mandatory
requirements of applicable law then in effect, the Collateral Agent, in
addition to any rights now or hereafter existing under applicable law,
shall have all rights as a secured creditor under the Uniform Commercial
Code in all relevant jurisdictions and may:
(i) personally, or by agents or attorneys, immediately
take possession of the Collateral or any part thereof, from such
Assignor or any other Person who then has possession of any part
thereof with or without notice or process of law, and for that
purpose may enter upon such Assignor's premises where any of the
Collateral is located and remove the same and use in connection
with such removal any and all services, supplies, aids and other
facilities of such Assignor;
(ii) instruct the obligor or obligors on any agreement,
instrument or other obligation (including, without limitation,
the Receivables and the Contracts) constituting the Collateral
to make any payment required by the terms of such instrument or
agreement directly to the Collateral Agent and may exercise any
and all remedies of such Assignor in respect of such collateral;
(iii) withdraw all moneys, securities and other
instruments in the Cash Collateral Account for application to
the Obligations in accordance with Section 7.4 hereof;
(iv) sell, assign or otherwise liquidate, or direct
such Assignor to sell, assign or otherwise liquidate, any or all
of the Collateral or any part thereof in accordance with Section
7.2 hereof, and take possession of the proceeds of any such sale
or liquidation;
(v) take possession of the Collateral or any part
thereof, by directing such Assignor in writing to deliver the
same to the Collateral Agent at any place or places designated
by the Collateral Agent, in which event such Assignor shall at
its own expense:
(A) forthwith cause the same to be moved to
the place or places so designated by the Collateral
Agent and there delivered to the Collateral Agent,
(B) store and keep any Collateral so delivered
to the Collateral Agent at such place or places pending
further action by the Collateral Agent as provided in
Section 7.2 hereof, and
(C) while the Collateral shall be so stored
and kept, provide such guards and maintenance services
as shall be necessary to protect the same and to
preserve and maintain them in good condition; and
(vi) license or sublicense whether on an exclusive or
nonexclusive basis, any Marks, Patents or Copyrights included in
the Collateral for such term and on such conditions and in such
manner as the Collateral Agent shall in its sole judgment
determine;
it being understood that such Assignor's obligation so to deliver the
Collateral is of the essence of this Agreement and that, accordingly,
upon application to a court of equity having jurisdiction, the Collateral
Agent shall be entitled to a decree requiring specific performance by
such Assignor of said obligation. The Secured Creditors agree that this
Agreement may be enforced only by the action of the Administrative Agent
or the Collateral Agent, in each case acting upon the instructions of the
Required Banks (or, after the date on which all Credit Agreement
Obligations have been paid in full, the holders of at least the majority
of the outstanding Interest Rate Obligations) and that no other Secured
Creditor shall have any right individually to seek to enforce or to
enforce this Agreement or to realize upon the security to be granted
hereby, it being understood and agreed that such rights and remedies may
be exercised by the Administrative Agent or the Collateral Agent or the
holders of at least a majority of the outstanding Interest Rate
Obligations, as the case may be, for the benefit of the Secured Creditors
upon the terms of this Agreement.
7.2 Remedies; Disposition of the Collateral. Upon the
occurrence and continuance of an Event of Default, any Collateral
repossessed by the Collateral Agent under or pursuant to Section 7.1
hereof and any other Collateral whether or not so repossessed by the
Collateral Agent, may be sold, assigned, leased or otherwise disposed of
under one or more contracts or as an entirety, and without the necessity
of gathering at the place of sale the property to be sold, and in general
in such manner, at such time or times, at such place or places and on
such terms as the Collateral Agent may, in compliance with any mandatory
requirements of applicable law, determine to be commercially reasonable.
Any of the Collateral may be sold, leased or otherwise disposed of, in
the condition in which the same existed when taken by the Collateral
Agent or after any overhaul or repair (at the expense of the relevant
Assignor) which the Collateral Agent shall determine to be commercially
reasonable. Any such disposition which shall be a private sale or other
private proceedings permitted by such requirements shall be made upon not
less than ten (10) days' written notice to the relevant Assignor
specifying the time at which such disposition is to be made and the
intended sale price or other consideration therefor, and shall be
subject, for the ten (10) days after receipt of such notice, to the right
of the relevant Assignor or any nominee of such Assignor to acquire the
Collateral involved at a price or for such other consideration at least
equal to the intended sale price or other consideration so specified. Any
such disposition which shall be a public sale permitted by such
requirements shall be made upon not less than ten (10) days' written
notice to the relevant Assignor specifying the time and place of such
sale and, in the absence of applicable requirements of law, shall be by
public auction (which may, at the Collateral Agent's option, be subject
to reserve), after publication of notice of such auction not less than 10
days prior thereto in two newspapers in general circulation in the City
of New York. To the extent permitted by any such requirement of law, the
Collateral Agent on behalf of the Secured Creditors may bid for and
become the purchaser of the Collateral or any item thereof, offered for
sale in accordance with this Section 7.2 without accountability (other
than with respect to the payment of the purchase price with respect
thereto) to the relevant Assignor. If, under mandatory requirements of
applicable law, the Collateral Agent shall be required to make
disposition of the Collateral within a period of time which does not
permit the giving of notice to the relevant Assignor as hereinabove
specified, the Collateral Agent need give such Assignor only such notice
of disposition as shall be reasonably practicable in view of such
mandatory requirements of applicable law. Each Assignor agrees to do or
cause to be done all such other acts and things as may be reasonably
necessary to make such sale or sales of all or any portion of the
Collateral valid and binding and in compliance with any and all
applicable laws, regulations, orders, writs, injunctions, decrees or
awards of any and all courts, arbitrations or governmental
instrumentalities, domestic or foreign, having jurisdiction over any such
sale or sales, all at such Assignor's expense.
7.3 Waiver of Claims. Except as otherwise provided in
this Agreement, EACH ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE
COLLATERAL AGENT'S TAKING POSSESSION OR THE COLLATERAL AGENT'S
DISPOSITION OF ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY
AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR REMEDIES
AND ANY SUCH RIGHT WHICH SUCH ASSIGNOR WOULD OTHERWISE HAVE UNDER THE
CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE, and
such Assignor hereby further waives, to the extent permitted by law:
(i) all damages occasioned by such taking of possession
except any damages which are the direct result of the Collateral
Agent's gross negligence or willful misconduct;
(ii) all other requirements as to the time, place and
terms of sale or other requirements with respect to the
enforcement of the Collateral Agent's rights hereunder; and
(iii) all rights of redemption, appraisement,
valuation, stay, extension or moratorium now or hereafter in
force under any applicable law in order to prevent or delay the
enforcement of this Agreement or the absolute sale of the
Collateral or any portion thereof, and each Assignor, for itself
and all who may claim under it, insofar as it or they now or
hereafter lawfully may, hereby waives the benefit of all such
laws.
Any sale of, or the grant of options to purchase, or any other
realization upon, any Collateral shall operate to divest all right,
title, interest, claim and demand, either at law or in equity, of the
relevant Assignor therein and thereto, and shall be a perpetual bar both
at law and in equity against such Assignor and against any and all
Persons claiming or attempting to claim the Collateral so sold, optioned
or realized upon, or any part thereof, from, through and under such
Assignor.
7.4 Application of Proceeds. (a) All moneys collected
by the Collateral Agent (or, to the extent the Mortgages or Additional
Mortgages require proceeds of collateral under such Security Documents to
be applied in accordance with the provisions of this Agreement, the
Mortgagee under such Mortgage or Additional Mortgage) upon any sale or
other disposition of the Collateral, together with all other moneys
received by the Collateral Agent hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing to
the Collateral Agent of the type described in clauses (iii) and
(iv) of the definition of "Obligation" contained in Article IX
hereof;
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount
equal to the outstanding Primary Obligations shall be paid to
the Secured Creditors as provided in Section 7.4(e) hereof, with
each Secured Creditor receiving an amount equal to such
outstanding Primary Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations, its
Pro Rata Share of the amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), an
amount equal to the outstanding Secondary Obligations shall be
paid to the Secured Creditors as provided in Section 7.4(e)
hereof, with each Secured Creditor receiving an amount equal to
its outstanding Secondary Obligations or, if the proceeds are
insufficient to pay in full all such Secondary Obligations, its
Pro Rata Share of the amount remaining to be distributed; and
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) through (iii),
inclusive, and following the termination of this Agreement
pursuant to Section 10.9(a) hereof, to the relevant Assignor or
to whomever may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement, (x) "Pro Rata
Share" shall mean, when calculating a Secured Creditor's portion of any
distribution or amount, that amount (expressed as a percentage) equal to
a fraction the numerator of which is the then unpaid amount of such
Secured Creditor's Primary Obligations or Secondary Obligations, as the
case may be, and the denominator of which is the then outstanding amount
of all Primary Obligations or Secondary Obligations, as the case may be,
(y) "Primary Obligations" shall mean (i) in the case of the Credit
Agreement Obligations, all principal of, and interest on, all Loans, all
Unpaid Drawings (together with all interest accrued thereon), and the
aggregate Stated Amounts of all Letters of Credit issued (or deemed
issued) under the Credit Agreement, and all Fees and (ii) in the case of
the Interest Rate Obligations, all amounts due under the Interest Rate
Agreements (other than indemnities, fees (including, without limitation,
attorneys' fees) and similar obligations and liabilities) and (z)
"Secondary Obligations" shall mean all Obligations other than (i) Primary
Obligations and (ii) those referred to in Section 7.4(a)(i).
(c) When payments to the Secured Creditors are based
upon their respective Pro Rata Shares, the amounts received by such
Secured Creditors hereunder shall be applied (for purposes of making
determinations under this Section 7.4 only) (i) first, to their Primary
Obligations and (ii) second, to their Secondary Obligations. If any
payment to any Secured Creditor of its Pro Rata Share of any distribution
would result in overpayment to such Secured Creditor, such excess amount
shall instead be distributed in respect of the unpaid Primary Obligations
or Secondary Obligations, as the case may be, of the other Secured
Creditors, with each Secured Creditor whose Primary Obligations or
Secondary Obligations, as the case may be, have not been paid in full to
receive an amount equal to such excess amount multiplied by a fraction
the numerator of which is the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of such Secured Creditor and the
denominator of which is the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of all Secured Creditors entitled to
such distribution.
(d) Each of the Secured Creditors agrees and
acknowledges that if the Bank Creditors are to receive a distribution on
account of undrawn amounts with respect to Letters of Credit issued (or
deemed issued) under the Credit Agreement (which shall only occur after
all outstanding Loans and Unpaid Drawings with respect to such Letters of
Credit have been paid in full), such amounts shall be paid to the
Administrative Agent under the Credit Agreement and held by it, for the
equal and ratable benefit of the Bank Creditors, as cash security for the
repayment of Obligations owing to the Bank Creditors as such. If any
amounts are held as cash security pursuant to the immediately preceding
sentence, then upon the termination of all outstanding Letters of Credit,
and after the application of all such cash security to the repayment of
all Obligations owing to the Bank Creditors after giving effect to the
termination of all such Letters of Credit, if there remains any excess
cash, such excess cash shall be returned by the Administrative Agent to
the Collateral Agent for distribution in accordance with Section 7.4(a)
hereof.
(e) Except as set forth in Section 7.4(d) hereof, all
payments required to be made hereunder shall be made (x) if to the Bank
Creditors, to the Administrative Agent under the Credit Agreement for the
account of the Bank Creditors and (y) if to the Interest Rate Creditors,
to the trustee paying agent or other similar representative (each a
"Representative") for the Interest Rate Creditors or in the absence of
such a representative, directly to the Interest Rate Creditors.
(f) For purposes of applying payments received in
accordance with this Section 7.4, the Collateral Agent shall be entitled
to rely upon (i) the Administrative Agent under the Credit Agreement and
the Secured Creditors agree (or shall agree) to provide upon request of
the Collateral Agent a statement of the outstanding Primary Obligations
and Secondary Obligations owed to the Bank Creditors or the Interest Rate
Creditors, as the case may be. Unless it has actual knowledge (including
by way of written notice from a Bank Creditor or an Interest Rate
Creditor) to the contrary, the Administrative Agent and each
Representative, in furnishing information pursuant to the preceding
sentence, and the Collateral Agent, in acting hereunder, shall be
entitled to assume that no Secondary Obligations are outstanding. Unless
it has actual knowledge (including by way of written notice from an
Interest Rate Creditor) to the contrary, the Collateral Agent, or acting
hereunder, shall be entitled to assume that no Interest Rate Agreements
are in existence.
(g) (i) It is understood that the Assignors shall
remain jointly and severally liable to the extent of any deficiency
between the amount of the proceeds of the Collateral and the amount of
the sum referred to in clause (a) of this Section 7.4 with respect to the
relevant Assignor.
7.5 Remedies Cumulative. Each and every right, power
and remedy hereby specifically given to the Collateral Agent shall be in
addition to every other right, power and remedy specifically given under
this Agreement, any Interest Rate Agreement or the other Credit Documents
or now or hereafter existing at law or in equity, or by statute and each
and every right, power and remedy whether specifically herein given or
otherwise existing may be exercised from time to time or simultaneously
and as often and in such order as may be deemed expedient by the
Collateral Agent. All such rights, powers and remedies shall be
cumulative and the exercise or the beginning of exercise of one shall not
be deemed a waiver of the right to exercise of any other or others. No
delay or omission of the Collateral Agent in the exercise of any such
right, power or remedy and no renewal or extension of any of the
Obligations shall impair any such right, power or remedy or shall be
construed to be a waiver of any Default or Event of Default or an
acquiescence therein. In the event that the Collateral Agent shall bring
any suit to enforce any of its rights hereunder and shall be entitled to
judgment, then in such suit the Collateral Agent may recover reasonable
expenses, including attorneys' fees, and the amounts thereof shall be
included in such judgment.
7.6 Discontinuance of Proceedings. In case the
Collateral Agent shall have instituted any proceeding to enforce any
right, power or remedy under this Agreement by foreclosure, sale, entry
or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason or shall have been determined adversely to the
Collateral Agent, then and in every such case the relevant Assignor, the
Collateral Agent and each holder of any of the Obligations shall be
restored to their former positions and rights hereunder with respect to
the Collateral subject to the security interest created under this
Agreement, and all rights, remedies and powers of the Collateral Agent
shall continue as if no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
8.1 Indemnity. (a) Each Assignor jointly and severally
agrees to indemnify, reimburse and hold the Collateral Agent, each other
Secured Creditor and their respective successors, assigns, employees,
officers, affiliates, agents and servants (hereinafter in this Section
8.1 referred to individually as "Indemnitee," and collectively as
"Indemnitees") harmless from any and all liabilities, obligations,
losses, damages, penalties, claims, demands, actions, suits, judgments
and any and all costs and expenses (including reasonable attorneys' fees
and expenses) (for the purposes of this Section 8.1 the foregoing are
collectively called "expenses") of whatsoever kind and nature imposed on,
asserted against or incurred by any of the Indemnitees in any way
relating to or arising out of this Agreement, or in any other way
connected with the enforcement of any of the terms of, or the
preservation of any rights hereunder, or in any way relating to or
arising out of the manufacture, ownership, ordering, purchase, delivery,
control, acceptance, lease, financing, possession, operation, condition,
sale, return or other disposition, or use of the Collateral (including,
without limitation, latent or other defects, whether or not
discoverable), the violation of the laws of any country, state or other
governmental body or unit, any tort (including, without limitation,
claims arising or imposed under the doctrine of strict liability, or for
or on account of injury to or the death of any Person (including any
Indemnitee), or property damage), or contract claim; provided that no
Indemnitee shall be indemnified pursuant to this Section 8.1(a) for
losses, damages or liabilities to the extent caused by the gross
negligence or willful misconduct of such Indemnitee. Each Assignor agrees
that upon written notice by any Indemnitee of the assertion of such a
liability, obligation, loss, damage, penalty, claim, demand, action,
judgment or suit, such Assignor shall assume full responsibility for the
defense thereof.
(b) Without limiting the application of Section 8.1(a)
hereof, each Assignor jointly and severally agrees to pay, or reimburse
the Collateral Agent for (if the Collateral Agent shall have incurred
fees, costs or expenses because such Assignor shall have failed to comply
with its obligations under this Agreement or any Credit Document), any
and all fees, costs and expenses of whatever kind or nature incurred in
connection with the creation, preservation or protection of the
Collateral Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices,
payment or discharge of any taxes or Liens upon or in respect of the
Collateral, premiums for insurance with respect to the Collateral and all
other fees, costs and expenses in connection with protecting, maintaining
or preserving the Collateral and the Collateral Agent's interest therein,
whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions, suits or proceedings arising out of or relating
to the Collateral.
(c) Without limiting the application of Section 8.1(a)
or (b), each Assignor agrees to pay, indemnify and hold each Indemnitee
harmless from and against any loss, costs, damages and expenses which
such Indemnitee may suffer, expend or incur in consequence of or growing
out of any misrepresentation by such Assignor in this Agreement, any
Interest Rate Agreement, any other Credit Document or in any writing
contemplated by or made or delivered by or on behalf of such Assignor
pursuant to or in connection with this Agreement, any Interest Rate
Agreement or any other Credit Document.
(d) If and to the extent that the obligations of any
Assignor under this Section 8.1 are unenforceable for any reason, such
Assignor hereby agrees to make the maximum contribution to the payment
and satisfaction of such obligations which is permissible under
applicable law.
8.2 Indemnity Obligations Secured by Collateral;
Survival. Any amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement shall constitute Obligations secured by
the Collateral until such time as the Collateral is released in
accordance with Section 10.9. The indemnity obligations of each Assignor
contained in this Article VIII shall continue in full force and effect
notwithstanding the full payment of all the Notes issued under the Credit
Agreement, the termination of the Interest Rate Agreements and the
payment of all of the other Obligations and notwithstanding the discharge
thereof.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings herein
specified unless the context otherwise requires. Such definitions shall
be equally applicable to the singular and plural forms of the terms
defined.
"Agreement" shall mean this Security Agreement as the
same may be modified, supplemented or amended from time to time in
accordance with its terms.
"Assignor" shall have the meaning specified in the
first paragraph of this Agreement.
"Bank Creditor" shall have the meaning provided in the
first WHEREAS clause of this Agreement.
"Business Day" means any day excluding Saturday, Sunday
and any day which shall be in the City of New York a legal holiday or a
day on which banking institutions are authorized by law to close.
"Cash Collateral Account" shall mean a non-interest
bearing cash collateral account maintained with, and in the sole dominion
and control of, the Collateral Agent for the benefit of the Secured
Creditors.
"Chattel Paper" shall have the meaning assigned that
term under the Uniform Commercial Code as in effect on the date hereof in
the State of New York or under other relevant law.
"Class" shall have the meaning provided in Section 10.2
hereof.
"Collateral" shall have the meaning provided in Section
1.1(a).
"Collateral Agent" shall have the meaning specified in
the first paragraph of this Agreement.
"Contract Rights" shall mean all rights of an Assignor
(including, without limitation, all rights to payment) under each
Contract.
"Contracts" shall mean all contracts between an
Assignor and one or more additional parties.
"Copyrights" shall mean any United States copyright to
which an Assignor now or hereafter has title, including any registration
of any copyright in the United States Copyright Office as well as any
application for a United States copyright registration now or hereafter
made by an Assignor.
"Credit Agreement" shall have the meaning provided in
the first WHEREAS clause of this Agreement.
"Credit Agreement Obligations" shall have the meaning
provided in the definition of "Obligations" in this Article IX.
"Documents" shall have the meaning assigned that term
under the Uniform Commercial Code as in effect on the date hereof in the
State of New York or under other relevant law.
"Equipment" shall mean any "equipment," as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in
the State of New York or under other relevant law, now or hereafter owned
by any Assignor and, in any event, shall include, but shall not be
limited to, all machinery, equipment, furnishings, movable trade fixtures
and vehicles now or hereafter owned by any Assignor and any and all
additions, substitutions and replacements of any of the foregoing,
wherever located, together with all attachments, components, parts,
equipment and accessories installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default
under, and as defined in, the Credit Agreement or any payment default by
the Borrower under any Interest Rate Agreement.
"Excluded Contracts" shall mean one or more Contracts
which by their terms would be breached by the grant of the security
interests created therein pursuant to the terms of this Agreement (it
being understood and agreed, however, that notwithstanding the foregoing,
all rights to payment for money due or to become due pursuant to any
Excluded Contract shall be subject to the security interests created
pursuant to this Agreement).
"Financial Asset" shall have the meaning assigned that
term under the Uniform Commercial Code as in effect on the date hereof in
the State of New York or under other relevant law.
"General Intangibles" shall have the meaning assigned
that term under the Uniform Commercial Code as in effect on the date
hereof in the State of New York or under other relevant law.
"Goods" shall have the meaning assigned that term under
the Uniform Commercial Code as in effect on the date hereof in the State
of New York or under other relevant law.
"Indemnitee" shall have the meaning provided in Section
8.1 hereof.
"Instrument" shall have the meaning assigned that term
under the Uniform Commercial Code as in effect on the date hereof in the
State of New York or under other relevant law.
"Interest Rate Creditors" shall have the meaning
provided in the second WHEREAS clause of this Agreement.
"Interest Rate Obligations" shall have the meaning
provided in the definition of "Obligations" in this Article IX.
"Inventory" shall mean merchandise, inventory and
goods, and all additions, substitutions and replacements thereof,
wherever located, together with all goods, supplies, incidentals,
packaging materials, labels, materials and any other items used or usable
in manufacturing, processing, packaging or shipping same; in all stages
of production -- from raw materials through work-in-process to finished
goods -- and all products and proceeds of whatever sort and wherever
located and any portion thereof which may be returned, rejected,
reclaimed or repossessed by the Collateral Agent from an Assignor's
customers, and shall specifically include all "inventory" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in
the State of New York or under other relevant law, now or hereafter owned
by an Assignor.
"Investment Property" shall have the meaning assigned
that term under the Uniform Commercial Code as in effect on the date
hereof in the State of New York or under other relevant law.
"Liens" shall mean any security interest, mortgage,
pledge, lien, claim, charge, encumbrance, title retention agreement,
lessor's interest in a financing lease or analogous instrument, in, of,
or on an Assignor's property.
"Marks" shall mean any trademarks and service marks now
held or hereafter acquired by an Assignor, including any registration of
or application for any trademarks or service marks in the United States
Patent and Trademark Office, as well as any unregistered trademarks and
service marks used by an Assignor in the United States and any trade
dress including logos and/or designs used by an Assignor in the United
States.
"Obligations" shall mean (i) the full and prompt
payment when due (whether at stated maturity, by acceleration or
otherwise) of all obligations (including, without limitation, obligations
which, but for the automatic stay under Section 362(a) of the Bankruptcy
Code, would become due), liabilities and indebtedness (including, without
limitation, indemnities, Fees and interest) of each Assignor, now
existing or hereafter incurred under, arising out of or in connection
with any Credit Document to which such Assignor is a party and the due
performance and compliance by such Assignor with the terms, conditions
and agreements contained in each such Credit Document (all such
obligations, liabilities and indebtedness under this clause (i), except
to the extent consisting of obligations, liabilities or indebtedness with
respect to Interest Rate Agreements, being herein collectively called the
"Credit Agreement Obligations"); (ii) the full and prompt payment when
due (whether at the stated maturity by acceleration or otherwise) of all
obligations (including obligations which, but for the automatic stay
under Section 362(a) of the Bankruptcy Code, would become due),
liabilities and indebtedness of each Assignor, now existing or hereafter
incurred under, arising out of or in connection with any Interest Rate
Agreement whether such Interest Rate Agreement is now in existence or
hereafter arising, and the due performance and compliance by such
Assignor with all of the terms, conditions and agreements contained
therein (all such obligations, indebtedness and indebtedness under this
clause (ii) being herein collectively called the "Interest Rate
Obligations"); (iii) any and all sums advanced by the Collateral Agent in
order to preserve the Collateral or preserve its security interest in the
Collateral; (iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities of each
Assignor referred to in clauses (i), (ii) and (iii), after an Event of
Default shall have occurred and be continuing, the reasonable expenses of
re-taking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the
Collateral Agent of its rights hereunder, together with reasonable
attorneys' fees and court costs; and (v) all amounts paid by any
Indemnitee as to which such Indemnitee has the right to reimbursement
under Section 8.1 of this Agreement.
"Patents" shall mean any United States patent to which
an Assignor now or hereafter has title, including any divisions,
continuations, reissues, reexaminations, extensions and renewals thereof,
as well as any application for a United States patent now or hereafter
made by an Assignor.
"Pledged Securities" shall have the meaning provided
that term in the Pledge Agreement.
"Primary Obligations" shall have the meaning provided
in Section 7.4(b) hereof.
"Proceeds" shall have the meaning assigned that term
under the Uniform Commercial Code as in effect in the State of New York
on the date hereof or under other relevant law and, in any event, shall
include, but not be limited to, (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to the Collateral
Agent or any Assignor from time to time with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever) made or
due and payable to an Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or
any part of the Collateral by any governmental authority (or any person
acting under color of governmental authority) and (iii) any and all other
amounts from time to time paid or payable under or in connection with any
of the Collateral.
"Pro Rata Share" shall have the meaning provided in
Section 7.4(b) hereof.
"Receivables" shall mean any "account" as such term is
defined in the Uniform Commercial Code as in effect on the date hereof in
the State of New York or under other relevant law, now or hereafter owned
by an Assignor and, in any event, shall include, but shall not be limited
to, all of such Assignor's rights to payment for equipment or goods sold
or leased or rented or services performed by such Assignor, whether now
in existence or arising from time to time hereafter, including, without
limitation, rights evidenced by an account, note, contract, security
agreement, chattel paper, or other evidence of indebtedness or security,
together with (a) all security pledged, assigned, hypothecated or granted
to or held by such Assignor to secure the foregoing, (b) all of such
Assignor's right, title and interest in and to any goods, the sale of
which gave rise thereto, (c) all guarantees, endorsements and
indemnifications on, or of, any of the foregoing, (d) all powers of
attorney for the execution of any evidence of indebtedness or security or
other writing in connection therewith, (e) all books, records, ledger
cards, and invoices relating thereto, (f) all notices to other creditors
or secured parties, and certificates from filing or other registration
officers, (g) all credit information, reports and memoranda relating
thereto, and (h) all other writings related in any way to the foregoing.
"Representative" shall have the meaning provided in
Section 7.4(e) hereof.
"Requisite Creditors" shall have the meaning provided
in Section 10.2 hereof.
"Secondary Obligations" shall have the meaning provided
in Section 7.4(b) hereof.
"Secured Creditors" shall have the meaning provided in
the second WHEREAS clause of this Agreement.
"Trade Secret Rights" shall have the meaning provided
in Section 5.1 of this Agreement.
ARTICLE X
MISCELLANEOUS
10.1 Notices. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the
respective parties hereto shall be deemed to have been duly given or made
when delivered to the party to which such notice, request, demand or
other communication is required or permitted to be given or made under
this Agreement, addressed to such party at its address set forth opposite
its signature below, or at such other address as any of the parties
hereto may hereafter notify the others in writing.
10.2 Waiver; Amendment. (a) None of the terms and
conditions of this Agreement may be changed, waived, modified or varied
in any manner whatsoever unless in writing duly signed by each Assignor
directly affected thereby and the Collateral Agent (with the consent of
the Required Banks or, to the extent required by Section 12.12 of the
Credit Agreement, all of the Banks), provided, however that no such
change, waiver, modification or variance shall be made to Section 7.4
hereof or this Section 10.2(a) without the consent of each Secured
Creditor adversely affected thereby, provided further that any change,
waiver, modification or variance affecting the rights and benefits of a
single Class of Secured Creditors (and not all Secured Creditors in a
like or similar manner) shall require the written consent of the
Requisite Creditors of such Class of Secured Creditors. For the purpose
of this Agreement, the term "Class" shall mean each class of Secured
Creditors, i.e., whether (x) the Bank Creditors as holders of the Credit
Agreement Obligations or (y) the Interest Rate Creditors as holders of
the Interest Rate Obligations. For the purpose of this Agreement, the
term "Requisite Creditors" of any Class shall mean each of (x) with
respect to the Credit Agreement Obligations, the Required Banks and (y)
with respect to the Interest Rate Obligations, the holders of Interest
Rate Obligations which constitute holders of a majority of all
obligations outstanding from time to time under the Interest Rate
Agreements.
(b) No delay on the part of the Collateral Agent in
exercising any of its rights, remedies, powers and privileges hereunder
or partial or single exercise thereof, shall constitute a waiver thereof.
No notice to or demand on any Assignor in any case shall entitle it to
any other or further notice or demand in similar or other circumstances
or constitute a waiver of any of the rights of the Collateral Agent to
any other or further action in any circumstances without notice or
demand.
10.3 Obligations Absolute. The obligations of each
Assignor hereunder shall remain in full force and effect without regard
to, and shall not be impaired by, (a) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or
the like of any Assignor; (b) any exercise or non-exercise, or any waiver
of, any right, remedy, power or privilege under or in respect of this
Agreement or any other Credit Document or any Interest Rate Agreement; or
(c) any amendment to or modification of any Credit Document or any
Interest Rate Agreement or any security for any of the Obligations;
whether or not any Assignor shall have notice or knowledge of any of the
foregoing. The rights and remedies of the Collateral Agent herein
provided are cumulative and not exclusive of any rights or remedies which
the Collateral Agent would otherwise have.
10.4 Successors and Assigns. This Agreement shall be
binding upon each Assignor and its successors and assigns and shall inure
to the benefit of the Collateral Agent (for the benefit of the Secured
Creditors) and its permitted successors and assigns, provided that no
Assignor may transfer or assign any or all of its rights or obligations
hereunder without the written consent of the Collateral Agent. All
agreements, statements, representations and warranties made by such
Assignor herein or in any certificate or other instrument delivered by
each Assignor or on its behalf under this Agreement shall be considered
to have been relied upon by the Secured Creditors and shall survive the
execution and delivery of this Agreement and the other Credit Documents
regardless of any investigation made by the Secured Creditors on their
behalf.
10.5 Headings Descriptive. The headings of the several
sections of this Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of
this Agreement.
10.6 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
10.7 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
10.8 Assignor's Duties. It is expressly agreed,
notwithstanding anything herein contained to the contrary, that each
Assignor shall remain liable to perform all of the obligations, if any,
assumed by it with respect to the Collateral and the Collateral Agent
shall not have any obligations or liabilities with respect to any
Collateral by reason of or arising out of this Agreement, nor shall the
Collateral Agent be required or obligated in any manner to perform or
fulfill any of the obligations of any Assignor under or with respect to
any Collateral.
10.9 Termination; Release. (a) After the termination of
the Total Revolving Commitment and each Interest Rate Agreement, when no
Note or Letter of Credit is outstanding and when all Loans and other
Obligations have been paid in full, this Agreement shall terminate, and
the Collateral Agent, at the request and expense of the relevant
Assignor, will execute and deliver to such Assignor a proper instrument
or instruments (including Uniform Commercial Code termination statements
on form UCC-3) acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Assignor
(without recourse and without any representation or warranty) such of the
Collateral as may be in the possession of the Collateral Agent and as has
not theretofore been sold or otherwise applied or released pursuant to
this Agreement.
(b) So long as no payment default on any of the
Obligations is in existence or would exist after the application of
proceeds as provided below, the Collateral Agent shall, at the request of
the Assignors, release any or all of the Collateral, provided that (x)
such release is permitted by the terms of the Credit Agreement (it being
agreed for such purposes that a release will be deemed "permitted by the
terms of the Credit Agreement" if the proposed transaction is permitted
by Section 8.02 of the Credit Agreement) or otherwise has been approved
in writing by the Required Banks or, to the extent required by Section
12.12 of the Credit Agreement, all of the Banks and (y) the proceeds of
such Collateral are applied as required pursuant to the Credit Agreement
or any consent or waiver with respect thereto.
(c) At any time that the relevant Assignor desires that
the Collateral Agent take any action to give effect to any release of
Collateral pursuant to the foregoing Section 10.9(a) or (b), it shall
deliver to the Collateral Agent a certificate signed by an authorized
officer stating that the release of the respective Collateral is
permitted pursuant to Section 10.9(a) or (b). In the event that any part
of the Collateral is released as provided in the preceding paragraph (b),
the Collateral Agent, at the request and expense of such Assignor, will
duly assign, transfer and deliver to such Assignor or its designee
(without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold or otherwise disposed
of and as may be in the possession of the Collateral Agent and has not
theretofore been released pursuant to this Agreement. The Collateral
Agent shall have no liability whatsoever to any Secured Creditor as the
result of any release of Collateral by it as permitted by this Section
10.9. Upon any release of Collateral pursuant to Section 10.9(a) or (b),
none of the Secured Creditors shall have any continuing right or interest
in such Collateral, or the proceeds thereof.
10.10 Collateral Agent. By accepting the benefits of
this Agreement, each Secured Creditor acknowledges and agrees that the
rights and obligations of the Collateral Agent shall be as set forth in
Section 11 of the Credit Agreement. Notwithstanding anything to the
contrary contained in Section 10.2 of this Agreement or Section 12.12 of
the Credit Agreement, this Section 10.10, and the duties and obligations
of the Collateral Agent set forth in this Section 10.10, may not be
amended or modified without the consent of the Collateral Agent.
10.11 Additional Assignors. It is understood and agreed
that any Subsidiary of the Borrower that is required to execute a
counterpart of this Agreement after the date hereof pursuant to the
Credit Agreement shall automatically become an Assignor hereunder by
executing a counterpart hereof and delivering the same to the Collateral
Agent.
10.12 Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered shall
be an original, but all of which shall together constitute one and the
same instrument. A set of counterparts executed by all the parties hereto
shall be lodged with the Borrower and the Collateral Agent.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers
as of the date first above written.
Addresses:
1250 Northland Plaza UNIVERSAL HOSPITAL SERVICES, INC.,
0000 Xxxx 00xx Xxxxxx as an Assignor
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx,
Chief Executive Officer By_______________________________
Tel: (000) 000-0000 Title:
Fax: (000) 000-0000
Accepted and Agreed to:
Bankers Trust Company BANKERS TRUST COMPANY,
000 Xxxxxxx Xxxxxx as Collateral Agent
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx
Tel: (000) 000-0000 By________________________
Fax: (000) 000-0000 Title:
Annex A
TO
SECURITY AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE
OFFICES AND RECORD LOCATIONS
Address County/State
Annex B
TO
SECURITY AGREEMENT
SCHEDULE OF EQUIPMENT
AND INVENTORY LOCATIONS
Address County/State
Annex C
TO
SECURITY AGREEMENT
LIST OF TRADE AND FICTITIOUS NAMES
Name Jurisdiction Where Used
ANNEX D
TO
SECURITY AGREEMENT
SCHEDULE OF MARKS
Trademark Name TM Number Type of TM Issue Date Expiration Date
-------------- --------- --------- ---------- ---------------
Annex E
TO
SECURITY AGREEMENT
SCHEDULE OF PATENTS AND APPLICATIONS
U.S. Patent No. Description Issue Date Expiration Date
Annex F
TO
SECURITY AGREEMENT
LIST OF COPYRIGHTS AND APPLICATIONS
REGISTRATION NUMBERS PUBLICATION DATE COPYRIGHT TITLE
ANNEX G
TO
SECURITY AGREEMENT
FORM OF GRANT OF SECURITY
INTEREST IN TRADEMARKS
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, ________________________, a
________ corporation (the "Grantor") with principal offices at
_________________________, hereby grants to Bankers Trust Company, as
Collateral Agent (the "Grantee") with principal offices at One Bankers
Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, a security
interest in (i) all of the Grantor's right, title and interest in and to
the trademarks, trademark registrations and trademark applications (the
"Marks") set forth on Schedule A attached hereto, in each case together
with (ii) all Proceeds (as such term is defined in the Security Agreement
referred to below) of the Marks, (iii) all causes of action arising prior
to or after the date hereof for infringement of any of the Marks or
unfair competition regarding the same, and (iv) the goodwill of the
business with which the Marks are associated.
THIS GRANT, effective as of _________, ____, is made to
secure the satisfactory performance and payment of all the Obligations of
the Grantor, as such term is defined in the Security Agreement among the
Grantor, the other assignors from time to time party thereto and the
Grantee, dated as of February 25, 1998 (as amended from time to time, the
"Security Agreement"). Upon the occurrence of the termination of the
Security Agreement pursuant to the terms thereof, the Grantee shall, upon
such satisfaction, execute, acknowledge, and deliver to the Grantor an
instrument in writing releasing the security interest in the Marks
acquired under this Grant.
This Grant has been granted in conjunction with the
security interest granted to the Grantee under the Security Agreement.
The rights and remedies of the Grantee with respect to the security
interest granted herein are without prejudice to, and are in addition to,
those set forth in the Security Agreement, all of the terms and
provisions of which are incorporated herein by reference. In the event
that any provisions of this Grant are deemed to conflict with the
Security Agreement, the provisions of the Security Agreement shall
govern.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the ____ day of ________, ____.
[NAME OF GRANTOR]
as Grantor,
By_________________________
Title:
BANKERS TRUST COMPANY,
as Collateral Agent and as Grantee
By__________________________
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of ________, ____, before me
personally came _________________ who, being by me duly sworn, did state
as follows: that [s]he is the [title of signatory] of [Name of Grantor],
that [s]he is authorized to execute the foregoing Grant on behalf of said
corporation and that [s]he did so by authority of the Board of Directors
of said corporation.
-------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of ________, ____, before me
personally came _________________ who, being by me duly sworn, did state
as follows: that [s]he is the [title of signatory] of BANKERS TRUST
COMPANY, that [s]he is authorized to execute the foregoing Grant on
behalf of said company and that [s]he did so by authority of said
company.
-------------------------
Notary Public
SCHEDULE A
Trademarks and Trademark Applications
Owned By [Name of Grantor]
Trademark Name TM Number Type of TM. Issue Date Expiration Date
-------------- --------- ---------- ---------- ---------------
ANNEX H
TO
SECURITY AGREEMENT
GRANT OF SECURITY INTEREST
IN PATENTS
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and
sufficiency of which are hereby acknowledged, ______________, a
___________ corporation, (the "Grantor") with principal offices at
_______________________________, hereby grants to Bankers Trust Company,
as Collateral Agent (the "Grantee") with principal offices at One Bankers
Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, a security
interest in (i) all of the Grantor's right, title and interest in and to
the patents and patent applications (the "Patents") set forth on Schedule
A attached hereto, in each case together with (ii) all Proceeds (as such
term is defined in the Security Agreement referred to below) of the
Patents and (iii) all causes of action arising prior to or after the date
hereof for infringement of any of the Patents or unfair competition
regarding the same.
THIS GRANT, effective as of ________, ____, is made to
secure the satisfactory performance and payment of all the Obligations of
the Grantor, as such term is defined in the Security Agreement among
Grantor, the other assignors from time to time party thereto and the
Grantee, dated as of February 25, 1998 (as amended from time to time, the
"Security Agreement"). Upon the occurrence of the termination of the
Security Agreement pursuant to the terms thereof, the Grantee shall, upon
such satisfaction, execute, acknowledge, and deliver to the Grantor an
instrument in writing releasing the security interest in the Patents
acquired under this Grant.
This Grant has been granted in conjunction with the
security interest granted to the Grantee under the Security Agreement.
The rights and remedies of the Grantee with respect to the security
interest granted herein are without prejudice to, and are in addition to
those set forth in, the Security Agreement, all of the terms and
provisions of which are incorporated herein by reference. In the event
that any provisions of this Grant are deemed to conflict with the
Security Agreement, the provisions of the Security Agreement shall
govern.
IN WITNESS WHEREOF, the undersigned have executed this
Grant as of the __ day of ___________, ____.
[NAME OF GRANTOR],
as Grantor
By_________________________
Title:
BANKERS TRUST COMPANY,
as Collateral Agent and as Grantee
By__________________________
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _____________, ____, before me
personally came _________________ who, being by me duly sworn, did state
as follows: that [s]he is the [title of signatory] of
____________________, that [s]he is authorized to execute the foregoing
Grant on behalf of said corporation and that [s]he did so by authority of
the Board of Directors of said corporation.
-------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of ___________, ____, before me
personally came _________________ who, being by me duly sworn, did state
as follows: that [s]he is the [title of signatory] of BANKERS TRUST
COMPANY, that [s]he is authorized to execute the foregoing Grant on
behalf of said company and that [s]he did so by authority of said
company.
-------------------------
Notary Public
Schedule A
Patents and Patent Applications
Owned By [Name of Grantor]
U.S. Patent No. Description Issue Date Expiration Date
ANNEX I
TO
SECURITY AGREEMENT
FORM OF GRANT OF SECURITY
INTEREST IN COPYRIGHTS
WHEREAS, _______________, a _______________ corporation
(the "Grantor"), having its chief executive office at , is the owner of
all right, title and interest in and to the United States copyrights and
associated United States copyright registrations and applications for
registration set forth in Schedule A attached hereto;
WHEREAS, BANKERS TRUST COMPANY, as Collateral Agent,
having its principal offices at One Bankers Trust Plaza, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Grantee"), desires to acquire a
security interest in said copyrights and copyright registrations and
applications therefor; and
WHEREAS, the Grantor is willing to grant to the Grantee
a security interest in and lien upon the copyrights and copyright
registrations and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration,
the receipt of which is hereby acknowledged, and subject to the terms and
conditions of the Security Agreement, dated as of February 25, 1998, made
by the Grantor, the other assignors from time to time party thereto and
the Grantee (as amended from time to time, the "Security Agreement"), the
Grantor hereby grants to the Grantee a security interest in the
copyrights and copyright registrations and applications therefor set
forth in Schedule A attached hereto.
This Grant has been granted in conjunction with the
security interest granted to the Grantee under the Security Agreement.
The rights and remedies of the Grantee with respect to the security
interest granted herein are without prejudice to, and are in addition to,
those set forth in the Security Agreement, all of the terms and
provisions of which are incorporated herein by reference. In the event
that any provisions of this Grant are deemed to conflict with the
Security Agreement, the provisions of the Security Agreement shall
govern.
IN WITNESS WHEREOF, the undersigned have executed this
Grant as of the _____ day of _________, _____.
[NAME OF GRANTOR],
as Assignor
By__________________________
Title:
BANKERS TRUST COMPANY,
as Collateral Agent and as Grantee
By__________________________
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ______ day of _________, _____ before me
personally came _______________, who being duly sworn, did depose and say
that [s]he is the [title of signatory] of [Name of Grantor], that [s]he
is authorized to execute the foregoing Grant on behalf of said
corporation and that [s]he did so by authority of the Board of Directors
of said corporation.
-------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _____________, ____, before me
personally came _________________ who, being by me duly sworn, did state
as follows: that [s]he is the [title of signatory] of BANKERS TRUST
COMPANY, that [s]he is authorized to execute the foregoing Grant on
behalf of said company and that [s]he did so by authority of said
company.
-------------------------
Notary Public
SCHEDULE A
U.S. Copyrights and Copyright Applications
of [Name of Grantor]
REGISTRATION PUBLICATION
NUMBERS DATE COPYRIGHT TITLE
TABLE OF CONTENTS
Page
ARTICLE I SECURITY INTERESTS............................................2
1.1 Grant of Security Interests...................................2
1.2 Power of Attorney.............................................2
ARTICLE II GENERAL REPRESENTATIONS, WARRANTIESAND COVENANTS.............3
2.1 Necessary Filings.............................................3
2.2 No Liens......................................................3
2.3 Other Financing Statements....................................3
2.4 Chief Executive Office; Records...............................3
2.5 Location of Inventory and Equipment...........................4
2.6 Trade Names; Change of Name...................................4
2.7 Recourse......................................................5
ARTICLE III SPECIAL PROVISIONS CONCERNINGRECEIVABLES;
CONTRACT RIGHTS; INSTRUMENTS................................5
3.1 Additional Representations and Warranties.....................5
3.2 Maintenance of Records........................................5
3.3 Modification of Terms; etc....................................6
3.4 Collection....................................................6
3.5 Direction to Account Debtors; etc.............................6
3.6 Instruments...................................................7
3.7 Further Actions...............................................7
ARTICLE IV SPECIAL PROVISIONS CONCERNING TRADEMARKS....................7
4.1 Additional Representations and Warranties.....................7
4.2 Licenses and Assignments......................................7
4.3 Infringements.................................................7
4.4 Preservation of Marks.........................................8
4.5 Maintenance of Registration...................................8
4.6 Future Registered Marks.......................................8
4.7 Remedies......................................................8
ARTICLE V SPECIAL PROVISIONS CONCERNINGPATENTS AND COPYRIGHTS..........9
5.1 Additional Representations and Warranties.....................9
5.2 Licenses and Assignments......................................9
5.3 Infringements.................................................9
5.4 Maintenance of Patents........................................9
5.5 Prosecution of Patent Application............................10
5.6 Other Patents and Copyrights.................................10
5.7 Remedies.....................................................10
ARTICLE VI PROVISIONS CONCERNING ALL COLLATERAL.......................11
6.1 Protection of Collateral Agent's Security....................11
6.2 Warehouse Receipts Non-negotiable............................11
6.3 Further Actions..............................................11
6.4 Financing Statements.........................................11
ARTICLE VII REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT...............12
7.1 Remedies; Obtaining the Collateral Upon Default..............12
7.2 Remedies; Disposition of the Collateral......................13
7.3 Waiver of Claims.............................................14
7.4 Application of Proceeds......................................15
7.5 Remedies Cumulative..........................................17
7.6 Discontinuance of Proceedings................................17
ARTICLE VIII INDEMNITY ...............................................18
8.1 Indemnity....................................................18
8.2 Indemnity Obligations Secured by Collateral; Survival........19
ARTICLE IX DEFINITIONS .............................................. 19
ARTICLE X MISCELLANEOUS ........................................... 24
10.1 Notices.....................................................24
10.2 Waiver; Amendment...........................................24
10.3 Obligations Absolute........................................24
10.4 Successors and Assigns......................................25
10.5 Headings Descriptive........................................25
10.6 Severability................................................25
10.7 Governing Law...............................................25
10.8 Assignor's Duties...........................................25
10.9 Termination; Release........................................26
10.10 Collateral Agent............................................26
10.11 Additional Assignors........................................26
10.12 Counterparts................................................27
ANNEX A Schedule of Chief Executive Offices and Record Locations
ANNEX B Schedule of Equipment and Inventory Locations
ANNEX C List of Trade and Fictitious Names
ANNEX D List of Trademarks and Applications
ANNEX E List of Patents and Applications
ANNEX F List of Copyrights and Applications
ANNEX G Form of Grant of Security Interest in Trademarks
ANNEX H Form of Grant of Security Interest in Patents
ANNEX I Form of Grant of Security Interest in Copyrights
Exhibit J
FORM OF OFFICER'S SOLVENCY CERTIFICATE
I, the undersigned, the [Chief Executive Officer]
[Chief Financial Officer] of Universal Hospital Services, Inc., a
Minnesota corporation (the "Borrower"), do hereby certify on behalf of
the Borrower that:
1. This Certificate is furnished to the Administrative
Agent and each of the Banks pursuant to Section 5.18 of the Credit
Agreement, dated as of February 25, 1998, among the Borrower, the various
lenders from time to time party thereto (the "Banks") and Bankers Trust
Company, as Administrative Agent (such Credit Agreement, as in effect on
the date of this Certificate, being herein called the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used in
this Certificate shall have the meanings set forth in the Credit
Agreement.
2. For purposes of this Certificate, the terms below
shall have the following definitions:
(a) "Fair Value"
The amount at which the assets, in their entirety, of
each of the Borrower on a stand-alone basis and the
Borrower and its Subsidiaries taken as a whole would
change hands between a willing buyer and a willing
seller, within a commercially reasonable period of
time, each having reasonable knowledge of the relevant
facts, with neither being under any compulsion to act.
(b) "Present Fair Salable Value"
The amount that could be obtained by an independent
willing seller from an independent willing buyer if the
assets of each of the Borrower on a stand-alone basis
and the Borrower and its Subsidiaries taken as a whole
are sold with reasonable promptness under normal
selling conditions in a current market.
(c) "New Financing"
The Indebtedness incurred or to be incurred by the
Borrower and its Subsidiaries under the Credit
Documents (assuming the full utilization by the
Borrower of the Total Revolving Commitment under the
Credit Agreement) and the Senior Notes Documents and
all other financings contemplated by the Documents, in
each case after giving effect to the Transaction.
(d) "Stated Liabilities"
The recorded liabilities (including contingent
liabilities that would be recorded in accordance with
generally accepted accounting principles ("GAAP")) of
each of the Borrower on a stand-alone basis and the
Borrower and its Subsidiaries taken as a whole as of
the date hereof after giving effect to the consummation
of the Transaction, determined in accordance with GAAP
consistently applied, together with the amount of all
Obligations.
(e) "Identified Contingent Liabilities"
The maximum estimated amount of liabilities reasonably
likely to result from pending litigation, asserted
claims and assessments, guaranties, uninsured risks and
other contingent liabilities of each of the Borrower on
a stand-alone basis and the Borrower and its
Subsidiaries taken as a whole after giving effect to
the Transaction (exclusive of such contingent
liabilities to the extent reflected in Stated
Liabilities).
(f) "Will be able to pay their respective Stated
Liabilities and Identified Contingent Liabilities as
they mature or otherwise become due and payable"
Each of the Borrower on a stand-alone basis and the
Borrower and its Subsidiaries taken as a whole will
have sufficient assets and cash flow to pay their
respective Stated Liabilities and Identified Contingent
Liabilities as those liabilities mature or otherwise
become due and payable.
(g) "Does not have Unreasonably Small Capital"
Each of the Borrower on a stand-alone basis and the
Borrower and its Subsidiaries taken as a whole, after
consummation of the Transaction and all Indebtedness
(including the Loans and the indebtedness evidenced by
the Senior Notes) being incurred or assumed and Liens
created by the Borrower and its Subsidiaries in
connection therewith, is a going concern and has
sufficient capital to ensure that it will continue to
be a going concern for such period and to remain a
going concern.
3. For purposes of this Certificate, I, or other
officers or employees of the Borrower under my direction and supervision,
have performed the following procedures as of and for the periods set
forth below.
(a) I have reviewed the financial statements (including the
pro forma financial statements) and the Projections.
(b) I have made inquiries of certain officials of the
Borrower and its Subsidiaries who have responsibility
for financial and accounting matters regarding the
existence and amount of Identified Contingent
Liabilities associated with the business of the
Borrower and its Subsidiaries.
(c) I have knowledge of and have reviewed to my
satisfaction the Credit Documents, the Senior Notes
Documents and the Recapitalization Documents, and the
respective schedules and exhibits thereto.
(d) With respect to Identified Contingent Liabilities, I:
(1) inquired of certain officials of the Borrower
and its Subsidiaries who have responsibility for
legal, financial and accounting matters as to
the existence and estimated liability with
respect to all contingent liabilities associated
with the business of the Borrower and its
Subsidiaries; and
(2) confirmed with officers of the Borrower and its
Subsidiaries that, to the best of such officers'
knowledge, (i) all appropriate items were
included in Stated Liabilities or Identified
Contingent Liabilities and that (ii) the amounts
relating thereto were the maximum estimated
amount of liabilities reasonably likely to
result therefrom as of the date hereof.
(e) I have made inquiries of certain officers of the
Borrower and its Subsidiaries who have responsibility
for financial reporting and accounting matters
regarding whether they were aware of any events or
conditions that, as of the date hereof, would cause
either of the Borrower on stand-alone basis or the
Borrower and its Subsidiaries taken as a whole, after
giving effect to the consummation of the Transaction
and the related financing transactions (including the
making of Loans under the Credit Agreement and the
issuance of the Senior Notes), to (i) have assets with
a Fair Value or Present Fair Salable Value that are
less than Stated Liabilities and Identified Contingent
Liabilities; (ii) have Unreasonably Small Capital; or
(iii) not be able to pay its Stated Liabilities and
Identified Contingent Liabilities as they mature or
otherwise become due and payable.
4. Based on and subject to the foregoing, I hereby
certify on behalf of the Borrower that, after giving effect to the
consummation of the Transaction and the related financing transactions
(including the making of Loans under the Credit Agreement and the
issuance of the Senior Notes), it is my opinion that (i) the Fair Value
and Present Fair Salable Value of the assets of each of the Borrower on a
stand-alone basis and the Borrower and its Subsidiaries taken as a whole
exceed their respective Stated Liabilities and Identified Contingent
Liabilities; (ii) each of the Borrower on a stand-alone basis and the
Borrower and its Subsidiaries taken as a whole Does not have Unreasonably
Small Capital; and (iii) each of the Borrower on a stand-alone basis and
the Borrower and its Subsidiaries taken as a whole Will be able to pay
their respective Stated Liabilities and Identified Contingent Liabilities
as they mature or otherwise become due and payable.
IN WITNESS WHEREOF, I have hereto set my hand this 25th
day of February, 1998 on behalf of Borrower.
UNIVERSAL HOSPITAL SERVICES, INC.
By:__________________________
Name:
Title: Chief [Executive] [Financial] Officer
Exhibit K
BORROWING BASE CERTIFICATE AS OF [DATE]
To: The Banks party to the Credit Agreement, dated as of February
25, 1998, among Universal Hospital Services, Inc. (the
"Borrower"), the financial institutions from time to time party
thereto (the "Banks") and Bankers Trust Company, as
Administrative Agent (the "Credit Agreement").1
Amount in
U.S. Dollars
1. Accounts Receivable
Total face amount of all receivables $___________
of the Borrower and the Subsidiary
Guarantors arising from the rental of
Rental Equipment by the Borrower or
any Subsidiary Guarantor in the
ordinary course of business so long
as such receivables conform to the
representations and warranties
contained in the Security Agreement
(including, without limitation, that
the Collateral Agent shall have and
maintain a first priority perfected
security interest in all such
receivables);
Less:
(a) Receivables which the ($________)
Collateral Agent has
identified to the Borrower as
not being acceptable to the
Collateral Agent in its
reasonable judgment;
(b) Returns, discounts, claims, ($________)
credit and allowances of any
nature (whether issued, owing,
granted or outstanding);
(c) Reserves for chargebacks, ($________)
deferred revenue, contras and
any other matter which affects
the creditworthiness of
account debtors owing the
receivables;
(d) Receivables from the rental of ($________)
Rental Equipment or the sale
of Inventory to any Affiliate;
(e) Receivables which are not due ($________)
by their terms or have not
been paid in full within 180
days of the invoice date
therefor (and all other
receivables due from any
account debtor whose
receivables are past due if
50% or more of such account
debtor's receivables are so
past due) or which have been
disputed or made subject to
set-off (to the extent
thereof);
(f) Receivables from any party ($________)
subject to any bankruptcy,
receivership, insolvency or
like proceedings by the
account debtor;
(g) Receivables owing by account ($________)
debtors outside the United
States and Canada;
(h) Receivables arising out of a ($________)
sale, lease or rental for
which no invoice has been
provided to the account
debtor; and
(i) Receivables due from an ($________)
account debtor whose
receivables constitute 15% or
more of all receivables of the
Borrower and the Subsidiary
Guarantors unless supported or
secured by insurance
acceptable to the
Administrative Agent or an
irrevocable letter of credit
in form and substance
acceptable to the
Administrative Agent, issued
by financial institution
satisfactory to the
Administrative Agent and duly
pledged to the Collateral
Agent (together with
sufficient documentation to
permit direct draws by the
Collateral Agent).
2. Eligible Receivables $___________
(Net Amount of No. 1)
3. 85% of Eligible Receivables $___________
4. Rental Equipment
All Rental Equipment of the Borrower $___________
and the Subsidiary Guarantors which is
held by the Borrower or any Subsidiary
Guarantor (other than for sale) or is
rented to third Persons in the
ordinary course of business by the
Borrower or any Subsidiary Guarantor
or which is the subject of an
equipment rental program or similar
equipment outsourcing program, and
which conforms to the representations
and warranties contained in the
Security Agreement (valued on a net
book value basis consistent with the
Borrower's consolidated month-end
balance sheet).
Less:
(a) Rental Equipment which the ($_______)
Collateral Agent has
identified to the Borrower as
not being acceptable to the
Collateral Agent in its
reasonable judgment;
(b) The net book value of the ($_______)
Borrower's "Bazooka Bed"
inventory;
(c) Reserves for Rental Equipment ($_______)
that is unrentable, obsolete,
slow moving or under repair;
and
(d) Any additional reserves ($_______)
required by the Administrative
Agent (and identified to the
Borrower as so required) in
the exercise of its reasonable
discretion pursuant to the
proviso contained in the
definition of Borrowing Base
contained in the Credit
Agreement.
5. Eligible Rental Equipment $________
(Net Amount of No. 4)
6. 50% of Eligible Rental Equipment $________
7. Borrowing Base $________
(Sum of No. 3 and No. 6)
8. Total of Revolving Loans, Swingline Loans and Letter of Credit $________
Outstandings
9. Borrowing Base Surplus (Deficiency) $________
(No. 7 minus No. 8)
The undersigned hereby certifies that all of the information provided
above is true and correct as of the date first above written.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her
hand this 25th day of February, 1998.
UNIVERSAL HOSPITAL SERVICES, INC.
By:_______________________________
Name:
Title: Chief Financial Officer
------------------------
1 All capitalized terms used herein shall have the meaning provided
therefor in the Credit Agreement.
Exhibit L
FORM OF ASSIGNMENT AGREEMENT
DATE: ________, ____
Reference is made to the Credit Agreement described in Item 2 of
Annex I attached hereto (as such Credit Agreement may hereafter be
amended, modified or supplemented from time to time, the "Credit
Agreement"). Unless defined in Annex I attached hereto, terms defined in
the Credit Agreement are used herein as therein defined. ________ (the
"Assignor") and ______________ (the "Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without
recourse and without representation or warranty (other than as expressly
provided herein), and the Assignee hereby purchases and assumes from the
Assignor, that interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the date hereof which
represents the percentage interest specified in Item 4 of Annex I
attached hereto (the "Assigned Share") of all of Assignor's outstanding
rights and obligations under the Credit Agreement indicated in Item 4 of
such Annex I, including, without limitation, all rights and obligations
with respect to the Assigned Share of the Assignor's outstanding
Revolving Commitment and of the Revolving Loans, Swingline Loans and
Letters of Credit related thereto.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any liens or security interests;
(ii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or
in connection with the Credit Agreement or the other Credit Documents or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or the other Credit
Documents or any other instrument or document furnished pursuant thereto;
and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or
any of its Subsidiaries or the performance or observance by the Borrower
or any of its Subsidiaries of any of its obligations under the Credit
Agreement or the other Credit Documents or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) represents and warrants that it is duly
authorized to enter into and perform the terms of this Assignment
Agreement; (ii) confirms that it has received a copy of the Credit
Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment Agreement; (iii) agrees that
it will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the Credit
Agreement; (iv) appoints and authorizes the Administrative Agent and the
Collateral Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement and the other Credit
Documents as are delegated to the Administrative Agent and the Collateral
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto [;] [and] (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Bank[; and
(v) to the extent legally entitled to do so, attaches the forms described
in Section 12.04(b) of the Credit Agreement.1
4. Following the execution of this Assignment Agreement by the
Assignor and the Assignee, an executed original hereof (together with all
attachments) will be delivered to the Administrative Agent. The effective
date of this Assignment Agreement shall be the date of the execution
hereof by the Assignor and the Assignee, the consent hereof by the
Administrative Agent (which consent will not be unreasonably withheld),
the recordation by the Administrative Agent of the assignment effected
hereby in the Register and the receipt by the Administrative Agent of the
nonrefundable assignment fee referred to in Section 12.04(b) of the
Credit Agreement, unless another effective date is specified in Item 5 of
Annex I attached hereto (the "Settlement Date").
5. Upon the delivery of a fully executed original hereof to the
Administrative Agent, as of the Settlement Date, (i) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment Agreement, have the rights and obligations of a Bank
thereunder and under the other Credit Documents and (ii) the Assignor
shall, to the extent provided in this Assignment Agreement, relinquish
its rights and be released from its obligations under the Credit
Agreement and the other Credit Documents.
6. It is agreed that upon the effectiveness hereof, the Assignee
shall be entitled to (x) all interest on the Assigned Share of the
Revolving Loans at the rates specified in Item 6 of Annex I attached
hereto, (y) all Commitment Commission (if applicable) on the Assigned
Share of the Revolving Commitment at the rate specified in Item 7 of
Annex I attached hereto, and (z) all Letter of Credit Fees (if
applicable) on the Assignee's participation in all Letters of Credit at
the rate specified in Item 8 of Annex I attached hereto, which, in each
case, accrue on and after the Settlement Date, such interest and, if
applicable, Commitment Commission and Letter of Credit Fees, to be paid
by the Administrative Agent directly to the Assignee. It is further
agreed that all payments of principal made by the Borrower on the
Assigned Share of the Revolving Loans which occur on and after the
Settlement Date will be paid directly by the Administrative Agent to the
Assignee. Upon the Settlement Date, the Assignee shall pay to the
Assignor an amount specified by the Assignor in writing which represents
the Assigned Share of the principal amount of the Revolving Loans made by
the Assignor pursuant to the Credit Agreement which are outstanding on
the Settlement Date, net of any closing costs, and which are being
assigned hereunder. The Assignor and the Assignee shall make all
appropriate adjustments in payments under the Credit Agreement for
periods prior to the Settlement Date directly between themselves.
7. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
[NAME OF ASSIGNOR],
as Assignor
By____________________________
Title:
[NAME OF ASSIGNEE],
as Assignee
By____________________________
Title:
Acknowledged and Agreed:
BANKERS TRUST COMPANY,
as Administrative Agent
By____________________________
Title:
Annex I
ANNEX FOR ASSIGNMENT AGREEMENT
1. The Borrower: Universal Hospital Services, Inc.
2. Name and Date of Credit Credit Agreement, dated as of
Agreement: February 25, 1998, among
Universal Hospital Services,
Inc., the Banks from time to
time party thereto and
Bankers Trust Company, as
Administrative Agent.
3. Date of Assignment _________ ___, ______
Agreement:
4. Amounts (as of date
of item #3 above): Revolving Commitment
a. Aggregate Amount for
all Banks $___________
Assigned Share
---------%
Amount of
Assigned Share $___________
5. Settlement Date: _________ ___, ______
6. Rate of Interest to the As set forth in Section 1.08
Assignee: of the Credit Agreement
(unless otherwise agreed to
by the Assignor and the
Assignee).2
7. Commitment Commission As set forth in Section
3.01(a) of the Credit
Agreement (unless otherwise
agreed to by the Assignor and
the Assignee).3
8. Letter of Credit Fees: As set forth in Section
3.01(b) of the Credit
Agreement(unless otherwise
agreed to by the Assignor and
the Assignee).4
9. Notices:
ASSIGNOR:
===================
===================
Attention:
Telephone No.:
Facsimile No.:
ASSIGNEE:
===================
===================
Attention
Telephone No.:
Facsimile No.:
10. Payment Instructions:
ASSIGNOR:
===================
===================
ABA No.:
Account No.:
Reference:
Attention:
ASSIGNEE:
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ABA No.:
Account No.:
Reference:
Attention:
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1 If the Assignee is organized under the laws of a jurisdiction
outside the United States.
2 The Borrower and the Administrative Agent shall direct the entire
amount of interest payable under the Credit Agreement to the
Assignee at the rate set forth in Section 1.08 of the Credit
Agreement, with the Assignor and Assignee effecting any agreed upon
sharing of interest through payments by the Assignee to the
Assignor.
3 The Borrower and the Administrative Agent shall direct the entire
amount of the Commitment Commission payable under the Credit
Agreement to the Assignee at the rate set forth in Section 3.01(a)
of the Credit Agreement, with the Assignor and the Assignee
effecting any agreed upon sharing of Commitment Commission through
payment by the Assignee to the Assignor.
4 The Borrower and the Administrative Agent shall direct the entire amount
of the Letter of Credit Fees payable under the Credit Agreement to the
Assignee at the rate set forth in Section 3.01(b) of the Credit Agreement,
with the Assignor and the Assignee effecting any agreed upon sharing of
the Letter of Credit Fees through payment by the Assignee to the
Assignor.
