Exhibit 10.1
$75,000,000
SENIOR SECURED PRIMING DEBTOR-IN-POSSESSION CREDIT AGREEMENT
Dated as of July 5, 2001
Among
AMF BOWLING WORLDWIDE, INC.,
a Debtor and Debtor in Possession,
as Borrower
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and
AMF GROUP HOLDINGS INC.,
a Debtor and Debtor in Possession,
as Parent Guarantor
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and
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
as Subsidiary Guarantors
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and
THE INITIAL LENDERS AND THE INITIAL ISSUING BANK NAMED HEREIN
as Initial Lenders and Initial Issuing Bank
-- ------- ------- --- ------- ------- ----
and
CITIBANK, N.A.
as Collateral Agent and Administrative Agent
-- ---------- ----- --- -------------- -----
T A B L E O F C O N T E N T S
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms............................................... 2
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions.......... 27
SECTION 1.03. Accounting Terms.................................................... 27
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit.............................. 27
SECTION 2.02. Making the Advances................................................. 28
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit.. 30
SECTION 2.04. Repayment of Advances............................................... 31
SECTION 2.05. Termination or Reduction of the Commitments......................... 32
SECTION 2.06. Prepayments......................................................... 33
SECTION 2.07. Interest............................................................ 35
SECTION 2.08. Fees................................................................ 36
SECTION 2.09. Conversion of Advances.............................................. 36
SECTION 2.10. Increased Costs, Etc................................................ 37
SECTION 2.11. Payments and Computations........................................... 39
SECTION 2.12. Taxes............................................................... 41
SECTION 2.13. Sharing of Payments, Etc............................................ 44
SECTION 2.14. Use of Proceeds..................................................... 45
SECTION 2.15. Defaulting Lenders.................................................. 45
SECTION 2.16. Evidence of Debt.................................................... 48
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit................. 48
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance................. 54
SECTION 3.03. Determinations Under Section 3.01................................... 55
Page
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower...................... 55
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants............................................... 62
SECTION 5.02. Negative Covenants.................................................. 68
SECTION 5.03. Reporting Requirements.............................................. 76
SECTION 5.04. Financial Covenants................................................. 80
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default................................................... 81
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default............ 86
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability................................... 87
SECTION 7.02. Guaranty Absolute................................................... 87
SECTION 7.03. Waivers and Acknowledgments......................................... 89
SECTION 7.04. Subrogation......................................................... 90
SECTION 7.05. Guaranty Supplements................................................ 90
SECTION 7.06. Subordination....................................................... 91
SECTION 7.07. Continuing Guaranty; Assignments.................................... 91
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action............................................ 92
SECTION 8.02. Agents' Reliance, Etc............................................... 92
SECTION 8.03. Citibank and Affiliates............................................. 93
SECTION 8.04. Lender Party Credit Decision........................................ 93
SECTION 8.05. Indemnification..................................................... 93
SECTION 8.06. Successor Agents.................................................... 94
Page
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc....................................................... 95
SECTION 9.02. Notices, Etc.......................................................... 96
SECTION 9.03. No Waiver; Remedies................................................... 97
SECTION 9.04. Costs and Expenses.................................................... 97
SECTION 9.05. Right of Set-off...................................................... 98
SECTION 9.06. Binding Effect........................................................ 99
SECTION 9.07. Assignments and Participations........................................ 99
SECTION 9.08. Execution in Counterparts............................................. 103
SECTION 9.09. No Liability of the Issuing Bank...................................... 103
SECTION 9.10. Confidentiality....................................................... 104
SECTION 9.11. Release of Collateral................................................. 104
SECTION 9.12. Jurisdiction, Etc..................................................... 104
SECTION 9.13. Governing Law......................................................... 105
SECTION 9.14. Waiver of Jury Trial.................................................. 105
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule 3.01(a)(v) Franchise Taxes
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(n) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(o) - Environmental Disclosure
Schedule 4.01(p) - Open Years
Schedule 4.01(q) Fire, Explosion, Accident, Etc.
Schedule 4.01(r) - Existing Debt
Schedule 4.01(s) - Owned Real Property
Schedule 4.01(t) - Leased Real Property
Schedule 4.01(u) Investments
Schedule 4.01(v) - Intellectual Property
Schedule 5.01(i) Permitted Affiliate Transactions
Schedule 5.02(a) - Liens
EXHIBITS
Exhibit A - Form of Working Capital Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 Form of Notice of Conversion
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E Form of Guaranty Supplement
Exhibit F-1 - Form of Opinion of Counsel to the Loan Parties
Exhibit F-2 - Form of Opinion of Special Bankruptcy Counsel to the Loan Parties
Exhibit G-1 - Form of Interim Order
Exhibit G-2 - Form of Final Order
Exhibit H Form of Intercompany Note
SENIOR SECURED PRIMING DEBTOR-IN-POSSESSION CREDIT AGREEMENT
SENIOR SECURED PRIMING DEBTOR-IN-POSSESSION CREDIT AGREEMENT dated as
of July 5, 2001 among AMF Bowling Worldwide, Inc., a Delaware corporation (the
"Borrower"), AMF Group Holdings Inc., a Delaware corporation (the "Parent
Guarantor"), each a debtor and debtor in possession under Chapter 11 of the
Bankruptcy Code (as hereinafter defined), the Subsidiary Guarantors (as
hereinafter defined), the banks, financial institutions and other institutional
lenders listed on the signature pages hereof as the Initial Lenders (the
"Initial Lenders"), the banks listed on the signature pages hereof as the
Initial Issuing Banks (the "Initial Issuing Banks" and, together with the
Initial Lenders, the "Initial Lender Parties"), Citibank, N.A. ("Citibank"), as
collateral agent (together with any successor collateral agent appointed
pursuant to Article VIII, the "Collateral Agent"), and Citibank, as
administrative agent (together with any successor administrative agent appointed
pursuant to Article VIII, the "Administrative Agent" and, together with the
Collateral Agent, the "Agents") for the Lender Parties (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) On July 3, 2001 (the "Filing Date"), the Borrower, the Parent
Guarantor and certain of their respective Subsidiaries (as hereinafter defined)
filed petitions under Chapter 11 of the Bankruptcy Code (11 U.S.C. (S) 101 et
--
seq.; the "Bankruptcy Code") in the United States Bankruptcy Court for the
----
Eastern District of Virginia (the "Bankruptcy Court").
(2) The Borrower, the Parent Guarantor and such respective
Subsidiaries have continued to operate their respective businesses pursuant to
Sections 1107 and 1108 of the Bankruptcy Code.
(3) The Pre-Petition Agent (as hereinafter defined) and the Pre-
Petition Lenders (as hereinafter defined) entered into a Fourth Amended and
Restated Credit Agreement dated as of June 14, 1999, as amended (the "Pre-
Petition Credit Agreement"), with the Borrower and certain affiliates and
subsidiaries secured by the Pre-Petition Collateral (as hereinafter defined).
(4) The Loan Parties (as hereinafter defined) have an immediate need
for funds to continue to operate their businesses.
(5) The Borrower has requested that the Initial Lenders lend to the
Borrower up to $75,000,000 pursuant to Sections 105(a), 362, 364(c)(1), (2), (3)
and 364(d) of the Bankruptcy Code in order to provide working capital for the
Borrower and such respective Subsidiaries and for other general corporate
purposes.
(6) The Guarantors (as hereinafter defined) have agreed to guarantee
the due and punctual payment and performance by the Loan Parties of the
Obligations of the
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Loan Parties (as hereinafter defined) to the Administrative Agent, the
Collateral Agent and the Lenders pursuant to the terms hereof.
(7) The Loan Parties have agreed to secure the Obligations of the
Loan Parties with, inter alia, (i) first priority liens on and security
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interests in (subject to Liens permitted by this Agreement) all unencumbered
property and interests, real and personal, tangible and intangible, of the Loan
Parties, whether now owned or hereinafter acquired, all on the terms and
conditions set forth in the Loan Documents (as hereinafter defined), in
accordance with Section 364(c)(2) of the Bankruptcy Code, (ii) junior liens on
all property (other than Pre-Petition Collateral (as hereinafter defined)) of
the Loan Parties that is subject to valid and perfected liens in existence at
the time of commencement of the Cases, in accordance with Section 364(c)(3) of
the Bankruptcy Code, and (iii) first priority, senior priming liens on all Pre-
Petition Collateral in accordance to Section 364(d)(1) of the Bankruptcy Code,
and all existing liens on the Pre-Petition Collateral for the benefit of the
Pre-Petition Lenders (as hereinafter defined) shall be made subject and
subordinate to the perfected first priority senior liens to be granted to the
Administrative Agent, in each case subject and subordinate to the Carve-Out (as
hereinafter defined).
(8) The Lender Parties have indicated their willingness to lend such
amounts pursuant to Sections 105(a), 362, 364(c)(1), (2), (3) and 364(d) of the
Bankruptcy Code on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
---------------------
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Citicorp
Industrial Credit at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Account No. 00000000, ABA 000000000, Attention: May Xxxx, or such
other account as the Administrative Agent shall specify in writing to the
Lender Parties.
"Advance" means a Working Capital Advance or a Letter of Credit
Advance.
3
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"Applicable Lending Office" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"Applicable Margin" means 1.50% per annum for Base Rate Advances and
2.50% per annum for Eurodollar Rate Advances.
"Appropriate Lender" means, at any time, with respect to (a) the
Working Capital Facility, a Lender that has a Commitment with respect to
such Facility at such time and (b) the Letter of Credit Facility, (i) the
Issuing Bank and (ii) if the other Working Capital Lenders have made Letter
of Credit Advances pursuant to Section 2.03(c) that are outstanding at such
time, each such other Working Capital Lender.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Arranger" means each of Citibank, N.A. and its successors and
assigns, acting in its capacity as Arranger under this Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 9.07 and in substantially
the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Bankruptcy Code" has the meaning specified in the Preliminary
Statements.
4
"Bankruptcy Court" has the meaning specified in the Preliminary
Statements.
"Bankruptcy Law" means any proceeding of the type referred to in
Section 6.01(i) or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1%
per annum, plus (ii) the rate obtained by dividing (A) the latest
----
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week period of
----
annual assessment rates estimated by Citibank for determining the then
current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
5
"Borrower's Account" means the account of the Borrower maintained by
the Borrower with Citibank at its office at Xxx Xxxx'x Xxx, Xxx Xxxxxx,
Xxxxxxxx 00000, Account No. 00000000, or such other account as the Borrower
shall specify in writing to the Administrative Agent.
"Borrower's Professionals" means all Persons retained or engaged by
any Loan Party as professional persons within the meaning of Section 327 of
the Bankruptcy Code.
"Borrowing" means a Working Capital Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings in
U.S. dollar deposits are carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period, the sum
of, without duplication, (a) all expenditures made, directly or indirectly,
by such Person or any of its Subsidiaries during such period for equipment,
fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should be,
in accordance with GAAP, reflected as additions to property, plant or
equipment on a Consolidated balance sheet of such Person plus (b) the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures. For purposes of this definition, the purchase price of
equipment that is purchased simultaneously with the trade-in of existing
equipment or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount of such purchase price
less the credit granted by the seller of such equipment for the equipment
being traded in at such time or the amount of such proceeds, as the case
may be.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Carve-Out" means an amount not exceeding in the aggregate $2,500,000
which amount may be used by the Borrower after the occurrence and during
the continuance of a Default or an Event of Default, notwithstanding the
Administrative Agent's security interests for the benefit of the Secured
Parties in the Collateral and the Administrative Agent's rights and
superpriority claims hereunder, to pay fees or expenses incurred by the
Borrower constituting (i) allowances of compensation for services rendered
or reimbursement or expenses awarded by the Bankruptcy Court under Sections
330 and 331 of the Bankruptcy Code or otherwise, to Borrower's
Professionals, (ii) allowances of compensation for services rendered or
reimbursement of expenses awarded by the Bankruptcy Court under Section
105(a), 330 or 331 of the Bankruptcy Code, to accountants, attorneys and
other professionals retained in the Cases by the official unsecured
creditors' committee (the "Committee") appointed in accordance with Section
6
1102 of the Bankruptcy Code or any examiner appointed in accordance with
Section 1104 of the Bankruptcy Code other than an examiner of the type
referred to in Section 6.01(s) hereof, (iii) fees required to be paid to
the Clerk of the Bankruptcy Court and to the Office of the United States
Trustee under Section 1930(a), Title 28, United States Code, and (iv) the
actual, necessary expenses, other than compensation, and reimbursement
pursuant to Section 503(b)(4) of the Bankruptcy Code, incurred by a member
of the Committee (but excluding fees and expenses of third party
professional persons employed by individual Committee members), if such
expenses are incurred in the performance of the duties of such Committee
and are allowed by the Bankruptcy Court; provided, however, that (a) the
amount of such fees and expenses shall not exceed $2,500,000 (in addition
to compensation awarded on a monthly or other interim basis in accordance
with applicable Orders of the Bankruptcy Court prior to the occurrence of a
Default or an Event of Default (whether or not paid)) and (b) such dollar
limitation on fees and disbursements shall not include any retainer fees
paid to the Borrower's Professionals prior to the Filing Date (the
"Retainers") and shall not be reduced by the amount of any compensation and
reimbursement of expenses paid prior to the occurrence of a Default or an
Event of Default in respect of which the Carve-Out is invoked or any fees,
expenses, indemnities or other amounts paid to the Administrative Agent,
the Lenders and their attorneys and agents under the agreement or
otherwise; provided, further, however, that in no event shall there be paid
from proceeds of the Agreement any fees or expenses incurred in challenging
the liens or claims of the Pre-Petition Agent or the Pre-Petition Lenders,
although, subject to the Carve-Out, the professionals for the Committee may
be paid (to the extent allowed by the Court) fees and expenses incurred in
analyzing such liens or claims.
"Cases" means the cases of the Borrower and the Guarantors pursuant to
the Bankruptcy Code pending in the Bankruptcy Court.
"Cash Equivalents" means any of the following, to the extent owned by
the Parent Guarantor or any of its Subsidiaries free and clear of all Liens
other than Liens created under the Collateral Documents and having a
maturity of not greater than 90 days from the date of acquisition thereof:
(a) readily marketable direct obligations of the Government of the United
States or any agency or instrumentality thereof or obligations
unconditionally guaranteed by the full faith and credit of the Government
of the United States or, with respect to any Foreign Business, an
equivalent obligation of the government of the country in which such
Foreign Business transacts business, (b) insured certificates of deposit of
or time deposits with any commercial bank that is a Lender Party or a
member of the Federal Reserve System that issues (or the parent of which
issues) commercial paper rated as described in clause (c) below, is
organized under the laws of the United States or any State thereof and has
combined capital and surplus of at least $1 billion or, with respect to any
Foreign Business, an equivalent investment with any commercial bank that is
a member of an equivalent reserve system organized under the laws of the
country in which such Foreign Business transacts business, (c) commercial
paper in an aggregate amount of no more than $10,000,000 per
7
issuer outstanding at any time, issued by any corporation organized under
the laws of any State of the United States and rated at least "Prime-1" (or
the then equivalent grade) by Xxxxx'x Investors Service, Inc. or "A-1" (or
the then equivalent grade) by Standard & Poor's, a division of The XxXxxx-
Xxxx Companies, Inc. or, with respect to any Foreign Business, an
equivalent obligation in the country in which such Foreign Business
transacts business, or (d) Investments in money market funds that invest
primarily in Cash Equivalents of the types described in clauses (a), (b)
and (c) above.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"Change of Control" means the occurrence of any of the following: (a)
AMF Bowling, Inc. shall at any time for any reason cease to own
beneficially Voting Interests of Parent Guarantor representing 51% or more
of the combined voting power of all Voting Interests of Parent Guarantor;
(b) during any period of up to 12 consecutive months, commencing after the
Initial Extension of Credit and ending on the Termination Date, individuals
who at the beginning of such 12-month period were directors of Parent
Guarantor shall cease for any reason to constitute a majority of the board
of directors of Parent Guarantor (except to the extent that individuals who
at the beginning of such 12-month period were replaced by individuals (x)
elected by a majority of the remaining members of the board of directors of
Parent Guarantor or (y) nominated for election by a majority of the
remaining members of the board of directors of Parent Guarantor and
thereafter elected as directors by the shareholders of Parent Guarantor);
or (c) the Parent Guarantor shall cease to own 100% of the Equity Interests
in the Borrower.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Collateral Account" has the meaning specified in the Security
Agreement.
"Collateral Agent" has the meaning specified in the recital of parties
to this Agreement.
"Collateral Documents" means the Security Agreement and each of the
collateral documents, instruments and agreements delivered pursuant to
Section 5.01(j) and each other agreement that creates or purports to create
a Lien in favor of the Collateral Agent for the benefit of the Secured
Parties, including the Interim Order and the Final Order, as the case may
be.
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"Commitment" means a Working Capital Commitment or a Letter of Credit
Commitment.
"Confidential Information" means information that any Loan Party
furnishes to any Agent or any Lender Party in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public other than as a result of a breach by
such Agent or any Lender Party of its obligations hereunder or that is or
becomes available to such Agent or such Lender Party from a source other
than the Loan Parties that is not, to the best of such Agent's or such
Lender Party's knowledge, acting in violation of a confidentiality
agreement with a Loan Party.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, (a)
the direct or indirect guarantee, endorsement (other than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the Obligation of a
primary obligor, (b) the Obligation to make take-or-pay or similar
payments, if required, regardless of nonperformance by any other party or
parties to an agreement or (c) any Obligation of such Person, whether or
not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation
or (B) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, assets, 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 (iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. 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 less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the
terms of the instrument evidencing such Contingent Obligation) 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.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.09 or 2.10.
9
"Debt" of any Person means (a) all indebtedness of such Person for
borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services (other than Post-Petition trade
payables not overdue by more than 90 days incurred in the ordinary course
of such Person's business), (c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all Obligations
of such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such
property), (e) all Obligations of such Person as lessee under Capitalized
Leases, (f) all Obligations of such Person under acceptance, letter of
credit or similar facilities, (g) all Obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect
of any Equity Interests in such Person or any other Person or any warrants,
rights or options to acquire such capital stock, valued, in the case of
Redeemable Preferred Interests, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, (h)
all Obligations of such Person in respect of Hedge Agreements, (i) all
Contingent Obligations of such Person and Off-Balance Sheet Obligations and
(j) all indebtedness and other payment Obligations referred to in clauses
(a) through (i) above of another Person secured by (or for which the holder
of such Debt has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such indebtedness or other
payment Obligations.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to the Borrower pursuant to Section 2.01 or 2.02 at or prior to such time
that has not been made by such Lender Party or by the Administrative Agent
for the account of such Lender Party pursuant to Section 2.02(d) as of such
time. In the event that a portion of a Defaulted Advance shall be deemed
made pursuant to Section 2.15(a), the remaining portion of such Defaulted
Advance shall be considered a Defaulted Advance originally required to be
made pursuant to Section 2.01 on the same date as the Defaulted Advance so
deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) the Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a
Letter of Credit Advance made by the Issuing Bank, (b) the Administrative
Agent pursuant to Section 2.02(d) to reimburse the Administrative Agent for
the amount of any Advance made by the
10
Administrative Agent for the account of such Lender Party, (c) any other
Lender Party pursuant to Section 2.13 to purchase any participation in
Advances owing to such other Lender Party and (d) any Agent or the Issuing
Bank pursuant to Section 8.05 to reimburse such Agent or the Issuing Bank
for such Lender Party's ratable share of any amount required to be paid by
the Lender Parties to such Agent or the Issuing Bank as provided therein.
In the event that a portion of a Defaulted Amount shall be deemed paid
pursuant to Section 2.15(b), the remaining portion of such Defaulted Amount
shall be considered a Defaulted Amount originally required to be paid
hereunder or under any other Loan Document on the same date as the
Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type
described in Section 6.01(i).
"Disclosed Litigation" has the meaning specified in Section 3.01(e).
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to
time specify to the Borrower and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary of the Parent Guarantor
other than a Foreign Subsidiary.
"EBITDA" means, for any period, the sum, determined on a Consolidated
basis, of (a) net income (or net loss), (b) interest expense, (c) income
tax expense, (d) depreciation expense, (e) amortization expense, (f) non-
cash foreign exchange losses, if any, (g) extraordinary or non-recurring
losses, if any, included in determining such net income (or net loss), (h)
other non-cash non-operating expenses, if any, included in determining such
net income (or net loss), and (i) "Chapter 11 expenses" (or "administrative
costs reflecting Chapter 11 expenses") as shown on such Person's
Consolidated statement of income for such period, less the sum of (i) non-
----
cash foreign exchange gains, if any, (ii) extraordinary or non-recurring
gains, if any, included in determining such net income (or net loss), and
(iii) other non-operating income, if any, included in determining such net
income (or net loss), in each case of such Person and its Subsidiaries,
determined, except in the case of clause (h) above, in accordance with GAAP
for such period.
"Effective Date" means the first date on which the conditions set
forth in Article III shall have been satisfied.
"Eligible Assignee" means (a) with respect to the Working Capital
Facility (i) a Lender; (ii) an Affiliate or an Approved Fund of a Lender;
(iii) a
11
commercial bank organized under the laws of the United States, or any State
thereof, and having a combined capital and surplus of at least
$500,000,000; (iv) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having total
assets in excess of $500,000,000 a combined capital and surplus of at least
$500,000,000; (v) a commercial bank organized under the laws of any other
country that is a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having a combined capital and surplus of at least
$500,000,000, so long as such bank is acting through a branch or agency
located in the United States; (vi) the central bank of any country that is
a member of the OECD; (vii) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership, trust or
other entity) that is engaged in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and having a
combined capital and surplus of at least $500,000,000; and (viii) any other
Person approved by the Administrative Agent and, unless a Default has
occurred and is continuing at the time any assignment is effected pursuant
to Section 9.07, the Borrower, such approval not to be unreasonably
withheld or delayed, and (b) with respect to the Letter of Credit Facility,
a Person that is an Eligible Assignee under subclause (iii) or (v) of
clause (a) of this definition and is approved by the Administrative Agent
and, unless a Default has occurred and is continuing at the time any
assignment is effected pursuant to Section 9.07, the Borrower, such
approval not to be unreasonably withheld or delayed; provided, however,
that neither any Loan Party nor any Affiliate of a Loan Party shall qualify
as an Eligible Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement pursuant to any Environmental Law or any Environmental Permit or
relating to any Hazardous Material, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any applicable federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, writ,
judgment, injunction, decree, judicial decision, or agency interpretation,
policy or guidance that has the force and effect of law, relating to
pollution or protection of the environment, public health, safety or
natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
12
"Environmental Permit" means any permit, approval, identification
number, license or other authorization from any governmental or regulatory
authority required under any Environmental Law.
"Equipment" means all Equipment referred to in Section 1(a)(i) of the
Security Agreement.
"Equity Interests" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
and other ownership or profit interests in such Person (including, without
limitation, partnership, member or trust interests therein).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of any Loan Party
or any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan.
13
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum at which deposits in U.S. dollars are offered by the principal office
of Citibank in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day
of such Interest Period in an amount substantially equal to Citibank's
Eurodollar Rate Advance comprising part of such Borrowing to be outstanding
during such Interest Period (or, if Citibank shall not have such a
Eurodollar Rate Advance, $1,000,000) and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 6.01.
"Existing Debt" means all Debt of each Loan Party and its Subsidiaries
outstanding immediately before the Filing Date.
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person not in the ordinary course of business,
including, without limitation, tax refunds, pension plan reversions,
proceeds of insurance (including,
14
without limitation, any key man life insurance but excluding proceeds of
business interruption insurance to the extent such proceeds constitute
compensation for lost earnings), condemnation awards (and payments in lieu
thereof), indemnity payments and any purchase price adjustment received in
connection with any purchase agreement; provided, however, that an
Extraordinary Receipt shall not include cash receipts received from
proceeds of insurance, condemnation awards (or payments in lieu thereof) or
indemnity payments to the extent that such proceeds, awards or payments (A)
in respect of loss or damage to equipment, fixed assets or real property
are applied (or in respect of which expenditures were previously incurred)
to replace or repair the equipment, fixed assets or real property in
respect of which such proceeds were received, in accordance with the terms
of the Loan Documents, so long as such application is made within 6 months
after the the receipt of such proceeds or (B) are received by any Person in
respect of any third party claim against such Person and applied to pay (or
to reimburse such Person for its prior payment of) such claim and the costs
and expenses of such Person with respect thereto.
"Facility" means the Working Capital Facility or the Letter of Credit
Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum 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 that is a Business Day, the
average of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fee Letter" means the fee letter dated June 27, 2001 between the
Borrower and the Administrative Agent, as amended.
"Filing Date" has the meaning specified in the Preliminary Statements.
"Final Order" has the meaning specified in Section 3.02(b).
"First Day Orders" means those orders presented to the Bankruptcy
Court in the Cases for consideration on the first day of the Cases,
regardless of whether such orders are entered on the first day of the Cases
or shortly thereafter.
"Fiscal Year" means a fiscal year of the Parent Guarantor and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"Foreign Business" means the business conducted by a Foreign
Subsidiary or by any other Subsidiary of the Borrower to the extent that
such
15
business is conducted in jurisdictions outside the United States or any
State thereof or the District of Columbia.
"Foreign Cash" means all cash and Cash Equivalents in any account of
any Foreign Subsidiary or of any Foreign Business.
"Foreign Distribution" means a dividend or other distribution paid or
made on or after the Effective Date by any Subsidiary of the Borrower in
respect of a Foreign Business.
"Foreign Subsidiary" means a Subsidiary of the Parent Guarantor, the
Borrower or any of the Subsidiary Guarantors or any Subsidiary thereof
organized under the laws of a jurisdiction other than the United States or
any State thereof or the District of Columbia.
"Foreign Subsidiary Guarantor" means a Foreign Subsidiary that has
been requested by the Administrative Agent to execute a Guaranty Supplement
pursuant to Section 5.01(j).
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any state,
province, city, municipal entity or other political subdivision thereof,
and any governmental, executive, legislative, judicial, administrative or
regulatory agency, department, authority, instrumentality, commission,
board, bureau or similar body, whether xxxxxxx, xxxxx, xxxxxxxxxx,
xxxxxxxxxxx, local or foreign.
"Governmental Authorization" means any authorization, approval,
consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right, undertaking
or other action of, to or by, or any filing, qualification or registration
with, any Governmental Authority.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Guarantors" means the Parent Guarantor, each Subsidiary Guarantor and
any other Person that guarantees any Obligation and any other Subsidiary of
the Parent Guarantor from time to time party to a Guaranty Supplement
pursuant to Section 7.05.
"Guaranty" means the guaranty of the Guarantors set forth in Article
VII.
"Guaranty Supplement" has the meaning specified in Section 7.05.
"Hazardous Materials" means (a) petroleum or petroleum products, by-
products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other
chemicals,
16
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other hedging agreements.
"Indemnified Party" has the meaning specified in Section 9.04(b).
"Information" means the information provided by the Loan Parties to
the Agents and Lenders in connection with the syndication of the
Commitments.
"Initial Extension of Credit" means the earlier to occur of the
initial Borrowing and the initial issuance of a Letter of Credit hereunder.
"Initial Issuing Bank", "Initial Lender Parties" and "Initial Lenders"
each has the meaning specified in the recital of parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Intercompany Note" has the meaning specified in Section 5.02(b).
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided,
however, that:
(a) the Borrower may not select any Interest Period with respect
to any Eurodollar Rate Advance under a Facility that ends after any
principal repayment installment date for such Facility unless, after
giving effect to such selection, the aggregate principal amount of
Base Rate Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
17
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Interim Order" has the meaning specified in Section 3.01(a)(i).
"Inventory" means all Inventory referred to in Section 1(b)(ii) of the
Security Agreement.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or all
of the business of such Person, any capital contribution to such Person or
any other direct or indirect investment in such Person, including, without
limitation, any acquisition by way of a merger or consolidation (or similar
transaction) and any arrangement pursuant to which the investor incurs Debt
of the types referred to in clause (i) or (j) of the definition of "Debt"
in respect of such Person.
"Issuing Bank" means the Initial Issuing Bank and any other Working
Capital Lender approved as an Issuing Bank by the Administrative Agent and
any Eligible Assignee to which a Letter of Credit Commitment hereunder has
been assigned pursuant to Section 9.07 so long as each such Working Capital
Lender or each such Eligible Assignee expressly agrees to perform in
accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by it as an Issuing Bank and
notifies the Administrative Agent of its Applicable Lending Office and the
amount of its Letter of Credit Commitment (which information shall be
recorded by the Administrative Agent in the Register), for so long as such
Initial Issuing Bank, Working Capital Lender or Eligible Assignee, as the
case may be, shall have a Letter of Credit Commitment.
"L/C Collateral Account" has the meaning specified in the Security
Agreement.
18
"L/C Related Documents" has the meaning specified in Section
2.04(b)(ii)(A).
"Lender Party" means any Lender or any Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall become
a Lender hereunder pursuant to Section 9.07 for so long as such Initial
Lender or Person, as the case may be, shall be a party to this Agreement.
"Letter of Credit Advance" means an advance made by the Issuing Bank
or any Working Capital Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to any Issuing Bank
at any time, the amount set forth opposite such Issuing Bank's name on
Schedule I hereto under the caption "Letter of Credit Commitment" or, if
such Issuing Bank has entered into one or more Assignment and Acceptances,
set forth for such Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as such Issuing Bank's
"Letter of Credit Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
lesser of (a) the aggregate amount of the Issuing Bank's Letter of Credit
Commitment at such time and (b) $15,000,000 (which includes any amounts
required to replace letters of credit issued for the account of the
Borrower that were outstanding prior to the Filing Date), as such amount
may be reduced at or prior to such time pursuant to Section 2.05.
"Letters of Credit" has the meaning specified in Section 2.01(b).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means for purposes of this Agreement, the Notes and
the Collateral Documents and any amendment, supplement or modification
hereof or thereof, (i) this Agreement, (ii) the Notes, (iii) the Guaranty,
(iv) any Guaranty Supplement, (v) the Collateral Documents, (vi) the Fee
Letter, (vii) each Letter of Credit Agreement, and (viii) each other
document executed in connection therewith, in each case as amended.
"Loan Parties" means the Parent Guarantor, the Borrower and the
Subsidiary Guarantors at the date of this Agreement and those subsequently
added as parties to this Agreement.
19
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of Holdings or the Borrower, in each case together
with its Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of Holdings or the Borrower, in each case together
with its Subsidiaries, taken as a whole (b) the rights and remedies of any
Agent or any Lender Party under any Loan Document or (c) the ability of any
Loan Party to perform its material Obligations under any Loan Document to
which it is or is to be a party.
"Material Subsidiary" means, at any time, a Subsidiary of the Borrower
having at least 5% of the total Consolidated assets of the Borrower and its
Subsidiaries (determined as of the last day of the most recent fiscal
quarter of the Borrower) or at least 5% of the total Consolidated revenues
or net income of the Borrower and its Subsidiaries for the 12-month period
ending on the last day of the most recent fiscal quarter of the Borrower;
provided, however, that any Subsidiary formed or acquired after the last
-------- -------
day of the most recent fiscal quarter of the Borrower that would have been
a Material Subsidiary if it had been formed or acquired on or prior to the
last day of such fiscal quarter shall be a Material Subsidiary for purposes
hereof from and after the date of its formation or acquisition.
"Mortgage" means any deed of trust, trust deed, mortgage, leasehold
mortgage or leasehold deed of trust, in form and substance satisfactory to
the Administrative Agent, required to be executed by a Loan Party pursuant
to 5.01(j)(iii).
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset or the incurrence or issuance of any Debt
or the sale or issuance of any Equity Interests (including, without
limitation, any capital
20
contribution) by any Person, or any Extraordinary Receipt received by or
paid to or for the account of any Person, the aggregate amount of cash
received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of such
Person in connection with such transaction after deducting therefrom only
(without duplication) (a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder's fees and other
similar fees and commissions and other reasonable and customary expenses
incurred in connection with such transaction, (b) the amount of taxes
payable in connection with or as a result of such transaction and (c) the
amount of any Debt secured by a Lien on such asset that, by the terms of
the agreement or instrument governing such Debt, is required to be repaid
upon such disposition, in each case to the extent, but only to the extent,
that the amounts so deducted are, at or prior to the time of receipt of
such cash, actually paid or payable to a Person that is not an Affiliate of
such Person or any Loan Party or any Affiliate of any Loan Party and are
properly attributable to such transaction or to the asset that is the
subject thereof; provided, however, that in the case of taxes that are
deductible under clause (b) above but for the fact that, at the time of
receipt of such cash, such taxes have not been actually paid or are not
then payable, such Loan Party or such Subsidiary may deduct an amount (the
"Reserved Amount") equal to the amount reserved in accordance with GAAP for
such Loan Party's or such Subsidiary's reasonable estimate of such taxes,
other than taxes for which such Loan Party or such Subsidiary is
indemnified, provided further, however, that, at the time such taxes are
paid, an amount equal to the amount, if any, by which the Reserved Amount
for such taxes exceeds the amount of such taxes actually paid shall
constitute "Net Cash Proceeds" of the type for which such taxes were
reserved for all purposes hereunder.
"Non-Filing Domestic Subsidiary" means any Domestic Subsidiary of the
Parent Guarantor which has not filed a voluntary petition for relief and is
not a debtor in possession under chapter 11 of the Bankruptcy Code.
"Non-Filing Subsidiary" means any Non-Filing Domestic Subsidiary or
Foreign Subsidiary
"Note" means a Working Capital Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal,
21
equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(i). Without limiting the generality of the foregoing, the
Obligations of any Loan Party under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions,
charges, expenses, fees, attorneys' fees and disbursements, indemnities and
other amounts payable by such Loan Party under any Loan Document and (b)
the obligation of such Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may elect
to pay or advance on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Off-Balance Sheet Obligation" means with respect to any Person, any
obligation of such Person under a synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing if the
transaction giving rise to such obligation is considered indebtedness for
borrowed money for tax purposes but is classified as an operating lease in
accordance with GAAP.
"Open Year" has the meaning specified in Section 4.01(p)(iii).
"Other Taxes" has the meaning specified in Section 2.12(b).
"Parent Guarantor" has the meaning specified in the recitals of
parties to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Encumbrances" means, with respect to any real property,
minor survey exceptions, minor title irregularities, easements, rights-of-
way, restrictions and other similar charges or encumbrances not interfering
with the ordinary conduct of the business of the Loan Parties and their
Subsidiaries which were not incurred in connection with and do not secure
Debt or other extensions of credit and which do not individually or in the
aggregate materially adversely affect the value of the properties of the
Loan Parties and their Subsidiaries taken as a whole or materially impair
their use, taken as a whole with all other properties of the Loan Parties
and their Subsidiaries, in the operation of the business of the Loan
Parties and their Subsidiaries.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced (unless stayed): (a) Liens for (i) Pre-Petition taxes,
assessments and governmental charges or levies and (ii) Post-Petition
taxes, assessments and governmental charges or levies to the extent not
required to be paid under Section 5.01(b); (b) Liens imposed by law, such
as materialmen's, mechanics', carriers', landlords', workmen's and
repairmen's Liens and other similar Liens
22
arising in the ordinary course of business securing obligations that (i)
are not, in the case of Post-Petition Obligations, overdue for a period of
more than 30 days, or if overdue, are being contested in good faith by
appropriate proceedings and for which reserves in conformity with GAAP have
been provided on the books of the relevant Loan Party and (ii) individually
or together with all other Permitted Liens outstanding on any date of
determination do not materially adversely affect the use of the property to
which they relate; (c) pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to secure public or
statutory obligations; (d) trade deposits made by the Borrower and its
Subsidiaries in the ordinary course of business (e) arrangements referred
to in Section 1(b) of the Security Agreement to the extent that such
arrangements may constitute Liens on assets of the Borrower or its
Subsidiaries; and (f) Permitted Encumbrances.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Debt" has the meaning specified in the Security Agreement.
"Post-Petition", when used with respect to any agreement or
instrument, any claim or proceeding or any other matter, shall refer to an
agreement or instrument that was entered into or became effective, a claim
or proceeding that arose or was instituted, or another matter that
occurred, on or after the Filing Date.
"Pre-Petition", when used with respect to any agreement or instrument,
any claim or proceeding or any other matter, shall refer to an agreement or
instrument that was entered into or became effective, a claim or proceeding
that arose or was instituted, or another matter that occurred, prior to the
Filing Date.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"Pre-Petition Agent" means Citibank in its capacity as administrative
agent and collateral agent for the Pre-Petition Lenders under the Pre-
Petition Credit Agreement.
"Pre-Petition Collateral" means the "Collateral" as defined in the
Pre-Petition Credit Agreement or the Pre-Petition Collateral Documents.
23
"Pre-Petition Collateral Documents" means any agreement, document or
instrument that created or purported to create a Lien in favor of the Pre-
Petition Agent for the benefit of the Pre-Petition Lenders in connection
with the Pre-Petition Credit Agreement.
"Pre-Petition Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Pre-Petition Lenders" means the banks, financial institutions and
other institutional lenders under the Pre-Petition Credit Agreement.
"Pre-Petition Loan Documents" means (i) the Pre-Petition Credit
Agreement, (ii) the Pre-Petition Collateral Documents and (iii) the other
documents defined as "Loan Documents" in the Pre-Petition Credit Agreement.
"Pre-Petition Obligations" means all amounts owing to the Pre-Petition
Agent or any Pre-Petition Lender pursuant to the terms of the Pre-Petition
Credit Agreement, any other Pre-Petition Loan Document or any agreement,
instrument or document executed and delivered in connection with any
thereof. Without limiting the generality of the foregoing, the aggregate
amount from time to time available to be drawn under letters of credit
issued pursuant to the Pre-Petition Credit Agreement (assuming compliance
with all conditions precedent) shall be deemed, for purposes of this
definition, to constitute an amount then owing to the Pre-Petition Lenders
pursuant to the terms of the Pre-Petition Credit Agreement.
"Pro Rata Share" of any amount means, with respect to any Working
Capital Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Working Capital
Commitment at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, such Lender's Working Capital Commitment
as in effect immediately prior to such termination) and the denominator of
which is the Working Capital Facility at such time (or, if the Commitments
shall have been terminated pursuant to Section 2.05 or 6.01, the Working
Capital Facility as in effect immediately prior to such termination).
"Receivables" means all Receivables referred to in Section 1(a)(iii)
of the Security Agreement.
"Redeemable" means, with respect to any Equity Interest, any Debt or
any other right or Obligation, any such Equity Interest, Debt, right or
Obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the
control of the issuer or (b) is redeemable at the option of the holder.
"Reduction Amount" has the meaning specified in Section 2.06(b)(iv).
"Register" has the meaning specified in Section 9.07(d).
24
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reorganization Plan" has the meaning specified in Section 5.01(t) or
any other plan of reorganization in any of the Cases.
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal
amount of the Working Capital Advances outstanding at such time, (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time and (c) the aggregate Unused Working Capital Commitments at such time;
provided, however, that if any Lender shall be a Defaulting Lender at such
time, there shall be excluded from the determination of Required Lenders at
such time (A) the aggregate principal amount of the Advances owing to such
Lender (in its capacity as a Lender) and outstanding at such time, (B) such
Lender's Pro Rata Share of the aggregate Available Amount of all Letters of
Credit outstanding at such time and (C) the Unused Working Capital
Commitment of such Lender at such time. For purposes of this definition,
the aggregate principal amount of Letter of Credit Advances owing to the
Issuing Bank and the Available Amount of each Letter of Credit shall be
considered to be owed to the Working Capital Lenders ratably in accordance
with their respective Working Capital Commitments.
"Responsible Officer" means the chief executive officer, chief
financial officer, president or executive vice president of any Loan Party
or any of its Subsidiaries.
"Secured Obligations" has the meaning specified in Section 2 of the
Security Agreement.
"Secured Parties" means the Arranger, the Agents and the Lender
Parties.
"Security Agreement" has the meaning specified in Section
3.01(a)(iii).
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that is subject to ERISA and that (a) is
maintained for employees of any Loan Party or any ERISA Affiliate and no
Person other than the Loan Parties and the ERISA Affiliates or (b) was so
maintained and in respect of which any Loan Party or any ERISA Affiliate
could have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or
25
liabilities beyond such Person's ability to pay such debts and liabilities
as they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute an unreasonably small
capital. The amount of contingent liabilities at any time shall be computed
as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
"Subordinated Obligations" has the meaning specified in Section 7.06.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such partnership, joint venture or limited liability company or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Subsidiary Guarantors" means each Domestic Subsidiary of the Parent
Guarantor other than (i) the Borrower and (ii) the Non-Filing Domestic
Subsidiaries.
"Super-Priority Claim" means a claim against the Borrower or any other
Loan Party in any of the Cases which is an administrative expense claim
having priority over any or all administrative expenses of the kind
specified in Section 503(b) or 507(b) of the Bankruptcy Code and which is
subject and subordinate to the Carve-Out.
"Tax Certificate" has the meaning specified in Section 5.03(i)
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means the earliest of (i) July 5, 2002, (ii) the
date of termination in whole of the Working Capital Commitments and the
Letter of Credit Commitments, pursuant to Section 2.05 or 6.01, and (iii)
the effective date of confirmation of a Reorganization Plan involving the
Borrower or any Material Subsidiary.
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of
Inventory to the Borrower or any of its Subsidiaries to effect payment for
such Inventory, the
conditions to drawing under which include the presentation to the Issuing
Bank that issued such Letter of Credit of negotiable bills of lading,
invoices and related documents sufficient, in the judgment of the Issuing
Bank, to create a valid and perfected lien on or security interest in such
Inventory, bills of lading, invoices and related documents in favor of the
Issuing Bank.
"Transaction" means the transactions contemplated by this Agreement
and each other of the Loan Documents.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Working Capital Commitment" means, with respect to any Working
Capital Lender at any time, (a) such Lender's Working Capital Commitment at
such time minus (b) the sum of (i) the aggregate principal amount of all
Working Capital Advances and Letter of Credit Advances made by such Lender
(in its capacity as a Lender) and outstanding at such time plus (ii) such
Lender's Pro Rata Share of (A) the aggregate Available Amount of all
Letters of Credit outstanding at such time and (B) the aggregate principal
amount of all Letter of Credit Advances made by the Issuing Banks pursuant
to Section 2.03(c) and outstanding at such time.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is subject to ERISA and is maintained for employees of any Loan
Party or in respect of which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
"Working Capital Advance" has the meaning specified in Section
2.01(a).
"Working Capital Borrowing" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the Working
Capital Lenders.
"Working Capital Commitment" means, with respect to any Working
Capital Lender at any time, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Working Capital Commitment"
or, if such Lender has entered into one or more Assignment and Acceptances,
set forth for such Lender in the Register maintained by the Administrative
Agent pursuant to
27
Section 9.07(d) as such Lender's "Working Capital Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"Working Capital Facility" means, at any time, the aggregate amount of
the Working Capital Lenders' Working Capital Commitments at such time.
"Working Capital Lender" means any Lender that has a Working Capital
Commitment.
"Working Capital Note" means a promissory note of the Borrower payable
to the order of any Working Capital Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the Borrower
to such Lender resulting from the Working Capital Advances and Letter of
Credit Advances made by such Lender, as amended.
SECTION 1.02. Computation of Time Periods; Other Definitional
--------------------------------------------------------------
Provisions. In this Agreement and the other Loan Documents in the computation
----------
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding". References in the Loan Documents to any agreement or contract
"as amended" shall mean and be a reference to such agreement or contract as
amended, amended and restated, supplemented or otherwise modified from time to
time in accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
--------------------------------
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(g) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The
------------------------------------------------------ ---
Working Capital Advances. Each Working Capital Lender severally agrees, on the
------------------------
terms and conditions hereinafter set forth, to make advances (each a "Working
Capital Advance") to the Borrower from time to time on any Business Day during
the period from the Effective Date until the Termination Date in an amount for
each such Advance not to exceed such Lender's Unused Working Capital Commitment
at such time. Each Working Capital Borrowing shall be in an aggregate amount of
$1,000,000 or an integral multiple of $500,000 in excess thereof and shall
consist of Working Capital Advances made simultaneously by the Working Capital
Lenders ratably according to their Working Capital Commitments. Within the
limits of each Working Capital Lender's Unused Working Capital Commitment in
effect from time to time, the Borrower may borrow
28
under this Section 2.01(a), prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(a).
(b) The Letters of Credit. The Issuing Bank agrees, on the terms and
---------------------
conditions hereinafter set forth, to issue (or cause its Affiliate that is a
commercial bank to issue on its behalf) letters of credit (the "Letters of
Credit") in U.S. Dollars for the account of the Borrower from time to time on
any Business Day during the period from the date hereof until 60 days before the
Termination Date in an aggregate Available Amount (i) for all Letters of Credit
issued by such Issuing Bank not to exceed at any time the lesser of (x) the
Letter of Credit Facility at such time and (y) the Issuing Bank's Letter of
Credit Commitment at such time and (ii) for each such Letter of Credit not to
exceed an amount equal to the Unused Working Capital Commitments of the Working
Capital Lenders at such time. No Letter of Credit shall have an expiration date
(including all rights of the Borrower or the beneficiary to require renewal)
later than the earlier of 30 days before the Termination Date except that (A) in
the case of Standby Letters issued in the ordinary course of business and
consistent with past business practices or with respect to the retention of key
employees pursuant to an order of the Bankruptcy Court, and requiring a minimum
term of one year, the expiration date may be up to one year after the date of
issuance thereof, and (B) in the case of a Trade Letter of Credit, the
expiration date may be up to 90 days after the date of issuance thereof. Within
the limits of the Letter of Credit Facility, and subject to the limits referred
to above, the Borrower may request the issuance of Letters of Credit under this
Section 2.01(b), repay any Letter of Credit Advances resulting from drawings
thereunder pursuant to Section 2.03(c) and request the issuance of additional
Letters of Credit under this Section 2.01(b).
SECTION 2.02. Making the Advances. (a) Except as otherwise provided
-----------------------------------
in Section 2.03, each Borrowing shall be made on notice, given not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate
Advances, or not later than 9:00 A.M. (New York City time) on the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
by the Borrower to the Administrative Agent, which shall give to each
Appropriate Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telex or telecopier, in substantially the form of
Exhibit B-1 hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each Appropriate Lender shall, before 11:00 A.M.
(New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing in accordance with the respective Commitments under the
applicable Facility of such Lender and the other Appropriate Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by crediting the Borrower's Account;
provided, however, that, in the case of any Working Capital
29
Borrowing, the Administrative Agent shall first make a portion of such funds
equal to the aggregate principal amount of any Letter of Credit Advances made by
the Issuing Bank and by any other Working Capital Lender and outstanding on the
date of such Working Capital Borrowing, plus interest accrued and unpaid thereon
to and as of such date, available to the Issuing Bank and such other Working
Capital Lenders for repayment of such Letter of Credit Advances.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for the initial
Borrowing hereunder or for any Borrowing if the aggregate amount of such
Borrowing is less than $5,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or 2.10 and (ii) Eurodollar Rate Advances may not be outstanding as
part of more than ten separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Appropriate Lender against any loss, cost or expense incurred by
such Lender as a result of any failure to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from
an Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for
each day from the date such amount is made available to the Borrower until the
date such amount is repaid or paid to the Administrative Agent, at (i) in the
case of the Borrower, the interest rate applicable at such time under Section
2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute such Lender's
Advance as part of such Borrowing for all purposes.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be
30
responsible for the failure of any other Lender to make the Advance to be made
by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
---------------------------------------------------------------
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
----------------- --------------------
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Working Capital Lender prompt notice thereof by
telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
and shall be accompanied by such application and agreement for letter of credit
as the Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). If (x) the
requested form of such Letter of Credit is acceptable to the Issuing Bank in its
sole discretion and (y) it has not received notice of objection to such issuance
from the Agent, the Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to the
Borrower at its office referred to in Section 9.02 or as otherwise agreed with
the Borrower in connection with such issuance. In the event and to the extent
that the provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish (A) to
------------------------
the Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued by such
Issuing Bank during the previous week under all Letters of Credit issued by such
Issuing Bank, (B) to each Working Capital Lender on the first Business Day of
each month a written report summarizing issuance and expiration dates of Letters
of Credit issued by such Issuing Bank during the preceding month under all
Letters of Credit issued by such Issuing Bank and (C) to the Administrative
Agent and each Working Capital Lender on the first Business Day of each calendar
quarter a written report setting forth the average daily aggregate Available
Amount during the preceding calendar quarter of all Letters of Credit issued by
such Issuing Bank.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of
-------------------------
a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by the Issuing Bank with an outstanding Letter of Credit Advance, with a
copy of such demand to the Administrative Agent, each Working Capital Lender
shall purchase from the Issuing Bank, and the Issuing Bank shall sell and assign
to each such Working Capital Lender, such Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such purchase, by making
available for the account of its Applicable Lending Office to the Administrative
Agent for the account of the Issuing Bank, by deposit to the
31
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit
Advance to be purchased by such Lender. Promptly after receipt thereof, the
Administrative Agent shall transfer such funds to the Issuing Bank. The
Borrower hereby agrees to each such sale and assignment. Each Working
Capital Lender agrees to purchase its Pro Rata Share of an outstanding
Letter of Credit Advance on (i) the Business Day on which demand therefor
is made by the Issuing Bank which made such Advance, provided that notice
of such demand is given not later than 11:00 A.M. (New York City time) on
such Business Day, or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon any such
assignment by the Issuing Bank to any Working Capital Lender of a portion
of a Letter of Credit Advance, the Issuing Bank represents and warrants to
such other Lender that the Issuing Bank is the legal and beneficial owner
of such interest being assigned by it, free and clear of any liens, but
makes no other representation or warranty and assumes no responsibility
with respect to such Letter of Credit Advance, the Loan Documents or any
Loan Party. If and to the extent that any Working Capital Lender shall not
have so made the amount of such Letter of Credit Advance available to the
Administrative Agent, such Working Capital Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Issuing Bank until the
date such amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of the Issuing Bank, as applicable. If
such Lender shall pay to the Administrative Agent such amount for the
account of the Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Letter of Credit Advance made by the
Issuing Bank shall be reduced by such amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of
-----------------------------------------
any Lender to make the Letter of Credit Advance to be made by it on the
date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but
no Lender shall be responsible for the failure of any other Lender to make
the Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Working Capital
----------------------------------- ---------------
Advances. The Borrower shall repay to the Administrative Agent for the
--------
ratable account of the Working Capital Lenders on the Termination Date the
aggregate principal amount of the Working Capital Advances then
outstanding.
(b) Letter of Credit Advances. (i) The Borrower shall repay to
-------------------------
the Administrative Agent for the account of the Issuing Bank and each other
Working Capital Lender that has made a Letter of Credit Advance on the
earlier of the second Business Day after the date on which such Advance was
made and the Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating
to any Letter of
32
Credit shall be unconditional and irrevocable, and shall be paid strictly
in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances (it being
understood that any such payment by the Borrower is without prejudice to,
and does not constitute a waiver of, any rights the Borrower might have or
might acquire as a result of the payment by the Issuing Bank of any draft
or the reimbursement by the Borrower thereof):
(A) any lack of validity or enforceability of any Loan Document,
any Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating thereto (all of the foregoing being,
collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver
of or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated
transaction;
(D) any statement or any other document presented under a 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;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral or
other collateral, or any release or amendment or waiver of or consent
to departure from the Guaranty or any other guarantee, for all or any
of the Obligations of the Borrower in respect of the L/C Related
Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation,
any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
---------------------------------------------------------
Optional. The Borrower may, upon at least five Business Days' notice to the
--------
Administrative Agent, terminate in whole or reduce in part the unused
portions of the Letter of Credit Facility and the Unused Working Capital
Commitments; provided,
33
however, that each partial reduction of a Facility (i) shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and
(ii) shall be made ratably among the Appropriate Lenders in accordance with
their Commitments with respect to such Facility.
(b) Mandatory. (i) The Letter of Credit Facility shall be
---------
permanently reduced from time to time on the date of each reduction in the
Working Capital Facility by the amount, if any, by which the amount of the
Letter of Credit Facility exceeds the Working Capital Facility after giving
effect to such reduction of the Working Capital Facility.
(ii) The Working Capital Facility shall be automatically and
permanently reduced, on a pro rata basis, on each date on which prepayment
thereof is required to be made pursuant to Section 2.06(b)(i) in an amount equal
to the applicable Reduction Amount, provided that each such reduction of the
Working Capital Facility shall be made ratably among the Working Capital Lenders
in accordance with their Working Capital Commitments.
(iii) The Working Capital Facility shall be reduced to an amount
equal to the lesser of (a) $25,000,000 and (b) the maximum amount permitted to
be made available to the Borrowers under the Interim Order until entry of the
Final Order whereupon the Working Capital Facility shall be increased to the
full amount thereof approved therein but not to exceed $75,000,000 (such
reduction and increase to be made ratably among the Lenders in accordance with
their Commitments with respect to such Facility).
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon at
------------------------- --------
least five Business Days' notice to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay the outstanding aggregate principal
amount of the Advances comprising part of the same Borrowing in whole or ratably
in part, together with accrued interest to the date of such prepayment on the
aggregate principal amount prepaid, but without penalty or premium except as
provided herein; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of $1,000,000 or an integral multiple of $500,000
in excess thereof and (y) if any prepayment of a Eurodollar Rate Advance is made
on a date other than the last day of an Interest Period for such Advance, the
Borrower shall also pay any amounts owing pursuant to Section 9.04(c).
(b) Mandatory. (i) The Borrower shall, within two Business Days of
---------
receipt of the Net Cash Proceeds by any Loan Party or any of its Subsidiaries
(other than Foreign Subsidiaries) (or, at the option of the Borrower, on the
last day of an applicable Interest Period if such prepayment on a prior date
would require the payment of amounts pursuant to Section 9.04(c), provided that
the Borrower shall deposit the amount of such prepayment with the Agent to be
held by the Agent and applied to such prepayment on such last day) from: (A) the
sale, lease, transfer or other disposition of any assets of any Loan Party or
any of its Subsidiaries (other than any sale, lease, transfer or other
disposition of assets pursuant to (x) clause (i), (iii), (iv) or (v) of Section
5.02(e) or (y)
34
clause (vi) of Section 5.02(e) to the extent that the Net Cash Proceeds
therefrom, in the case of any such transaction or series of related transactions
together with Net Cash Proceeds from Extraordinary Receipts received by or paid
to the account of any Loan Party or its Subsidiaries (other than Foreign
Subsidiaries) through the date thereof, does not exceed $10,000,000), (B) the
incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt
(other than Debt incurred or issued pursuant to clause (i), (ii) or (iii) of
Section 5.02(b)), (C) the sale or issuance by any Loan Party or any of its
Subsidiaries of any Equity Interests to a Person other than a Loan Party or
Subsidiary of a Loan Party (including, without limitation, receipt of any
capital contribution related to such issuance) and (D) any Extraordinary Receipt
received by or paid to or for the account of any Loan Party or any of its
Subsidiaries and not otherwise included in clause (A), (B) or (C) above (other
than Extraordinary Receipts to the extent that the Net Cash Proceeds therefrom
and from any sale, lease, transfer or other disposition of assets pursuant to
clause (vi) of Section 5.02(e), received through the date thereof, does not
exceed $10,000,000), prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings in an amount equal to the amount of such
Net Cash Proceeds. Each such prepayment shall be applied to the Working Capital
Facility as set forth in clause (iv) below.
(ii) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Working Capital Advances comprising part of the same
Borrowings and the Letter of Credit Advances in an amount equal to the amount by
which (A) the sum of the aggregate principal amount of (x) the Working Capital
Advances and (y) the Letter of Credit Advances then outstanding plus the
aggregate Available Amount of all Letters of Credit then outstanding exceeds (B)
the Working Capital Facility on such Business Day.
(iii) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the L/C Collateral
Account to equal the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility on such
Business Day; provided, however, with respect to any Letters of Credit
outstanding as of the Termination Date, the Borrower shall immediately pay to
the Administrative Agent for deposit in the L/C Collateral Account an amount
sufficient to cash collateralize 102% of the Available Amount of such Letters of
Credit then outstanding.
(iv) Prepayments of the Working Capital Facility made pursuant to
clause (i) above shall be first applied to prepay Letter of Credit Advances then
outstanding until such Advances are paid in full, second applied to prepay
Working Capital Advances then outstanding comprising part of the same Borrowings
until such Advances are paid in full and third deposited in the L/C Collateral
Account to cash collateralize 100% of the Available Amount of the Letters of
Credit then outstanding; and, in the case of prepayments of the Working Capital
Facility required pursuant to clause (i) above, the amount remaining (if any)
after the prepayment in full of the Advances then outstanding and the 100% cash
collateralization of the aggregate Available Amount of Letters of Credit then
outstanding (the sum of such prepayment
35
amounts, cash collateralization amounts and remaining amount being referred to
herein as the "Reduction Amount") may be retained by the Borrower and the
Working Capital Facility shall be permanently reduced as set forth in Section
2.05(b)(ii). Upon the drawing of any Letter of Credit for which funds are on
deposit in the L/C Cash Collateral Account, such funds shall be applied to
reimburse the Issuing Bank or Working Capital Lenders, as applicable.
(v) All prepayments under this subsection (b) shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid, together with any amounts owing pursuant to Section 9.04(c) but
otherwise without penalty or premium.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower shall pay
---------------------- ------------------
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
------------------
Rate Advance, a rate per annum equal at all times to the sum of (A) the
Base Rate in effect from time to time plus (B) the Applicable Margin in
effect from time to time, payable in arrears monthly on the first day of
each month during such periods and on the date such Base Rate Advance shall
be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
------------------------
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance plus (B) the Applicable Margin in
effect on the first day of such Interest Period, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be Converted or
paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
----------------
of a Default under Section 6.01(a) or an Event of Default, the Borrower shall
pay interest on (i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Advance pursuant to clause
(a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable under the Loan Documents
that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid, in the case of interest, on
the Type of Advance on which such interest has accrued pursuant to clause (a)(i)
or (a)(ii) above and, in all other cases, on Base Rate Advances pursuant to
clause (a)(i) above.
36
(c) Notice of Interest Period and Interest Rate. Promptly after
-------------------------------------------
receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.09 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the Borrower and each Appropriate
Lender of the applicable Interest Period and the applicable interest rate
determined by the Administrative Agent for purposes of clause (a)(i) or (a)(ii)
above.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay to the
------------------ --------------
Administrative Agent for the account of the Lenders a commitment fee, from the
date of the acceptance of the Initial Lenders' Commitments by or on behalf of
the Borrower in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date, payable in arrears
on the date of the Initial Extension of Credit, thereafter monthly on the first
day of each month, commencing August 1, 2001, and on the Termination Date, at
the rate of 1/2 of 1% per annum on the daily Unused Working Capital Commitment
of each Appropriate Lender during such month; provided, however, that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
--------------------------
Administrative Agent for the account of each Working Capital Lender a
commission, payable in arrears monthly on the first day of each month,
commencing August 1, 2001, and on the earliest to occur of the full drawing,
expiration, termination or cancellation of any Letter of Credit and on the
Termination Date, on such Lender's Pro Rata Share of the average daily aggregate
Available Amount during such month of Letters of Credit outstanding from time to
time at the rate of the Applicable Margin for Eurodollar Rate Advances under the
Working Capital Facility; provided, however, upon the occurrence and during the
continuance of an Default under Section 6.01(a) or 6.01(i) or an Event of
Default, the Administrative Agent may, and upon the request of the Required
Lenders shall, require that such commission shall increase by a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such commission pursuant to this clause(i), payable on demand.
(ii) The Borrower shall pay to the Issuing Bank, for its own account,
a fronting fee, payable in arrears monthly on the first day of each month,
commencing August 1, 2001, and on the Termination Date, on the average daily
aggregate Available Amount during such month of Letters of Credit outstanding
from time to time at the rate of 0.25% per annum.
(c) Agents' Fees. The Borrower shall pay to each Agent for its own
------------
account such fees as may from time to time be agreed between the Borrower and
such Agent.
SECTION 2.09. Conversion of Advances (a) Optional. The Borrower may on
------------------------------------ --------
any Business Day, upon notice given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the
37
proposed Conversion and subject to the provisions of Section 2.10, Convert all
or any portion of the Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any Conversion of Eurodollar
Rate Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b), no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(b) and each
Conversion of Advances comprising part of the same Borrowing under any Facility
shall be made ratably among the Lenders in accordance with their Commitments
under such Facility. Each such notice of Conversion (a "Notice of Conversion")
shall be by telephone, confirmed immediately in writing, or telex or telecopier
in substantially the form of Exhibit B-2 hereto and within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
---------
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $1,000,000. such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance.
(iii) Prior to the entry of the Final Order or upon the occurrence
and during the continuance of any Default, (x) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (y) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
--------------------
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining or participating in Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances
(excluding, for purposes of this Section 2.10, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision
38
thereof), then the Borrower shall from time to time, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost; provided,
however, that a Lender Party claiming additional amounts under this Section
2.10(a) agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue and would
not, in the reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party. A certificate as to the amount of such
increased cost, submitted to the Borrower by such Lender Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Letters of Credit (or similar contingent
obligations), then, upon demand by such Lender Party or such corporation (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to compensate such
Lender Party in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the
existence of such Lender Party's commitment to lend or to issue or participate
in Letters of Credit hereunder or to the issuance or maintenance of or
participation in any Letters of Credit. A certificate as to such amounts
submitted to the Borrower by such Lender Party shall be conclusive and binding
for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least 25% of the then aggregate unpaid principal
amount thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it
39
is unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to continue to fund or
maintain Eurodollar Rate Advances hereunder, then, on notice thereof and demand
therefor by such Lender to the Borrower through the Administrative Agent, (i)
each Eurodollar Rate Advance under each Facility under which such Lender has a
Commitment will automatically, upon such demand, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower that such Lender has determined that the circumstances
causing such suspension no longer exist.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make
---------------------------------------
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent's Account in same day
funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective Obligations then payable to such Lender Parties and
(ii) if such payment by the Borrower is in respect of any Obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party and each of its
Affiliates, if and to the extent payment owed to such Lender Party is not made
when due hereunder or, in the case of a Lender, under the Note held by such
Lender, to charge from time to time, to the fullest extent permitted by law,
against any or all of the Borrower's accounts with such Lender Party or such
Affiliate any amount so due.
(c) All computations of interest and of fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
fees or commissions are payable. Each determination by the Administrative Agent
of an interest rate, fee or commission hereunder shall be conclusive and binding
for all purposes, absent manifest error.
40
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment or letter of
credit fee or commission, as the case may be; provided, however, that, if such
extension would cause payment of interest on or principal of Eurodollar Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) Whenever any payment received by the Administrative Agent under
this Agreement or any of the other Loan Documents is insufficient to pay in full
all amounts due and payable to the Agents and the Lender Parties under or in
respect of this Agreement and the other Loan Documents on any date, such payment
shall be distributed by the Administrative Agent and applied by the Agents and
the Lender Parties in the following order of priority:
(i) first, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Agents (solely
in their respective capacities as Agents) under or in respect of this
Agreement and the other Loan Documents on such date, ratably based upon the
respective aggregate amounts of all such fees, indemnification payments,
costs and expenses owing to the Agents on such date;
(ii) second, to the payment of all of the fees, indemnification
payments, costs and expenses that are due and payable to the Issuing Bank
(solely in its capacity as such) under or in respect of this Agreement and
the other Loan Documents on such date, ratably based upon the respective
aggregate amounts of all such fees, indemnification payments, costs and
expenses owing to the Issuing Bank on such date;
(iii) third, to the payment of all of the indemnification payments,
costs and expenses that are due and payable to the Lenders under Sections
9.04 hereof, Section 22 of the Security Agreement and any similar section
of any of the other Loan Documents on such date, ratably based upon the
respective aggregate
41
amounts of all such indemnification payments, costs and expenses owing to the
Lenders on such date;
(iv) fourth, to the payment of all of the amounts that are due and
payable to the Administrative Agent and the Lender Parties under Sections 2.10
and 2.12 hereof on such date, ratably based upon the respective aggregate
amounts thereof owing to the Administrative Agent and the Lender Parties on such
date;
(v) fifth, to the payment of all of the fees that are due and
payable to the Lenders under Section 2.08(a) on such date, ratably based upon
the respective aggregate Commitments of the Lenders under the Facilities on such
date;
(vi) sixth, to the payment of all of the accrued and unpaid
interest on the Obligations of the Borrower under or in respect of the Loan
Documents that is due and payable to the Administrative Agent and the Lender
Parties under Section 2.07(b) on such date, ratably based upon the respective
aggregate amounts of all such interest owing to the Administrative Agent and the
Lender Parties on such date;
(vii) seventh, to the payment of all of the accrued and unpaid
interest on the Advances that is due and payable to the Administrative Agent and
the Lender Parties under Section 2.07(a) on such date, ratably based upon the
respective aggregate amounts of all such interest owing to the Administrative
Agent and the Lender Parties on such date;
(viii) eighth, to the payment of the principal amount of all of the
outstanding Advances that is due and payable to the Administrative Agent and the
Lender Parties on such date, ratably based upon the respective aggregate amounts
of all such principal owing to the Administrative Agent and the Lender Parties
on such date; and
(ix) ninth, to the payment of all other Obligations of the Loan
Parties owing under or in respect of the Loan Documents that are due and payable
to the Administrative Agent and the other Secured Parties on such date, ratably
based upon the respective aggregate amounts of all such Obligations owing to the
Administrative Agent and the other Secured Parties on such date.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
-------------------
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and each Agent,
taxes that are imposed on its overall net income by the United States and taxes
that are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state or foreign jurisdiction under the laws of which such
Lender Party or such Agent, as the case may be, is organized or any political
subdivision thereof and, in the case of each Lender Party, taxes that are
imposed
42
on its overall net income (and franchise taxes imposed in lieu thereof) by the
state or foreign jurisdiction of such Lender Party's Applicable Lending Office
or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender Party or any Agent,
(i) the sum payable by the Borrower shall be increased as may be necessary so
that after the Borrower and the Administrative Agent have made all required
deductions (including deductions applicable to additional sums payable under
this Section 2.12) such Lender Party or such Agent, as the case may be, receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make all such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Agreement, the Notes or the other Loan Documents (hereinafter referred to
as "Other Taxes").
(c) The Borrower shall indemnify each Lender Party and each Agent for
and hold them harmless against the full amount of Taxes and Other Taxes, and for
the full amount of taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.12, imposed on or paid by such Lender Party or such
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender Party or
such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 9.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or by or
on behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of
subsections (d) and (e) of this Section 2.12, the terms "United States" and
"United States person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender Party or Initial
Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as
43
requested in writing by the Borrower (but only so long thereafter as such Lender
Party remains lawfully able to do so), provide each of the Administrative Agent
and the Borrower with two original Internal Revenue Service forms 1001 or 4224
or (in the case of a Lender Party that has certified in writing to the
Administrative Agent that it is not a "bank" as defined in Section 881(c)(3)(A)
of the Internal Revenue Code) form W-8 (and, if such Lender Party delivers a
form W-8, a certificate representing that such Lender Party is not a "bank" for
purposes of Section 881(c) of the Internal Revenue Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue
Code)), as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender Party is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the Notes or, in the case of a Lender Party providing a
form W-8, certifying that such Lender Party is a foreign corporation,
partnership, estate or trust. If the forms provided by a Lender Party at the
time such Lender Party first becomes a party to this Agreement indicate a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such forms; provided, however, that if, at the effective
date of the Assignment and Acceptance pursuant to which a Lender Party becomes a
party to this Agreement, the Lender Party assignor was entitled to payments
under subsection (a) of this Section 2.12 in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender Party
assignee on such date. If any form or document referred to in this subsection
(e) requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form 1001, 4224 or W-8 (or the related certificate described
above), that the applicable Lender Party reasonably considers to be
confidential, such Lender Party shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender Party has failed to
provide the Borrower with the appropriate form described in subsection (e) above
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e) above), such Lender Party shall not be
entitled to indemnification under subsection (a) or (c) of this Section 2.12
with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because of
its failure to deliver a form required hereunder, the Borrower shall take such
steps as such Lender Party shall reasonably request to assist such Lender Party
to recover such Taxes.
44
(g) Any Lender Party claiming any additional amounts payable pursuant
to this Section 2.12 agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall
------------------------
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and such other Lender
Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party's ratable share (according to the proportion of (i)
the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to (ii) the total amount
so recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total amount so
recovered; provided further that, so long as the Obligations under the Loan
Documents shall not have been accelerated, any excess payment received by any
Lender shall be shared on a pro rata basis only with other Lenders. The Borrower
agrees that any Lender Party so purchasing an interest or participating interest
from another Lender Party pursuant to this Section 2.13 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right
of set-off) with respect to such interest or participating interest, as the case
may be, as fully as if such Lender Party were the direct creditor of the
Borrower in the amount of such interest or participating interest, as the case
may be.
45
SECTION 2.14. Use of Proceeds. The proceeds of the Advances and
-----------------------------
issuances of Letters of Credit shall be available (and the Borrower agrees that
it shall use such proceeds and Letters of Credit) solely (i) to pay transaction
fees and expenses, (ii) provide working capital for the Loan Parties and their
respective Subsidiaries including Non-Filing Domestic Subsidiaries and Foreign
Subsidiaries to the extent permitted under this Agreement (including, without
limitation, for loans and advances that may be made pursuant to Section
5.02(b)(ii) or (iii)), (iii) to make other expenditures as may be authorized and
approved by an order to the Bankruptcy Court as reasonable, necessary costs and
expenses of preserving or disposing of the properties and interests in property
of the Borrower and the Guarantors (other than Non-Filing Subsidiaries),
including, without limitation, the fees and expenses of Borrower's Professionals
but not in excess of the Carve-Out, if applicable; provided further that no
amounts shall be paid pursuant to this Section 2.14(iii) for fees and
disbursements incurred by the Borrower in connection with any proceeding
commenced, including, without limitation, any motion or other pleading filed to
contest (a) the validity, binding effect or enforceability of the Loan
Documents, or (b) any other rights or interest of the Agent or the Lender
Parties under the Loan Documents.
SECTION 2.15. Defaulting Lenders (a) In the event that, at any one
--------------------------------
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by the Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date of such setoff under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be considered, for
all purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising such Borrowing
shall be Eurodollar Rate Advances on the date such Advance is deemed to be made
pursuant to this subsection (a). The Borrower shall notify the Administrative
Agent at any time the Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the Defaulting
Lender and the Defaulted Advance required to be made by such Defaulting Lender
and (B) the amount set off and otherwise applied in respect of such Defaulted
Advance pursuant to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such Defaulting
Lender which is paid by the Borrower, after giving effect to the amount set off
and otherwise applied by the Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c) of
this Section 2.15.
46
(b) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lender Parties and (iii) the Borrower shall make
any payment hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the Administrative Agent
may, on its behalf or on behalf of such other Agents or such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, such other Agents and such other
Lender Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to
them, in their capacities as such, ratably in accordance with such
respective Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Bank for any Defaulted Amounts then
owing to it, in its capacity as such, ratably in accordance with such
respective Defaulted Amounts then owing to the Issuing Bank; and
(iii) third, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, any Agent or any other
Lender Party shall be required to pay or distribute any amount hereunder or
under any other Loan Document to or for the account of such Defaulting Lender,
then the Borrower or such Agent or such other Lender Party shall pay such amount
to the Administrative Agent to be held by the Administrative Agent, to the
fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent in
47
escrow under this subsection (c) shall be deposited by the Administrative Agent
in an account with a bank (the "Escrow Bank") selected by the Administrative
Agent, in the name and under the control of the Administrative Agent, but
subject to the provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to the credit
balance of such account from time to time, shall be the Escrow Bank's standard
terms applicable to escrow accounts maintained with it. Any interest credited to
such account from time to time shall be held by the Administrative Agent in
escrow under, and applied by the Administrative Agent from time to time in
accordance with the provisions of, this subsection (c). The Administrative Agent
shall, to the fullest extent permitted by applicable law, apply all funds so
held in escrow from time to time to the extent necessary to make any Advances
required to be made by such Defaulting Lender and to pay any amount payable by
such Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and amounts
required to be made or paid at such time, in the following order of priority:
(i) first, to the Agents for any amounts then due and payable by
such Defaulting Lender to them hereunder, in their capacities as such,
ratably in accordance with such respective amounts then due and payable to
the Agents;
(ii) second, to the Issuing Bank for any amounts then due and
payable to them hereunder, in their capacities as such, by such Defaulting
Lender, ratably in accordance with such respective amounts then due and
payable to the Issuing Bank;
(iii) third, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that any Agent or any Lender Party may have against such Defaulting Lender with
respect to any Defaulted Amount.
48
SECTION 2.16. Evidence of Debt. (a) Each Lender Party shall maintain
------------------------------
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender Party from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender Party to the Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a Working Capital Note, in substantially the form of
Exhibit A hereto, payable to the order of such Lender Party in a principal
amount equal to the Working Capital Commitment of such Lender Party. All
references to Notes in the Loan Documents shall mean Notes, if any, to the
extent issued hereunder.
(b) The Register maintained by the Administrative Agent pursuant to
Section 9.07(d) shall include a control account, and a subsidiary account for
each Lender Party, in which accounts (taken together) shall be recorded (i) the
date and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender Party hereunder, and
(iv) the amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a) above, shall be prima facie
evidence of the amount of principal and interest due and payable or to become
due and payable from the Borrower to, in the case of the Register, each Lender
Party and, in the case of such account or accounts, such Lender Party, under
this Agreement, absent manifest error; provided, however, that the failure of
the Administrative Agent or such Lender Party to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this
Agreement.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
-----------------------------------------------------------------
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
49
(a) The Administrative Agent shall have received on or before the day of
the Initial Extension of Credit the following, each dated such day (unless
otherwise specified), in form and substance satisfactory to the Administrative
Agent (unless otherwise specified) and (except for the Notes) in sufficient
copies for each Lender Party:
(i) A copy of an order of the Bankruptcy Court in substantially the
form of Exhibit G-1 (the "Interim Order") and the Interim Order shall be in
full force and effect and shall not have been vacated, reversed, modified
or amended and there shall be no stay of the performance of any obligation
of either Borrower or any of the Loan Parties (the parties hereto
acknowledge that the foregoing shall not preclude the entry of any order of
the Bankruptcy Court approving or authorizing an amendment or modification
of this Agreement or any other Loan Document or the Interim Order permitted
by Section 9.01 which amendment or modification shall be acceptable to the
Lenders whose consent is required to approve such amendment or modification
under Section 9.01).
(ii) The Notes payable to the order of the Lenders to the extent
requested in accordance with Section 2.16.
(iii) A security agreement in substantially the form of Exhibit D
hereto (together with each other security agreement and security agreement
supplement delivered pursuant to Section 5.01(j), in each case as amended,
the "Security Agreement"), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Shares referred to
therein accompanied by undated stock powers executed in blank and
instruments evidencing the Pledged Debt indorsed in blank,
(B) if and to the extent required by the Administrative Agent,
executed copies of proper financing statements, to be filed on or
before the day of the Initial Extension of Credit under the Uniform
Commercial Code of all jurisdictions that the Administrative Agent may
deem necessary or desirable in order to perfect and protect the first
priority liens and security interests created under the Security
Agreement, covering the Collateral described in the Security
Agreement,
(C) Intercompany Notes duly executed by the Borrower and each
Subsidiary that is to receive proceeds of the Initial Extension of
Credit pursuant to Section 5.02(b)(ii),
(D) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and protect
the first priority liens and security interests created under
50
the Security Agreement subject to the liens created and permitted by
the Interim Order and the Final Order, as the case may be, has been
taken (including, without limitation, receipt of duly executed payoff
letters and consent agreements); and
(E) a certificate of a Responsible Officer of each of the Loan
Parties dated the Effective Date as to the absence (to the best of his
knowledge and belief) of any Liens against the assets and properties
of, or financing statements filed by, such Loan Party, other than
Permitted Liens and Liens existing on the Effective Date and described
on Schedule 5.02(a).
(iv) Certified copies of the resolutions of the Board of Directors of
each Loan Party approving the Transaction and each Loan Document to which
it is or is to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party approvals and
consents, if any, with respect to the Transaction and each Loan Document to
which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation of each Loan Party, dated reasonably near the
date of the Initial Extension of Credit, certifying (A) as to a true and
correct copy of the charter of such Loan Party and each amendment thereto
on file in such Secretary's office and (B) that (1) such amendments are the
only amendments to such Loan Party's charter on file in such Secretary's
office, (2) such Loan Party has paid all franchise taxes to the date of
such certificate other than those described on Schedule 3.01(a)(v) and (C)
such Loan Party is duly incorporated and in good standing or presently
subsisting under the laws of the State of the jurisdiction of its
incorporation.
(vi) A certificate of each Loan Party, signed on behalf of such Loan
Party by its President or a Vice President and its Secretary or any
Assistant Secretary, dated the date of the Initial Extension of Credit (the
statements made in which certificate shall be true on and as of the date of
the Initial Extension of Credit), certifying as to (A) the absence of any
amendments to the charter of such Loan Party since the date of the
Secretary of State's certificate referred to in Section 3.01(a)(v), (B) a
true and correct copy of the bylaws of such Loan Party as in effect on the
date on which the resolutions referred to in Section 3.01(a)(iv) were
adopted and on the date of the Initial Extension of Credit, (C) the due
incorporation and good standing or valid existence of such Loan Party as a
corporation organized under the laws of the jurisdiction of its
incorporation, and the absence of any proceeding for the dissolution or
liquidation of such Loan Party, (D) the truth of the representations and
warranties contained in the Loan Documents as though made on and as of the
date of the Initial Extension of Credit and (E) the absence of any event
occurring and
51
continuing, or resulting from the Initial Extension of Credit, that
constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Loan Document to
which it is or is to be a party and the other documents to be
delivered hereunder and thereunder.
(viii) Such financial, business and other information regarding
each Loan Party and its Subsidiaries as the Lender Parties shall have
requested, including, without limitation, information as to possible
contingent liabilities, tax matters, environmental matters,
obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements of Parent Guarantor and
its Subsidiaries for the fiscal period ending dated December 31, 2000,
which statements shall be unqualified except as to such qualifications
contained therein which the Lender Parties hereby acknowledge are
acceptable, interim unaudited monthly financial statements of Parent
Guarantor and its Subsidiaries for each fiscal month ending thereafter
through April 30, 2001, pro forma financial statements as to the
Borrower and forecasts prepared by management of the Borrower, in form
and substance satisfactory to the Lender Parties, of balance sheets,
income statements and cash flow statements on a monthly basis for the
first year following the day of the Initial Extension of Credit.
(ix) The Bankruptcy Court shall have authorized the use by the
Borrower and the Guarantors of proceeds of Pre-Petition Collateral
that constitutes "cash collateral" (within the meaning of the
Bankruptcy Code) in respect of the liens granted pursuant to the Pre-
Petition Credit Agreement.
(x) A letter, in form and substance satisfactory to the
Administrative Agent, from the Borrower to Xxxxxx Xxxxxxxx, L.L.P.,
its independent certified public accountants, advising such
accountants that the Agents and the Lender Parties have been
authorized to exercise all rights of the Borrower to require such
accountants to disclose any and all financial statements and any other
information of any kind that they may have with respect to the
Borrower and its Subsidiaries and directing such accountants to comply
with any reasonable request of any Agent or any Lender Party for such
information.
(xi) Evidence of insurance naming the Collateral Agent as
additional insured and loss payee with such responsible and reputable
insurance companies or associations, and in such amounts and covering
such risks, as is of a level and amount customary in the Borrower's
52
businesses or otherwise determined in the exercise of their reasonable
business judgment by the management of the Borrower to be sufficient
and appropriate in an amount and type for the businesses.
(xii) A Notice of Borrowing or Notice of Issuance, as
applicable, relating to the Initial Extension of Credit.
(xiii) A favorable opinion of McGuireWoods, L.L.P., counsel for
the Loan Parties, in substantially the form of Exhibit F-1 hereto and
as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xiv) A favorable opinion of Xxxxxxx Xxxx & Xxxxxxxxx, special
bankruptcy counsel for the Loan Parties, in substantially the form of
Exhibit F-2 thereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(b) All proceedings taken in connection with the execution of this
Agreement, the making of the Advances, the issuance of any Letter of
Credit, the execution and delivery of all other Loan Documents and all
documents and papers thereof shall be reasonably satisfactory to the
Administrative Agent and its counsel. The Administrative Agent and its
counsel shall have received copies of such documents and papers as the
Administrative Agent or its counsel may reasonably request in connection
therewith, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(c) The First Day Orders shall be reasonably satisfactory in form and
substance to the Administrative Agent, including, without limitation, an
order providing for the continuation of the pre-Filing Date cash management
system of the Borrower and Guarantors with Citibank, N.A., as modified in
accordance with the terms of this Agreement.
(d) Before giving effect to the Transaction, there shall have
occurred no Material Adverse Change since December 31, 2000 (other than the
commencement of the Cases).
(e) Except as may be stayed in connection with the commencement of
the Cases, there shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any Governmental Authority that (i) would be reasonably
likely to have a Material Adverse Effect other than the matters described
on Schedule 4.01(f) hereto (the "Disclosed Litigation") and the
commencement of the Cases or (ii) purports to affect the legality, validity
or enforceability of any Loan Document or the consummation of the
Transaction.
(f) All Governmental Authorizations and third party consents and
approvals necessary in connection with the Transaction shall have been
obtained
53
(without the imposition of any conditions that are not acceptable to the
Lender Parties) and shall remain in effect; and no law or regulation shall
be applicable in the judgment of the Lender Parties, in each case that
restrains, prevents or imposes materially adverse conditions upon the
Transaction or the rights of the Loan Parties or their Subsidiaries freely
to transfer or otherwise dispose of, or to create any Lien on, any
properties now owned or hereafter acquired by any of them other than the
entry by the Bankruptcy Court of the Interim Order or the Final Order, as
applicable.
(g) The Lender Parties shall have completed a due diligence
investigation of the Loan Parties and their respective Subsidiaries
(including, without limitation, a review of Holding's and the Borrower's
capital structure, all material contracts, debt instruments and charter and
by-laws) in scope, and with results, satisfactory to the Lender Parties,
and nothing shall have come to the attention of the Lender Parties during
the course of such due diligence investigation to lead them to believe that
the Information was or has become misleading, incorrect or incomplete in
any material respect. Without limiting the generality of the foregoing, the
Lender Parties shall have been given such access to the management,
records, books of account, contracts and properties of the Borrower and its
Subsidiaries as they shall have reasonably requested. The Lender Parties
acknowledge the due diligence investigation described in this Section
3.01(g) has been completed to their satisfaction.
(h) The Borrower shall have paid all accrued fees of the Agents and
the Lender Parties and all accrued expenses of the Agents (including the
accrued fees and expenses of counsel to the Administrative Agent and local
counsel to the Lender Parties).
(i) The Loan Parties shall have granted the Administrative Agent
access to and the right to inspect all reports, audits and other internal
information of the Borrower and the Guarantors relating to environmental
matters and any third party verification of compliance with environmental
laws and regulations requested by the Administrative Agent, and the Lenders
shall be satisfied that the Borrower and its subsidiaries are in compliance
in all material respects with all applicable environmental laws and
regulations and be satisfied with the costs of maintaining such compliance,
which access the Administrative Agent acknowledges has been granted to its
satisfaction in connection with the Administrative Agent's due diligence
review.
(j) The Administrative Agent shall be satisfied that the Borrower and
its subsidiaries will be able to meet their Post-Petition obligations under
all applicable employee and retiree welfare plans as such obligations may
be modified under the Bankruptcy Code or the Cases, that such employee
benefit plans are, in all material respects, funded in accordance with the
minimum statutory requirements, that no material "reportable event" (as
defined in ERISA, but excluding events for which reporting has been waived)
has occurred as to any such employee benefit plan and that no termination
of, or withdrawal from, any
54
such employee benefit plan has occurred or is contemplated that could
result in a material liability. The Administrative Agent shall have
reviewed and be satisfied with all employee benefit plans of the Borrower
and its Subsidiaries.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance. The
-----------------------------------------------------------------
obligation of each Lender to make an Advance (other than a Letter of Credit
Advance made by the Issuing Bank or a Working Capital Lender pursuant to Section
2.03(c)) on the occasion of each Borrowing (including the initial Borrowing),
and the obligation of the Issuing Bank to issue a Letter of Credit (including
the initial issuance), shall be subject to the further conditions precedent that
on the date of such Borrowing or issuance:
(a) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing or Notice of Issuance and the acceptance
by the Borrower of the proceeds of such Borrowing or of such Letter of
Credit shall constitute a representation and warranty by the Borrower that
both on the date of such notice and on the date of such Borrowing or
issuance such statements are true):
(i) the representations and warranties contained in each
Loan Document are correct on and as of such date, before and after
giving effect to such Borrowing or issuance and to the application of
the proceeds therefrom, as though made on and as of such date, other
than any such representations or warranties that, by their terms,
refer to a specific date other than the date of such Borrowing or
issuance, in which case as of such specific date; and
(ii) no Default has occurred and is continuing, or would
result from such Borrowing or issuance or from the application of the
proceeds therefrom;
(b) the Interim Order shall be in full force and effect and shall not
have been vacated, reversed, modified or amended and there shall be no stay
of the performance of any obligation of either Borrower or any of the Loan
Parties, provided that if at the time of any Borrowing or the issuance of
any Letter of Credit the aggregate amount of either of which, when added to
the sum of the principal amount of all Advances then outstanding plus the
aggregate Available Amount under all Letters of Credit (assuming compliance
with all conditions to drawing), would exceed such amount authorized by the
Bankruptcy Court in the Interim Order (collectively, the "Additional
Credit"), the Administrative Agent and each of the Lender Parties shall
have received a certified copy of an order of the Bankruptcy Court in
substantially the form of Exhibit G-2 (the "Final Order") and at the time
of the extension of the Additional Credit the Final Order shall be in full
force and effect, and shall not have been vacated, reversed, modified,
amended and there shall be no stay of the performance of any obligation of
either Borrower or any of the Loan Parties (the parties hereto acknowledge
that the foregoing shall not preclude the entry of any order of the
55
Bankruptcy Court approving or authorizing an amendment or modification of
this Agreement or any other Loan Document or the Interim Order permitted by
Section 9.01 which amendment or modification shall be acceptable to the
Lenders whose consent is required to approve such amendment or modification
under Section 9.01);
(c) the Borrower and the Guarantors shall have been authorized by the
Bankruptcy Court to use proceeds of Pre-Petition Collateral that
constitutes "cash collateral" (within the meaning of the Bankruptcy Code)
for the purposes that are described in Section 2.14; and
(d) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender Party through the Administrative Agent
may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
-----------------------------------------------
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
------------------------------------------------------------
Borrower and each other Loan Party represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it
to so qualify or be licensed except where the failure to so qualify or be
licensed could not be reasonably likely to have a Material Adverse Effect
and (iii) has all requisite corporate power and authority (including,
without limitation, all Governmental Authorizations to own or lease and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted. All of the outstanding Equity Interests in the
Parent Guarantor and the Borrower have been validly issued, are fully paid
and non-assessable and, with respect to the Borrower, are owned by the
Parent Guarantor, free and clear of all Liens, except those permitted under
this
56
Agreement or created under the Collateral Documents, the Interim Order and
the Final Order, as applicable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party, showing as of the date hereof
(as to each such Subsidiary) the jurisdiction of its incorporation, the
number of shares of each class of its Equity Interests authorized, and the
number outstanding, on the date hereof and the percentage of each such
class of its Equity Interests owned (directly or indirectly) by such Loan
Party, the number of shares covered by all outstanding options, warrants,
rights of conversion or purchase and similar rights at the date hereof and
its status as a Subsidiary Guarantor, a Non-Filing Domestic Subsidiary or a
Foreign Subsidiary, as the case may be. All of the outstanding Equity
Interests in each Loan Party's Subsidiaries have been validly issued, are
fully paid and non-assessable and are owned by such Loan Party or one or
more of its Subsidiaries free and clear of all Liens, except those created
or permitted under the Collateral Documents, the Interim Order and the
Final Order, as applicable.
(c) The execution, delivery and performance by each Loan Party of each
Loan Document to which it is or is to be a party, and the consummation of
the Transaction, are within such Loan Party's corporate powers, have been
duly authorized by all necessary corporate action and, subject to the entry
of the Interim Order and the Final Order, as the case may be, are
authorized by the Interim Order or the Final Order, as applicable, and do
not (i) contravene such Loan Party's charter or bylaws, (ii) violate any
law, rule, regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System), Post-Petition or
unstayed Pre-Petition order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or
constitute a default or require any payment to be made under, any Post-
Petition contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument binding on or affecting any Loan Party, any of
its Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents, the Interim Order and the Final Order,
result in or require the creation or imposition of any enforceable Lien
upon or with respect to any of the properties of any Loan Party or any of
its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation
of any such law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award or in breach of any such contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument,
in each case entered into by such Loan Party or such Subsidiary after the
Filing Date, the violation or breach of which could be reasonably likely to
have a Material Adverse Effect.
(d) No Governmental Authorization and no notice to or filing with, any
Governmental Authority or any other third party is required for (i) the due
execution, delivery, recordation, filing or performance by any Loan Party
of any Loan Document to which it is or is to be a party, or for the
consummation of the Transaction, (ii) the grant by any Loan Party of the
Liens granted by it pursuant to
57
the Collateral Documents, (iii) the perfection or maintenance of the Liens
created under the Collateral Documents (including the first priority nature
thereof) or (iv) the exercise by any Agent or any Lender Party of its
rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for (x) the entry
by the Bankruptcy Court of the Interim Order or the Final Order, as
applicable, and (y) the authorizations, approvals, actions, notices and
filings listed on Schedule 4.01(d) hereto, all of which, to the extent
required as of the date hereof, have been duly obtained, taken, given or
made and are in full force and effect.
(e) Subject to the entry of the Interim Order and the Final Order, as
the case may be, this Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party party thereto. This Agreement is, and each other Loan Document
when delivered hereunder will be, the legal, valid and binding obligation
of each Loan Party party thereto, enforceable against such Loan Party in
accordance with its terms and the Interim Order and Final Order.
(f) Except for the Cases and the litigation in connection therewith,
there is no Post-Petition action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries, including
any Environmental Action, pending or threatened before any Governmental
Authority or arbitrator that (i) would be reasonably likely to have a
Material Adverse Effect (other than the Disclosed Litigation) or (ii)
purports to affect the legality, validity or enforceability of any Loan
Document or the consummation of the Transaction other than the Interim
Order and the Final Order, and there has been no Material Adverse Change in
the status, or financial effect on any Loan Party or any of its
Subsidiaries, of the Disclosed Litigation from that described on Schedule
4.01(f) hereto.
(g) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2000, and the related Consolidated
statements of income and Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, accompanied
by an unqualified opinion, except as to such qualifications acceptable to
the Lenders, of Xxxxxx Xxxxxxxx, L.L.P., independent public accountants,
copies of which have been furnished to each Lender Party, fairly present
the Consolidated financial condition of the Borrower and its Subsidiaries
as at such date and the Consolidated results of operations of the Borrower
and its Subsidiaries for the period ended on such date, all in accordance
with generally accepted accounting principles applied on a consistent
basis, and since the Filing Date, there has been no Material Adverse Change
(other than the commencement of the Cases).
(h) The Consolidated forecasted balance sheets, statements of income
and statements of cash flows of the Borrower and its Subsidiaries delivered
to the Lender Parties pursuant to Section 3.01(a)(viii) or 5.03 were
prepared in good faith on the basis of the assumptions stated therein,
which assumptions were fair
58
in light of the conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the Borrower's best
estimate of its future financial performance.
(i) Neither the Information nor any other information, exhibit or
report furnished by or on behalf of any Loan Party to any Agent or any
Lender Party in connection with the negotiation and syndication of the Loan
Documents or pursuant to the terms of the Loan Documents contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading.
(j) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance or drawings under any Letter of Credit will be used to purchase
or carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.
(k) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any Loan
Party 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", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
Neither the making of any Advances, nor the issuance of any Letters of
Credit, nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated by
the Loan Documents, will violate any provision of any such Act or any rule,
regulation or order of the Securities and Exchange Commission thereunder.
(l) Neither any Loan Party nor any of its Subsidiaries is a party to
any Post-Petition indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate restriction
that could be reasonably likely to have a Material Adverse Effect.
(m) Each of the Interim Order and the Final Order, as applicable, and
only if entered as of the date on which this representation is made,
creates in favor of the Collateral Agent for the benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral
and each of the Interim Order and the Final Order, as applicable,
constitutes the creation of a fully perfected first priority lien on, and
security interest in, all right, title and interest of the grantors
thereunder in such Collateral in each case prior and superior in right to
any Person, except as otherwise provided in the Interim Order, the Final
Order, as applicable, or this Agreement. The Loan Parties are the legal and
beneficial owners of the Collateral free and clear of any Lien, except for
the liens and security interests created or permitted under the Loan
Documents, the Interim
59
Order and the Final Order. The Interim Order and the Final Order, as the
case may be, and the transactions contemplated hereby and thereby, are in
full force and effect and have not been vacated, reversed, modified,
amended or stayed without the prior written consent of the Administrative
Agent and the Required Lenders.
(n) (i) Set forth on Schedule 4.01(n) hereto is a complete and
accurate list of all Plans, Multiemployer Plans and Welfare Plans.
(ii) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan that has resulted in or is reasonably expected to
result in a material liability of any Loan Party or any ERISA Affiliate.
(iii) Neither any Loan Party nor any ERISA Affiliate has incurred or
is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan that could reasonably be expected to have a Material
Adverse Effect.
(iv) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to
be in reorganization or to be terminated, within the meaning of Title IV of
ERISA except to any such extent that reorganization or termination could
not reasonably be expected to have a Material Adverse Effect.
(o) (i) Except as otherwise set forth on Part I of Schedule 4.01(o)
hereto or as could not reasonably be expected to have in the aggregate a
Material Adverse Effect, the operations and properties of each Loan Party
and each of its Subsidiaries comply in all material respects with all
applicable Environmental Laws and Environmental Permits, all past non-
compliance with such Environmental Laws and Environmental Permits has been
resolved without ongoing obligations or costs, and no circumstances exist
that could be reasonably likely to (A) form the basis of an Environmental
Action against any Loan Party or any of its Subsidiaries or any of their
properties that could have a Material Adverse Effect or (B) cause any such
property to be subject to any material restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(ii) Except as otherwise set forth on Part II of Schedule 4.01(o)
hereto or as could not reasonably be expected to have in the aggregate a
Material Adverse Effect, (A) none of the properties currently or to the
best knowledge of any Loan Party of any of is Subsidiaries formerly owned
or operated by any Loan Party or any of its Subsidiaries is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous foreign,
state or local list or is adjacent to any such property; there are no and
never have been any underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed
60
on any property currently owned or operated by any Loan Party or any of its
Subsidiaries or, to the best of its knowledge, on any property formerly
owned or operated by any Loan Party or any of its Subsidiaries; (B) there
is no asbestos or asbestos-containing material on any property currently
owned or operated by any Loan Party or any of its Subsidiaries; and (C)
Hazardous Materials have not been released, discharged or disposed of on
any property currently or formerly owned or operated by any Loan Party or
any of its Subsidiaries.
(iii) Except as otherwise set forth on Part III of Schedule 4.01(o)
hereto or as could not reasonably be expected to have in the aggregate a
Material Adverse Effect, neither any Loan Party nor any of its Subsidiaries
is undertaking, and has not completed, either individually or together with
other potentially responsible parties, any investigation or assessment or
remedial or response action relating to any actual or threatened release,
discharge or disposal of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of any governmental
or regulatory authority or the requirements of any Environmental Law; and
all Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries have been disposed of
in a manner not reasonably expected to result in liability to any Loan
Party or any of its Subsidiaries that would have a Material Adverse Effect.
(p) (i) Neither any Loan Party nor any of its Subsidiaries is party to
any tax sharing agreement.
(ii) Each Loan Party and each of its Subsidiaries has filed, has
caused to be filed or has been included in all tax returns (Federal, state,
local and foreign) required to be filed and has paid all taxes shown
thereon to be due, together with applicable interest and penalties, except
for those taxes the payment of which has been stayed by the commencement of
the Cases.
(iii) Set forth on Schedule 4.01(p) hereto is a complete and
accurate list, as of the date hereof, of each taxable year of each Loan
Party and each of its Subsidiaries for which Federal income tax returns
have been filed and for which the expiration of the applicable statute of
limitations for assessment or collection has not occurred by reason of
extension or otherwise (an "Open Year").
(iv) No issues have been raised by the Internal Revenue Service in
respect of Open Years that, in the aggregate, could be reasonably likely to
have a Material Adverse Effect.
(v) The aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of each Loan
Party and its Subsidiaries proposed by all state, local and foreign taxing
authorities (other than amounts arising from adjustments to Federal income
tax returns) does not exceed an amount in the aggregate that, and no issues
have been raised by such taxing
61
authorities that in the aggregate, could be reasonably likely to have a
Material Adverse Effect.
(q) Neither the business nor the properties of any Loan Party or any
of its Subsidiaries have been affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or
not covered by insurance) that could be reasonably likely to have a
Material Adverse Effect except as described on Schedule 4.01(q).
(r) Set forth on Schedule 4.01(r) hereto is a preliminary list of all
Existing Debt as of the Effective Date, showing as of the Effective Date
the obligor and the principal amount outstanding thereunder, the maturity
date thereof and the amortization schedule therefor.
(s) Set forth on Schedule 4.01(s) hereto is a preliminary list of all
real property owned by any Loan Party or any of its Subsidiaries, showing
as of the date hereof the street address, county or other relevant
jurisdiction, state, record owner and book value thereof. Each Loan Party
or such Subsidiary has good, marketable and insurable fee simple title to
such real property located within the United States, free and clear of all
Liens, other than Liens created or permitted by the Loan Documents.
(t) Set forth on Schedule 4.01(t) hereto is a preliminary list of all
leases of real property under which any Loan Party or any of its
Subsidiaries is the lessee, showing as of the date hereof the street
address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. Each such lease is the
legal, valid and, to the Borrower's knowledge, binding obligation of the
lessor thereof, enforceable in accordance with its terms.
(u) Set forth on Schedule 4.01(u) hereto is a preliminary list of all
Investments held by any Loan Party or any of its Subsidiaries as of the
Effective Date, showing as of the date hereof the amount, obligor or issuer
and maturity, if any, thereof.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list of all material patents, trademarks, trade names, service marks and
copyrights, and all applications therefor and licenses thereof, of each
Loan Party or any of its Subsidiaries, showing as of the date hereof the
jurisdiction in which registered, the registration number, the date of
registration and the expiration date.
(w) As of the Effective Date, Foreign Cash does not exceed in the
aggregate $8,000,000.
62
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or any
-----------------------------------
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Borrower and each other Loan Party will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
-------------------------
Subsidiaries to comply, in all material respects (except as otherwise
permitted or required by the Bankruptcy Code), with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970, the
Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, and the local
rules and orders of the Bankruptcy Court.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all Post-Petition taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all Post-Petition lawful
claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by proper proceedings and
as to which appropriate reserves are being maintained, unless and until any
Lien resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Compliance with Environmental Laws. Except as otherwise permitted
----------------------------------
or required by the Bankruptcy Code, comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew, and cause
each of its Subsidiaries to obtain and renew, all Environmental Permits
necessary for its operations and properties; and conduct, and cause each of
its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws;
provided, however, that neither the Borrower nor any of its Subsidiaries
shall be required to undertake any such cleanup, removal, remedial or other
action to the extent that its obligation to do so is being contested in
good faith or is stayed and by proper proceedings and appropriate reserves
are being maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
------------------------
Subsidiaries to maintain, consistent with past business practices,
insurance with responsible and reputable insurance companies or
associations in such amounts
63
and covering such risks, as is of a level and amount customary in the
Borrower's businesses or otherwise determined in the exercise of their
reasonable business judgment by the management of the Borrower to be
sufficient and appropriate in an amount and type for the businesses.
(e) Preservation of Legal Existence, Etc. Preserve and maintain, and
------------------------------------
cause each of its Subsidiaries to preserve and maintain, its existence,
legal structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges and franchises; provided, however, that the
Borrower and its Subsidiaries may consummate any other merger or
consolidation permitted under Section 5.02(d) and provided further that
neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right, permit, license, approval, privilege or franchise if
the Board of Directors of the Borrower or such Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Borrower or such Subsidiary, as the case may be, and that
the loss thereof is not disadvantageous in any material respect to the
Borrower, such Subsidiary or the Lender Parties.
(f) Visitation Rights. At any reasonable time and from time to time,
-----------------
permit any of the Agents or any of the Lender Parties, or any agents or
representatives thereof, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the
Borrower and any of its Subsidiaries, and to discuss the affairs, finances
and accounts of the Borrower and any of its Subsidiaries with any of their
officers or directors and with their independent certified public
accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
----------------
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
------------------------------
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of its
----------------------------
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arms'-length transaction with a Person not an
Affiliate, other than (i) transactions between or among Loan Parties as
permitted hereunder, (ii) transactions between and among the Loan Parties
and Non-Filing Subsidiaries in the ordinary course of business and
consistent with past business practices (including, without limitation,
transactions in connection with the maintenance of
64
the existing cash management system), and (iii) other transactions
described on Schedule 5.01(i).
(j) Covenant to Guarantee Obligations and Give Security. Upon (w) a
---------------------------------------------------
filing of a petition for voluntary relief under chapter 11 of the
Bankruptcy Code by a Non-Filing Domestic Subsidiary, (x) the request of the
Collateral Agent following the occurrence and during the continuance of a
Default, (y) the formation or acquisition of any new direct or indirect
Subsidiaries by any Loan Party or (z) the acquisition of any property by
any Loan Party, and such property, in the judgment of the Collateral Agent,
shall not already be subject to a perfected first priority security
interest (subject to Permitted Liens) in favor of the Collateral Agent for
the benefit of the Secured Parties to the extent provided in this
Agreement, then, in each case at the Borrower's expense:
(i) in connection with the formation or acquisition of a
Subsidiary or the filing of a petition for voluntary relief under
chapter 11 of the Bankruptcy Code by a Non-Filing Domestic Subsidiary,
within 10 days after such formation or acquisition or filing, cause
each such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (if it has not already done so), to duly execute and
deliver to the Collateral Agent a guaranty or guaranty supplement, in
form and substance satisfactory to the Collateral Agent, guaranteeing
the other Loan Parties' obligations under the Loan Documents,
(ii) within 10 days after such request, formation or
acquisition or filing, furnish to the Collateral Agent a description
of the real and personal properties of the Loan Parties and their
respective Subsidiaries in detail satisfactory to the Collateral
Agent,
(iii) within 15 days after such request, formation or
acquisition or filing, duly execute and deliver, and cause each such
Subsidiary and each direct and indirect parent of such Subsidiary (if
it has not already done so) to duly execute and deliver, but only to
the extent previously delivered to the Collateral Agent with respect
to one or more Loan Parties to the Collateral Agent mortgages,
pledges, assignments, security agreement supplements, intellectual
property security agreement supplements and other security agreements,
as specified by and in form and substance satisfactory to the
Collateral Agent, securing payment of all the Obligations of the
applicable Loan Party, such Subsidiary or such parent, as the case may
be, under the Loan Documents and constituting Liens on all such
properties,
(iv) within 30 days after such request, formation or
acquisition or filing, take, and cause each such Subsidiary and each
direct or indirect parent to take, whatever action but only to the
extent such action has been taken with respect to one or more Loan
Parties (including, without limitation, the recording of mortgages,
the filing of Uniform Commercial
65
Code financing statements, the giving of notices and the endorsement
of notices on title documents) may be necessary or advisable in the
opinion of the Collateral Agent to vest in the Collateral Agent (or in
any representative of the Collateral Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the
mortgages, pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and security
agreements delivered pursuant to this Section 5.01(j), enforceable
against all third parties in accordance with their terms,
(v) within 60 days after such request, formation or
acquisition or filing, deliver to the Collateral Agent, upon the
request of the Collateral Agent in its sole discretion, a signed copy
of a favorable opinion, addressed to the Collateral Agent and the
other Secured Parties, of counsel for the Loan Parties acceptable to
the Collateral Agent as to the matters contained in clauses (i), (iii)
and (iv) above, as to such guaranties, guaranty supplements,
mortgages, pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and security
agreements being legal, valid and binding obligations of each Loan
Party party thereto enforceable in accordance with their terms, as to
the matters contained in clause (iv) above, as to such recordings,
filings, notices, endorsements and other actions being sufficient to
create valid perfected Liens on such properties, and as to such other
matters as the Collateral Agent may reasonably request,
(vi) as promptly as practicable after such request, formation
or acquisition or filing, deliver but only to the extent previously
delivered to the Collateral Agent with respect to one or more Loan
Parties, upon the request of the Collateral Agent in its sole
discretion, to the Collateral Agent with respect to each parcel of
real property owned or held by the entity that is the subject of such
request, formation or acquisition title reports, surveys and
engineering, soils and other reports, and environmental assessment
reports, each in scope, form and substance satisfactory to the
Collateral Agent, provided, however, that to the extent that any Loan
Party or any of its Subsidiaries shall have otherwise received any of
the foregoing items with respect to such real property, such items
shall, promptly after the receipt thereof, be delivered to the
Collateral Agent,
(vii) upon the occurrence and during the continuance of a
Default, promptly cause to be deposited any and all cash dividends
paid or payable to it or any of its Subsidiaries from any of its
Subsidiaries from time to time into the Collateral Account, and with
respect to all other dividends paid or payable to it or any of its
Subsidiaries from time to time, promptly execute and deliver, or cause
such Subsidiary to promptly execute and deliver, as the case may be,
any and all further instruments and take or cause such Subsidiary to
take, as the case may be, all such
66
other action as the Collateral Agent may deem necessary or desirable
in order to obtain and maintain from and after the time such dividend
is paid or payable a perfected, first priority lien on and security
interest in such dividends,
(viii) promptly upon such request, formation or acquisition of
any Foreign Subsidiary, the Borrower shall pledge to the Collateral
Agent on behalf of the Secured Parties (A) in the case of any Foreign
Subsidiary or joint venture, 65% of the total outstanding shares or
other ownership interests of such Person owned by the Borrower and (B)
in the case of any domestic joint venture, 100% of the shares or other
ownership interests of such Person held by the Borrower, and
(ix) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Collateral Agent may deem necessary or
desirable in obtaining the full benefits of, or in perfecting and
preserving the Liens of, such guaranties, mortgages, pledges,
assignments, security agreement supplements, intellectual property
security agreement supplements and security agreements.
Notwithstanding anything in this Agreement or any of the Loan
Documents to the contrary, no Subsidiary shall be required to provide any
guaranty or similar undertaking, or to grant any Lien on assets located in a
foreign jurisdiction, or to continue to keep effective or to maintain any
guaranty or similar undertaking or any such Lien, if any thereof (or the
execution and delivery of any agreement or instrument providing for the same)
could reasonably be expected to result in a Material Adverse Effect or in (i) a
material adverse tax consequence for the Borrower or any of its Subsidiaries,
(ii) a violation of any applicable legal requirement or fiduciary obligations of
a jurisdiction other than the United States or any State thereof or the District
of Columbia, (iii) the incurrence of any liability on the part of a director or
officer of any Loan Party or Subsidiary under or arising from any such legal
requirement or fiduciary obligations or (iv) result in a Loan Party becoming
obligated under a guaranty that would result in such Loan Party no longer being
Solvent.
(k) Further Assurances. (i) Promptly upon request by any Agent, or
------------------
any Lender Party through the Administrative Agent, correct, and cause each
of its Subsidiaries promptly to correct, any material defect or error that
may be discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender Party through
the Administrative Agent, do, execute, acknowledge, deliver, record, re-
record, file, re-file, register and re-register any and all such further
acts, deeds, conveyances, pledge agreements, mortgages, deeds of trust,
trust deeds, assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other
67
instruments as any Agent, or any Lender Party through the Administrative
Agent, may reasonably require from time to time in order to (A) carry out
more effectively the purposes of the Loan Documents, the Interim Order and
the Final Order (B) to the fullest extent permitted by applicable law,
subject any Loan Party's or any of its Subsidiaries' properties, assets,
rights or interests to the Liens now or hereafter intended to be covered by
any of the Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any of
the Liens intended to be created thereunder and (D) assure, convey, grant,
assign, transfer, preserve, protect and confirm more effectively unto the
Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which any Loan
Party or any of its Subsidiaries is or is to be a party, and cause each of
its Subsidiaries to do so.
(l) Compliance with Terms of Leaseholds. To the extent required by
-----------------------------------
Section 365 of the Bankruptcy Code or otherwise ordered by the Bankruptcy
Court, (w) make all payments and otherwise perform all obligations in
respect of all leases of real property to which the Borrower or any of its
Subsidiaries is a party, (x) keep such leases in full force and effect and
not allow such leases to lapse or be terminated or any rights to renew such
leases to be forfeited or cancelled except as expressly permitted under
Section 365 of the Bankruptcy Code and consented to by the Administrative
Agent in writing prior to such action being taken, such consent not to be
unreasonably withheld, (y) notify the Administrative Agent of any default
by any party with respect to such leases and (z) cooperate with the
Administrative Agent in all respects to cure any such default, and cause
each of its Subsidiaries to do so.
(m) Cash Management System. Maintain, and cause each of its
----------------------
Subsidiaries to maintain, the cash management system in place as of the
Filing Date as described in the "Debtors' Motion for Order Authorizing
Debtors to Continue Consolidated Cash Management Systems Pursuant to
Section 363 of the Bankruptcy Code" filed with the Bankruptcy Court on the
Filing Date, including all cash concentration accounts with such financial
institutions as of the Filing Date and any blocked account with such
financial institutions required under such cash management system as of the
Filing Date.
(n) Validity of Loan Documents. Object to any application made on
--------------------------
behalf of any Loan Party or by any Person to the validity of any Loan
Document or the applicability or enforceability of any Loan Document or
which seeks to void, avoid, limit or otherwise adversely affect the
security interest created by or in any Loan Document or any payment made
pursuant thereto.
(o) Use of Cash Collateral. Use any cash collateral permitted to be
----------------------
used the Borrower pursuant to the Interim Order and the Final Order solely
in accordance with Section 2.14.
68
(p) Non-Filing Domestic Subsidiary. Upon a Non-Filing Domestic
------------------------------
Subsidiary filing a petition for voluntary relief and becoming a debtor in
possession under chapter 11 of the Bankruptcy Code, the Parent Guarantor
shall cause such Subsidiary to immediately become a party to this Agreement
as a Subsidiary Guarantor be executing a Guaranty Supplement.
(q) Delivery of Intercompany Notes. Prior to any Loan Party advancing
------------------------------
or distributing any amounts to any other Loan Party or any of their
respective Subsidiaries in a transaction permitted by this Agreement, such
Loan Party shall deliver to the Administrative Agent a fully executed
Intercompany Note to the extent required by this Agreement.
(r) Delivery of Certified Copy of Interim Order. Within 5 Business
-------------------------------------------
Days of the entry of the Interim Order, the Borrower shall deliver to the
Administrative Agent a certified copy of the Interim Order.
(s) Delivery of Amended Schedules. Within 5 Business Days of the
-----------------------------
Filing Date, the Borrower shall deliver to the Administrative Agent (i) an
amended Schedule 4.01(r) containing a complete and accurate list of all
Existing Debt, showing as of the Filing Date, the obligor and the principal
amount outstanding thereunder, the maturity date thereof and the
amortization schedule therefor, (ii) an amended Schedule 4.01(u) containing
a complete and accurate list of all Investments held by any Loan Party or
any of its Subsidiaries on the Filing Date, showing as of the Filing Date,
the amount, obligor or issuer and maturity, if any, thereof, (iii) an
amended Schedule 4.01(t) containing a complete and accurate list of all
leases of real property under which any Loan Party or any of its
Subsidiaries is the lessee, showing as of the Filing Date, the street
address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof, and (iv) and amended
Schedule 4.01(s) a complete and accurate list of all real property owned by
any Loan Party or any of its Subsidiaries, showing as of the Filing Date,
the street address, county or other relevant jurisdiction, state, record
owner and book value thereof.
(t) Confirmation of Reorganization Plan. The Borrower shall use
-----------------------------------
reasonable best efforts to obtain confirmation by the Bankruptcy Court of a
plan of reorganization consistent with the Term Sheet dated July 2, 2001
among the Borrower and the Pre-Petition Lenders (the "Reorganization
Plan"); provided, however, that the Borrower shall have no obligation under
this Section 5.01(t) if the Pre-Petition Lenders (i) do not, or cease to,
support the confirmation of Reorganization Plan or (ii) seek to modify the
terms of the Reorganization Plan in any material respect.
SECTION 5.02. Negative Covenants. So long as any Advance or any
----------------------------------
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, neither the Borrower nor any other Loan Party will, at any
time:
69
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
----------
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names the
Borrower or any of its Subsidiaries as debtor, or sign or suffer to exist,
or permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income (or apply to the Bankruptcy Court
for authority to do so), excluding, however, from the operation of the
foregoing restrictions, the following:
(i) Liens created under the Loan Documents contemplated by the
Interim Order and the Final Order;
(ii) Permitted Liens;
(iii) Liens existing on the Filing Date and described on
Schedule 5.02(a) hereto;
(iv) purchase money Liens upon or in real property or equipment
acquired or held by the Borrower or any of its Subsidiaries in the
ordinary course of business to secure the purchase price of such
property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition, construction or improvement of
any such property or equipment to be subject to such Liens, or Liens
existing on any such property or equipment at the time of acquisition
(other than any such Liens created in contemplation of such
acquisition that do not secure the purchase price), or extensions,
renewals or replacements of any of the foregoing for the same or a
lesser amount; provided, however, that no such Lien shall extend to or
cover any property other than the property or equipment being
acquired, constructed or improved, and no such extension, renewal or
replacement shall extend to or cover any property not theretofore
subject to the Lien being extended, renewed or replaced; and provided
further that the aggregate principal amount of the Debt secured by
Liens permitted by this clause (iv) shall not exceed the amount
permitted under Section 5.02(b)(iii)(C) at any time outstanding;
(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii)(D); provided that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases;
(vi) the replacement, extension or renewal of any Lien permitted
by clause (iii) above upon or in the same property theretofore
70
subject thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor)
of the Debt secured thereby;
(vii) any adequate protection Liens afforded to secured
creditors (including the Pre-Petition Lenders); and
(viii) other Liens affecting property of Foreign Subsidiaries and
Foreign Businesses not to exceed in the aggregate $5,000,000.
provided, however, that nothing to the contrary in this Agreement or any of
the other Loan Documents shall restrict the ability of (i) the Foreign
Subsidiaries to, or permit their respective Subsidiaries to, create, incur,
assume or suffer to exist any Lien on or with respect to its properties in
the ordinary course of business or (ii) the ability of the third parties to
perfect any Pre-Petition Liens after the commencement of the Cases to the
extent allowed by the Bankruptcy Code.
(b) Debt. Create, incur, assume or suffer to exist, or permit any
----
of its Subsidiaries to create, incur, assume or suffer to exist, any Debt,
except:
(i) in the case of the Borrower, Debt owed to a wholly
owned Subsidiary of the Borrower, which Debt (x) shall, in the case of
Debt owed to a Loan Party, constitute Pledged Debt, (y) shall not
exceed $500,000 in aggregate principal amount outstanding at any time
and (z) shall be evidenced by promissory notes substantially in the
form attached hereto as Exhibit H (each, an "Intercompany Note") and
such Intercompany Notes shall, in the case of Debt owed to a Loan
Party, be pledged as security for the Obligations of the holder
thereof under the Loan Documents to which such holder is a party and
delivered to the Collateral Agent pursuant to the terms of the
Security Agreement, and
(ii) in the case of any Subsidiary of the Borrower,
(A) Debt owed to the Borrower or to a Subsidiary of
the Borrower (other than in connection with the cash
management system), which Debt (x) shall, in the case of
Debt owed to a Loan Party, constitute Pledged Debt, (y)
shall be evidenced by Intercompany Notes and (z) shall, in
the case of Debt owed to a Loan Party, be pledged as
security for the Obligations of the holder thereof under
the Loan Documents to which such holder is a party and
delivered to the Collateral Agent pursuant to the terms of
the Security Agreement;
(B) Debt constituting loans and advances by the
Borrower made on or after the Effective Date or by any
wholly-owned Subsidiary of the Borrower to any Subsidiary
of the Borrower for use in a Foreign Business (each, a
"Foreign
71
Advance") in an aggregate principal amount for all
Foreign Advances, at the time of and after giving
effect to the making of a Foreign Advance hereunder,
not to exceed at any time outstanding the positive
difference between (x) the sum of $2,000,000 and the
amount of all Foreign Distributions made to the
Borrower or a wholly-owned Domestic Subsidiary of the
Borrower and (y) the aggregate principal amount of
Foreign Advances outstanding immediately prior to
giving effect to the making of such Foreign Advance
hereunder; provided that, in each case, such Debt (x)
shall, in the case of Debt owed to a Loan Party,
constitute Pledged Debt, and (y) shall be evidenced by
Intercompany Notes and such Intercompany Notes shall,
in the case of Debt owed to a Loan Party, be pledged as
security for the Obligations of the holder thereof
under the Loan Documents to which such holder is a
party and delivered to the Collateral Agent pursuant to
the terms of the Security Agreement; and
(iii) in the case of the Loan Parties,
(A) Existing Debt;
(B) Debt under the Loan Documents;
(C) Post-Petition Debt secured by Liens
permitted by Section 5.02(a)(iv) not to exceed in the
aggregate $2,000,000 at any time outstanding;
(D) Post-Petition Capitalized Leases not to
exceed in the aggregate $2,000,000 at any time
outstanding;
(E) any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, any
Existing Debt, provided that the terms of any such
extending, refunding or refinancing Debt, and of any
agreement entered into and of any instrument issued in
connection therewith, are otherwise permitted by the
Loan Documents, provided further that the principal
amount of such Existing Debt shall not be increased
above the principal amount thereof outstanding
immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors
therefor shall not be changed, as a result of or in
connection with such extension, refunding or
refinancing;
(F) other unsecured Debt in an aggregate
principal amount not to exceed $500,000 at any time
outstanding;
72
(G) any Debt constituting loans and advances
by any Loan Party to any other Loan Party in accordance
with the existing cash management system;
(H) Debt consisting of repurchase arrangements
by the Borrower and its Subsidiaries in connection with
the financing of bowling equipment sales by their
respective customers; and
(I) Debt expressly permitted to be incurred by
the Interim Order and the Final Order, as the case may
be.
(c) Change in Nature of Business. Make, or permit any of its
----------------------------
Subsidiaries to make, any material change in the nature of its
business as carried on at the date hereof.
(d) Mergers, Etc. Merge into or consolidate with any Person or
------------
permit any Person to merge into it, or permit any of its Subsidiaries
to do so (or apply to the Bankruptcy Court for authority to do so
except in connection with the Reorganization Plan), except that the
Borrower or any Subsidiary (other than a Non-Filing Subsidiary unless
with the prior written consent of the Administrative Agent) of the
Borrower may merge into or consolidate with the Borrower or any other
Subsidiary of the Borrower (other than a Non-Filing Subsidiary unless
with the prior written consent of the Administrative Agent) or the
Borrower, provided that, in the case of any such merger or
consolidation, the Person formed by such merger or consolidation shall
be the Borrower or a wholly owned Subsidiary of the Borrower, provided
further that, in the case of any such merger or consolidation to which
a Subsidiary Guarantor is a party, the Person formed by such merger or
consolidation shall be a Subsidiary Guarantor; provided, however,
immediately before and after giving effect thereto, no Default shall
have occurred and be continuing and, in the case of any such merger to
which the Borrower is a party, the Borrower is the surviving
corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
----------------------
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other
right to purchase, lease or otherwise acquire any assets (or apply to
the Bankruptcy Court for authority to do so except in connection with
the Reorganization Plan) other than:
(i) sales of Inventory in the ordinary course of
its business;
(ii) in a transaction authorized by Section 5.02(d);
(iii) sales or dispositions of obsolete or worn-out
equipment in the ordinary course of business;
(iv) dispositions constituting the creation of
leasehold interests in the ordinary course of business and
consistent with past business practices;
73
(v) sales or transfers of Inventory to Subsidiaries
of the Borrower in the ordinary course of business on pricing
terms consistent with past practice; and
(vi) sales of assets for cash and for fair value in
an aggregate amount not to exceed $10,000,000 in any Fiscal Year;
provided that in the case of sales of assets pursuant to clause (ii)
and (vi) above, the Borrower shall prepay the Advances from the Net
Cash Proceeds from such sale pursuant to, and in the amount and order
of priority set forth in, Section 2.06(b)(i), as specified therein and
to the extent required thereby and subject to Section 2.06(v).
(f) Investments in Other Persons. Make or hold, or permit any
----------------------------
of its Subsidiaries to make or hold, any Investment in any Person,
except:
(i) equity Investments by the Borrower and its
Subsidiaries outstanding on the date hereof;
(ii) loans and advances to employees in the ordinary
course of the business of the Borrower and its Subsidiaries as
presently conducted in an aggregate principal amount not to
exceed $2,000,000 at any time outstanding;
(iii) Investments by the Borrower and its
Subsidiaries in Cash Equivalents;
(iv) Investments existing on the date hereof and
described on Schedule 4.01(u) hereto (as amended pursuant to
Section 5.01(s));
(v) Investments consisting of intercompany Debt
permitted under Sections 5.02(b)(i), 5.02(b)(ii) or
5.02(b)(iii)(G) or consisting of capital contributions from one
Loan Party to another Loan Party.
(g) Restricted Payments. Declare or pay any dividends,
-------------------
purchase, redeem, retire, defease or otherwise acquire for value any
of its Equity Interests now or hereafter outstanding, return any
capital to its stockholders, partners or members (or the equivalent
Persons thereof) as such, make any distribution of assets, Equity
Interests, obligations or securities to its stockholders, partners or
members (or the equivalent Persons thereof) as such or issue or sell
any Equity Interests or accept any capital contributions, or permit
any of its Subsidiaries to do any of the foregoing, or permit any of
its Subsidiaries to purchase, redeem, retire, defease or otherwise
acquire for value any Equity Interests in the Borrower or to issue or
sell any Equity Interests therein (or apply to the Bankruptcy Court
for authority to do any of the foregoing except in connection with the
Reorganization Plan), except that, so long as no Default shall have
occurred and be continuing or would result therefrom, any Subsidiary
of the Borrower may (A) declare and pay cash dividends to the
Borrower, (B) declare and pay cash dividends to any other
74
wholly owned Subsidiary of the Borrower of which it is a Subsidiary
(other than a Non-Filing Subsidiary except to the extent such dividend
is a Foreign Distribution) and (C) accept capital contributions from
its parent to the extent permitted under Section 5.01(f)(v).
(h) Lease Obligations. Create, incur, assume or suffer to
-----------------
exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any obligations as lessee (i) for the rental or hire
of real or personal property in connection with any sale and leaseback
transaction, or (ii) for the rental or hire of other real or personal
property of any kind under leases or agreements to lease (other than
Capitalized Leases) having an original term of one year or more that
would cause the direct and contingent liabilities of the Borrower and
its Subsidiaries, on a Consolidated basis, in respect of all such
obligations to exceed $40,000,000 payable in any period of 12
consecutive months.
(i) Amendments of Constitutive Documents. Amend, or permit any
------------------------------------
of its Subsidiaries to amend, its certificate of incorporation or
bylaws or other constitutive documents except as necessary to effect a
merger or consolidation permitted by Section 5.02(d).
(j) Accounting Changes. Make or permit, or permit any of its
------------------
Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as required by generally accepted
accounting principles, or (ii) Fiscal Year.
(k) Prepayments, Etc., of Debt. Prepay, redeem, purchase,
--------------------------
defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner, or make any payment in violation of any subordination
terms of, any Debt, except (i) the prepayment of the Advances in
accordance with the terms of this Agreement, (ii) payments required or
permitted to be made pursuant to the Interim Order or the Final Order
for adequate protection payments, (iii) payments of all pre-petition
claims authorized by the First Day Orders at any time after such First
Day Orders are entered by the Bankruptcy Court or subsequent order
approved by the Administrative Agent and entered by the Bankruptcy
Court; or amend, modify or change in any manner any term or condition
of any Existing Debt, or permit any of its Subsidiaries to do any of
the foregoing other than to prepay any Debt payable to the Borrower or
any other Loan Party.
(l) Negative Pledge. Enter into or suffer to exist, or permit
---------------
any of its Subsidiaries to enter into or suffer to exist, any
agreement prohibiting or conditioning the creation or assumption of
any Lien upon any of its property or assets except (i) in favor of the
Secured Parties or (ii) under or in connection with (A) any Existing
Debt, or (B) any purchase money Debt permitted by Section
5.02(b)(iii)(C) solely to the extent that the agreement or instrument
governing such Debt prohibits a Lien on the property acquired with the
proceeds of such Debt, or (C) any Capitalized Lease permitted by
Section 5.02(b)(iii)(D) solely to the extent that such Capitalized
Lease prohibits a Lien on the property
75
subject thereto, or (D) any Debt outstanding on the date any
Subsidiary of the Borrower becomes such a Subsidiary (so long as such
agreement was not entered into solely in contemplation of such
Subsidiary becoming a Subsidiary of the Borrower), (E) any operating
lease to the extent such leases prohibits a Lien on the leasehold
interest or other rights thereunder or (F) Liens granted by Foreign
Subsidiaries in the ordinary course of business and of the type
described in Sections 5.02(a)(ii), (iv), (v) and (vi).
(m) Partnerships, Etc. Become a general partner in any general
-----------------
or limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any Subsidiary the sole assets of
which consist of its interest in such partnership or joint venture.
(n) Speculative Transactions. Engage, or permit any of its
------------------------
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions.
(o) Capital Expenditures. Make, or permit any of its
--------------------
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the Borrower and
its Subsidiaries in any period set forth below to exceed the amount
set forth below for such period:
========================================================
Period Amount
------ ------
========================================================
July 2001 through December 2001 $30,000,000
--------------------------------------------------------
January 2002 through July 2002 $18,000,000
========================================================
provided, however, that if for the period from July 2001 through
December 2001, the amount specified above for such period exceeds the
aggregate amount of Capital Expenditures made by the Borrower and its
Subsidiaries during such period (the amount of such excess being the
"Excess Amount"), the Borrower and it Subsidiaries shall be entitled
to make additional Capital Expenditures in the period from January
2002 through July 2002 in an amount equal to the Excess Amount.
(p) Formation of Subsidiaries. Organize or invest, or permit
-------------------------
any of its Subsidiaries to organize or invest, in any new Subsidiary.
(q) Payment Restrictions Affecting Subsidiaries. Directly or
-------------------------------------------
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare
or pay dividends or other distributions in respect of its Equity
Interests or repay or prepay any Debt owed to, make loans or advances
to, or otherwise transfer assets to or invest in, the Borrower or any
Subsidiary of the Borrower (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant
or otherwise), except the Loan Documents and documents providing for
Existing Debt.
76
(r) Interim Order and Final Order. Make or permit to be made any
-----------------------------
changes, amendment or modifications, or any application or motion by a
Loan Party for any change, amendment or modification to the Interim
Order or the Final Order. The parties acknowledge that the foregoing
shall not preclude the entry of any order of the Bankruptcy Court
approving or authorizing an amendment or modification of this
Agreement or the other Loan Documents or the Interim Order or the
Final Order permitted by Section 9.01 which order shall be acceptable
to the Lenders whose consent is required to approve such amendment or
modification under Section 9.01.
(s) Application to the Bankruptcy Court. Apply to the
-----------------------------------
Bankruptcy Court for the authority to take any action that is
prohibited by the terms of this Agreement and the other Loan Documents
or refrain from taking any action that is required to be taken by the
terms of this Agreement and the other Loan Documents.
(t) Chapter 11 Claims. Incur, create, assume, suffer to exist
-----------------
or permit or make any application or motion for any other Super-
Priority Claim or Lien which is pari passu with or senior to the
claims of the Administrative Agent and the Lenders granted pursuant to
this Agreement, the Interim Order or the Final Order, other than as
expressly contemplated and permitted by the Interim Order or the Final
Order.
(u) Reclamation Claims; Bankruptcy Code Section 546(g)*
---------------------------------------------------
Agreements. (i) Make any payments or transfer any property on account
----------
of claims asserted by vendors of any Loan Party for reclamation in
accordance with Section 2-702 of the Uniform Commercial Code and
Section 546(c) of the Bankruptcy Code, and (ii) enter into any
agreements or file any motion seeking a Bankruptcy Court order for the
return of inventory to any vendor pursuant to Section 546(g)* of the
Bankruptcy Code, other than as expressly contemplated and permitted by
an order of the Bankruptcy Court (including the Interim Order or the
Final Order) and in an amount approved by the Administrative Agent.
SECTION 5.03. Reporting Requirements. So long as any Advance
-------------------------------------
or any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Parent Guarantor will furnish to the Agents and
the Lender Parties:
(a) Default Notice. As soon as possible and in any event
--------------
within two Business days after the occurrence of each Default or any
event, development or occurrence reasonably likely to have a Material
Adverse Effect continuing on the date of such statement, a statement
of an authorized officer of the Borrower setting forth details of such
Default and the action that the Borrower has taken and proposes to
take with respect thereto.
(b) Annual Financials. As soon as available and in any event
-----------------
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such
77
year for Parent Guarantor and its Subsidiaries, including therein
Consolidated and consolidating balance sheets of Parent Guarantor and
its Subsidiaries as of the end of such Fiscal Year and Consolidated
and consolidating statements of income and a Consolidated statement of
cash flows of Parent Guarantor and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion acceptable to the
Required Lenders of Xxxxxx Xxxxxxxx, L.L.P. or other independent
public accountants of recognized standing acceptable to the Required
Lenders, together with (i) a certificate of such accounting firm to
the Lender Parties stating that in the course of the regular audit of
the business of Parent Guarantor and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no
knowledge that a Default has occurred and is continuing, or if, in the
opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a schedule in
form satisfactory to the Administrative Agent of the computations used
by such accountants in determining, as of the end of such Fiscal Year,
compliance with the covenants contained in Section 5.04, provided that
in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary
for the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP and (iii)
a certificate of the Chief Financial Officer of the Borrower stating
that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and
the action that the Borrower has taken and proposes to take with
respect thereto.
(c) Quarterly Financials. As soon as available and in any
--------------------
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, Consolidated and consolidating balance sheets of
Parent Guarantor and its Subsidiaries as of the end of such quarter
and Consolidated and consolidating statements of income and a
Consolidated statement of cash flows of Parent Guarantor and its
Subsidiaries for the period commencing at the end of the previous
fiscal quarter and ending with the end of such fiscal quarter and
Consolidated and consolidating statements of income and a Consolidated
statement of cash flows of Parent Guarantor and its Subsidiaries for
the period commencing at the end of the previous Fiscal Year and
ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding date
or period of the preceding Fiscal Year, all in reasonable detail and
duly certified (subject to normal year-end audit adjustments) by the
Chief Financial Officer of the Parent Guarantor as having been
prepared in accordance with GAAP, together with (i) a certificate of
the Parent Guarantor executed by said officer stating that no Default
has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that
the Borrower has taken and proposes to take with respect thereto and
(ii) a schedule in form satisfactory to the Administrative Agent of
the computations used by the Borrower in determining compliance with
the covenants contained in Section 5.04, provided that in the event of
any change in GAAP used in the preparation of such financial
statements, the Borrower shall also provide, if
78
necessary for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements to
GAAP.
(d) Monthly Financials. As soon as available and in any event
------------------
within 30 days after the end of each month, a Consolidated balance
sheet of Parent Guarantor and its Subsidiaries as of the end of such
month and Consolidated and consolidating statements of income and a
Consolidated statement of cash flows of Parent Guarantor and its
Subsidiaries for the period commencing at the end of the previous
month and ending with the end of such month and Consolidated and
consolidating statements of income and a Consolidated statement of
cash flows of the Parent Guarantor and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such month, setting forth in each case, in one or more reports,
in comparative form the corresponding figures for the corresponding
month of the preceding Fiscal Year and the forecasts delivered
pursuant to Section 3.01(a)(viii), all in reasonable detail and duly
certified by the Chief Financial Officer of the Borrower.
(e) Annual Forecasts. As soon as available and in any event no
----------------
later than 30 days after the end of each Fiscal Year, forecasts
prepared by management of the Borrower, in form satisfactory to the
Administrative Agent, of balance sheets, income statements and cash
flow statements on a monthly basis for the Fiscal Year following such
Fiscal Year until the Termination Date.
(f) Litigation. Promptly after the commencement thereof,
----------
notice of all actions, suits, investigations, litigation and
proceedings before any Governmental Authority or governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting any Loan Party or any of its
Subsidiaries of the type described in Section 4.01(f), and promptly
after the occurrence thereof, notice of any change in the status or
the financial effect on any Loan Party or any of its Subsidiaries of
the Disclosed Litigation from that described on Schedule 4.01(f)
hereto that could reasonably be expected to have a Material Adverse
Effect.
(g) Securities Reports. Promptly after the sending or filing
------------------
thereof, copies of all proxy statements, financial statements and
reports that any Loan Party or any of its Subsidiaries sends to its
stockholders (other than other Loan Parties or Subsidiaries), and
copies of all regular, periodic and special reports, and all
registration statements, that any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
national securities exchange.
(h) Revenue Agent Reports. Within 10 days after receipt,
---------------------
copies of all Revenue Agent Reports (Internal Revenue Service Form
886), or other written proposals of the Internal Revenue Service, that
propose, determine or otherwise set forth positive adjustments to the
Federal income tax liability of the affiliated group (within the
meaning of Section 1504(a)(1) of the Internal Revenue Code) of which
the Borrower is a member aggregating $2,000,000 or more.
79
(i) Tax Certificates. Promptly, and in any event within five
----------------
Business Days after the due date (with extensions) for filing the
final Federal income tax return in respect of each taxable year, a
certificate (a "Tax Certificate"), signed by the President or the
Chief Financial Officer of the Borrower, stating that the common
parent of the affiliated group (within the meaning of Section
1504(a)(1) of the Internal Revenue Code) of which the Borrower is a
member has paid to the Internal Revenue Service or other taxing
authority, or to the Borrower, the full amount that such affiliated
group is required to pay in respect of Federal income tax for such
year and that the Borrower and its Subsidiaries have received any
amounts payable to them, and have not paid amounts in respect of taxes
(Federal, state, local or foreign) in excess of the amount they are
required to pay, under the Tax Agreement in respect of such taxable
year.
(j) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and
----- ------------------------------
in any event within 10 days after any Loan Party or any ERISA
Affiliate knows or has reason to know that any ERISA Event has
occurred, a statement of the Chief Financial Officer of the Borrower
describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with
respect thereto and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA, a copy of such records, documents
and information.
(ii) Plan Terminations. Promptly and in any event within two
-----------------
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer any
Plan.
(iii) Plan Annual Reports. Promptly and in any event within 30
-------------------
days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event
--------------------------
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies
of each notice concerning (A) the imposition of Withdrawal Liability
by any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (C) the amount of liability incurred, or that may be incurred,
by such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(k) Environmental Conditions. Promptly after the assertion or
------------------------
occurrence thereof, notice of any Environmental Action against or of
any noncompliance by any Loan Party or any of its Subsidiaries with
any Environmental Law or Environmental Permit that could (i)
reasonably be expected to have a Material Adverse Effect or (ii) cause
any property described in the Mortgages to be subject
80
to any restrictions on ownership, occupancy, use or transferability
under any Environmental Law.
(l) Real Property. As soon as available and in any event within
-------------
30 days after the end of each Fiscal Year, a report supplementing
Schedules 4.01(t) and 4.01(u) hereto, including an identification of
all owned and leased real property disposed of by the Borrower or any
of its Subsidiaries during such Fiscal Year, a list and description
(including the street address, county or other relevant jurisdiction,
state, record owner, book value thereof and, in the case of leases of
property, lessor, lessee, expiration date and annual rental cost
thereof) of all real property acquired or leased during such Fiscal
Year and a description of such other changes in the information
included in such Schedules as may be necessary for such Schedules to
be accurate and complete.
(m) Insurance. As soon as available and in any event within 30
---------
days after the end of each Fiscal Year, a report summarizing the
insurance coverage (specifying type, amount and carrier) in effect for
each Loan Party and its Subsidiaries and containing such additional
information as any Agent, or any Lender Party through the
Administrative Agent, may reasonably specify.
(n) Compliance Certificates. Together with the monthly
-----------------------
financial statements referred to in Section 5.03(d) and the annual
financial statements referred to in Section 5.03(b), a schedule in a
form satisfactory to the Administrative Agent of the Computations used
by the Borrower in determining compliance with the covenants contained
in Section 5.04.
(o) Chapter 11 Cases. To the extent not received in connection
----------------
with service pursuant to its Notice of Appearance and Request for
Service, provide to Shearman & Sterling, counsel to the Administrative
Agent, copies of all pleadings, notices, orders, agreements and all
other documents served, filed or entered, as the case may be, in, in
connection with, or in relation to, the Cases.
(p) Other Information. Such other information respecting the
-----------------
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries
as any Agent, or any Lender Party through the Administrative Agent,
may from time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or
----------------------------------
any other Obligation of any Loan Party under any Loan Document shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Borrower will maintain at all times (calculated as
of the end of each fiscal quarter of the Borrower) EBITDA of not less than the
amount set forth below for each period set forth below:
81
=================================================================
Period Amount
-----------------------------------------------------------------
Fiscal Quarter ending September 2001 $ 13,000,000
-----------------------------------------------------------------
Two Fiscal Quarters ending December 2001 $ 45,000,000
-----------------------------------------------------------------
Three Fiscal Quarters ending March 2002 $ 91,000,000
-----------------------------------------------------------------
Four Fiscal Quarters ending June 2002 $104,000,000
=================================================================
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
--------------------------------
("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the
Borrower shall fail to pay any interest on any Advance, or any Loan
Party shall fail to make any other payment under any Loan Document, in
each case under this clause (ii) within three Business Days after the
same shall become due and payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Xxxxxxx 0.00, 0.00(x), (x), (x),
(x), (x), (x) or (o), 5.02, 5.03(a) or 5.04; or
(d) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part
to be performed or observed if such failure shall remain unremedied
for 15 days after the earlier of the date on which (i) a Responsible
Officer becomes aware of such failure or (ii) written notice thereof
shall have been given to the Borrower by any Agent or any Lender
Party; or
(e) the Cases shall be dismissed, suspended or converted to a
case under Chapter 7 of the Bankruptcy Code or a trustee shall be
appointed in the Cases; or an application shall be filed by any Loan
Party for the approval of, or there shall arise any other claim having
priority senior to or pari passu with the claims of the Administrative
Agent and the Lender Parties under the Loan Documents or any other
claim having priority over any or all administrative expenses of the
kind specified in Section 503(b) or 507(b) of the Bankruptcy Code
(other than the Carve-Out) or any Lien on any of the Collateral having
a priority senior to or pari passu with the Liens and security
interest granted herein, except as expressly provided herein; or
(f) the Bankruptcy Court shall enter an order (i) granting
relief from the automatic stay applicable under Section 362 of the
Bankruptcy Code to any holder of any security interest in any assets
in excess of $500,000 individually or
82
in the aggregate in excess of $1,000,000 for any and all such holders other
than as expressly contemplated by the Interim Order or the Final Order or
(ii) approving any settlement or other stipulation with any creditor of any
Loan Party other than the Administrative Agent and the Lender Parties or
otherwise providing for payments as adequate protection or otherwise to
such creditor individually or in the aggregate in excess of $1,000,000
(exclusive of adequate protection payments to Pre-Petition Lenders) for any
and all such creditors or (iii) approving a First Day Order not approved by
the Administrative Agent; or
(g) any Loan Party shall make any payment (as adequate protection or
otherwise) on account of any claim arising or deemed to have arisen prior
to the Filing Date other than a payment or payments which would not
constitute a default under Section 6.01(f)(ii) except as expressly
contemplated by (x) the Interim Order or the Final Order or (y) the Loan
Documents; or
(h) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Post-Petition Debt of such Loan Party or such Subsidiary (as the
case may be) that is outstanding in a principal amount of at least
$1,000,000 either individually or in the aggregate for all such Loan
Parties and Subsidiaries (but excluding Debt outstanding hereunder and any
Debt under the Pre-Petition Credit Agreement), when the same becomes due
and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the agreement or
instrument relating to such Post-Petition Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Post-Petition Debt and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Post-Petition Debt or otherwise to
cause, or to permit the holder thereof to cause, such Post-Petition Debt to
mature; or any such Post-Petition Debt shall be declared to be due and
payable or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Post-Petition Debt shall
be required to be made, in each case prior to the stated maturity thereof;
or
(i) any Non-Filing Subsidiary shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Non-
Filing Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee or other similar official for it or for any substantial
part of its property and, in the case of any such proceeding instituted
against it (but not instituted by it) that is being diligently contested by
it in good faith, either such proceeding shall remain
83
undismissed or unstayed for a period of 30 days or any of the actions
sought in such proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or any Non-Filing Subsidiary shall take any
corporate action to authorize any of the actions set forth above in this
subsection (i), all to the extent such action or failure to act could be
reasonably expected to have a Material Adverse Effect and upon the
happening of such actions set forth in this subsection (i) such Non-Filing
Subsidiary fails to become a party to this Agreement pursuant to Section
5.01(p); or
(j) any judgments or orders, either individually or in the aggregate,
for the payment of money in excess of (i) $2,500,000 shall be rendered
against any Non-Filing Subsidiary, or (ii) $2,500,000 as an administrative
expense of the kind specified in Section 503(b) of the Bankruptcy Code
shall be rendered against any Loan Party or any of its Subsidiaries and
either (x) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (y) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise including by reason of
the automatic stay, shall not be in effect; provided, however, that any
such judgment or order shall not give rise to an Event of Default under
this Section 6.01(j) if and for so long as (A) (x) the amount of such
judgment or order is covered by a valid and binding policy of insurance
between the defendant and the insurer, which shall be rated at least "A" by
A.M. Best Company, covering full payment thereof, and (y) such insurer has
been notified, and has not disputed the claim made for payment, of the
amount of such judgment or order, or (B) such Non-Filing Subsidiary shall
become a party to this Agreement pursuant to Section 5.01(p) and such
judgment or order shall be subject to the automatic stay; or
(k) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could be reasonably likely to
have a Material Adverse Effect, and there shall be any period of 15
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise including by reason of
the automatic stay, shall not be in effect; or
(l) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be valid
and binding on or enforceable against any Loan Party party to it, or any
such Loan Party shall so state in writing; or
(m) any Collateral Document or financing statement after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and perfected
lien having the priority provided herein and therein pursuant to Section
364 of the Bankruptcy Code on and security interest in the Collateral
purported to be covered thereby; or
84
(n) a Change of Control shall occur; or
(o) any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Loan Parties and the ERISA Affiliates
related to such ERISA Event) exceeds $2,500,000; or
(p) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $2,500,000 or requires
payments exceeding $750,000 per annum; or
(q) any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA, and as a result
of such reorganization or termination the aggregate annual contributions of
the Loan Parties and the ERISA Affiliates to all Multiemployer Plans that
are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
plan years of such Multiemployer Plans immediately preceding the plan year
in which such reorganization or termination occurs by an amount exceeding
$750,000; or
(r) (i) the Interim Order shall cease to be in full force and effect
and the Final Order shall not have been entered prior to such cessation, or
(ii) from and after the date of entry thereof, the Final Order shall cease
to be in full force and effect, or (iii) any Loan Party shall fail to
comply with any of the terms or provisions of the Interim Order or the
Final Order in any material respect, or (iv) the Bankruptcy Court shall
enter an order amending, supplementing, vacating or otherwise modifying the
Interim Order or Final Order (the parties acknowledging that the foregoing
shall not preclude the entry of any order of the Bankruptcy Court approving
or authorizing an amendment or modification of this Agreement permitted by
Section 9.01, which order shall be acceptable to the Required Lenders); or
(s) the Bankruptcy Court shall enter an order appointing an examiner
with powers beyond the duty to investigate and report as set forth in
Section 1106(a)(3) and (4) of the Bankruptcy Code, in any of the Cases; or
(t) any Loan Party shall bring a motion in the Cases (i) to obtain
financing from any Person other than the Lender Parties under Section
364(c) of the Bankruptcy Code (other than with respect to a financing used,
in whole or part, to repay in full the Obligations), (ii) to grant any Lien
other than those permitted under Section 5.02(a) upon or affecting any
Collateral, (iii) to use cash Collateral
85
of the Administrative Agent or the Lender Parties under Section 363(c) of
the Bankruptcy Code without the prior written consent of the Lenders or
Required Lenders (as provided in Section 9.01 except to pay the Carve-Out),
(iv) to recover from any portions of the Collateral any costs or expenses
of preserving or disposing of such Collateral under Section 506(c) of the
Bankruptcy Code or (v) to effect any other action or actions adverse to the
Administrative Agent or the Lender Parties or their rights and remedies
hereunder or their interest in the Collateral that could reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect; or
(u) the entry of the Final Order shall not have occurred within 45
days after the Filing Date; or
(v) any challenge by any Loan Party to the validity of any Loan
Document or the applicability or enforceability of any Loan Document or
which seeks to void, avoid, limit, or otherwise adversely affect the
security interest created by or in any Loan Document or any payment made
pursuant thereto; or
(w) the determination by the Borrower, whether by vote of the
Borrower's board of directors or otherwise, to suspend the operation of the
Borrower's business in the ordinary course, liquidate all or substantially
all of the Borrower's assets, or employ an agent or other third party to
conduct any so-called "Going-Out-of Business" sales, or the filing of a
motion or other application in the Cases, seeking authority to do any of
the foregoing; or
(x) there shall occur any Material Adverse Change since the Filing
Date; or
(y) the Borrower shall not file with the Bankruptcy Court the
Reorganization Plan and a disclosure statement relating thereto on or
before August 1, 2001; provided, however, that no Event of Default shall
occur under this Section 6.01(y) if (i) the Pre-Petition Lenders do not
provide the Borrower with assistance reasonably required to enable the
Borrower to make such filing promptly after request from the Borrower
therefor, (ii) the Borrower has not received a commitment on or before
August 1, 2001, the terms of which are acceptable to the Pre-Petition
Lenders, from a lender or lenders to provide working capital financing to
the Borrower and its Subsidiaries upon the implementation of a plan of
reorganization (the "Third Party Facility"), or (iii) the Borrower has not
received a commitment on or before August 1, 2001 from one or more of the
Pre-Petition Lenders in the absence of the Third Party Facility to provide
working capital financing to the Borrower and its Subsidiaries upon the
implementation of a plan of reorganization;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower with
a copy to counsel for any statutory committee of unsecured creditors appointed
to the Cases and to the United States Trustee), declare the Commitments of each
Lender Party and the obligation
86
of each Lender Party to make Advances (other than Letter of Credit Advances by
the Issuing Bank or a Lender pursuant to Section 2.03(c) and of the Issuing Bank
to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower.
Upon the occurrence and during the continuance of an Event of Default,
the automatic stay provided in Section 362 of the Bankruptcy Code shall be
deemed automatically vacated and the Administrative Agent, on behalf of the
Lender Parties, shall give the Loan Parties, any official committee appointed
pursuant to (S)1102 of the Bankruptcy Code, and the United States Trustee at
least five (5) Business Days' prior written notice (an "Enforcement Notice") of
any exercise of remedies against the Collateral (other than the acceleration of
the Advances or other Obligations or termination of the Commitments), and shall
file a copy of the Enforcement Notice with the Bankruptcy Court. This Agreement
shall not prejudice the rights of any party-in-interest to contest, restrict or
condition the exercise of the Lenders' remedies.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default.
----------------------------------------------------------------------
If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Collateral Agent on behalf of the Lender
Parties in same day funds at the Collateral Agent's office designated in such
demand, for deposit in the L/C Collateral Account, an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding. If at any
time the Administrative Agent or the Collateral Agent determines that any funds
held in the L/C Collateral Account are subject to any right or claim of any
Person other than the Agents and the Lender Parties or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit,
the Borrower will, forthwith upon demand by the Administrative Agent or the
Collateral Agent, pay to the Collateral Agent, as additional funds to be
deposited and held in the L/C Collateral Account, an amount equal to the excess
of (a) such aggregate Available Amount over (b) the total amount of funds, if
any, then held in the L/C Collateral Account that the Administrative Agent or
the Collateral Agent, as the case may be, determines to be free and clear of any
such right and claim. Upon the drawing of any Letter of Credit for which funds
are on deposit in the L/C Collateral Account, such funds shall be applied to
reimburse the Issuing Bank or Working Capital Lenders, as applicable, to the
extent permitted by applicable law.
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ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability. (a) Each Guarantor,
-----------------------------------------------
jointly and severally, hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at scheduled maturity or on
any date of a required prepayment or by acceleration, demand or otherwise, of
all Obligations of each other Loan Party now or hereafter existing under or in
respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by the Administrative Agent
or any other Secured Party in enforcing any rights under this Guaranty or any
other Loan Document. Without limiting the generality of the foregoing, each
Guarantor's liability shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by any other Loan Party to any Secured
Party under or in respect of the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.
(b) Each Guarantor, and by its acceptance of this Guaranty, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Guaranty and the Obligations of each
Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Guaranty and the Obligations of each Guarantor
hereunder. To effectuate the foregoing intention, the Administrative Agent, the
other Secured Parties and the Guarantors hereby irrevocably agree that the
Obligations of each Subsidiary Guarantor under this Guaranty at any time shall
be limited to the maximum amount as will result in the Obligations of such
Guarantor under this Guaranty not constituting a fraudulent transfer or
conveyance or liability for trading while insolvent.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to any Secured Party under
this Guaranty or any other guaranty, such Guarantor will contribute, to the
maximum extent permitted by law, such amounts to each other Guarantor and each
other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.
SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees that the
-------------------------------
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party with respect
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thereto. The Obligations of each Guarantor under or in respect of this Guaranty
are independent of the Guaranteed Obligations or any other Obligations of any
other Loan Party under or in respect of the Loan Documents, and a separate
action or actions may be brought and prosecuted against each Guarantor to
enforce this Guaranty, irrespective of whether any action is brought against the
Borrower or any other Loan Party or whether the Borrower or any other Loan Party
is joined in any such action or actions. The liability of each Guarantor under
this Guaranty shall be irrevocable, absolute and unconditional irrespective of,
and each Guarantor hereby irrevocably waives any defenses it may now have or
hereafter acquire in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document,
the Interim Order, the Final Order or any agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan Documents,
or any other amendment or waiver of or any consent to departure from any Loan
Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any Loan Party
or any of its Subsidiaries or otherwise;
(iii) any taking, exchange, release or non-perfection of any
Collateral or any other collateral, or any taking, release or amendment or
waiver of, or consent to departure from, any other guaranty, for all or any of
the Guaranteed Obligations;
(iv) any manner of application of Collateral or any other
collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or
any manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Guaranteed Obligations or any other Obligations
of any Loan Party under the Loan Documents or any other assets of any Loan Party
or any of its Subsidiaries;
(v) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(vi) any failure of any Secured Party to disclose to any Loan Party
any information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party now or
hereafter known to such Secured Party (each Guarantor waiving any duty on the
part of the Secured Parties to disclose such information);
(vii) the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other guarantor or surety
with respect to the Guaranteed Obligations; or
(viii) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any representation by
any Secured Party
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that might otherwise constitute a defense available to, or a discharge of, any
Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) Each Guarantor hereby
------------------------------------------
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in
the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any Collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the Obligations of such
Guarantor hereunder.
(d) Each Guarantor acknowledges that the Collateral Agent may,
without notice to or demand upon such Guarantor and without affecting the
liability of such Guarantor under this Guaranty, foreclose under any mortgage by
nonjudicial sale, and each Guarantor hereby waives any defense to the recovery
by the Collateral Agent and the other Secured Parties against such Guarantor of
any deficiency after such nonjudicial sale and any defense or benefits that may
be afforded by applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably waives any
duty on the part of any Secured Party to disclose to such Guarantor any matter,
fact or thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party or any
of its Subsidiaries now or hereafter known by such Secured Party.
(f) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in Section 7.02 and this Section
7.03 are knowingly made in contemplation of such benefits.
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SECTION 7.04. Subrogation. Each Guarantor hereby unconditionally and
--------------------------
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's Obligations under or in respect of this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Secured Party against the Borrower,
any other Loan Party or any other insider guarantor or any Collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Borrower, any other Loan Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash, and all Letters of Credit shall
have expired or been terminated and the Commitments shall have expired or been
terminated. If any amount shall be paid to any Guarantor in violation of the
immediately preceding sentence at any time prior to the latest of (a) the
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty, (b) the Termination Date and (c) the latest date of
expiration or termination of all Letters of Credit, such amount shall be
received and held in trust for the benefit of the Secured Parties, shall be
segregated from other property and funds of such Guarantor and shall forthwith
be paid or delivered to the Administrative Agent in the same form as so received
(with any necessary endorsement or assignment) to be credited and applied to the
Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) any Guarantor
shall make payment to any Secured Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid in full in cash, (iii) the
Termination Date shall have occurred and (iv) all Letters of Credit shall have
expired or been terminated, the Secured Parties will, at such Guarantor's
request and expense, execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to
evidence the transfer by subrogation to such Guarantor of an interest in the
Guaranteed Obligations resulting from such payment made by such Guarantor
pursuant to this Guaranty.
SECTION 7.05. Guaranty Supplements. Upon the execution and delivery
-----------------------------------
by any Person of a guaranty supplement in substantially the form of Exhibit E
hereto (each, a "Guaranty Supplement"), (a) such Person shall be referred to as
an "Additional Guarantor" and shall become and be a Guarantor hereunder, and
each reference in this Guaranty to a "Guarantor" shall also mean and be a
reference to such Additional Guarantor, and each reference in any other Loan
Document to a "Subsidiary Guarantor" shall also mean and be a reference to such
Additional Guarantor, and (b) each reference herein to "this Guaranty",
"hereunder", "hereof" or words of like import referring to this Guaranty, and
each reference in any other Loan Document to the "Guaranty", "thereunder",
"thereof" or words of like import referring to this Guaranty,
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shall mean and be a reference to this Guaranty as supplemented by such Guaranty
Supplement.
SECTION 7.06. Subordination. Each Guarantor hereby subordinates any
----------------------------
and all debts, liabilities and other Obligations owed to such Guarantor by each
other Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations
to the extent and in the manner hereinafter set forth in this Section 7.06:
(i) Prohibited Payments, Etc. Except during the continuance of a
------------------------
Default, each Guarantor may receive regularly scheduled payments from any other
Loan Party on account of the Subordinated Obligations. After the occurrence and
during the continuance of any Default, however, unless the Required Lenders
otherwise agree, no Guarantor shall demand, accept or take any action to collect
any payment on account of the Subordinated Obligations.
(ii) Prior Payment of Guaranteed Obligations. In any Case relating
---------------------------------------
to any other Loan Party, each Guarantor agrees that the Secured Parties shall be
entitled to receive payment in full in cash of all Guaranteed Obligations before
such Guarantor receives payment of any Subordinated Obligations.
(iii) Turn-Over. After the occurrence and during the continuance of
---------
any Default, each Guarantor shall, if the Administrative Agent so requests,
collect, enforce and receive payments on account of the Subordinated Obligations
as trustee for the Secured Parties and deliver such payments to the
Administrative Agent on account of the Guaranteed Obligations, together with any
necessary endorsements or other instruments of transfer, but without reducing or
affecting in any manner the liability of such Guarantor under the other
provisions of this Guaranty.
(iv) Administrative Agent Authorization. After the occurrence and
----------------------------------
during the continuance of any Default, the Administrative Agent is authorized
and empowered (but without any obligation to so do), in its discretion, (i) in
the name of each Guarantor, to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and to apply any amounts received thereon
to the Guaranteed Obligations (including any and all Post Petition Interest),
and (ii) to require each Guarantor (A) to collect and enforce, and to submit
claims in respect of, Subordinated Obligations and (B) to pay any amounts
received on such obligations to the Administrative Agent for application to the
Guaranteed Obligations.
SECTION 7.07. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (ii) the Termination Date and (iii)
the latest date of expiration or termination of all Letters of Credit, (b) be
binding upon the Guarantor, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Secured Parties and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, any Secured Party may assign or otherwise
transfer all or any portion of its rights and obligations under this Agreement
(including, without
92
limitation, all or any portion of its Commitments, the Advances owing to it and
the Note or Notes held by it) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to such
Secured Party herein or otherwise, in each case as and to the extent provided in
Section 9.07. No Guarantor shall have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Secured Parties.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. Each Lender Party (in its
---------------------------------------
capacities as a Lender, the Issuing Bank (if applicable) and on behalf of itself
and its Affiliates as potential Hedge Banks) hereby appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Notes), no Agent shall be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lender Parties and all holders of Notes; provided, however,
that no Agent shall be required to take any action that exposes such Agent to
personal liability or that is contrary to this Agreement or applicable law. Each
Agent agrees to give to each Lender Party prompt notice of each notice given to
it by the Borrower pursuant to the terms of this Agreement.
SECTION 8.02. Agents' Reliance, Etc. Neither any Agent nor any of
---------------------
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions
93
of any Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
---------------------------------------
Commitments, the Advances made by it and the Notes issued to it, Citibank shall
have the same rights and powers under the Loan Documents as any other Lender
Party and may exercise the same as though it were not an Agent; and the term
"Lender Party" or "Lender Parties" shall, unless otherwise expressly indicated,
include Citibank in its individual capacity. Citibank and its affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, any Loan Party, any of its Subsidiaries and any Person that may do
business with or own securities of any Loan Party or any such Subsidiary, all as
if Citibank were not an Agent and without any duty to account therefor to the
Lender Parties.
SECTION 8.04. Lender Party Credit Decision. Each Lender Party
-------------------------------------------
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party 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 this
Agreement.
SECTION 8.05. Indemnification. (a) Each Lender Party severally
------------------------------
agrees to indemnify each Agent (to the extent not promptly reimbursed by the
Borrower) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of the Loan Documents
or any action taken or omitted by such Agent under the Loan Documents
(collectively, the "Indemnified Costs"); provided, however, that no Lender Party
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent's gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender Party agrees to reimburse each Agent
promptly upon demand for its ratable share of any costs and expenses (including,
without limitation, fees and expenses of counsel) payable by the Borrower under
Section 9.04, to the extent that such Agent is not
94
promptly reimbursed for such costs and expenses by the Borrower. In the case of
any investigation, litigation or proceeding giving rise to any Indemnified
Costs, this Section 7.05 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender, any other Lender Party or a
third party.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Issuing Bank under the Loan Documents; provided, however, that no Lender
Party shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Issuing Bank's gross negligence or willful misconduct as
found in a final, non-appealable judgment by a court of competent jurisdiction.
Without limitation of the foregoing, each Lender Party agrees to reimburse the
Issuing Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 9.04, to the extent that the Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower.
(c) For purposes of this Section 7.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties, (ii) their respective Pro Rata
Shares of the aggregate Available Amount of all Letters of Credit outstanding at
such time and (iii) their respective Unused Working Capital Commitments at such
time; provided that the aggregate principal amount of Letter of Credit Advances
owing to the Issuing Bank shall be considered to be owed to the Working Capital
Lenders ratably in accordance with their respective Working Capital Commitments.
The failure of any Lender Party to reimburse any Agent or the Issuing Bank, as
the case may be, promptly upon demand for its ratable share of any amount
required to be paid by the Lender Parties to such Agent or the Issuing Bank, as
the case may be, as provided herein shall not relieve any other Lender Party of
its obligation hereunder to reimburse such Agent or the Issuing Bank, as the
case may be, for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such Agent or
the Issuing Bank, as the case may be, for such other Lender Party's ratable
share of such amount. Without prejudice to the survival of any other agreement
of any Lender Party hereunder, the agreement and obligations of each Lender
Party contained in this Section 7.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 8.06. Successor Agents. Any Agent may resign at any time by
--------------------------------
giving written notice thereof to the Lender Parties and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor
95
Agent. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lender Parties, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent and, in the case of a
successor Collateral Agent, upon the execution and filing or recording of such
financing statements, or amendments thereto, and such amendments or supplements
to the Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under the
Loan Documents. If within 45 days after written notice is given of the retiring
Agent's resignation or removal under this Section 8.06 no successor Agent shall
have been appointed and shall have accepted such appointment, then on such 45th
day (a) the retiring Agent's resignation or removal shall become effective, (b)
the retiring Agent shall thereupon be discharged from its duties and obligations
under the Loan Documents and (c) the Required Lenders shall thereafter perform
all duties of the retiring Agent under the Loan Documents until such time, if
any, as the Required Lenders appoint a successor Agent as provided above. After
any retiring Agent's resignation or removal hereunder as Agent shall have become
effective, the provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
---------------
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given and, in the case of an amendment, by the Borrower;
provided, however, that (a) no amendment, waiver or consent shall, unless in
writing and signed by all of the Lender Parties (other than any Lender Party
that is, at such time, a Defaulting Lender), do any of the following at any
time: (i) waive any of the conditions specified in Section 3.01 or, in the case
of the Initial Extension of Credit, Section 3.02, (ii) change the number of
Lenders or the percentage of (x) the Commitments, (y) the aggregate unpaid
principal amount of the Advances or (z) the aggregate Available Amount of
outstanding Letters of Credit that, in each case, shall be required for the
Lenders or any of them to take any action hereunder, (iii) reduce or limit the
obligations of any Guarantor under Section 7.01 issued by it or release such
Guarantor or otherwise limit such Guarantor's liability with respect to the
Obligations
96
owing to the Agents and the Lender Parties (iv) release any material portion of
the Collateral in any transaction or series of related transactions or permit
the creation, incurrence, assumption or existence of any Lien on any material
portion of the Collateral in any transaction or series of related transactions
to secure any Obligations other than Obligations owing to the Secured Parties
under the Loan Documents, (v) amend Section 2.13 or this Section 9.01, (vi)
increase the Commitments of the Lenders, (vii) reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, (viii)
postpone any date scheduled for any payment of principal of, or interest on, the
Notes pursuant to Section 2.04 or 2.07 or any date fixed for payment of fees or
other amounts payable hereunder, (ix) limit the liability of any Loan Party
under any of the Loan Documents or (x) consent to any amendment or modification
of the Interim Order or the Final Order and (b) no amendment, waiver or consent
shall, unless in writing and signed by the Required Lenders and each Lender
(other than any Lender that is, at such time, a Defaulting Lender) that has a
Commitment under, or is owed any amounts under or in respect of, the Revolving
Credit Facility if such Lender is directly and adversely affected by such
amendment, waiver or consent: (i) increase the Commitments of such Lender; (ii)
reduce the principal of, or stated rate of interest on, the Notes held by such
Lender or any fees or other amounts stated to be payable hereunder to such
Lender; or (iii) postpone any date scheduled for any payment of principal of, or
interest on, the Notes pursuant to Section 2.04 or 2.07 or any date fixed for
any payment of fees hereunder or any Guaranteed Obligations payable under the
Subsidiaries Guaranty; provided further that no amendment, waiver or consent
shall, unless in writing and signed by the Issuing Bank, in addition to the
Lenders required above to take such action, affect the rights or obligations of
the Issuing Bank under this Agreement; and provided further that no amendment,
waiver or consent shall, unless in writing and signed by an Agent in addition to
the Lenders required above to take such action, affect the rights or duties of
such Agent under this Agreement or the other Loan Documents.
SECTION 9.02. Notices, Etc. All notices and other communications
------------
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the Borrower, at its address at AMF Bowling Worldwide, Inc., 0000 XXX
Xxxxx, Xxxxxxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx, with a copy
to Xxxx Xxxxxx, Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or any Guarantor, at its address listed on the signature pages hereof,
each of the foregoing; if to any Initial Lender Party, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender
Party, at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party; if to the Collateral Agent or the
Administrative Agent, at its address at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxx Xxxx; or, as to the Borrower or the Administrative Agent,
at such other address as shall be designated by such party in a written notice
to the other parties and, as to each other party, at such other address as shall
be designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and other communications shall, when
mailed, telegraphed, telecopied or telexed, be effective when deposited in the
mails, delivered to the telegraph company, transmitted by telecopier or
confirmed by telex answerback, respectively, except that notices and
communications to any Agent pursuant to Article II,
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III or VII shall not be effective until received by such Agent. Delivery by
telecopier of an executed counterpart of a signature page to any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of an
original executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
----------------------------------
Lender Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note or any other Loan document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to pay on
---------------------------------
demand (i) all costs and expenses of each Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of,
or any consent or waiver under, the Loan Documents (including, without
limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of counsel for each Agent with respect thereto, with respect to
advising such Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents, the
Interim Order or the Final Order, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to
a Default and with respect to any review of pleadings and documents related to
the Cases, attendance at meetings related to the Cases, general monitoring of
the Cases and any subsequent Chapter 7 case, and (ii) all costs and expenses of
each Agent and each Lender Party in connection with the enforcement of the Loan
Documents, the Interim Order or the Final Order, whether in any action, suit or
litigation, or any bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally (including, without limitation, the reasonable fees
and expenses of counsel for the Administrative Agent and each Lender Party with
respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold
harmless each Agent, each Lender Party and each of their Affiliates and their
respective officers, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against, and shall pay on demand, any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Facilities, the actual or proposed use
of the proceeds of the Advances or the Letters of Credit, the Loan Documents or
any of the transactions contemplated, or (ii) the actual or alleged presence of
Hazardous Materials on any property of any Loan Party or any of its Subsidiaries
or any Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
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negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party or any other Person, whether or not any
Indemnified Party is otherwise a party thereto and whether or not the
Transaction is consummated. The Borrower also agrees not to assert any claim
against any Agent, any Lender Party or any of their Affiliates, or any of their
respective officers, directors, employees, agents and advisors, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Loan Documents or any of
the transactions contemplated by the Loan Documents.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender Party other than on the
last day of the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Borrower pursuant to Section 9.07(a), or if the Borrower fails to
make any payment or prepayment of an Advance for which a notice of prepayment
has been given or that is otherwise required to be made, whether pursuant to
Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon demand by such
Lender Party (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender Party any amounts
required to compensate such Lender Party for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or Conversion
or such failure to pay or prepay, as the case may be, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any reasonable costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
9.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon the occurrence and during the
------------------------------
continuance of an Event of Default, the automatic stay provided in Section 362
of the Bankruptcy Code shall be deemed automatically vacated and the
Administrative Agent, on behalf of the Lender Parties, shall give the Loan
Parties, any official committee
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appointed pursuant to (S)1102 of the Bankruptcy Code, and the United States
Trustee at least five (5) Business Days' prior written notice (an "Enforcement
Notice") of any exercise of remedies against the Collateral (other than the
acceleration of the Advances or other Obligations or termination of the
Commitments), and shall file a copy of the Enforcement Notice with the
Bankruptcy Court. This order shall not prejudice the rights of any party-in-
interest to contest, restrict or condition the exercise of the Lenders'
remedies. Each Agent and each Lender Party agrees promptly to notify the
Borrower 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. The rights of each Agent and each Lender Party and their respective
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Agent, such
Lender Party and their respective Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
------------------------------
when it shall have been executed by the Borrower and each Agent and the
Administrative Agent shall have been notified by each Initial Lender Party that
such Initial Lender Party has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, each Agent and each Lender Party and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
----------------------------------------------
and, so long as no Default shall have occurred and be continuing, if demanded by
the Borrower (following a demand by such Lender pursuant to Section 2.10 or
2.12) upon at least five Business Days' notice to such Lender and the
Administrative Agent, will assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or Commitments, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations under and in respect of all of the Facilities, (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the aggregate amount of the Commitments being
assigned to such Eligible Assignee pursuant to such assignment (determined as of
the date of the Assignment and Acceptance with respect to such assignment) shall
in no event be less than $2,000,000 (or such lesser amount as shall be approved
by the Administrative Agent and, so long as no Default shall have occurred and
be continuing at the time of effectiveness of such assignment, the Borrower),
(iii) each such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Borrower pursuant to this Section
9.07(a) shall be arranged by the Borrower after consultation with the
Administrative Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (v) no Lender shall be
obligated to make any such assignment as a result of a demand by the Borrower
pursuant to this Section 9.07(a) unless and until such Lender shall have
received one or more payments from either the
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Borrower or one or more Eligible Assignees in an aggregate amount at least equal
to the aggregate outstanding principal amount of the Advances owing to such
Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this
Agreement, and (vi) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes subject
to such assignment and a processing and recordation fee of $3,500; provided,
however, that for each such assignment made as a result of a demand by the
Borrower pursuant to this Section 9.07(a), the Borrower shall pay to the
Administrative Agent the applicable processing and recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's or
Issuing Bank's rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender Party
or any other Lender Party 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 this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each
Agent to take such action as agent on its
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behalf and to exercise such powers and discretion under the Loan Documents as
are delegated to such Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address referred
to in Section 9.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agents
and the Lender Parties may treat each Person whose name is recorded in the
Register as a Lender Party hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Agent or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note to the order of such Eligible Assignee
in an amount equal to the Commitment assumed by it under each Facility pursuant
to such Assignment and Acceptance and, if any assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of such
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto, as the case may be.
(f) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) each such assignment shall
be to an Eligible Assignee and (ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it);
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provided, however, that (i) such Lender Party's obligations under this
Agreement (including, without limitation, its Commitments) shall remain
unchanged, (ii) such Lender Party shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such
Lender Party shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agents and the other Lender Parties
shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation shall have
any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom,
except to the extent that such amendment, waiver or consent would reduce
the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or release all or
substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.07, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrower furnished to such
Lender Party by or on behalf of the Borrower; provided, however, that,
prior to any such disclosure, the assignee or participant or proposed
assignee or participant shall agree to preserve the confidentiality of any
Confidential Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in
all or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Note or Notes held by it) in
favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
(j) Notwithstanding anything to the contrary contained herein,
any Lender that is a fund that invests in bank loans may create a security
interest in all or any portion of the Advances owing to it and the Note or
Notes held by it to the trustee for holders of obligations owed, or
securities issued, by such fund as security for such obligations or
securities, provided, that unless and until such trustee actually becomes a
Lender in compliance with the other provisions of this Section 9.07, (i) no
such pledge shall release the pledging Lender from any of its obligations
under the Loan Documents and (ii) such trustee shall not be entitled to
exercise any of the rights of a Lender under the Loan Documents even though
such trustee may have acquired ownership rights with respect to the pledged
interest through foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained herein,
any Lender Party (a "Granting Lender") may grant to a special purpose
funding vehicle identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower (an "SPC") the
option to provide all or any part of any Advance that such Granting Lender
would otherwise be obligated to make pursuant to this Agreement, provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any
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Advance, and (ii) if an SPC elects not to exercise such option or otherwise
fails to make all or any part of such Advance, the Granting Lender shall be
obligated to make such Advance pursuant to the terms hereof. The making of
an Advance by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Advance were made by such
Granting Lender. Each party hereto hereby agrees that (i) no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement
for which a Lender Party would be liable, (ii) no SPC shall be entitled to
the benefits of Sections 2.10 and 2.12 (or any other increased costs
protection provision) and (iii) the Granting Bank shall for all purposes,
including, without limitation, the approval of any amendment or waiver of
any provision of any Loan Document, remain the Lender Party of record
hereunder. Notwithstanding anything to the contrary contained in this
Agreement, any SPC may (i) with notice to, but without prior consent of,
the Borrower and the Administrative Agent and with the payment of a
processing fee of $3,500, assign all or any portion of its interest in any
Advance to the Granting Lender and (ii) disclose on a confidential basis
any non-public information relating to its funding of Advances to any
rating agency, commercial paper dealer or provider of any surety or
guarantee or credit or liquidity enhancement to such SPC. This subsection
(k) may not be amended without the prior written consent of each Granting
Lender, all or any part of whose Advances are being funded by the SPC at
the time of such amendment.
SECTION 9.08. Execution in Counterparts. This Agreement may be
---------------------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the
same agreement. Delivery by telecopier of an executed counterpart of a
signature page to this Agreement shall be effective as delivery of an
original executed counterpart of this Agreement.
SECTION 9.09. No Liability of the Issuing Bank. The Borrower
----------------------------------------------
assumes all risks of the acts or omissions of any beneficiary or transferee
of any Letter of Credit with respect to its use of such Letter of Credit.
Neither the Issuing Bank nor any of its officers or directors shall be
liable or responsible for: (a) the use that may be made of any Letter of
Credit or any acts or omissions of any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should
prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by the Issuing Bank against presentation of documents
that do not comply with the terms of a Letter of Credit, including failure
of any documents to bear any reference or adequate reference to the Letter
of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall
have a claim against the Issuing Bank, and the Issuing Bank shall be liable
to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower that the Borrower proves were caused by
(i) the Issuing Bank's willful misconduct or gross negligence as determined
in a final, non-appealable judgment by a court of competent jurisdiction in
determining whether documents presented under any Letter of Credit comply
with the terms of the Letter of Credit or (ii) the Issuing Bank's willful
failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the
terms and conditions of the Letter of Credit. In furtherance
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and not in limitation of the foregoing, the Issuing Bank may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
SECTION 9.10. Confidentiality. Neither any Agent nor any Lender
-----------------------------
Party shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than (a) to such Agent's or such Lender Party's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective Eligible Assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process, (c) as requested or required by any state, Federal or foreign authority
or examiner (including the National Association of Insurance Commissioners or
any similar organizations or quasi-regulatory authority) regulating such Lender
Party, (d) to any rating agency when required by it, provided that, prior to any
such disclosure, such rating agency shall undertake to preserve the
confidentiality of any Confidential Information relating to the Loan Parties
received by it from such Lender Party (e) in connection with any litigation or
proceeding to which such Agent or such Lender Party or any of its Affiliates may
be party or (f) in connection with the exercise of any right or remedy under
this Agreement on any other Loan Document. Nothing in this Section 9.10 shall
limit the rights of any Lender Party to purchase or sell obligations under the
Pre-Petition Credit Agreement in accordance with the terms thereof and any right
to deliver Confidential Information in accordance therewith and in connection
with applicable law.
SECTION 9.11. Release of Collateral. Upon the sale, lease, transfer or
-----------------------------------
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrower's
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Documents
in accordance with the terms of the Loan Documents.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
-------------------------------
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Bankruptcy Court or any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in the
Bankruptcy Court or any such New York State court or, to the fullest extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or any of the other Loan Documents in the courts of any jurisdiction.
105
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in the Bankruptcy Court or in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court .
SECTION 9.13. Governing Law. This Agreement and the Notes shall be
---------------------------
governed by, and construed in accordance with, the laws of the State of New York
and, to the extent applicable, the Bankruptcy Code.
SECTION 9.14. Waiver of Jury Trial. Each of the Borrower, the
----------------------------------
Guarantors, the Agents and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the Advances, the Letters of Credit or the actions of any Agent or
any Lender Party in the negotiation, administration, performance or enforcement
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
AMF BOWLING WORLDWIDE,
INC., as Borrower
By /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
AMF GROUP HOLDINGS INC.
By /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Financial Officer
CITIBANK, N.A.,
as Administrative Agent
By /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
CITIBANK, N.A.,
as Collateral Agent
By /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
Initial Lenders
CITIBANK, N.A.
By /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
BANK OF SCOTLAND
By /s/ Xxxxxx Xxxxxx
-------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
FARALLON CAPITAL
PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxx
--------------------------
Managing Member
FARALLON CAPITAL
INSTITUTIONAL PARTNERS,
L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxx
---------------------------
Managing Member
FARALLON CAPITAL
INSTITUTIONAL PARTNERS II,
L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Managing Member
FARALLON CAPITAL
INSTITUTIONAL PARTNERS III,
L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Managing Member
RR CAPITAL PARTNERS, L.P.
By: Farallon Partners, L.L.C.,
its General Partner
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Managing Member
FOOTHILL CAPITAL
CORPORATION
By /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
SSF INVESTMENTS, L.P.,
by its general partner,
DRT Capital, L.L.C.
By /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: General Counsel
Initial Issuing Bank
CITIBANK, N.A.
By /s/ Xxxxxxx Xxxx
--------------------------
Title: Vice President
Subsidiary Guarantors
AMF BOWLING CENTERS HOLDINGS
INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF WORLDWIDE BOWLING
CENTERS HOLDINGS INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF BOWLING PRODUCTS, INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
AMF BOWLING CENTERS, INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMERICAN RECREATION CENTERS,
INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF BEVERAGE COMPANY OF
OREGON, INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF BEVERAGE COMPANY OF X.XX.,
INC.
By /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Xxxxxxxxx
XXXX RIVER CORPORATION
By /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
300, INC.
By /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
XXXX XXXXX LENEXA, INC.
By /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
XXXXXXX XXXXXX GOLF COMPANY,
INC.
By /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
MJG - X'XXXX, INC.
By /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF BOWLING CENTERS (AUST)
INTERNATIONAL INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF BOWLING CENTERS
INTERNATIONAL INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
AMF BCO-UK ONE, INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF BCO-UK TWO, INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF BOWLING MEXICO HOLDING,
INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
BOLICHES AMF, INC..
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF BCO-FRANCE ONE, INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF BCO-FRANCE TWO, INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
AMF BOWLING CENTERS (HONG
KONG) INTERNATIONAL INC.
By /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: President
