Exhibit 1
EXECUTION COPY
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$60,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
March 31, 2005,
Among
XXXXX & XXXXX COMPANY,
as the BORROWER,
THE GUARANTORS NAMED HEREIN,
as GUARANTORS,
THE INITIAL LENDERS NAMED HEREIN,
NATIONAL CITY BANK OF THE MIDWEST,
as DOCUMENTATION AGENT,
KEYBANK NATIONAL ASSOCIATION,
as SYNDICATION AGENT,
DEUTSCHE BANK SECURITIES INC.,
as SOLE BOOK-RUNNING MANAGER AND SOLE LEAD ARRANGER,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as INITIAL ISSUING BANK, SWING LINE BANK AND ADMINISTRATIVE AGENT
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TABLE OF CONTENTS
SECTION PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms................................................... 1
SECTION 1.02 Computation of Time Periods; Other Definitional Provisions.............. 23
SECTION 1.03 Accounting Terms........................................................ 23
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01 The Advances and the Letters of Credit.................................. 24
SECTION 2.02 Making the Advances..................................................... 25
SECTION 2.03 Issuance of and Drawings and Reimbursement Under Letters of Credit...... 27
SECTION 2.04 Repayment of Advances................................................... 29
SECTION 2.05 Termination or Reduction of the Commitments............................. 30
SECTION 2.06 Prepayments............................................................. 31
SECTION 2.07 Interest................................................................ 31
SECTION 2.08 Fees.................................................................... 32
SECTION 2.09 Conversion of Advances.................................................. 33
SECTION 2.10 Increased Costs, Etc.................................................... 34
SECTION 2.11 Payments and Computations............................................... 35
SECTION 2.12 Taxes................................................................... 36
SECTION 2.13 Sharing of Payments, Etc................................................ 38
SECTION 2.14 Use of Proceeds......................................................... 38
SECTION 2.15 Defaulting Lenders...................................................... 39
SECTION 2.16 Evidence of Debt........................................................ 41
SECTION 2.17 Extension of Termination Date........................................... 41
SECTION 2.18 Reallocation of Lender Pro Rata Shares.................................. 42
ARTICLE III CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01 Conditions Precedent to Initial Extension of Credit..................... 43
SECTION 3.02 Conditions Precedent to Each Borrowing and Issuance and any Extension... 46
SECTION 3.03 Determinations Under Section 3.01....................................... 46
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower.......................... 46
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01 Affirmative Covenants................................................... 52
SECTION 5.02 Negative Covenants...................................................... 57
SECTION 5.03 Reporting Requirements.................................................. 65
SECTION 5.04 Financial Covenants..................................................... 68
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01 Events of Default....................................................... 70
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SECTION 6.02 Actions in Respect of the Letters of Credit upon Default................ 73
ARTICLE VII THE Administrative Agent
SECTION 7.01 Authorization and Action................................................ 73
SECTION 7.02 Administrative Agent's Reliance, Etc.................................... 74
SECTION 7.03 DBTCA and Affiliates.................................................... 75
SECTION 7.04 Lender Party Credit Decision............................................ 75
SECTION 7.05 Indemnification......................................................... 75
SECTION 7.06 Successor Administrative Agents......................................... 76
ARTICLE VIII GUARANTY
SECTION 8.01 Guaranty; Limitation of Liability....................................... 77
SECTION 8.02 Guaranty Absolute....................................................... 78
SECTION 8.03 Waivers and Acknowledgments............................................. 79
SECTION 8.04 Subrogation............................................................. 80
SECTION 8.05 Guaranty Supplements.................................................... 80
SECTION 8.06 Subordination........................................................... 80
SECTION 8.07 Continuing Guaranty; Assignments........................................ 81
ARTICLE IX MISCELLANEOUS
SECTION 9.01 Amendments, Etc......................................................... 82
SECTION 9.02 Notices, Etc............................................................ 82
SECTION 9.03 No Waiver; Remedies..................................................... 83
SECTION 9.04 Costs and Expenses...................................................... 83
SECTION 9.05 Right of Set-off........................................................ 84
SECTION 9.06 Binding Effect.......................................................... 85
SECTION 9.07 Assignments and Participations.......................................... 85
SECTION 9.08 Execution in Counterparts............................................... 88
SECTION 9.09 No Liability of the Issuing Banks....................................... 88
SECTION 9.10 Confidentiality; Patriot Act............................................ 88
SECTION 9.11 Release of Collateral................................................... 89
SECTION 9.12 Jurisdiction, Etc....................................................... 89
SECTION 9.13 Governing Law........................................................... 89
SECTION 9.14 Waiver of Jury Trial.................................................... 89
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SCHEDULES
Schedule I - Commitments, Pro Rata Shares and Applicable Lending
Offices
Schedule II - Guarantors
Schedule III Existing Letters of Credit
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and
Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(p) - Labor Matters
Schedule 4.01(q) - Environmental Disclosure
Schedule 4.01(t) - Existing Debt
Schedule 4.01(v) - Existing Liens
Schedule 4.01(w) - Owned Real Property
Schedule 4.01(x)(i) - Leased Real Property (Lessee)
Schedule 4.01(x)(ii) - Leased Real Property (Lessor)
Schedule 4.01(y) - Investments
Schedule 4.01(z) - Material Contracts
Schedule 4.01(aa) - Intellectual Property
Schedule 5.01(q) - Inactive Subsidiaries
Schedule 5.01(r) Franchise Taxes
Schedule 5.02(b)(iii)(F)- Contingent Obligations
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Term Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Letter of Credit Request
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Guaranty Supplement
Exhibit F - Form of Opinion of Special Counsel to the Loan Parties
Exhibit G - Form of Compliance Certificate
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EXECUTION COPY
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT") dated as of
March 31, 2005 among XXXXX & XXXXX COMPANY, a Delaware corporation (the
"BORROWER"), the Guarantors (as hereinafter defined), the Lenders (as
hereinafter defined), DEUTSCHE BANK SECURITIES INC., as sole book-running
manager and sole lead arranger (the "LEAD ARRANGER"), and DEUTSCHE BANK TRUST
COMPANY AMERICAS ("DBTCA"), as the initial swing line bank (in such capacity,
the "INITIAL SWING LINE BANK"), the initial issuer of Letters of Credit (as
hereinafter defined) (in such capacity, the "INITIAL ISSUING BANK") and
administrative agent (together with any successors appointed pursuant to Article
VII, the "ADMINISTRATIVE AGENT") for the Lender Parties (as hereinafter
defined).
PRELIMINARY STATEMENTS
(1) Pursuant to that certain Credit Agreement dated as of June 11,
2004 (the "EXISTING Agreement") among the Borrower, the guarantors party
thereto, the lenders described therein, Deutsche Bank Securities Inc., as sole
book-running manager and sole lead arranger, and Deutsche Bank Trust Company
Americas, as initial issuing bank, swing line bank and administrative agent,
such lenders extended certain commitments to make certain credit facilities
available to the Borrower.
(2) The Borrower, the Administrative Agent, the Lead Arranger, the
lenders party to the Existing Agreement and the New Lenders (as defined herein)
desire to amend and restate the Existing Agreement to (i) extend the Termination
Date (as defined therein) of the credit facility provided thereunder, (ii)
increase the aggregate amount of the Revolving Credit Facility and (iii) make
certain other amendments to the Existing Agreement.
NOW, THEREFORE, in consideration of the premises set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree to amend and restate the
Existing Agreement to read in its entirety 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):
"ACCOUNT CONTROL AGREEMENT" has the meaning specified in the
Security Agreement.
"ACCOUNTING CHANGE" has the meaning specified in Section 1.03.
"ACQUIRED PRO FORMA EBITDA" means, for any date of determination,
for the Measurement Period most recently ended, the EBITDA attributable during
such Measurement Period (a) to any Person, in the case of an Acquisition of all
or substantially all of the Equity Interests of such Person, or (b) to any
assets of a Person, in the case of an Acquisition of all or substantially all of
the assets of such Person, in each case in clauses (a) and (b) above, acquired
in connection with a Permitted
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Acquisition to the extent that the Administrative Agent, in its reasonable
discretion, deems such EBITDA to be appropriate given all the facts and
circumstances surrounding such Permitted Acquisition.
"ACQUISITION" means (a) the acquisition of all or substantially all
of the assets of another Person or of a business or division of another Person,
or of the Equity Interests of a Person unaffiliated with the Borrower and its
Subsidiaries or (b) the merger, consolidation or amalgamation with one or more
other Persons.
"ACQUISITION DEBT" means Debt which is (a) a liability on the
balance sheet of the Borrower as determined in accordance with GAAP, incurred by
a Loan Party in connection with a Permitted Acquisition by such Loan Party, (b)
unsecured (except to the extent otherwise permitted by Section 5.02(a)), (c)
subordinated to Debt incurred hereunder (except to the extent otherwise
permitted by Section 8.06), and (d) in form and substance satisfactory to the
Administrative Agent.
"ADMINISTRATIVE AGENT" has the meaning specified in the preamble to
this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained at Deutsche Bank Trust Company Americas, ABA No.
021 001 033, for further credit to the Commercial Loan Division, 00 Xxxxxx
Xxxxxx, Xxxxxx Xxxx, XX, Account No. 00000000, or such other account maintained
by the Administrative Agent and designated by the Administrative Agent in a
written notice to the Lender Parties and the Borrower.
"ADVANCE" means a Term Advance, a Revolving Credit Advance, a Swing
Line Advance or a Letter of Credit Advance.
"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 direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Interests, by
contract or otherwise.
"AGREEMENT" has the meaning specified in the preamble to this
Agreement.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to: (a) in
the case of a Hedge Agreement documented pursuant to the Master Agreement
(Multicurrency-Cross Border) published by the International Swap and Derivatives
Association, Inc. (the "MASTER AGREEMENT"), the amount, if any, that would be
payable by any Loan Party or any of its Subsidiaries to its counterparty to such
Hedge Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination, (ii) such Loan Party or Subsidiary was the sole
"Affected Party", and (iii) the Administrative Agent was the sole party
determining such payment amount (with the Administrative Agent making such
determination pursuant to the provisions of the form of Master Agreement); (b)
in the case of a Hedge Agreement traded on an exchange, the xxxx-to-market value
of such Hedge Agreement, which will be the unrealized loss on such Hedge
Agreement to the Loan Party or Subsidiary of a Loan Party party to such Hedge
Agreement determined by the Administrative Agent based on the settlement price
of such Hedge Agreement on such date of determination; or (c) in all other
cases, the xxxx-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary of a
Loan Party party to such Hedge Agreement determined by the Administrative Agent
as the amount, if any, by which (i) the present value of the future cash flows
to be paid by such Loan Party or Subsidiary exceeds (ii) the present value of
the future cash flows to be received by such Loan Party or Subsidiary pursuant
to such
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Hedge Agreement; capitalized terms used and not otherwise defined in this
definition shall have the respective meanings set forth in the above described
Master 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 2.50% per annum for Base Rate Advances and
3.50% per annum for Eurodollar Rate Advances.
"APPROPRIATE LENDER" means, at any time, with respect to (a) either
of the Term Facility or the Revolving Credit Facility, a Lender that has a
Commitment with respect to such Facility at such time, (b) the Letter of Credit
Facility, (i) the Issuing Bank and (ii) if the other Revolving Credit Lenders
have participated in Letter of Credit Advances pursuant to Section 2.03(c) that
are outstanding at such time, each such other Revolving Credit Lender and (c)
the Swing Line Facility, (i) the Swing Line Bank and (ii) if the other Revolving
Credit Lenders have made Swing Line Advances pursuant to Section 2.02(b) that
are outstanding at such time, each such other Revolving Credit Lender.
"APPROVED FUND" means, with respect to any Lender Party 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 Party or by
an Affiliate of such investment advisor.
"ASSIGNED REVOLVER RIGHTS AND OBLIGATIONS" has the meaning set forth
in Section 2.18(a).
"ASSIGNED TERM RIGHTS AND OBLIGATIONS" has the meaning set forth in
Section 2.18(b).
"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 or any other form approved by the Administrative Agent.
"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 LAW" means any proceeding of the type referred to in
Section 6.01(f) or Title II, 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
higher of:
(a) the rate of interest announced publicly by DBTCA in New York,
New York, from time to time, as its prime lending rate (the "PRIME LENDING
RATE") (the Prime Lending Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any
customer; DBTCA may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate); and
(b) -1/2 of 1% per annum above the Federal Funds Rate.
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"BASE RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"BORROWER" has the meaning specified in the Preamble to this
Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower specified by
the Borrower in writing to the Administrative Agent from time to time.
"BORROWER PROPERTIES" shall mean those real estate assets listed on
Schedules 4.01(w) and 4.01(x)(i).
"BORROWING" means a Term Borrowing, a Revolving Credit Borrowing or
a Swing Line 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 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 or other tangible
asset on a Consolidated balance sheet of such Person or have a useful life of
more than one year 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.
"CASH EQUIVALENTS" means any of the following, to the extent owned
by the Borrower 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 180 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, (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, 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, (c) commercial paper 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 (d) Investments, classified in
accordance with GAAP as Current Assets of the Borrower or any of its
Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by financial
institutions that have the highest rating obtainable from either Moody's or S&P,
and the portfolios of which are limited solely to Investments of the character,
quality and maturity described in clauses (a), (b) and (c) of this definition.
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"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.
"CFC" means an entity that is a controlled foreign corporation under
Section 957 of the Internal Revenue Code.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(a) the Kojaian Group shall cease to have the power to vote or direct the voting
of securities having at least 50.1% of the voting power for the election of
directors of the Borrower, (b) the Kojaian Group shall cease to be the
"beneficial owner", directly or indirectly, of (i) the number of shares of the
Borrower's Series A-1 Preferred Stock of which the Kojaian Group was the
"beneficial owner" on the Effective Date or (ii) the number of shares of the
Borrower's common stock having the same proportionate voting power for the
election of directors of the Borrower as the Kojaian Group had on the Effective
Date, if, when aggregated with the number of shares of the Borrower's Series A-1
Preferred Stock of which the Kojaian Group was the "beneficial owner" on the
Effective Date the Kojaian Group shall cease to have the voting power to direct
the voting of securities having at least 50.1% of the voting power for the
election of Directors of the Borrower, (c) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934) (excluding members of the Kojaian Group) shall become, or obtain rights
(whether by means of warrants, options or otherwise) to become, the "beneficial
owner", directly or indirectly, of the voting power to direct the voting of
securities having at least 50.1% of the voting power for the election of
Directors of the Borrower, or (d) during any period of up to 24 consecutive
months, commencing before or after the date of this Agreement, Continuing
Directors shall cease for any reason to constitute a majority of the board of
directors of the Borrower. As used herein, the term "BENEFICIAL OWNER" shall
have the meaning set forth in Rules 13(d)-3 and 13(d)-5 under the Securities
Exchange Act of 1934, as amended.
"CLOSING DATE" means March 31, 2005.
"COLLATERAL" means all "Collateral" and "Mortgaged Property"
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 Administrative Agent for the
benefit of the Secured Parties.
"COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"COLLATERAL DOCUMENTS" means the Security Agreement, the Account
Control Agreements, the Commodity Account Control Agreements, the Securities
Account Control Agreements, the Mortgages, the Intellectual Property Security
Agreement, 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 Administrative Agent for the benefit
of the Secured Parties.
"COMMISSION ADVANCE PROGRAM" means any program pursuant to which a
Loan Party may make advances to its employees and/or agents against future real
estate commissions to be earned by such employees or agents.
"COMMITMENT" means a Term Commitment, a Revolving Credit Commitment,
a Swing Line Commitment or a Letter of Credit Commitment.
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"COMMODITY ACCOUNT CONTROL AGREEMENT" has the meaning specified in
the Security Agreement.
"COMPLIANCE CERTIFICATE" means a certificate duly executed by any of
the chairman of the board of directors, chief executive officer, president or
chief financial officer of the Borrower, but in any event, with respect to
financial matters, the president or the chief financial officer of the Borrower,
substantially in the form of Exhibit G hereto, which shall include, inter alia,
a worksheet reflecting that the calculations made thereon have been adjusted to
exclude the effects of the operations of Unrestricted Subsidiaries.
"CONFIDENTIAL INFORMATION" means information that any Loan Party
furnishes to the Administrative Agent or any Lender Party, but does not include
any such information that is or becomes generally available to the public or
that is or becomes available to the Administrative Agent or such Lender Party
from a source other than the Loan Parties.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONSOLIDATED EBITDA" means, for any date of determination, for the
Measurement Period most recently ended, the Consolidated EBITDA of the Borrower
and its Restricted Subsidiaries for such Measurement Period, as determined on a
consolidated basis in accordance with GAAP, plus Acquired Pro Forma EBITDA for
such Measurement Period, less the consolidated net income of any Divested Entity
on a pro forma basis for such Measurement Period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, for any date of
determination, for the Measurement Period most recently ended, the ratio of (a)
Consolidated EBITDA for such Measurement Period to (b) Consolidated Fixed
Charges for such Measurement Period.
"CONSOLIDATED FIXED CHARGES" means, for any date of determination,
for the Measurement Period most recently ended, the sum (without duplication) of
(a) Consolidated Interest Expense for such Measurement Period, (b) cash income
taxes paid by the Borrower or any of its Restricted Subsidiaries on a
consolidated basis in respect of such Measurement Period, (c) scheduled
principal payments made during such Measurement Period on account of principal
of Debt of the Borrower or any of its Restricted Subsidiaries (including
Capitalized Lease payments), (d) the aggregate amount actually paid by the
Borrower and its Restricted Subsidiaries in cash during such Measurement Period
on account of Capital Expenditures and (e) Earnouts and other cash dividends
paid or distributed by the Borrower during such Measurement Period.
"CONSOLIDATED INTEREST EXPENSE" means, for any date of
determination, for the Measurement Period most recently ended, the sum of total
cash interest expense of the Borrower and its Restricted Subsidiaries for such
Measurement Period with respect to all outstanding Debt of the Borrower and its
Restricted Subsidiaries (including all commissions, discounts and other fees and
charges owed with respect to letters of credit, bankers' acceptance financing
and other Debt).
"CONSOLIDATED NET INCOME" means, for any date of determination, for
the Measurement Period most recently ended, the Consolidated net income of the
Borrower and its Restricted Subsidiaries for such Measurement Period determined
on a consolidated basis in accordance with GAAP, provided, that there shall be
excluded from such calculation (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Restricted Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its Restricted
Subsidiaries pursuant to a Permitted Acquisition, (b) the income (or deficit) of
any Person (other than a Subsidiary of the Borrower) in which the Borrower or
any of its Restricted Subsidiaries has an ownership interest and (c) the
undistributed earnings of any Restricted
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Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any contractual obligation (other than under any Loan
Document) or Applicable Law applicable to such Subsidiary.
"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.
"CONTINUING DIRECTORS" means the directors of the Borrower on the
Effective Date and thereafter, all such directors and any additional or
replacement directors if, in each case, such other director's nomination for
election to the board of directors of the Borrower is recommended by at least a
majority of the then Continuing Directors.
"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.
"CURRENT ASSETS" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a company
conducting a business the same as or similar to that of such Person, after
deducting adequate reserves in each case in which a reserve is proper in
accordance with GAAP.
"DBSI" has the meaning specified in the preamble to this Agreement.
"DBTCA" has the meaning specified in the preamble to this Agreement.
"DEBT" of any Person means, without duplication, (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
current trade payables incurred in the ordinary course of such Person's
business) to the extent required to be shown on a balance sheet prepared in
accordance with GAAP, the amount of which shall equal the amount required to be
shown on such a balance sheet, (c) all Obligations of such Person evidenced by
notes (other than notes relating to Earnouts to the extent not required to be
shown on a balance sheet prepared in accordance with GAAP), bonds, debentures or
other similar instruments, (d) all Obligations of such Person created or arising
from or in connection with the deposit, transfer or
7
assignment of Equity Interests into trust, (e) 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), (f) all Obligations of
such Person as lessee under Capitalized Leases, (g) all Obligations of such
Person under acceptance, letter of credit or similar facilities, (h) 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 Equity Interests,
valued, in the case of Redeemable Preferred Interests, at the greater of its
voluntary or involuntary liquidation preference plus accrued and unpaid
dividends, (i) all Obligations of such Person in respect of Hedge Agreements,
valued at the Agreement Value thereof, (j) all Contingent Obligations and
Off-Balance Sheet Obligations of such Person and (k) all indebtedness and other
payment Obligations referred to in clauses (a) through (j) 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, provided, that the amount of Debt of
the type referred to in clauses (j), to the extent such Debt consists of
guarantees, and (k) above will be included within the definition of "Debt" only
to the extent of the amount of the obligations so guaranteed and to the extent
of any such Lien, respectively.
"DEBT/EBITDA RATIO" means, at any date of determination, the ratio
of Consolidated total Debt for Borrowed Money of the Borrower and its Restricted
Subsidiaries at such date to Consolidated EBITDA of the Borrower and its
Restricted Subsidiaries for the most recently completed Measurement Period.
"DEBT FOR BORROWED MONEY" of any Person means, at any date of
determination, all items that, in accordance with GAAP, would be classified as
indebtedness on a Consolidated balance sheet of such Person at such date.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the passage of time or the requirement
that notice be given or both.
"DEFAULT INTEREST" has the meaning set forth in Section 2.07(b).
"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(e) 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 the Administrative
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 Swing
Line Bank pursuant to Section 2.02(b) to purchase a portion of a Swing Line
Advance made by the Swing Line Bank, (b) the Issuing Bank pursuant to Section
2.03(c) to purchase a portion of a Letter of Credit Advance made by the Issuing
Bank, (c) the Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the Administrative
Agent for the account of such Lender Party, (d) any other Lender Party pursuant
to Section 2.13 to purchase any participation in Advances owing to such other
Lender Party and (e) the Administrative Agent or the Issuing Bank
8
pursuant to Section 7.05 to reimburse the Administrative Agent or the Issuing
Bank for such Lender Party's ratable share of any amount required to be paid by
the Lender Parties to the Administrative 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(f).
"DISCLOSED LITIGATION" has the meaning specified in Section 3.01(e).
"DISPOSITION" means, with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof; and the terms "DISPOSE" and "DISPOSE OF" shall have correlative
meanings.
"DIVESTED ENTITY" means, for any date of determination, for the
Measurement Period most recently ended, any Person (or division or similar
business unit) disposed of by the Borrower or any Subsidiary during such
Measurement Period if, as of the last day of the fiscal quarter immediately
preceding such disposition, the contribution to EBITDA of such Person (or
division or similar business unit) accounted for 5% or more of Consolidated
EBITDA for the 12 months preceding such last day.
"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 Borrower organized
under the laws of any jurisdiction within the United States of America.
"EARNOUTS" means any cash payments (i) made by the Borrower to third
party sellers in consideration for the purchase of assets or stock by the
Borrower from such seller and (ii) made subsequent to the consummation of such
purchase.
"EBITDA" means, for any date of determination, for the Measurement
Period most recently ended, Consolidated Net Income for such Measurement Period
plus, without duplication and to the extent reflected as a charge in the
statement of Consolidated Net Income for such Measurement Period, the sum of (a)
total income tax expense, (b) interest expense, amortization or write-off of
debt discount and debt issuance costs and commissions, discounts and other fees
and charges associated with Debt (including the Advances), (c) depreciation
expense, (d) amortization of intangibles (including goodwill) and organization
costs, (e) any extraordinary, unusual or non-recurring cash expenses or losses
(including, whether or not otherwise includable as a separate item in the
statement of Consolidated Net Income for such Measurement Period, losses on
sales of assets outside of the ordinary course of business) and (f) any other
non-cash charges (including non-cash charges relating to Signing Bonus
Payments); and minus, to the extent included in the statement of such
Consolidated Net Income for such Measurement Period, the sum of (a) interest
income, (b) any extraordinary income or gains (including, whether or not
otherwise includable as a separate item in the statement of Consolidated Net
Income for such Measurement Period, gains on the sales of assets outside of the
ordinary course of business) and (c) any other non-cash income, all as
determined in accordance with GAAP.
9
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (a) with respect to any Facility (other
than the Letter of Credit Facility), (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000
(provided, that such bank is acting through a branch or agency located in the
country in which it is organized or another country which is also a member of
the OECD); (iii) a Person that is engaged in the business of commercial banking
and that is (A) an Affiliate of a Lender, (B) an Affiliate of a Person of which
a Lender is an Affiliate or (C) a Person of which a Lender is an Affiliate; (iv)
an insurance company, mutual fund or other financial institution organized under
the laws of the United States, any state thereof, any other country which is a
member of the OECD or a political subdivision of any such country which invests
in bank loans and has a net worth of $500,000,000; and (v) any fund (other than
a mutual fund) which invests in bank loans and whose assets exceed $100,000,000,
and (b) with respect to the Letter of Credit Facility, a Person that is an
Eligible Assignee under subclause (i) or (ii) of clause (a) of this definition
(or any Affiliate of any such Person) and is approved by the Administrative
Agent; provided, however, that (x) neither any Loan Party nor any Affiliate of a
Loan Party shall qualify as an Eligible Assignee under this definition and (y)
no Person shall be an "ELIGIBLE ASSIGNEE" unless at the time of the proposed
assignment to such Person (i) such Person is able to make its portion of the
Term Advances in U.S. dollars, and (ii) such Person is exempt from withholding
of tax on interest and is able to deliver the documents related thereto pursuant
to Section 2.12(e) of the Credit Agreement.
"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 relating in any way to any Environmental Law, any Environmental Permit
or Hazardous Material or arising from alleged injury or threat to health, safety
or the environment, 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 Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety or
natural resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition from
such Person of shares of capital stock of (or other ownership or profit
interests in) such Person, securities convertible into or exchangeable for
shares of capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or other acquisition from
such Person of such shares (or such other interests), and other ownership or
profit interests in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and whether or
not such shares, warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination.
10
"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.
"ESCROW BANK" has the meaning specified in Section 2.15(c).
"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 average of the
respective rates per annum (rounded upward to the next whole multiple of 1/16th
of 1%) posted by each of the principal London offices of banks posting rates as
displayed on the Dow Xxxxx Markets screen, page 3750 or such other page as may
replace such page on such service for the purpose of displaying the London
interbank offered rate of major banks for deposits in U.S. dollars, at
approximately 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period for deposits in an amount substantially equal to DBTCA's
Eurodollar Rate Advance comprising part of such Borrowing to be outstanding
during such Interest Period 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).
11
"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.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCESS CASH FLOW" means, for any Measurement Period, an amount
equal to (a) Consolidated EBITDA for such Measurement Period less (b) the sum of
(i) Consolidated Fixed Charges for such Measurement Period and (ii) Signing
Bonus Payments, to the extent made in such Measurement Period.
"EXISTING AGREEMENT" has the meaning specified in the Preliminary
Statements to this Agreement.
"EXISTING DEBT" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before and after the occurrence of the Effective Date.
"EXISTING LETTERS OF CREDIT" means the Letters of Credit specified
on Schedule III hereto.
"EXISTING TERM PRO RATA SHARE" of any amount means, with respect to
each Term Lender (under and as defined in the Existing Agreement), the product
of such amount times a fraction the numerator of which is the amount of such
Term Lender's Term Commitment (under and as defined in the Existing Agreement)
immediately prior to the Closing Date and the denominator of which is the Term
Facility (under and as defined in the Existing Agreement) immediately prior to
the Closing Date.
"EXTENSION DATE" has the meaning specified in Section 2.17.
"FACILITY" means the Term Facility, the Revolving Credit Facility,
the Swing Line 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 the Administrative Agent.
"FEE LETTER" means the fee letter dated as of March 31, 2005 between
the Borrower and the Administrative Agent, as amended.
"FISCAL YEAR" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on June 30 in any calendar year.
12
"FOREIGN SUBSIDIARY" means any Subsidiary of the Borrower that is
not a Domestic Subsidiary.
"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 8.01.
"GUARANTORS" means the Subsidiaries of the Borrower listed on
Schedule II hereto and each other Subsidiary of the Borrower that shall be
required to execute and deliver a guaranty pursuant to Section 5.01(j).
"GUARANTY" means the guaranty of the Guarantors set forth in Article
VIII together with each other guaranty and guaranty supplement delivered
pursuant to Section 5.01(j), in each case as amended.
"GUARANTY SUPPLEMENT" has the meaning specified in Section 8.05.
"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,
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.
"HEDGE BANK" means any Lender Party or an Affiliate of a Lender
Party in its capacity as a party to a Secured Hedge Agreement.
"INACTIVE SUBSIDIARIES" has the meaning set forth in Section
5.01(q)(i).
"INDEMNIFIED PARTY" has the meaning specified in Section 9.04(b).
"INITIAL EXTENSION OF CREDIT DATE" means June 11, 2004.
"INITIAL ISSUING BANK" has the meaning specified in the preamble to
this Agreement.
"INITIAL LENDER PARTIES" means the Initial Issuing Bank, the Initial
Lenders and the Initial Swing Line Bank.
"INITIAL LENDERS" means the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the Initial
Lenders.
13
"INITIAL SWING LINE BANK" has the meaning specified in the preamble
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.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" means the intellectual
property security agreement in substantially the form set forth in Exhibit F to
the Security Agreement or otherwise in form and substance satisfactory to the
Administrative Agent.
"INTEREST COVERAGE RATIO" means, for any date of determination, for
the Measurement Period most recently ended, the ratio of (a) Consolidated EBITDA
to (b) Consolidated Interest Expense for such Measurement Period.
"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 1:00 P.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;
(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.
"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
14
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 (j) or (k) of the definition of "DEBT" in respect of such Person.
"ISSUING BANK" means the Initial Issuing Bank and any other
Revolving Credit 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 such Revolving Credit Lender
or 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, Revolving Credit Lender or
Eligible Assignee, as the case may be, shall have a Letter of Credit Commitment.
"KOJAIAN GROUP" means the Chairman of the Board of the Borrower as
of the Effective Date, provided, that, so long as Mr. C. Xxxxxxx Xxxxxxx remains
the Chairman of the Board of the Borrower, the "KOJAIAN GROUP" shall also
include (i) all individuals and entities affiliated with Mr. C. Xxxxxxx Xxxxxxx
as set forth in footnote (2) to the Stock Ownership Table set forth in the Stock
Ownership Information section of the Borrower's definitive Proxy Statement on
Form 14A dated October 8, 2004, and (ii) any person or entity who, after the
Effective Date, is deemed to be an Affiliate of Mr. C. Xxxxxxx Xxxxxxx and/or
any person or entity described in subclause (i) immediately preceding.
"L/C COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"L/C DISBURSEMENT" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(d)(ii).
"LEAD ARRANGER" has the meaning specified in the preamble to this
Agreement.
"LENDER PARTY" means any Lender, the Issuing Bank or the Swing Line
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 Revolving Credit 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 the 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.
15
"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) $5,000,000, as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"LETTER OF CREDIT REQUEST" has the meaning specified in Section
2.03(a).
"LETTERS OF CREDIT" has the meaning specified in Section 2.01(d).
"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 (a) this Agreement, (b) the Notes, (c) the
Guaranties, (d) the Collateral Documents, (e) the Fee Letter, (f) each Letter of
Credit Agreement and (g) each Secured Hedge Agreement, in each case as amended.
"LOAN PARTIES" means the Borrower and the Guarantors.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, assets, properties or financial condition of the Borrower or of the
Borrower and its Restricted Subsidiaries, taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, properties or financial condition of the Borrower or of the
Borrower and its Restricted Subsidiaries, taken as a whole, (b) the rights and
remedies of the Administrative Agent or any Lender Party under any Loan Document
or (c) the ability of any Loan Party to perform its Obligations under any Loan
Document to which it is or is to be a party.
"MATERIAL CONTRACT" means, with respect to any Person, each contract
(other than a contract pursuant to which such Person is engaged to provide
brokerage services with regard to a single client under which a commission or
other fee is payable) to which such Person is a party involving aggregate
consideration (excluding (x) reimbursable expenses of such Person and (y)
project management fees payable to such Person the amount of which cannot yet be
determined because the amount of such fees are contingent) payable to or by such
Person of $1,000,000 or more in any year.
"MEASUREMENT PERIOD" means, at any date of determination, the most
recently completed four consecutive fiscal quarters of the Borrower ending on or
prior to such date.
"MORTGAGES" means deeds of trust, trust deeds, mortgages, leasehold
mortgages and leasehold deeds of trust, if any, in form and substance
satisfactory to the Administrative Agent and covering the Borrower Properties,
duly executed by the appropriate Loan Party.
"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
16
Affiliate and at least one Person other than the Loan Parties and the
ERISAAffiliates 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.
"NEW LENDERS" means all of the "Lenders" party to, and as defined
in, this Agreement, which were not Lenders under the Existing Agreement
immediately prior to the Closing Date.
"NOTE" means a Term Note or a Revolving Credit Note.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
"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, 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(f). 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, charges, expenses, fees, attorneys' fees,
commissions, including, without limitation, Letter of Credit commissions, 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,
without duplication of any clause within this definition or within the
definition of "Debt", all (a) Obligations of such Person under any lease which
is treated as an operating lease for financial accounting purposes and a
financing lease for tax purposes (i.e., a "synthetic lease"), (b) Obligations of
such Person in respect of transactions entered into by such Person, the proceeds
from which would be reflected on the financial statements of such Person in
accordance with GAAP as cash flows from financings at the time such transaction
was entered into (other than as a result of the issuance of Equity Interests)
and (c) Obligations of such Person in respect of other transactions entered into
by such Person that are not otherwise addressed in the definition of "Debt" or
in clause (a) or (b) above that are intended to function primarily as a
borrowing of funds (including, without limitation, any minority interest
transactions that function primarily as a borrowing).
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PARTICIPANT" has the meaning specified in Section 2.03(c).
"PATRIOT ACT" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. 107-56, as amended from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
17
"PERMITTED ACQUISITION" means any Acquisition that complies with
each of the following requirements:
(a) (i) the Borrower satisfies, and will continue to satisfy,
immediately after giving effect (on a pro forma basis) to such Acquisition
and any Debt incurred in connection therewith, all applicable financial
covenants under this Agreement and (ii) the Administrative Agent shall
have received no later than 10 days subsequent to such Permitted
Acquisition a pro forma budget of projected income and expenses relating
to such Permitted Acquisition;
(b) no Default has then occurred and is continuing or would result
therefrom; and
(c) the company being acquired is in (or the assets being acquired
are used in) the real estate services business.
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) Liens for 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', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary course of
business securing obligations that (i) are not overdue for a period of more than
30 days 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 in the
ordinary course of business to secure obligations under workers' compensation
laws or similar legislation or to secure public or statutory obligations; (d)
deposits to secure the performance of bids, trade contracts and leases (other
than Debt), statutory obligations, surety bonds (other than bonds related to
judgments or litigation), performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (e) Liens securing judgments
(or the payment of money) not constituting a Default under Section 6.01(g) or
securing appeal or other surety bonds related to such judgments; (f) easements,
rights of way and other encumbrances on title to real property that do not
render title to the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present purposes, excluding
any such easements, rights of way or encumbrances securing Debt for Borrowed
Money; and (g) Liens securing insurance premium financing arrangements entered
into in the ordinary course of business and permitted under Section
5.02(b)(iii)(G).
"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.
"PLEDGED SHARES" has the meaning specified in the Security
Agreement.
"POST PETITION INTEREST" has the meaning specified in Section 8.06.
"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.
"PROPERTY" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including Equity Interests.
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"PRO RATA SHARE" or "REVOLVER PRO RATA SHARE" of any amount means,
with respect to any Revolving Credit Lender at any time, the product of such
amount times a fraction the numerator of which is the amount of such Lender's
Revolving Credit Commitment at such time (or, if the Commitments shall have been
terminated pursuant to Section 2.05 or 6.01, such Lender's Revolving Credit
Commitment as in effect immediately prior to such termination) and the
denominator of which is the Revolving Credit Facility at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the
Revolving Credit Facility as in effect immediately prior to such termination).
The initial Pro Rata Share of each Lender is set forth opposite the name of that
Lender in Schedule I annexed hereto under the heading "Revolver Pro Rata Share";
provided that Schedule I shall be amended and each Pro Rata Share shall be
adjusted from time to time to give effect to the execution of any supplements,
amendments or modifications to this Agreement and the addition or removal of any
Lender as provided herein or by assignment pursuant to Section 9.07.
"PURCHASING REVOLVING LENDER" has the meaning specified in Section
2.18(a).
"PURCHASING TERM LENDER" has the meaning specified in Section
2.18(b).
"REDEEMABLE" means, with respect to any Equity Interests, any such
Equity Interests 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.
"REGISTER" has the meaning specified in Section 9.07(d).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"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 Advances outstanding at such time, (b) the aggregate Available Amount of all
Letters of Credit outstanding at such time, (c) the aggregate unused Term
Commitments at such time and (d) the aggregate Unused Revolving Credit
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, (C) the aggregate unused Term
Commitment of such Lender at such time and (D) the Unused Revolving Credit
Commitment of such Lender at such time. For purposes of this definition, the
aggregate principal amount of Swing Line Advances owing to the Swing Line Bank
and 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 Revolving
Credit Lenders ratably in accordance with their respective Revolving Credit
Commitments.
"RESTRICTED INVESTMENT" shall have the meaning specified in Section
5.02(m).
"RESTRICTED PAYMENTS" shall have the meaning specified in Section
5.02(g).
"RESTRICTED SUBSIDIARIES" means each Domestic Subsidiary of the
Borrower which is a wholly owned Subsidiary, whether now owned or hereafter
acquired, other than those Subsidiaries which (a) hold no material assets or
liabilities and (b) conduct no significant business activities, provided, that,
notwithstanding clauses (a) and (b) above, Restricted Subsidiaries shall not
include those Subsidiaries designated as Unrestricted Subsidiaries on Schedule
4.01(b) or as to which the Borrower has requested in
19
writing to the Administrative Agent that such Subsidiary not be categorized as a
Restricted Subsidiary and which the Administrative Agent, in its sole and
absolute discretion, has agreed in writing shall not be categorized as a
Restricted Subsidiary.
"REVOLVING CREDIT ADVANCE" has the meaning specified in Section
2.01(b).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the Revolving
Credit Lenders.
"REVOLVING CREDIT COMMITMENT" means, with respect to any Revolving
Credit Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit 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
Section 9.07(d) as such Lender's "Revolving Credit Commitment", as such amount
may be reduced at or prior to such time pursuant to Section 2.05.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate amount
of the Revolving Credit Lenders' Revolving Credit Commitments at such time.
"REVOLVING CREDIT LENDER" means any Lender that has a Revolving
Credit Commitment.
"REVOLVING CREDIT NOTE" means a promissory note of the Borrower
payable to the order of any Revolving Credit Lender, in substantially the form
of Exhibit A-1 hereto, evidencing the aggregate indebtedness of the Borrower to
such Lender resulting from the Revolving Credit Advances, Letter of Credit
Advances and Swing Line Advances made by such Lender, as amended.
"SECURED HEDGE AGREEMENT" means any Hedge Agreement required or
permitted under Article V that is entered into by and between the Borrower and
any Hedge Bank.
"SECURED OBLIGATIONS" has the meaning specified in Section 2 of the
Security Agreement.
"SECURED PARTIES" means the Administrative Agent, the Lead Arranger,
the Lender Parties and the Hedge Banks.
"SECURITIES ACCOUNT CONTROL AGREEMENT" has the meaning specified in
the Security Agreement.
"SECURITY AGREEMENT" has the meaning specified in Section
3.01(a)(ii).
"SELLING REVOLVING LENDER" has the meaning specified in Section
2.18(a).
"SELLING TERM LENDER" has the meaning specified in Section 2.18(b).
"SIGNING BONUS PAYMENTS" means up to $4,000,000 of cash payments by
the Borrower in any Fiscal Year in connection with the hiring or engagement of
officers, employees or representatives of the Borrower.
"SINGLE 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 no Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of which any
20
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 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.
"SUBORDINATED OBLIGATIONS" has the meaning specified in Section
8.06.
"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.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning specified in Section
7.01(c).
"SWING LINE ADVANCE" means an advance made by (a) the Swing Line
Bank pursuant to Section 2.01(c) or (b) any Revolving Credit Lender pursuant to
Section 2.02(b).
"SWING LINE BANK" means the Initial Swing Line Bank and any Eligible
Assignee to which the Swing Line Commitment hereunder has been assigned pursuant
to Section 9.07 so long as each such Eligible Assignee expressly agrees to
perform in accordance with their terms all obligations that by the terms of this
Agreement are required to be performed by it as a Swing Line Bank and notifies
the Administrative Agent of its Applicable Lending Office and the amount of its
Swing Line Commitment (which information shall be recorded by the Administrative
Agent in the Register), for so long as such Initial Swing Line Bank or Eligible
Assignee, as the case may be, shall have a Swing Line Commitment.
"SWING LINE BORROWING" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank pursuant to Section 2.01(c) or the Revolving
Credit Lenders pursuant to Section 2.02(b).
"SWING LINE COMMITMENT" means, with respect to the Swing Line Bank
at any time, the amount set forth opposite the Swing Line Bank's name on
Schedule I hereto under the caption "Swing Line Commitment" or, if the Swing
Line Bank has entered into one or more Assignment and Acceptances, set forth for
the Swing Line Bank in the Register maintained by the Administrative Agent
pursuant to Section 9.07(d) as the Swing Line Bank's "Swing Line Commitment", as
such amount may be reduced at or prior to such time pursuant to Section 2.05.
21
"SWING LINE FACILITY" means, at any time, an amount equal to the
lesser of (a) the Swing Line Commitment at such time and (b) $4,000,000, as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"TAXES" has the meaning specified in Section 2.12(a).
"TERM ADVANCE" has the meaning specified in Section 2.01(a).
"TERM BORROWING" means a borrowing consisting of simultaneous Term
Advances of the same Type made by the Term Lenders.
"TERM COMMITMENT" means, with respect to any Term Lender at any
time, the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Term Commitment" or, if such Lender has entered into one of
more Assignment and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 9.07(d) as such
Lender's "Term Commitment", as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
"TERM FACILITY" means, at any time, the aggregate amount of the Term
Lenders' Term Commitments at such time.
"TERM LENDER" means any Lender that has a Term Commitment.
"TERM NOTE" means a promissory note of the Borrower payable to the
order of any Term Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from the
Term Advance made by such Lender, as amended.
"TERM PRO RATA SHARE" of any amount means, with respect to any Term
Lender at any time, the product of such amount times a fraction the numerator of
which is the amount of such Lender's Term Commitment at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such
Lender's Term Commitment as in effect immediately prior to such termination) and
the denominator of which is the Term Facility at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the
Term Facility as in effect immediately prior to such termination). The initial
Term Pro Rata Share of each Lender is set forth opposite the name of that Lender
in Schedule I annexed hereto under the heading "Term Pro Rata Share"; provided
that Schedule I shall be amended and each Term Pro Rata Share shall be adjusted
from time to time to give effect to the execution of any supplements, amendments
or modifications to this Agreement and the addition or removal of any Lender as
provided herein or by assignment pursuant to Section 9.07.
"TERMINATION DATE" means the earlier of June 11, 2008, subject to
the extension thereof pursuant to Section 2.17, and the date of termination in
whole of the Revolving Credit Commitments, the Letter of Credit Commitment, the
Swing Line Commitment and the Term Commitments pursuant to Section 2.05 or 6.01.
"TYPE" refers to the distinction between Advances bearing interest
at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary that is not a
Restricted Subsidiary.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to any
Revolving Credit Lender at any time, without duplication, (a) such Lender's
Revolving Credit Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Advances, Swing Line
22
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, (B) the aggregate principal amount of all Letter of Credit Advances made
by the Issuing Bank pursuant to Section 2.03(c) and outstanding at such time and
(C) the aggregate principal amount of all Swing Line Advances made by the Swing
Line Bank pursuant to Section 2.03(b) 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 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.
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. The term "including" is not limiting and means
"including without limitation."
SECTION 1.03 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principals in the United States of America as in effect from time to
time set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be in general use by
significant segments of the United States accounting profession, which are
applicable to the circumstances of the Borrower as of the date of determination
("GAAP"), except that for purposes of Section 5.04 (including the accounting
terms used therein and defined herein), GAAP shall be determined on the basis of
such principles in effect on the date hereof and consistent with those used in
the preparation of the audited financial statements of the Borrower in respect
of the fiscal year ended June 30, 2004 delivered pursuant to Section
3.01(a)(viii). If any Accounting Change shall occur and such change results in a
change in the method of calculation of financial covenants, standards or terms
in this Agreement, then the Borrower and the Administrative Agent agree to enter
into negotiations in good faith and in a timely fashion in order to amend such
provisions of this Agreement so as to equitably reflect such Accounting Change
with the desired result that the criteria for evaluating the Borrower's
financial condition shall be the same after such Accounting Change as if such
Accounting Change had not been made. Until such time as such an amendment shall
have been executed and delivered by the Borrower, the Administrative Agent and
the Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such Accounting
Change had not occurred. "ACCOUNTING CHANGE" refers to any change in accounting
principles required by the promulgation of any rule, regulation, pronouncement
or opinion by the Financial Accounting Standards Board of the American Institute
of Certified Public Accountants (or successors thereto or agencies with similar
functions), the Securities and Exchange Commission or any other qualified,
authoritative agency or organization.
23
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 Term
Advances. Pursuant to the terms of the Existing Agreement, the Term Lenders made
a single advance (a "TERM ADVANCE") to the Borrower on the Effective Date (as
defined in the Existing Agreement) in an amount equal to the Term Lenders' Term
Commitments at such time. The Term Borrowing consists of Term Advances made
simultaneously by the Term Lenders ratably according to their Term Commitments.
Amounts borrowed under this Section 2.01(a) (or the corresponding section of the
Existing Agreement) and repaid or prepaid may not be reborrowed.
(b) The Revolving Credit Advances. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "REVOLVING CREDIT ADVANCE") to the Borrower from time to time
on any Business Day during the period from the Effective Date until the
Termination Date in respect of the Revolving Credit Facility in an amount for
each such Advance not to exceed such Lender's Unused Revolving Credit Commitment
at such time. Each Revolving Credit Borrowing shall be in an aggregate amount of
$1,000,000 or an integral multiple of $500,000 in excess thereof (other than a
Borrowing the proceeds of which shall be used solely to repay or prepay in full
outstanding Swing Line Advances or outstanding Letter of Credit Advances) and
shall consist of Revolving Credit Advances made simultaneously by the Revolving
Credit Lenders ratably according to their Revolving Credit Commitments. Within
the limits of each Revolving Credit Lender's Unused Revolving Credit Commitment
in effect from time to time, the Borrower may borrow under this Section 2.01(b),
prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(b).
(c) The Swing Line Advances. The Swing Line Bank agrees on the terms
and conditions hereinafter set forth, to make Swing Line Advances to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in respect of the Revolving Credit
Facility (i) in an aggregate amount not to exceed at any time outstanding the
Swing Line Bank's Swing Line Commitment at such time and (ii) in an amount for
each such Swing Line Borrowing not to exceed the aggregate of the Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time. No
Swing Line Advance shall be used for the purpose of funding the payment of
principal of any other Swing Line Advance. Each Swing Line Borrowing shall be in
an amount of $1,000,000 or an integral multiple of $100,000 in excess thereof
and shall be made as a Base Rate Advance. Within the limits of the Swing Line
Facility and within the limits referred to in clause (ii) above, the Borrower
may borrow under this Section 2.01(c), repay pursuant to Section 2.04(c) or
prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(c).
Immediately upon the making of a Swing Line Advance, each Revolving Credit
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Swing Line Bank a risk participation in such Swing Line
Advance in an amount equal to the product of such Lender's Pro Rata Share times
the amount of such Swing Line Advance.
(d) The Letters of Credit. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue (or cause its Affiliate that is
commercial bank to issue) standby letters of credit (the "LETTERS OF Credit")
for the account of the Borrower from time to time on any Business Day during the
period from the Effective Date until 60 days before the Termination Date in an
aggregate Available Amount (i) for all Letters of Credit issued by the Issuing
Bank not to exceed at any time the Letter of Credit Facility at such time and
(ii) for each such Letter of Credit not to exceed an amount equal to the Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time. No
Letter of Credit shall have an expiration date later than the earlier of one
year after the date of issuance thereof and the 30th day before the Termination
Date; provided, however, that the expiration date of any Letter of
24
Credit may be automatically extended for periods of up to one year but not later
than the 30th Business Day before the Termination Date. Within the limits of the
Letter of Credit Facility, the Borrower may request the issuance of Letters of
Credit under this Section 2.01(d) in amounts no less than $250,000 (or such
lesser amount as may be agreed to by the Issuing Bank) for each such Letter of
Credit, repay any Letter of Credit Advances resulting from drawings under
Letters of Credit pursuant to Section 2.03(c), and request the issuance of
additional Letters of Credit under this Section 2.01(d), subject to the
foregoing limitations. All Existing Letters of Credit shall be deemed to have
been issued pursuant hereto, and from and after the Effective Date shall be
subject to and governed by the terms and conditions of this Agreement.
SECTION 2.02 Making the Advances. (a) Except as otherwise provided in
Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not later
than 1:00 P.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing 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 electronic mail (containing
the Notice of Borrowing as an electronic attachment containing a hand-written
signature, confirmed immediately by telephone or telecopier) 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 Advance 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 1:00 P.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 Revolving Credit Borrowing,
the Administrative Agent shall first apply such funds to prepay ratably the
aggregate principal amount of any Swing Line Advances and Letter of Credit
Advances outstanding at such time, together with interest accrued and unpaid
thereon to and as of such date.
(b) (i) Each Swing Line Borrowing shall be made on notice, given not
later than 1:00 P.M. (New York City time) on the date of the proposed Swing Line
Borrowing, by the Borrower to the Swing Line Bank and the Administrative Agent.
Each such notice of a Swing Line Borrowing (a "NOTICE OF SWING LINE BORROWING")
shall be by telephone, confirmed immediately in writing, or electronic mail
(containing the Notice of Borrowing as an electronic attachment containing a
hand-written signature, confirmed immediately by telephone or telecopier) or
telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the seventh day after the requested date of such
Borrowing). The Swing Line Bank will make the amount of the requested Swing Line
Advances available to the Administrative Agent at the Administrative Agent's
Account, in same day funds. 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.
(ii) The Swing Line Bank may, at any time in its sole and absolute
discretion, request on behalf of the Borrower (and the Borrower hereby
irrevocably authorizes the Swing Line Bank to so request on its behalf) that
each Revolving Credit Lender make a Base Rate Advance in an amount equal to such
Lender's Pro Rata Share of the amount of Swing Line Advances then outstanding.
Such request shall be deemed to be a Notice of Borrowing for purposes hereof and
shall be made in accordance with
25
the provisions of Section 2.02(a) without regard solely to the minimum amounts
specified therein but subject to the satisfaction of the conditions set forth in
Section 3.02. The Swing Line Bank shall furnish the Borrower with a copy of the
applicable Notice of Borrowing promptly after delivering such notice to the
Administrative Agent. Each Revolving Credit Lender shall make an amount equal to
its Pro Rata Share of the amount specified in such Notice of Borrowing available
for the account of its Applicable Lending Office to the Administrative Agent for
the account of the Swing Line Bank, by deposit to the Administrative Agent's
Account, in same date funds, not later than 1:00 P.M. (New York City time) on
the day specified in such Notice of Borrowing.
(iii) If for any reason any Swing Line Advance cannot be refinanced
by a Revolving Credit Borrowing as contemplated by Section 2.02(b)(ii), the
request for Base Rate Advances submitted by the Swing Line Bank as set forth in
Section 2.02(b)(ii) shall be deemed to be a request by the Swing Line Bank that
each of the Revolving Credit Lenders fund its risk participation in the relevant
Swing Line Advance and each Revolving Credit Lender's payment to the
Administrative Agent for the account of the Swing Line Bank pursuant to Section
2.02(b)(ii) shall be deemed payment in respect of such participation.
(iv) If and to the extent that any Revolving Credit Lender shall not
have made the amount of its Pro Rata Share of such Swing Line Advance available
to the Administrative Agent in accordance with the provisions of Section
2.02(b)(ii), such Revolving Credit Lender agrees to pay to the Administrative
Agent forthwith on demand such amount together with interest thereon, for each
day from the date of the applicable Notice of Borrowing delivered by the Swing
Line Bank until the date such amount is paid to the Administrative Agent, at the
Federal Funds Rate. Neither the Borrower nor any other Loan Party will be liable
to the Administrative Agent or to any Lender Party for repayment of such
interest charges (if any).
(v) Each Revolving Credit Lender's obligation to make Revolving
Credit Advances or to purchase and fund risk participations in Swing Line
Advance pursuant to this Section 2.02(b) shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Bank, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence of continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Credit Lender's obligation to make
Revolving Credit Advances pursuant to this Section 2.02(b) is subject to
satisfaction of the conditions set forth in Section 3.02. No funding of risk
participations shall relieve or otherwise impair the obligation of the Borrower
to repay Swing Line Advances, together with interest as provided herein.
(c) 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 $1,000,000 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) the Term Advances and the Revolving Credit
Advances may not be outstanding as part of more than eight separate Borrowings.
(d) Each Notice of Borrowing and each Notice of Swing Line 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
26
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.
(e) 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.
(f) 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 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
submission by the Borrower of a request for an issuance of a Letter of Credit (a
"LETTER OF CREDIT REQUEST") in the form of Exhibit B-2 hereto given to the
Issuing Bank (with a copy to the Administrative Agent), of which the Issuing
Bank shall provide a copy to each Revolving Credit Lender, not later than 1:00
P.M. (New York City time) on the third Business Day (or such shorter period
agreed to by the Issuing Bank) prior to the proposed date of issuance of such
Letter of Credit. Each Letter of Credit Request shall be by telecopier,
confirmed immediately in writing by overnight courier, 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. If so required by the Issuing Bank, each Letter
of Credit Request shall be accompanied by the Issuing Bank's standard form of
application and agreement for Letters 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 Lenders holding at least 51% of the Revolving
Credit Commitments, the Issuing Bank will, upon the fulfillment of the
applicable conditions set forth in Article III, issue such Letter of Credit. All
Letters of Credit shall be denominated in U.S. dollars and shall be issued on a
sight basis only. 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 will govern.
(b) Letter of Credit Reports. Promptly after the issuance or
amendment of any Letter of Credit the Issuing Bank shall notify the Borrower and
the Administrative Agent, in writing, of such issuance or amendment and such
notice shall be accompanied by a copy of such issuance or amendment. Upon
receipt of such notice, the Administrative Agent shall promptly notify each
Lender, in writing, of such issuance or amendment and if so requested by a
Lender, the Administrative Agent shall provide such Lender with copies of such
issuance or amendment. The Issuing Bank shall furnish to the Administrative
Agent (unless the Issuing Bank shall be the Administrative Agent) by facsimile
on the first Business Day
27
of each month, a written report summarizing the aggregate daily Available
Amounts for Letters of Credit during the preceding month.
(c) Letter of Credit Participations; Drawing and Reimbursement. (i)
Immediately upon the issuance by the Issuing Bank of any Letter of Credit, the
Issuing Bank shall be deemed to have sold and transferred to each Revolving
Credit Lender, and each Revolving Credit Lender (in its capacity under this
Section 2.03(c), a "PARTICIPANT") shall be deemed irrevocably and
unconditionally to have purchased and received from the Issuing Bank, without
recourse or warranty, an undivided interest and participation in such Letter of
Credit, to the extent of such Participant's Pro Rata Share of the Available
Amount of such Letter of Credit, each drawing or payment made thereunder and the
obligations of the Borrower under this Agreement with respect thereto, and any
security therefor or guaranty pertaining thereto. Upon any change in the
Revolving Credit Commitments or the Revolving Credit Lenders' respective Pro
Rata Shares pursuant to Section 9.07, it is hereby agreed that, with respect to
all outstanding Letters of Credit and unpaid drawings relating thereto, there
shall be an automatic adjustment to the participations pursuant to this Section
2.03(c) to reflect the new Pro Rata Shares of the assignor and assignee
Revolving Credit Lenders, as the case may be.
(ii) In determining whether to pay under any Letter of Credit, the
Issuing Bank shall not have any obligation with respect to the other Revolving
Credit Lenders other than to confirm that any documents required to be delivered
under such Letter of Credit appear to have been delivered and that they appear
to substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by the Issuing Bank under or in
connection with any Letter of Credit issued by it shall not create for the
Issuing Bank any resulting liability to the Borrower, any other Loan Party, any
Revolving Credit Lender or any other Person unless such action is taken or
omitted to be taken with gross negligence or willful misconduct on the part of
the Issuing Bank (as determined by a court of competent jurisdiction in a final
non-appealable judgment).
(iii) 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. In the event that the Issuing Bank makes
any payment under any Letter of Credit issued by it and the Borrower shall not
have reimbursed such amount in full to the Issuing Bank pursuant to Section
2.04(d), the Issuing Bank shall promptly notify the Administrative Agent, which
shall promptly notify each Participant of such failure, and each Participant
shall promptly and unconditionally pay to the Administrative Agent for the
account of the Issuing Bank the amount of such Participant's Pro Rata Share of
such unreimbursed payment in U.S. dollars and in same day funds. Upon such
notification by the Administrative Agent to any Participant required to fund a
payment under a Letter of Credit, such Participant shall make available to the
Administrative Agent for the account of the Issuing Bank such Participant's Pro
Rata Share of the amount of such payment in same day funds (x) if notified prior
to 12:00 Noon (New York time) on any Business Day, on such Business Day, and (y)
if notified at or after 12:00 Noon (New York time) on any Business Day, on the
following Business Day. If such Participant 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 Participant 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.
If and to the extent such Participant shall not have so made its Pro Rata Share
of the amount of such payment available to the Administrative Agent, such
Participant agrees to pay to the Administrative Agent for the account of the
Issuing Bank, forthwith on demand such amount, together with interest thereon,
for each day from such date until the date such amount is paid to the
Administrative Agent at the Federal Funds Rate. The failure of any Participant
to make available to the Administrative Agent for the account of the Issuing
Bank its Pro Rata Share of any payment under any Letter of Credit shall not
relieve any other Participant of its
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obligation hereunder to make available to the Administrative Agent for the
account of the Issuing Bank its Pro Rata Share of any payment under any Letter
of Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to the
Administrative Agent such other Participant's Pro Rata Share of any such
payment.
(iv) Whenever the Issuing Bank receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (iii) above, the Issuing Bank shall pay to the Administrative
Agent for the account of each such Participant that has paid its Pro Rata Share
thereof, in same day funds, an amount equal to such Participant's share (based
upon the proportionate aggregate amount originally funded by such Participant to
the aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of the
respective participations.
(v) Upon the request of any Participant, the Issuing Bank shall
furnish to such Participant copies of any standby Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
SECTION 2.04 Repayment of Advances. (a) Term Advances. The Borrower shall
repay, on the Termination Date, to the Administrative Agent for the ratable
account of the Term Lenders the aggregate principal amount of the Term Advances
then outstanding.
(b) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Termination Date in respect of the Revolving Credit Facility the aggregate
principal amount of the Revolving Credit Advances then outstanding.
(c) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing) and the Termination Date in respect of the Revolving Credit
Facility.
(d) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of demand and the Termination Date in respect of the Revolving Credit Facility
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 Credit, and the obligations of the Participants to make payments to
the Administrative Agent for the account of the Issuing Bank in respect of
Letters of 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:
(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
29
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, certificate or other document 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 Guaranties 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;
provided, however, that nothing herein waives the Issuing Bank's liability with
respect to errors, omissions, interruptions, delays in transmission, dispatch or
delivery of any message, payment or advice relating to any Letter of Credit that
has been determined in a final and non-appealable decision of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Issuing Bank.
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 Term
Commitments, the Swing Line Facility and the Letter of Credit Facility and the
Unused Revolving Credit Commitments; provided, however, that each partial
reduction of a Facility (i) shall be in an aggregate amount of $1,000,000 or an
integral multiple of $100,000 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) From time to time upon each repayment or
prepayment of the Term Advances, the aggregate Term Commitments of the Term
Lenders shall be automatically and permanently reduced, on a pro rata basis, by
an amount equal to the amount by which the aggregate Term Commitments
immediately prior to such reduction exceed the aggregate unpaid principal amount
of the Term Advances then outstanding (after giving effect to any such repayment
or prepayment thereof).
(ii) The Letter of Credit Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Letter of Credit Facility exceeds
the Revolving Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.
30
(iii) The Swing Line Facility shall be permanently reduced from time
to time on the date of each reduction in the Revolving Credit Facility by the
amount, if any, by which the amount of the Swing Line Facility exceeds the
Revolving Credit Facility after giving effect to such reduction of the Revolving
Credit Facility.
SECTION 2.06 Prepayments. (a) Optional. The Borrower may, upon at least
three 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 (i) accrued interest to the date of such prepayment on the
aggregate principal amount prepaid; provided, however, that each partial
prepayment shall be in an aggregate principal amount of (x) in the case of Base
Rate Advances, $1,000,000 or an integral multiple of $500,000 in excess thereof,
(y) in the case of Eurodollar Rate Advances, $1,000,000 or an integral multiple
thereof, and (z) in the case of Swing Line Advances, $250,000 or an integral
multiple thereof. Each such prepayment of any Term Advances shall be applied pro
rata.
(b) Mandatory Prepayment of the Revolving Credit Advances. (i) The
Borrower shall, on each Business Day, prepay an aggregate principal amount of
the Revolving Credit Advances comprising part of the same Borrowings, the Letter
of Credit Advances and the Swing Line Advances and deposit an amount in the L/C
Collateral Account in an amount equal to the amount by which (A) the sum of the
aggregate principal amount of (x) the Revolving Credit Advances, (y) the Letter
of Credit Advances and (z) the Swing Line Advances then outstanding plus the
aggregate Available Amount of all Letters of Credit then outstanding exceeds (B)
the Revolving Credit Facility on such Business Day.
(ii) 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.
(iii) Prepayments of the Revolving Credit 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 Swing
Line Advances then outstanding until such Advances are paid in full, third
applied to prepay Revolving Credit Advances then outstanding comprising part of
the same Borrowings until such Advances are paid in full and fourth deposited in
the L/C Collateral Account to cash collateralize 100% of the Available Amount of
the Letters of Credit then outstanding. 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 Revolving Credit Lenders, as
applicable.
(c) Change of Control Prepayment. The Borrower shall, on the date of
any Change of Control, prepay in full the aggregate principal amount of the
Facilities and deposit in the L/C Collateral Account an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding.
(d) Payments with Interest. All prepayments under subsections (b)
and (c) above shall be made together with (i) accrued interest to the date of
such prepayment on the principal amount prepaid, and (ii) if any payment of a
Eurodollar Rate Advance shall be made other than on the last day of an Interest
Period therefor, any amounts owing pursuant to Section 9.04(c).
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:
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(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 the
Base Rate in effect from time to time plus the Applicable Margin, 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 the Eurodollar Rate
for such Interest Period for such Advance plus the Applicable Margin,
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 any Event of Default, the Administrative Agent may, and upon the request of
the Required Lenders shall, require that the Borrower pay interest ("DEFAULT
INTEREST") on (i) the unpaid principal amount of each Advance owing to each
Lender Party, payable in arrears on the dates referred to in clause (i) or (ii)
of Section 2.07(a), as applicable, 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 (i) or (ii) of Section 2.07(a), as applicable, and
(ii) to the fullest extent permitted by applicable law, the amount of any
interest, fee or other expense reimbursement payable under this Agreement or any
other Loan Document to the Administrative Agent or any Lender Party 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 (i) or (ii) of
Section 2.07(a), as applicable, and, in all other cases, on Base Rate Advances
pursuant to clause (i) of Section 2.07(a); provided, however, that following the
acceleration of the Advances, or the giving of notice by the Administrative
Agent to accelerate the Advances, pursuant to Section 6.01, Default Interest
shall accrue and be payable hereunder whether or not previously required by the
Administrative Agent.
(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) Unused Commitment Fee. The Borrower shall pay to
the Administrative Agent for the account of the Lenders an unused commitment
fee, from the date hereof 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, in each case until the
Termination Date, payable in arrears quarterly on the last day of each March,
June, September and December, commencing June 30, 2005, and on the Termination
Date in respect of the applicable Facility, at the rate of 0.50% per annum on
the sum of the average daily Unused Revolving Credit Commitment of each
Appropriate Lender plus such Appropriate Lender's Pro Rata Share of the average
daily outstanding Swing Line Advances during such quarter; provided, however,
that any unused commitment fee accrued with respect to any of the Commitments of
a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrower
so long as such Lender shall be a Defaulting Lender except to the extent that
such unused commitment fee shall otherwise have been due and payable by the
Borrower prior to such time; and provided further that no
32
unused 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 Revolving Credit Lender a
commission, payable quarterly in arrears on the last day of each March, June,
September and December, commencing June 30, 2005, and on the Termination Date,
on such Revolving Credit Lender's Pro Rata Share of the average daily aggregate
Available Amount during such quarter of all Letters of Credit outstanding from
time to time at a rate per annum equal to 3.50%. Upon the occurrence and during
the continuance of any Event of Default, the amount of commission payable by the
Borrower under this clause (b)(i) shall be increased by 2% per annum.
(ii) The Borrower shall pay to the Issuing Bank, for its own
account, a facing fee in respect of each Letter of Credit issued by it for each
Letter of Credit issued by the Issuing Bank, in an amount equal to the greater
of (A) 0.125% of the Available Amount of such Letter of Credit on the date of
issuance of such Letter of Credit and (B) $500, payable on the date of issuance
of such Letter of Credit. In addition, the Borrower shall pay to the Issuing
Bank, for its own account, the Issuing Bank's standard charges with respect to
the issuance of, amendment to, payment under and transfer of Letters of Credit
and such other fees related to Letters of Credit including but not limited to
postage, courier, electronic mail and legal expenses.
(c) Fees to the Administrative Agent. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative 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 1:00
P.M. (New York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.07 and 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(c), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(c) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility.
Each such notice of Conversion shall, 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 Appropriate
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.
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(iii) 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 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. 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 50% 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 Appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under such Facility 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 Appropriate 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 is unlawful, for any Lender or its Eurodollar
Lending
34
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 Appropriate 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;
provided, however, that, before making any such demand, such Lender agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurodollar Lending Office if
the making of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender.
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 1:00
P.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, unused
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) If the Administrative Agent receives funds for application to
the Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the manner in which such funds are to
be applied, the Administrative Agent may, but shall not be obligated to, elect
to distribute such funds to each Lender Party ratably in accordance with the
amount of the Obligations then payable to such Lender Party, in repayment or
prepayment of such of the outstanding Advances or other Obligations owed to such
Lender Party, and for application to such principal installments, as the
Administrative Agent shall direct.
(d) 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 (except that with respect to Base Rate Advances such computations shall
be made by the Administrative Agent on the basis of a year of
35
365 or 366 days, as the case may be), in all cases 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.
(e) 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 fees or commissions, as the case may be; provided, however,
that, if such extension would cause any payment to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(f) 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.
SECTION 2.12 Taxes. (a) Any and all payments by any Loan Party to or for
the account of any Lender Party or the Administrative Agent hereunder or under
the Notes or any other Loan Document shall be made, in accordance with Section
2.11 or the applicable provisions of such other Loan Document, if any, 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 the Administrative
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 the Administrative 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 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 any Loan Party shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note or any other Loan
Document to any Lender Party or the Administrative Agent, (i) the sum payable by
the Borrower shall be increased as may be necessary so that after such Loan
Party 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 the Administrative Agent, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
such Loan Party shall make all such deductions and (iii) such Loan Party shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, a Loan Party shall pay any present or future stamp,
documentary, excise, property, intangible, mortgage recording or similar taxes,
charges or levies that arise from any payment made by such Loan Party hereunder
or under any Notes or any other Loan Documents 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").
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(c) The Loan Parties shall indemnify each Lender Party and the
Administrative 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 or
asserted by any jurisdiction on amounts payable under this Section 2.12, imposed
on or paid by such Lender Party or the Administrative 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 the Administrative Agent (as
the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
appropriate Loan Party 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, to the extent such a receipt is issued therefor, or
other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the Notes or
the other Loan Documents by or on behalf of a Loan Party through an account or
branch outside the United States or by or on behalf of a Loan Party by a payor
that is not a United States person, if such Loan Party determines that no Taxes
are payable in respect thereof, such Loan Party 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 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 reasonably 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 W-8BEN or W-8EC1, 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 any other Loan Document. 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 W-8BEN
or W-8EC1, 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, certificate or other document
described in subsection (e) above (other than if such failure is due to a change
in law, or in the interpretation or application thereof, occurring after the
date on which a form, certificate or other document originally was required to
be
37
provided or if such form, certificate or other document 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, certificate or other document required hereunder, the Loan
Parties shall take such steps as such Lender Party shall reasonably request to
assist such Lender Party to recover such Taxes.
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 and the other Loan Documents 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 and the other Loan Documents 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 and the other Loan Documents 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 and the other Loan Documents 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 Appropriate Lender shall be shared on a pro rata basis
only with other Appropriate 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.
SECTION 2.14 Use of Proceeds. The proceeds of the Term Advances were used
by the Borrower solely to refinance certain Existing Debt (as defined in the
Existing Agreement) and pay transaction fees and expenses. The proceeds of the
Revolving Credit 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 provide working capital for the Borrower and its Restricted
Subsidiaries, (ii) to refinance certain Existing Debt, (iii) to finance
acquisitions by the Borrower or its Restricted Subsidiaries, (iv) to finance the
repurchase by the Borrower, in the public capital markets, of up to $30,000,000
of the Borrower's common equity from and after the date hereof, and (v) for
other general corporate purposes.
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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.
(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 the Administrative 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 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 Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent 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 and
such other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent 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 Administrative
Agent;
(ii) second, to the Issuing Bank and the Swing Line Bank 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
Issuing Bank and the Swing Line Bank; and
39
(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, the Administrative 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 the Administrative 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 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 Administrative Agent 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 Administrative Agent;
(ii) second, to the Issuing Banks and the Swing Line 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 Banks and the Swing
Line 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
40
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 the Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
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 Revolving Credit Note and a Term Note, as
applicable, in substantially the form of Exhibits A-1 and A-2 hereto,
respectively, payable to the order of such Lender Party in a principal amount
equal to the Revolving Credit Commitment and the Term Commitment, respectively,
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.
SECTION 2.17 Extension of Termination Date. (a) At least 30 days and no
sooner than 60 days prior to the Termination Date, the Borrower, by written
notice to the Administrative Agent, may request, with respect to the Commitments
then outstanding, a single one-year extension of the Termination Date. The
Administrative Agent shall promptly notify each Lender of such request, and the
Termination Date in effect at such time shall, effective as at the Termination
Date (the "EXTENSION DATE") and subject to the conditions set forth in this
Section 2.17, be extended for an additional one year period, provided, that (a)
on the Extension Date, the following statements shall be true in all material
respects and the Administrative Agent shall have received for the account of
each Lender Party a certificate signed by a duly authorized officer of the
Borrower, dated the Extension Date, stating that: (x) the representations and
warranties contained in the Loan Documents are true and correct on and as of the
Extension Date, and (y) no Default has occurred and is continuing or would
result from such extension. In the event that an
41
extension is effected pursuant to this Section 2.17, the aggregate principal
amount of all Advances shall be repaid in full ratably to the Lenders on the
Termination Date as so extended. As of the Extension Date, any and all
references in this Agreement, the Notes, if any, or any of the other Loan
Documents to the "Termination Date" shall refer to the Termination Date as so
extended.
(b) The Borrower shall pay to the Administrative Agent for the
account of the Lenders an extension fee in an amount equal to 0.50% of the total
Commitments then outstanding, payable on the Extension Date.
SECTION 2.18 Reallocation of Lender Pro Rata Shares. The Term Advances and
Revolving Credit Advances made under the Existing Agreement shall be deemed to
made under this Agreement on the date hereof, without executing any other
documentation, and shall be reallocated as follows: (a) On the Closing Date,
each Lender that will have a greater Revolver Pro Rata Share upon the Closing
Date than its Pro Rata Share (under and as defined in the Existing Agreement)
immediately prior to the Closing Date (including any New Lender with a Revolving
Credit Commitment) (each, a "PURCHASING REVOLVING LENDER"), without executing an
Assignment and Acceptance, shall be deemed to have purchased assignments pro
rata from each Lender that will have a smaller Revolver Pro Rata Share upon the
Closing Date than its Pro Rata Share (under and as defined in the Existing
Agreement) immediately prior to the Closing Date (each, a "SELLING REVOLVING
LENDER") in all such Selling Revolving Lenders' rights and obligations under
this Agreement and the other Loan Documents as a Lender with respect to the
Revolving Credit Commitments (collectively, the "ASSIGNED REVOLVER RIGHTS AND
OBLIGATIONS") so that, after giving effect to such assignments, each Lender
shall have its respective Revolver Pro Rata Share as set forth in Schedule I.
Each such purchase hereunder shall be at par for a purchase price equal to the
principal amount of the loans and without recourse, representation or warranty,
except that each Selling Revolving Lender shall be deemed to represent and
warrant to each Purchasing Revolving Lender that the Assigned Revolver Rights
and Obligations of such Selling Revolving Lender are not subject to any Liens
created by that Selling Revolving Lender.
(b) On the Closing Date, each Lender that will have a greater Term
Pro Rata Share upon the Closing Date than its Existing Term Pro Rata Share
immediately prior to the Closing Date (including any New Lender with a Term
Commitment) (each, a "PURCHASING TERM LENDER"), without executing an Assignment
and Acceptance, shall be deemed to have purchased assignments pro rata from each
Lender that will have a smaller Term Pro Rata Share upon the Closing Date than
its Existing Term Pro Rata Share immediately prior to the Closing Date (each, a
"SELLING TERM LENDER") in all such Selling Term Lenders' rights and obligations
under this Agreement and the other Loan Documents as a Lender with respect to
the Term Commitments (collectively, the "ASSIGNED TERM RIGHTS AND OBLIGATIONS")
so that, after giving effect to such assignments, each Lender shall have its
respective Term Pro Rata Share as set forth in Schedule I. Each such purchase
hereunder shall be at par for a purchase price equal to the principal amount of
the loans and without recourse, representation or warranty, except that each
Selling Term Lender shall be deemed to represent and warrant to each Purchasing
Term Lender that the Assigned Term Rights and Obligations of such Selling Term
Lender are not subject to any Liens created by that Selling Term Lender.
(c) The Administrative Agent shall calculate the net amount to be
paid or received by each Lender in connection with the assignments effected
hereunder on the Closing Date. Each Lender required to make a payment pursuant
to this Section shall make the net amount of its required payment available to
the Administrative Agent, in same day funds, at the office of the Administrative
Agent not later than 12:00 Noon (New York time) on the Closing Date. The
Administrative Agent shall distribute on the Closing Date the proceeds of such
amounts to the Lenders entitled to receive payments pursuant to this Section,
pro rata in proportion to the amount each such Lender is entitled to receive at
the primary
42
address set forth in Schedule I or at such other address as such Lender may
request in writing to the Administrative Agent.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01 Conditions Precedent . The obligation of the Administrative
Agent and the Lead Arranger to enter into this Agreement, and the obligation of
each Lender to make an Advance or of the Issuing Bank to issue a Letter of
Credit is subject to the satisfaction of the following conditions precedent
before or concurrently with the date hereof (the "EFFECTIVE DATE"):
(a) The Administrative Agent and the Lead Arranger shall have
received on or before the Effective Date the following, each dated such
day (unless otherwise specified), in form and substance satisfactory to
the Administrative Agent and the Lead Arranger (unless otherwise
specified) and (except for the Notes) in sufficient copies for each Lender
Party:
(i) The Notes payable to the order of the Lenders to the
extent requested by the Lenders pursuant to the terms of Section
2.16.
(ii) An amended and restated 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) proper financing statements in form appropriate for
filing 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) the Intellectual Property Security Agreement duly
executed by each Loan Party,
(D) evidence of the completion of all other recordings
and filings of or with respect to the Security Agreement that
the Administrative Agent may deem necessary or desirable in
order to perfect and protect the security interest created
thereunder,
(E) evidence of the insurance required by the terms of
the Security Agreement, and
(F) 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 the Security Agreement has been taken
43
(including, without limitation, receipt of duly executed
payoff letters and UCC-3 termination statements).
(iii) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving each Loan Document to which
it is or is to be a party and the transactions contemplated thereby,
and of all documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if any,
with respect to each Loan Document to which it is or is to be a
party and the transactions contemplated thereby.
(iv) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation of each Loan Party, dated reasonably
near the Effective Date certifying that (1) such Loan Party has paid
all franchise taxes to the date of such certificate (except to the
extent such Loan Party will provide evidence that all franchise
taxes have been paid after the Effective Date pursuant to Section
5.01(r)) and (2) 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.
(v) A certificate of each Loan Party, signed on behalf of such
Loan Party by its Chief Financial Officer or its Chief Executive
Officer and its Secretary or any Assistant Secretary, dated as of
the Effective Date (the statements made in which certificate shall
be true on and as of the Effective Date), certifying as to (A)
amendments to the charter of such Loan Party, if any, since the
Initial Extension of Credit Date (and providing certified copies of
any such amendments), (B) amendments to the bylaws of such Loan
Party, if any, since the Initial Extension of Credit Date (providing
certified copies of any such amendments), (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 Effective Date and (E) the absence of
any event occurring and continuing, on or after the Initial
Extension of Credit Date, that constitutes a Default.
(vi) 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.
(vii) Certificates, in form and substance satisfactory to the
Lender Parties, attesting to the Solvency of each Loan Party from
its Chief Financial Officer or its Chief Executive Officer.
(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 dated June 30, 2004,
interim financial statements dated the end of the most recent fiscal
quarter for which financial statements are available (or, in the
event the Lender Parties' due diligence review reveals material
changes since such financial statements, as of a later date within
45 days of the day of the Effective Date), and a
44
budget (which shall include balance sheets, income statements and
cash flow statements) on a quarterly basis for the first year
following the day of the Effective Date and on an annual basis for
each year thereafter until the Termination Date.
(ix) Evidence of insurance naming the Administrative 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 satisfactory to the Lender Parties,
including, without limitation, business interruption insurance.
(x) A Notice of Borrowing or Letter of Credit Request.
(xi) A favorable opinion of Xxxxxxxx Xxxx & Brandeis, LLP,
special counsel for the Loan Parties, in substantially the form of
Exhibit F hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(b) The Lender Parties shall be satisfied with the corporate and
legal structure and capitalization of each Loan Party and each of its
Subsidiaries the Equity Interests in which Subsidiaries is being pledged
pursuant to the Loan Documents, including the terms and conditions of the
charter, bylaws and each class of Equity Interests in each Loan Party and
each such Subsidiary and of each agreement or instrument relating to such
structure or capitalization.
(c) [Intentionally Left Blank]
(d) There shall have occurred no Material Adverse Change since June
30, 2004.
(e) 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) is reasonably likely
to have Material Adverse Effect other than the matters described on
Schedule 4.01(f) hereto (the "DISCLOSED LITIGATION") or (ii) purports to
affect the legality, validity or enforceability of any Loan Document or
the consummation of the transactions contemplated by this Agreement, and
there shall have been no 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.
(f) All Governmental Authorizations and third party consents and
approvals necessary in connection with the transactions contemplated by
this Agreement shall have been obtained (without the imposition of any
conditions that are not acceptable to the Lender Parties) and shall remain
in effect; all applicable waiting periods in connection with the
transactions contemplated by this Agreement shall have expired without any
action being taken by any competent authority, 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
transactions contemplated by this Agreement 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.
(g) The Lender Parties shall have completed a due diligence
investigation of the Loan Parties, the Borrower and their respective
Subsidiaries in scope, and with results, satisfactory to the Lender
Parties; 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 requested.
45
(h) The Borrower shall have paid all accrued fees of the
Administrative Agent and the Lender Parties and all reasonable accrued
expenses of the Administrative Agent (including the reasonable accrued
fees and expenses of counsel to the Administrative Agent).
SECTION 3.02 Conditions Precedent to Each Borrowing and Issuance and any
Extension. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(c) and a Swing Line Advance made by a Revolving
Credit Lender pursuant to Section 2.02(b)) 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) and the right of the
Borrower to request a Swing Line Borrowing and, if requested by the Borrower,
the extension of the Termination Date pursuant to Section 2.17, shall be subject
to the further conditions precedent that on the date of such Borrowing or
issuance or extension (a) the following statements shall be true and the
Administrative Agent shall have received for the account of such Lender or the
Issuing Bank a certificate signed by a duly authorized officer of the Borrower,
dated the date of such Borrowing or issuance or extension, stating that:
(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 or extension 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 or
extension; and
(ii) no Default has occurred and is continuing, or would result from
such Borrowing or issuance or extension or from the application of the
proceeds therefrom;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as 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 Effective Date specifying its objection thereto and, 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
represents and warrants as follows:
(a) The Borrower and each of its Restricted Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, (ii) subject to Section
5.01(r)(i), 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 would not
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
46
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 Borrower have been validly issued and are fully paid, non-assessable
and owned free and clear of all Liens, and the Kojaian Group has the power
to vote or direct the voting of securities having at least 50.1% of the
voting power for the election of directors of the Borrower.
(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 and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof, and indicating as to each Subsidiary whether such Subsidiary is a
Domestic Subsidiary, Foreign Subsidiary, Restricted Subsidiary or
Unrestricted Subsidiary, as appropriate. 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
under the Collateral Documents.
(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 transactions contemplated by this Agreement, are
within such Loan Party's corporate powers, have been duly authorized by
all necessary corporate action, 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), 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
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting any Loan Party, any of its
Restricted Subsidiaries or any of their properties or (iv) except for the
Liens created under the Loan Documents, result in or require the creation
or imposition of any Lien upon or with respect to any of the properties of
any Loan Party or any of its Restricted Subsidiaries. No Loan Party or any
of its Restricted 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.
(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 transactions contemplated by this Agreement, (ii)
the grant by any Loan Party of the Liens granted by it pursuant to 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 the Administrative 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
the authorizations, approvals, actions, notices and filings listed on
Schedule 4.01(d) hereto, all of which have been duly obtained, taken,
given or made and are in full force and effect.
(e) 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.
47
(f) There is no action, suit, investigation, litigation or
proceeding affecting the Borrower or any other Loan Party or any of their
properties or revenues, 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
transactions contemplated thereby, and there has been no 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 June 30, 2004, and the related Consolidated statement
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 of Ernst & Young LLP, independent public accountants, and the
Consolidated balance sheet of the Borrower and its Subsidiaries as at
December 31, 2004, and the related Consolidated statement of income and
Consolidated statement of cash flows of the Borrower and its Subsidiaries
for the six months then ended, duly certified by the Chief Financial
Officer of the Borrower, copies of which have been furnished to each
Lender Party, fairly present, subject, in the case of said balance sheet
as at December 31, 2004, and said statements of income and cash flows for
the six months then ended, to year-end audit adjustments, 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 periods ended on such date, all in accordance with
generally accepted accounting principles applied on a consistent basis,
and since June 30, 2004, there has been no Material Adverse Change.
(h) [Intentionally Left Blank]
(i) The Consolidated forecasted balance sheet, statement of income
and statement 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 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.
(j) No information, exhibit or report furnished by or on behalf of
any Loan Party to the Administrative 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.
(k) 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.
(l) Neither any Loan Party nor any of its Restricted 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 Restricted Subsidiaries is a "holding company",
or a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935,
as amended. Neither the making of any Advances, nor the
48
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.
(m) Neither any Loan Party nor any of its Restricted Subsidiaries is
a party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate restriction
that would be reasonably likely to have a Material Adverse Effect.
(n) All filings and other actions necessary or desirable to perfect
and protect the security interest in the Collateral created under the
Collateral Documents have been duly made or taken and are in full force
and effect, and the Collateral Documents create in favor of the
Administrative Agent for the benefit of the Secured Parties a valid and,
together with such filings and other actions, perfected first priority
security interest in the Collateral, securing the payment of the Secured
Obligations, and all filings and other actions necessary or desirable to
perfect and protect such security interest have been duly taken. 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.
(o) Each Loan Party is, individually and together with its
Restricted Subsidiaries, Solvent.
(p) (i) Set forth on Schedule 4.01(p) hereto is a complete and
accurate list of all 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) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed
with the Internal Revenue Service and furnished to the Lender Parties, is
complete and accurate and fairly presents the funding status of such Plan,
and since the date of such Schedule B there has been no material adverse
change in such funding status.
(iv) To the Borrower's best knowledge, neither any Loan Party nor
any ERISA Affiliate has incurred or is reasonably expected to incur any
Withdrawal Liability to any Multiemployer Plan.
(v) To the Borrower's best knowledge, 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, to the Borrower's best
knowledge, no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(q) (i) Except as otherwise set forth on Schedule 4.01(q) hereto,
the operations and properties of each Loan Party and each of its
Restricted 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 to the best of such Loan Party's
49
knowledge that are reasonably likely to (A) form the basis of an
Environmental Action against any Loan Party or any of its Restricted
Subsidiaries or any of their properties that could have a Material Adverse
Effect or (B) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law.
(ii) None of the properties currently or formerly owned or operated
by any Loan Party or any of its Restricted 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 on
any property currently owned or operated by any Loan Party or any of its
Restricted Subsidiaries or, to the best of its knowledge, on any property
formerly owned or operated by any Loan Party or any of its Restricted
Subsidiaries; there is no asbestos or asbestos-containing material on any
property currently owned or operated by any Loan Party or any of its
Restricted Subsidiaries; and 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 Restricted Subsidiaries. This
representation does not include properties that are or were managed by any
Loan Party or any of its Restricted Subsidiaries in its capacity as
property manager for a third party client so long as the agreement
pursuant to which such Loan Party or Restricted Subsidiary acts as
property manager for such properties provides for the indemnification of
such Loan Party or Restricted Subsidiary, or does not subject such Loan
Party or Restricted Subsidiary to liability, for the matters described in
clause (ii), and so long as the Loan Party or its Restricted Subsidiary
has not violated any provision of such agreement where such violation
would to any extent void or terminate such indemnity or release from
liability.
(iii) Neither any Loan Party nor any of its Restricted 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, except with respect to any de minimis investigation or
assessment or remedial or response action at a property that is or was
managed by any Loan Party or its Restricted Subsidiaries in its capacity
as property manager for a third party client so long as the agreement
pursuant to which such Loan Party or Restricted Subsidiary acts as
property manager for such property provides for the indemnification of
such Loan Party or Restricted Subsidiary, or does not subject such Loan
Party or Restricted Subsidiary to liability, for such release, and so long
as the Loan Party or its Restricted Subsidiary has not violated any
provision of such agreement where such violation would to any extent void
or terminate such indemnity or release from liability, and so long as such
investigation or assessment or remedial or response action is or was
conducted in a manner not reasonably expected to result in material
liability to such Loan Party or Restricted Subsidiary; 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 Restricted Subsidiaries have been disposed of in
a manner not reasonably expected to result in material liability to any
Loan Party or any of its Restricted Subsidiaries.
(r) (i) Neither any Loan Party nor any of its Restricted
Subsidiaries is party to any tax sharing agreement other than a tax
sharing agreement approved by the Required Lenders.
(ii) Each Loan Party and each of its Restricted Subsidiaries and
Affiliates has filed, has caused to be filed or has been included in all
tax returns (Federal, state, local and foreign)
50
required to be filed and has paid all taxes shown thereon to be due,
together with applicable interest and penalties.
(s) Neither the business nor the properties of any Loan Party or any
of its Restricted Subsidiaries are 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 would be reasonably likely to
have a Material Adverse Effect.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate
list of all Existing Debt, showing as of the date hereof the obligor and
the principal amount outstanding thereunder.
(u) [Intentionally Left Blank]
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list of all Liens on the property or assets of any Loan Party or any of
its Restricted Subsidiaries, showing as of the date hereof the lienholder
thereof, the principal amount of the obligations secured thereby and the
property or assets of such Loan Party or such Restricted Subsidiary
subject thereto.
(w) Set forth on Schedule 4.01(w) hereto is a complete and accurate
list of all real property owned by any Loan Party or any of its Restricted
Subsidiaries, showing as of the date hereof the street address, county or
other relevant jurisdiction, state, record owner and book and estimated
fair value thereof. Each Loan Party or such Restricted Subsidiary has
good, marketable and insurable fee simple title to such real property,
free and clear of all Liens, other than Liens created or permitted by the
Loan Documents.
(x) (i) Set forth on Schedule 4.01(x)(i) hereto is a complete and
accurate list of all leases of real property under which any Loan Party or
any of its Restricted Subsidiaries is the lessee, showing as of the date
hereof the street address, city or other relevant jurisdiction, state,
lessor, lessee and expiration date thereof. Each such lease is the legal,
valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms.
(ii) Set forth on Schedule 4.01(x)(ii) hereto is a complete and
accurate list of all leases of real property under which any Loan Party is
the lessor, showing as of the date hereof the street address, city or
other relevant jurisdiction, state, lessor, lessee and expiration date
thereof. Each such lease is the legal, valid and binding obligation of the
lessee thereof, enforceable in accordance with its terms.
(y) Set forth on Schedule 4.01(y) hereto is a complete and accurate
list of all Investments held by any Loan Party or any of its Restricted
Subsidiaries on the date hereof, showing as of the date hereof the amount,
obligor or issuer and maturity, if any, thereof.
(z) Set forth on Schedule 4.01(z) hereto is a complete and accurate
list of all Material Contracts of each Loan Party and its Restricted
Subsidiaries, showing as of the date hereof the parties, subject matter
and term thereof. Each such Material Contract has been duly authorized,
executed and delivered by all parties thereto, has not been amended or
otherwise modified, is in full force and effect and is binding upon and
enforceable against all parties thereto in accordance with its terms, and
there exists no default under any Material Contract by any party thereto.
(aa) Set forth on Schedule 4.01(aa) hereto is a complete and
accurate list of all patents, trademarks, trade names, service marks and
copyrights, and all applications therefor and licenses
51
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.
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 will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Restricted Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA, the Patriot Act, the
Racketeer Influenced and Corrupt Organizations Chapter of the Organized
Crime Control Act of 1970 and, with respect to open market purchases by
the Borrower of the Borrower's common equity, a tender offer therefor or a
similar transaction or series of transactions, the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Restricted Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that neither the Borrower nor any of its Restricted 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 (i) in
the case of income, real estate or other taxes, any Lien resulting
therefrom attaches to its property and either (x) becomes enforceable
against its other creditors or (y) the failure to make such payment would
result in the attempted or actual foreclosure of a Lien against any of the
Property of the Borrower or its Restricted Subsidiaries or (ii) the
failure to make such payment would constitute an Event of Default pursuant
to Section 6.01(e).
(c) Compliance with Environmental Laws. Comply, and cause each of
its Restricted 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 Restricted Subsidiaries to obtain and renew, all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Restricted 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 Restricted 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 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
Restricted Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering
such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in
which the Borrower or such Restricted Subsidiary operates, and,
simultaneously with the delivery of the Compliance Certificate for the
52
third fiscal quarter pursuant to Section 5.03(c), provide to the
Administrative Agent copies of current certificates of insurance with
respect to each insurance coverage maintained by the Borrower and each of
its Restricted Subsidiaries.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Restricted 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 Restricted Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(d) and
provided further that neither the Borrower nor any of its Restricted
Subsidiaries shall be required to preserve any right, permit, license,
approval, privilege or franchise if the Board of Directors of the Borrower
or such Restricted Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower or such Restricted Subsidiary, as the case may be, and that the
loss thereof is not disadvantageous in any material respect to the
Borrower, such Restricted Subsidiary or the Lender Parties.
(f) Visitation Rights. At any reasonable time and from time to time,
permit the Administrative Agent or any of the Lender Parties, or the
Administrative Agent 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 Restricted
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower and any of its Restricted 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 Restricted
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 Restricted 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 Restricted 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
Restricted Subsidiaries to conduct, all transactions otherwise permitted
under the Loan Documents with any of their Affiliates on terms that are no
less favorable to the Borrower or such Restricted Subsidiary than it would
obtain in a comparable arm's-length transaction with a Person not an
Affiliate; provided, however, any such transaction must be in the ordinary
course of business of the Borrower or such Restricted Subsidiary.
(j) Covenant to Guarantee Obligations and Give Security. Upon (x)
the request of the Administrative 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 for a purchase price in excess of $500,000
(other than the acquisition of a Restricted Subsidiary) by any Loan Party,
and such property, in the judgment of the Administrative Agent, shall not
already be subject to a perfected first priority security interest in
favor of the Administrative Agent for the benefit of the Secured Parties,
then in each case at the Borrower's expense:
(i) in connection with the formation or acquisition of a
Subsidiary that is not (x) a CFC or (y) a Subsidiary that is held
directly or indirectly by a CFC, within 10 days after such formation
or acquisition, cause each such Subsidiary, and cause each direct
and
53
indirect parent of such Subsidiary (if it has not already done so),
to duly execute and deliver to the Administrative Agent a Guaranty
Supplement, in substantially the form of Exhibit E hereto,
guaranteeing the other Loan Parties' obligations under the Loan
Documents,
(ii) within 10 days after (A) such request furnish to the
Administrative Agent a description of the real and personal
properties of the Loan Parties and their respective Subsidiaries in
detail satisfactory to the Administrative Agent and (B) such
formation or acquisition, furnish to the Administrative Agent a
description of the real and personal properties of such Subsidiary
or the real and personal properties so acquired, in each case in
detail satisfactory to the Administrative Agent,
(iii) within 15 days after (A) such request or acquisition of
property for a purchase price in excess of $500,000 by any Loan
Party, duly execute and deliver, and cause each Loan Party to duly
execute and deliver, to the Administrative Agent such additional
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 Administrative Agent, securing payment of all
the Obligations of such Loan Party under the Loan Documents and
constituting Liens on all such properties and (B) such formation or
acquisition of any new Subsidiary, duly execute and deliver and
cause each Subsidiary to duly execute and deliver to the
Administrative 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 Administrative Agent,
securing payment of all of the obligations of such Subsidiary under
the Loan Documents, provided, that (A) the stock of any Subsidiary
held by a CFC shall not be pledged and (B) if such new property is
Equity Interests in a CFC, only 66% of such Equity Interests shall
be pledged in favor of the Secured Parties,
(iv) within 30 days after such request, formation or
acquisition, take, and cause each Loan Party and each newly acquired
or newly formed Subsidiary (other than any Subsidiary that is a CFC
or a Subsidiary that is held directly or indirectly by a CFC) to
take, whatever action (including, without limitation, the recording
of mortgages, the filing of Uniform Commercial 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
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative 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, deliver to the Administrative Agent, upon the request
of the Administrative Agent in its sole discretion, a signed copy of
a favorable opinion, addressed to the Administrative Agent and the
other Secured Parties, of counsel for the Loan Parties acceptable to
the Administrative Agent as to (1) the matters contained in clauses
(i), (iii) and (iv) above, (2) 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, (3)
such recordings,
54
filings, notices, endorsements and other actions being sufficient to
create valid perfected Liens on such properties, and (4) such other
matters as the Administrative Agent may reasonably request,
(vi) as promptly as practicable after such request, formation
or acquisition, deliver, upon the request of the Administrative
Agent in its sole discretion, to the Administrative Agent with
respect to each parcel of real property owned or held by each Loan
Party and each newly acquired or newly formed Subsidiary (other than
any Subsidiary that is a CFC or a Subsidiary that is held directly
or indirectly by a CFC) title reports, title insurance policies,
surveys and engineering, soils and other reports, environmental
assessment reports and estoppel and consent agreements, each in
scope, form and substance satisfactory to the Administrative 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 Administrative Agent,
and
(vii) at any time and from time to time, promptly execute and
deliver, and cause to execute and deliver, each Loan Party and each
newly acquired or newly formed Subsidiary (other than any Subsidiary
that is a CFC or a Subsidiary that is held directly or indirectly by
a CFC) any and all further instruments and documents and take, and
cause each Loan Party and each newly acquired or newly formed
Subsidiary (other than any Subsidiary that is a CFC or a Subsidiary
that is held directly or indirectly by a CFC) to take, all such
other action as the Administrative 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.
(k) Further Assurances. (i) Promptly upon request by the
Administrative Agent, or any Lender Party through the Administrative
Agent, correct, and cause each of its Restricted 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
(i) Promptly upon request by the Administrative 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 instruments as the Administrative
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, (B) to the fullest
extent permitted by applicable law, subject any Loan Party's or any
of its Restricted 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 Restricted Subsidiaries is or is to be a party, and cause each
of its Restricted Subsidiaries to do so.
55
(l) Preparation of Environmental Reports. At the request of the
Administrative Agent from time to time, provide to the Lender Parties
within 60 days after such request, at the expense of the Borrower, an
environmental site assessment report for any of its or its Restricted
Subsidiaries' properties described in the Mortgages, prepared by an
environmental consulting firm acceptable to the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance, removal or remedial action in connection
with any Hazardous Materials on such properties; without limiting the
generality of the foregoing, if the Administrative Agent determines at any
time that a material risk exists that any such report will not be provided
within the time referred to above, the Administrative Agent may retain an
environmental consulting firm to prepare such report at the expense of the
Borrower, and the Borrower hereby grants and agrees to cause any
Restricted Subsidiary that owns any property described in the Mortgages to
grant at the time of such request to the Administrative Agent, the Lender
Parties, such firm and the Administrative Agent or representatives thereof
an irrevocable non-exclusive license, subject to the rights of tenants, to
enter onto their respective properties to undertake such an assessment.
(m) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Restricted Subsidiaries is a
party, 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, notify the Administrative Agent of any default by
any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause
each of its Restricted Subsidiaries to do so, except, in any case, where
the failure to do so, either individually or in the aggregate, is not
reasonably likely to have a Material Adverse Effect.
(n) Cash Concentration Accounts. Maintain, and cause each of its
Restricted Subsidiaries to maintain, main cash concentration accounts into
which all proceeds of Collateral are paid with one or more banks
acceptable to the Administrative Agent that have accepted the assignment
of such accounts to the Administrative Agent for the benefit of the
Secured Parties pursuant to the Security Agreement.
(o) Interest Rate Hedging. Enter into within thirty (30) days
subsequent to the Effective Date, and maintain at all times thereafter,
interest rate Hedge Agreements with Persons acceptable to the
Administrative Agent, covering a notional amount of not less than 50% of
the Commitments under the Term Facility and providing for such Persons to
make payments thereunder for a period of not less than 2 years at rates
and on terms and conditions reasonably satisfactory to the Administrative
Agent.
(p) Performance of Material Contracts. Perform and observe all the
terms and provisions of each Material Contract to be performed or observed
by it, maintain each such Material Contract in full force and effect,
enforce each such Material Contract in accordance with its terms, take all
such action to such end as may be from time to time requested by the
Administrative Agent and, upon request of the Administrative Agent, make
to each other party to each such Material Contract such demands and
requests for information and reports or for action as any Loan Party or
any of its Restricted Subsidiaries is entitled to make under such Material
Contract, and cause each of its Restricted Subsidiaries to do so, except,
in any case, where the failure to do so, either individually or in the
aggregate, is not reasonably likely to have a Material Adverse Effect.
(q) Inactive Subsidiaries. (i) Listed on Schedule 5.01(q) are all of
the direct and indirect Subsidiaries (the "INACTIVE SUBSIDIARIES") of the
Borrower which (A) are inactive and hold either
56
no assets or a nominal amount of assets, (B) are not Restricted
Subsidiaries and (C) the Borrower is planning to dissolve on or prior to
the correlative date listed for such Inactive Subsidiary on Schedule
5.01(q).
(ii) The Borrower shall dissolve each Inactive Subsidiary on
or prior to the correlative date listed for such Inactive Subsidiary
on Schedule 5.01(q).
(iii) The Borrower has delivered to the Administrative Agent
all of the stock certificates for each Inactive Subsidiary, and,
upon the Borrower's request, the Administrative Agent will surrender
to the Borrower the stock certificates for any Inactive Subsidiary
that is dissolved. Upon its receipt of any such stock certificates,
the Borrower shall xxxx such stock certificates cancelled and place
them into the minute book for such dissolved Inactive Subsidiary.
(iv) The Borrower will not at any time conduct (and will not
permit its Restricted Subsidiaries to conduct) any new business in
the Inactive Subsidiaries and will not at any time transfer (and
will not permit its Restricted Subsidiaries to transfer) any
Collateral or any other assets into the Inactive Subsidiaries
without the prior written consent of the Administrative Agent.
(r) Post Closing Matters. Within 90 days subsequent to the Effective
Date (or such later date as may be agreed by the Administrative Agent),
the Borrower will provide evidence that all franchise taxes have been paid
by those Loan Parties set forth on Schedule 5.01(r) annexed hereto.
Borrower agrees that it shall use its best, commercially reasonable
efforts to obtain all such evidence as soon as practicable.
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, the Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Restricted 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 Restricted 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 Restricted Subsidiaries as debtor, or
sign or suffer to exist, or permit any of its Restricted 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 Restricted Subsidiaries to assign, any accounts or other right
to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on
Schedule 4.01(v) hereto, provided, that no such Lien is spread to
cover any additional property after the Effective Date and that the
principal amount of Debt secured thereby is not increased;
(iv) purchase money Liens upon or in real property or
equipment acquired or held by the Borrower or any of its Restricted
Subsidiaries in the ordinary course of
57
business to secure the purchase price of such property or equipment
or to secure Debt incurred solely for the purpose of financing the
acquisition 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, 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;
(v) any interest or title of a lessor under any lease entered
into by the Borrower or any other Restricted Subsidiary in the
ordinary course of its business and covering only the assets so
leased (and related general intangibles and identifiable proceeds
specifically related to such assets);
(vi) Liens securing Debt on Property acquired by a Loan Party
or on Property of a Person existing at the time such Person is
merged into or consolidated with the Borrower or any Restricted
Subsidiary of the Borrower or becomes a Restricted Subsidiary of the
Borrower, provided, that such Liens (other than replacement Liens
permitted elsewhere herein) were not created in contemplation of
such acquisition, merger, consolidation or investment and do not
extend to any assets other than those of the Person merged into or
consolidated with the Borrower or such Restricted Subsidiary or
acquired by the Borrower or such Restricted Subsidiary;
(vii) Liens in respect of goods consigned to the Borrower or
any of its Restricted Subsidiaries in the ordinary course of
business, provided, that such Liens are limited to the goods so
consigned;
(viii) the replacement, extension, or renewal of any Lien
permitted under clause (iii) or (vi) above upon or in the same
property theretofore 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; and
(ix) Liens permitted under Section 5.02(l).
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Restricted Subsidiaries to create, incur, assume or suffer to exist,
any Debt, except:
(i) in the case of the Borrower,
(A) Debt in respect of Hedge Agreements designed to
hedge against fluctuations in interest rates incurred in the
ordinary course of business and consistent with prudent
business practice with the aggregate Agreement Value thereof
not to exceed $2,000,000 at any time outstanding, and
(B) Debt owed to a Restricted Subsidiary of the
Borrower, which Debt (x) shall, in the case of Debt owed to a
Loan Party, constitute Pledged Debt, (y) shall be on terms
acceptable to the Administrative Agent and (z) if evidenced by
promissory notes, such promissory notes shall be in form and
substance satisfactory to the Administrative Agent and shall,
in the case of Debt owed to a
58
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 Administrative Agent pursuant
to the terms of the Security Agreement;
(ii) in the case of any Restricted Subsidiary of the
Borrower, Debt owed to the Borrower or to a Restricted Subsidiary of
the Borrower, provided, that, in each case, such Debt (x) shall, in
the case of Debt owed to a Loan Party, constitute Pledged Debt, (y)
shall be on terms acceptable to the Administrative Agent and (z)
shall be evidenced by promissory notes in form and substance
satisfactory to the Administrative Agent and such promissory 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
Administrative Agent pursuant to the terms of the Security
Agreement; and
(iii) in the case of the Borrower and its Restricted
Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section
5.02(a)(iv),
(C) Capitalized Leases,
(D) (x) the Existing Debt, and (y) 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, provided still
further that the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any
such extending, refunding or refinancing Debt, and of any
agreement entered into and of any instrument issued in
connection therewith, are no less favorable in any material
respect to the Loan Parties or the Lender Parties than the
terms of any agreement or instrument governing the Existing
Debt being extended, refunded or refinanced and the interest
rate applicable to any such extending, refunding or
refinancing Debt does not exceed the then applicable market
interest rate,
(E) Debt of any Person that becomes a Restricted
Subsidiary of the Borrower after the date hereof in accordance
with the terms of Section 5.02(f) which Debt is existing at
the time such Person becomes a Restricted Subsidiary of the
Borrower (other than Debt incurred solely in contemplation of
such Person becoming a Restricted Subsidiary of the Borrower),
(F) Contingent Obligations (1) in respect of obligations
of the Loan Parties permitted hereunder, (2) described on
Schedule 5.02(b)(iii)(F), (3) arising in connection with
indemnity programs for employees and or agents, provided, that
such Contingent Obligations do not exceed in the aggregate at
any time
59
$5,000,000, and (4) in respect of loans and advances made to
employees and/or agents pursuant to the Commission Advance
Program or on account of errors and omissions insurance
coverage programs, provided, that, after giving effect
thereto, the aggregate amount of all Contingent Obligations
permitted by subsections (iii)(F)(2), (3) and (4) above plus
the aggregate amount of loans and advances made pursuant to
subsections (ii) and (xi) of Section 5.02(f) shall not exceed
$6,000,000,
(G) Debt under any insurance premium financing
arrangement entered into in the ordinary course of business,
and
(H) other Debt not otherwise prohibited by the terms of
the proviso set forth at the end of this Section 5.02(b) and
subordinated to Debt incurred hereunder on terms and
conditions reasonably satisfactory to the Administrative Agent
(except to the extent otherwise permitted by Section 8.06);
provided, however, that notwithstanding the provisions of subsections
(iii)(A) through (iii)(H) above, (x) the aggregate amount of all Debt
described in subsections (iii)(B), (iii)(C), (iii)(D)(y), (iii)(E) and
(iii)(H) above that is secured by Liens shall not exceed $2,000,000 at any
time outstanding and (y) the aggregate amount of all Debt described in
subsections (iii)(B), (iii)(C), (iii)(D)(y), (iii)(E) and (iii)(H) above
shall not exceed $6,000,000 at any time outstanding.
(c) Change in Nature of Business. Make, or permit any of its
Restricted Subsidiaries to make, any material change in the nature of its
business as carried on at the date hereof; or engage in, or permit any of
its Restricted Subsidiaries to engage in, any business other than
businesses that are reasonably related to the real estate services
business, or other services businesses (in the scope that is currently
operated by the "Business Services" unit of Xxxxx & Xxxxx Management
Services, Inc.).
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Restricted
Subsidiaries to do so, except that:
(i) any Restricted Subsidiary of the Borrower may merge into
or consolidate with any other Restricted Subsidiary of the Borrower,
provided, that, in the case of any such merger or consolidation, the
Person formed by such merger or consolidation shall be a Restricted
Subsidiary of the Borrower, provided further that, in the case of
any such merger or consolidation to which a Guarantor is a party,
the Person formed by such merger or consolidation shall be a
Guarantor;
(ii) in connection with any acquisition permitted under
Section 5.02(f), any Restricted Subsidiary of the Borrower may merge
into or consolidate with any other Person or permit any other Person
to merge into or consolidate with it, provided, that the Person
surviving such merger shall be a Restricted Subsidiary of the
Borrower;
(iii) in connection with any sale or other disposition
permitted under Section 5.02(e) (other than clause (ii) thereof),
any Restricted Subsidiary of the Borrower may merge into or
consolidate with any other Person or permit any other Person to
merge into or consolidate with it;
(iv) any of the Borrower's Restricted Subsidiaries may merge
into the Borrower; and
60
(v) any Restricted Subsidiary of the Borrower may merge into
or consolidate with any other Person or permit any other Person to
merge into or consolidate with it;
provided, however, that in each case, 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 Restricted 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, except:
(i) Dispositions of assets in the ordinary course of its
business and the granting of any option or other right to purchase,
lease or otherwise acquire assets in the ordinary course of its
business;
(ii) in a transaction authorized by Section 5.02(d) (other
than subsection (iv) thereof);
(iii) the sale or issuance of the Equity Interests of any
Subsidiary to the Borrower or any Restricted Subsidiary; and
(iv) the Disposition of other assets by the Borrower or any
Restricted Subsidiary so long as (A) the purchase price paid to the
Borrower or such Restricted Subsidiary for such asset shall be not
less than the fair market value of such asset at the time of such
sale, (B) at least 75% of the purchase price for such asset shall be
paid to the Borrower or such Restricted Subsidiary in cash or Cash
Equivalents, (C) the aggregate purchase price paid to the Borrower
and all of its Restricted Subsidiaries for such asset and all other
assets sold by the Borrower and its Restricted Subsidiaries during
the same Fiscal Year pursuant to this clause (iv) shall not exceed
$1,000,000 and (D) all of the proceeds of such sale are reinvested
in substitute or other assets used or useful in the Borrower's
business or applied to prepay the Advances pursuant to Section
2.06(b)(ii) or (c)(ii).
(f) Investments in Other Persons. Make or hold, or permit any of its
Restricted Subsidiaries to make or hold, any Investment in any Person,
except:
(i) (A) equity Investments by the Borrower and its Restricted
Subsidiaries in their Restricted Subsidiaries outstanding on the
date hereof and (B) additional equity Investments in Loan Parties;
(ii) Investments by the Borrower and its Restricted
Subsidiaries in Cash Equivalents;
(iii) Investments existing on the date hereof and described on
Schedule 4.01(y) hereto;
(iv) Investments by the Borrower in Hedge Agreements permitted
under Section 5.02(b)(i)(A);
(v) Investments consisting of intercompany Debt permitted
under Section 5.02(b);
61
(vi) Extensions of trade credit in the ordinary course of
business;
(vii) Promissory notes and other similar non-cash
consideration received by the Borrower and any Loan Party in
connection with the Dispositions permitted by Section 5.02(e);
(viii) Loans and advances in the ordinary course of business
to vendors or suppliers of the Borrower and any other Loan Party or
relating to relocation expenses;
(ix) Investments consisting of Permitted Acquisitions;
(x) Loans or other advances under the Commission Advance
Program to, or on account of errors and omissions insurance premium
payments for, employees and/or agents; and
(xi) Investments by the Borrower and its Restricted
Subsidiaries not otherwise permitted under this Section 5.02(f) in
an aggregate amount not to exceed $1,000,000, provided that, with
respect to each Investment made pursuant to this clause (xi):
(A) such Investment shall not include or result in any
contingent liabilities that could reasonably be expected to be
material to the business, financial condition, operations or
prospects of the Borrower and its Restricted Subsidiaries,
taken as a whole (as determined in good faith by the board of
directors (or persons performing similar functions) of the
Borrower or such Restricted Subsidiary if the board of
directors is otherwise approving such transaction and, in each
other case, by a Responsible Officer);
(B) such Investment shall be in property and assets
which are part of, or in lines of business which are,
substantially the same lines of business as one or more of the
principal businesses of the Borrower and its Restricted
Subsidiaries in the ordinary course;
(C) any determination of the amount of such Investment
shall include all cash and noncash consideration (including,
without limitation, the fair market value of all Equity
Interests issued or transferred to the sellers thereof, all
indemnities, earnouts and other contingent payment obligations
to, and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated agreements with,
the sellers thereof, all write-downs of property and assets
and reserves for liabilities with respect thereto and all
assumptions of debt, liabilities and other obligations in
connection therewith) paid by or on behalf of the Borrower and
its Restricted Subsidiaries in connection with such
Investment; and
(D) (1) immediately before and immediately after giving
pro forma effect to any such purchase or other acquisition, no
Default shall have occurred and be continuing and (2)
immediately after giving effect to such purchase or other
acquisition, the Borrower and its Restricted Subsidiaries
shall be in pro forma compliance with the covenants set forth
in Section 5.04, such compliance to be determined on the basis
of the financial statements and other financial information
most recently delivered to the Administrative Agent and the
Lender
62
Parties pursuant to Section 5.03 as though such Investment had
been consummated as of the first day of the fiscal period
covered thereby.
(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 permit any of its Restricted Subsidiaries to
do any of the foregoing, or permit any of its Restricted Subsidiaries to
purchase, redeem, retire, defease or otherwise acquire for value any
Equity Interests in the Borrower (collectively, "RESTRICTED PAYMENTS"),
except that, so long as no Default shall have occurred and be continuing
at the time of any action described below or would result therefrom:
(i) the Borrower may declare and pay dividends in any Fiscal
Year in an aggregate amount of up to 100% of Excess Cash Flow for
the most recent Fiscal Year for which financial statements are
available;
(ii) any Loan Party may make Restricted Payments to another
Loan Party;
(iii) any purchase, redemption, retirement, defeasance or
other acquisition of any shares of any class of common stock of the
Borrower effected solely through the issuance of common stock of the
Borrower having the same economic and voting terms as such class of
common stock shall be permitted; and
(iv) the Borrower may repurchase shares of its Equity
Interests for a purchase price not to exceed $30,000,000 in the
aggregate from and after the date hereof.
(h) Lease Obligations. Create, incur, assume or suffer to exist, or
permit any of its Restricted 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 (other than a lease for office space to be occupied
by the Borrower or its Restricted Subsidiaries and leases entered into in
the ordinary course of business for the benefit of tenants or owners of
real property managed by the Borrower or its Restricted Subsidiaries to
the extent any payments required to be made thereunder by the Borrower or
its Restricted Subsidiaries are paid or promptly reimbursable by such
tenants or owners) under leases or agreements to lease (including, without
limitation, Capitalized Leases) having an original term of one year or
more that would cause the direct and contingent liabilities of the
Borrower and its Restricted Subsidiaries, on a Consolidated basis, in
respect of all such obligations described in this clause (ii) to exceed
$2,500,000 payable in any Measurement Period.
(i) Amendments of Constitutive Documents. Amend, or permit any of
its Restricted Subsidiaries to amend, its certificate of incorporation or
bylaws or other constitutive documents, other than in connection with any
such amendment required for the issuance of equity securities not in
excess of the authorized capital of the Borrower or any Restricted
Subsidiary as of the Effective Date.
(j) Accounting Changes. Without 10 days' subsequent written notice
to the Administrative Agent, make or permit, or permit any of its
Restricted 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.
63
(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) regularly scheduled or required repayments or
redemptions of Existing Debt and (iii) any prepayments or redemptions of
Existing Debt in connection with a refunding or refinancing of such
Existing Debt permitted by Section 5.02(b)(iii)(D), or amend, modify or
change in any manner any term or condition of any Existing Debt, or permit
any of its Restricted Subsidiaries to do any of the foregoing other than
to prepay any Debt payable to the Borrower.
(l) Negative Pledge. Enter into or suffer to exist, or permit any of
its Restricted 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) in connection with (A) any Existing Debt, (B) any purchase
money Debt permitted by Section 5.02(b)(iii)(B) 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, (C) any Capitalized
Lease permitted by Section 5.02(b)(iii)(C) solely to the extent that such
Capitalized Lease prohibits a Lien on the property subject thereto, or (D)
in connection with a lease of real property, the Borrower may grant the
landlord, as security for its performance under the lease, a Lien on the
Borrower's tangible personal property physically located within the leased
premises; provided, however, that the aggregate fair market value of such
property pledged as collateral shall not exceed $100,000.
(m) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its Restricted
Subsidiaries to do so; provided, however, that notwithstanding the
foregoing, the Borrower and any other Loan Party may (1) be a general or
limited partner in any general or limited partnership, (2) be a member or
manager of, or hold a limited liability company interest in, a limited
liability company, (3) be a joint venturer or hold a joint venture
interest in any joint venture or (4) make and maintain equity investments
in real estate portfolios and Persons which own or manage commercial real
estate (each a "RESTRICTED INVESTMENT"), provided that each of the
following requirements is met:
(i) the Loan Party making the Investment shall, to the extent
permitted by applicable investment contracts and other documents
relating to such Investment, grant and cause to be perfected a first
priority security interest or other first lien position (except for
Permitted Liens) of the Loan Party's interest in the property
constituting the Restricted Investment;
(ii) the nature of the Investment and the Person or property
subject to the Investment shall not result in the Loan Party
becoming directly or contingently liable for any obligations of such
Person or related to such property in excess of the amount of the
Investment, nor shall the Investment constitute a direct investment
by the Loan Party in real property or real property improvements;
and
(iii) no Default exists at the time such Restricted Investment
is made or would occur as a result of such Restricted Investment.
(n) Speculative Transactions. Engage, or permit any of its
Restricted Subsidiaries to engage, in any transaction involving commodity
options or futures contracts or any similar speculative transactions.
64
(o) Formation of Subsidiaries. Organize or invest, or permit any of
its Restricted Subsidiaries to organize or invest, in any new Subsidiary
except (i) CFCs and special purpose vehicles organized in the ordinary
course of business by the Borrower or its Restricted Subsidiaries, which
may be capitalized in an amount not to exceed $100,000 individually and
$300,000 in the aggregate, and (ii) as permitted under Section 5.02(f)(i),
(v) or (vii).
(p) Payment Restrictions Affecting Restricted Subsidiaries. Directly
or indirectly, enter into or suffer to exist, or permit any of its
Restricted Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Restricted 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
Restricted Subsidiary of the Borrower (whether through a covenant
restricting dividends, loans, asset transfers or investments, a financial
covenant or otherwise), except (i) the Loan Documents, (ii) any agreement
or instrument evidencing Existing Debt and (iii) any agreement in effect
at the time such Restricted Subsidiary becomes a Subsidiary of the
Borrower, so long as such agreement was not entered into solely in
contemplation of such Person becoming a Subsidiary of the Borrower.
(q) Amendment, Etc., of Material Contracts. Cancel or terminate any
Material Contract or consent to or accept any cancellation or termination
thereof, amend or otherwise modify any Material Contract or give any
consent, waiver or approval thereunder, waive any default under or breach
of any Material Contract, agree in any manner to any other amendment,
modification or change of any term or condition of any Material Contract
or take any other action in connection with any Material Contract that
would materially impair the value of the interest or rights of any Loan
Party thereunder or that would materially impair the interest or rights of
the Administrative Agent or any Lender Party, or permit any of its
Restricted Subsidiaries to do any of the foregoing.
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 Borrower will furnish to the Administrative Agent and
the Lender Parties:
(a) Default Notice. As soon as possible and in any event within
three (3) 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 the chief
financial 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 no
later than one (1) Business Day after the Borrower files its annual report
on Form 10-K with the United States Securities and Exchange Commission,
but in no event later than 105 days after the end of each Fiscal Year, a
copy of the annual audit report for such year for the Borrower and its
Subsidiaries on a Consolidated basis, including therein a Consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such
Fiscal Year and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for such
Fiscal Year, in each case accompanied by an opinion acceptable to the
Required Lenders of Ernst & Young LLP 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
the Borrower 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
65
if, in the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a Compliance
Certificate showing 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 generally accepted accounting principles 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 no
later than one (1) Business Day after the Borrower files its quarterly
report on Form 10-Q with the United States Securities and Exchange
Commission, but in no event later than 50 days after the end of each of
the first three quarters of each Fiscal Year, a Consolidated balance sheet
of the Borrower and its Subsidiaries as of the end of such quarter and a
Consolidated statement of income and a Consolidated statement of cash
flows of the Borrower 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 a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower 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 Borrower as having been prepared in accordance with GAAP,
together with (i) a certificate of 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
Compliance Certificate showing 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 generally accepted accounting
principles 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.
(d) Monthly Financials. Upon the request of the Administrative
Agent, a Consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of the most recently completed month and a Consolidated
statement of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of the
previous month and ending with the end of such month and a Consolidated
statement of income and a Consolidated statement of cash flows of the
Borrower 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 comparative form the corresponding figures for the
corresponding month of the preceding Fiscal Year, all in reasonable detail
and duly certified by the Chief Financial Officer of the Borrower.
(e) Annual Budgets. As soon as available and in any event (i) not
earlier than 60 days and no later than 30 days prior to the end of each
calendar year, a draft of the consolidated budget and (ii) not later than
30 days following the end of each calendar year, the final consolidated
budget, in each case, for the following calendar year prepared on a
quarter-by-quarter basis, and, as soon as available, significant
revisions, if any, of such budget and projections with respect to such
calendar year, in form and substance satisfactory to the Administrative
Agent.
66
(f) Litigation. Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before any
Governmental Authority 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 adverse 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.
(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,
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) Agreement Notices. (i) Promptly upon (A) receipt of any notice,
request or other document received by any Loan Party or any of its
Subsidiaries under or pursuant to any Material Contract or instrument,
indenture, loan or credit or similar agreement regarding or related to any
breach or default by any party thereto or any other event that could
materially impair the value of the interests or the rights of any Loan
Party or otherwise have a Material Adverse Effect or (B) the granting of
any amendment, modification or waiver of any provision of any Material
Contract or instrument, indenture, loan or credit or similar agreement,
that could materially impair the value of the interests or rights of any
Loan Party or otherwise have a Material Adverse Effect, the Company shall
give written notice to the Administrative Agent containing a detailed
description thereof, and, (ii) from time to time upon request by the
Administrative Agent, such information and reports regarding the Material
Contracts and such instruments, indentures and loan and credit and similar
agreements as the Administrative Agent may reasonably request.
(i) 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. At the time of the delivery of the
Compliance Certificate pursuant to Section 5.03(b) or promptly upon
the request of any Lender Party, 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
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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).
(j) 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 Restricted 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 to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(k) 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(w) and 4.01(x) hereto, including an identification of all owned and
leased real property disposed of by the Borrower or any of its Restricted
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.
(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 Restricted
Subsidiaries as the Administrative 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:
(a) Debt/EBITDA Ratio. Maintain at all times a Debt/EBITDA Ratio of
not more than the amount set forth below for each Measurement Period set
forth below:
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QUARTER ENDING RATIO
-------------- -----
March 31, 2005 3.50:1.00
June 30, 2005 3.50:1.00
September 30, 2005 3.50:1.00
December 31, 2005 3.25:1.00
March 31, 2006 3.25:1.00
June 30, 2006 3.25:1.00
September 30, 2006 3.25:1.00
December 31, 2006 2.75:1.00
March 31, 2007 2.75:1.00
June 30, 2007 2.75:1.00
September 30, 2007 2.75:1.00
December 31, 2007 and thereafter 2.50:1.00
(b) Interest Coverage Ratio. Maintain at all times an Interest
Coverage Ratio of not less than the amount set forth below for each
Measurement Period set forth below:
QUARTER ENDING RATIO
-------------- -----
March 31, 2005 3.50:1.00
June 30, 2005 3.50:1.00
September 30, 2005 3.50:1.00
December 31, 2005 3.50:1.00
March 31, 2006 3.50:1.00
June 30, 2006 3.75:1.00
September 30, 2006 3.75:1.00
December 31, 2006 3.75:1.00
March 31, 2007 3.75:1.00
June 30, 2007 4.00:1.00
September 30, 2007 4.00:1.00
December 31, 2007 4.00:1.00
March 31, 2008 4.00:1.00
June 30, 2008 4.00:1.00
September 30, 2008 and thereafter 4.00:1.00
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(c) EBITDA. Maintain at all times EBITDA of the Borrower and its
Restricted Subsidiaries of not less than the amount set forth below for
each Measurement Period set forth below:
QUARTER ENDING EBITDA
-------------- ------
March 31, 2005 $15,000,000
June 30, 2005 $15,000,000
September 30, 2005 $15,000,000
December 31, 2005 $17,500,000
March 31, 2006 $17,500,000
June 30, 2006 $17,500,000
September 30, 2006 $17,500,000
December 31, 2006 and thereafter $20,000,000
(d) Fixed Charge Coverage Ratio. Maintain at all times a
Consolidated Fixed Charge Coverage Ratio of not less than 1.25:1.00.
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 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 Section 2.14, 5.01(e) or (j), 5.02, 5.03(a),
(b), (c), (e), (i) or (k) 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 10
Business Days after the earlier of the date on which (i) any officer of a
Loan Party becomes aware of such failure or (ii) written notice thereof
shall have been given to the Borrower by the Administrative Agent or any
Lender Party; or
(e) 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 Debt of such Loan Party or such
70
Subsidiary that is outstanding in a principal amount (or, in the case of
any Hedge Agreement, an Agreement Value) of at least $1,000,000 either
individually or in the aggregate for all such Loan Parties and
Subsidiaries (but excluding Debt outstanding hereunder), 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 Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such 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 Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such 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 Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party or any of its Subsidiaries 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 Loan Party or any of its Subsidiaries 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 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 Loan
Party or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g) any judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $1,000,000 shall be
rendered against any Loan Party or any of its Restricted Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) 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, 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(g) if and for so long as (A)
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
(B) such insurer has been notified, and has not disputed the claim made
for payment, of the amount of such judgment or order; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Restricted Subsidiaries that is reasonably likely
to have a Material Adverse Effect, and 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, shall not be in effect;
or
(i) 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
71
(j) 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
first priority lien on and security interest in the Collateral purported
to be covered thereby; or
(k) an "Event of Default" (as defined in any Mortgage) shall have
occurred and be continuing; or
(l) a Change of Control shall occur; or
(m) 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 $1,000,000; or
(n) 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 $1,000,000 or requires
payments exceeding $250,000 per annum; or
(o) any Loan Party or 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 $250,000; or
(p) there shall occur any Material Adverse Change;
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,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by the Issuing Bank
or a Revolving Credit Lender pursuant to Section 2.03(c) and Swing Line Advances
by a Revolving Credit Lender pursuant to Section 2.02(b)) 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, and (B) by notice to each
party required under the terms of any agreement in support of which a Letter of
Credit is issued, request that all Obligations under such agreement be declared
to be due and payable; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Borrower under the
Federal Bankruptcy Code, (x) the Commitments of each Lender Party and the
obligation of each Lender Party to make Advances (other than Letter of Credit
Advances by the Issuing Bank or a Revolving Credit Lender pursuant to Section
2.03(c) and Swing Line Advances by a Revolving Credit Lender pursuant to Section
2.02(b)) and
72
of the Issuing Bank to issue Letters of Credit shall automatically be
terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
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 Administrative Agent on behalf of the Lender Parties in same
day funds at the Administrative Agent's Office, for deposit in the L/C Cash
Collateral Account, an amount equal to the aggregate Available Amount of all
Letters of Credit then outstanding; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to the Borrower under
the Bankruptcy Law, the Borrower will pay to the Administrative Agent on behalf
of the Lender Parties in same day funds at the Administrative Agent's Office,
for deposit in the L/C Cash Collateral Account, an amount equal to the aggregate
Available Amount of all Letters of Credit then outstanding, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower. If at any time the Administrative 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 Administrative Agent 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, pay to the Administrative 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
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 Revolving
Credit Lenders, as applicable, to the extent permitted by applicable law. After
each Letter of Credit issued hereunder expires or terminates without being drawn
upon, and/or after the Letter of Credit Advances with respect to each Letter of
Credit have been paid, amounts on deposit in the L/C Collateral Account (if any)
shall be applied by the Administrative Agent to pay other outstanding amounts
due under the Loan Documents or shall be returned to the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01 Authorization and Action. (a) Each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable), the Issuing Bank
(if applicable) and on behalf of itself and its Affiliates as potential Hedge
Banks) hereby appoints and authorizes the Administrative 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 the
Administrative 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), the Administrative Agent shall not 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 Administrative Agent shall be required to take any
action that exposes the Administrative Agent to personal liability or that is
contrary to this Agreement or applicable law. The Administrative 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.
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(b) In furtherance of the foregoing, each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable), the Issuing Bank
(if applicable) and on behalf of itself and its Affiliates as potential Hedge
Banks) hereby appoints and authorizes the Administrative Agent to act as the
agent of such Lender Party for purposes of acquiring, holding and enforcing any
and all Liens on Collateral granted by any of the Loan Parties to secure any of
the Secured Obligations, together with such powers and discretion as are
reasonably incidental thereto. In this connection, the Administrative Agent (and
any Supplemental Collateral Agent appointed by the Administrative Agent pursuant
to Section 7.01(c) for purposes of holding or enforcing any Lien on the
Collateral (or any portion thereof) granted under the Collateral Documents, or
for exercising any rights or remedies thereunder at the direction of the
Administrative Agent), shall be entitled to the benefits of this Article VII
(including, without limitation, Section 7.05 as though such Supplemental
Collateral Agent was the "Administrative Agent" under the Loan Documents) as if
set forth in full herein with respect thereto.
(c) The Administrative Agent may execute any of its duties under
this Agreement or any other Loan Document (including for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the
Collateral Documents or of exercising any rights and remedies thereunder at the
direction of the Administrative Agent) by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent may also from time to time, when the Administrative Agent
deems it to be necessary or desirable, appoint one or more trustees,
co-trustees, collateral co-agents, collateral subagents or attorneys-in-fact
(each, a "SUPPLEMENTAL COLLATERAL AGENT") with respect to all or any part of the
Collateral; provided, however, that no such Supplemental Administrative Agent
shall be authorized to take any action with respect to any Collateral unless and
except to the extent expressly authorized in writing by the Administrative
Agent. Should any instrument in writing from the Borrower or any other Loan
Party be required by any Supplemental Collateral Agent so appointed by the
Administrative Agent to more fully or certainly vest in and confirm to such
Supplemental Collateral Agent such rights, powers, privileges and duties, the
Borrower shall, or shall cause such Loan Party to, execute, acknowledge and
deliver any and all such instruments promptly upon request by the Administrative
Agent. If any Supplemental Collateral Agent, or successor thereto, shall die,
become incapable of acting, resign or be removed, all rights, powers, privileges
and duties of such Supplemental Collateral Agent, to the extent permitted by
law, shall automatically vest in and be exercised by the Administrative Agent
until the appointment of a new Supplemental Collateral Agent. No Administrative
Agent shall be responsible for the negligence or misconduct of the
Administrative Agent, attorney-in-fact or Supplemental Collateral Agent that it
selects in accordance with the foregoing provisions of this Section 7.01(c) in
the absence of the Administrative Agent's gross negligence or willful
misconduct.
SECTION 7.02 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its 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, the Administrative 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 Administrative Agent, the
Administrative 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 8.07; (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)
74
made in or in connection with the Loan Documents; (d) shall not have any duty to
ascertain or to inquire as to the performance, observance or satisfaction of any
of the terms, covenants or conditions of any Loan Document on the part of any
Loan Party or the existence at any time of any Default under the Loan Documents
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 attached to electronic mail) believed by it to be genuine and signed
or sent by the proper party or parties.
SECTION 7.03 DBTCA and Affiliates. With respect to its Commitments, the
Advances made by it and the Notes issued to it, DBTCA 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 the Administrative Agent; and the term "Lender
Party" or "Lender Parties" shall, unless otherwise expressly indicated, include
DBTCA in its individual capacity. DBTCA 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 DBTCA was not
the Administrative Agent and without any duty to account therefor to the Lender
Parties. The Administrative Agent shall not have any duty to disclose any
information obtained or received by it or any of its Affiliates relating to any
Loan Party or any of its Subsidiaries to the extent such information was
obtained or received in any capacity other than as the Administrative Agent.
SECTION 7.04 Lender Party Credit Decision. Each Lender Party acknowledges
that it has, independently and without reliance upon the Administrative 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 the Administrative 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 7.05 Indemnification. (a) Each Lender Party severally agrees to
indemnify the Administrative 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 the Administrative Agent in any way relating to or arising out of the
Loan Documents or any action taken or omitted by the Administrative 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 the Administrative 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 the Administrative 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 8.04, to the
extent that the Administrative Agent is not 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 any
Lender Party or any other Person.
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(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 8.04, 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, (iii) the aggregate unused portions of their
respective Term Commitments at such time and (iv) their respective Unused
Revolving Credit Commitments at such time, provided that the aggregate principal
amount of Swing Line Advances owing to the Swing Line Bank and of Letter of
Credit Advances owing to the Issuing Bank shall be considered to be owed to the
Revolving Credit Lenders ratably in accordance with their respective Revolving
Credit Commitments. The failure of any Lender Party to reimburse the
Administrative 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 the Administrative 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 the Administrative 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 the
Administrative 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 7.06 Successor Administrative Agents. The Administrative Agent may
resign as to any or all of the Facilities at any time by giving written notice
thereof to the Lender Parties and the Borrower and may be removed as to all of
the Facilities at any time with or without cause by the Required Lenders;
provided, however, that any removal of the Administrative Agent will not be
effective until it has also been replaced as Swing Line Bank and Letter of
Credit Issuing Bank and released from all of its obligations in respect thereof.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Administrative Agent as to such of the Facilities as to
which the Administrative Agent has resigned or been removed. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lender Parties, appoint a successor Administrative
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 Administrative
Agent hereunder by a successor Administrative Agent as to all of the Facilities
and 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
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Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent as to less
than all of the Facilities and 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 Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent as to such Facilities, other than with respect
to funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Administrative Agent with respect to the Letter of Credit
Facility) and payments by the Borrower in respect of such Facilities, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement as to such Facilities, other than as aforesaid.
If within 45 days after written notice is given of the retiring Administrative
Agent's resignation or removal under this Section 7.06 no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (a) the retiring Administrative Agent's
resignation or removal shall become effective, (b) the retiring Administrative
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 Administrative Agent under the Loan Documents until such time,
if any, as the Required Lenders appoint a successor Administrative Agent as
provided above. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent as to any of the Facilities 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 Administrative Agent
as to such Facilities under this Agreement.
ARTICLE VIII
GUARANTY
SECTION 8.01 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
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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 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.
(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 8.02 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 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:
(a) any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
(b) 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;
(c) 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;
(d) 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;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) 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
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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);
(g) 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
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by any Secured Party 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 8.03 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 Administrative 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 Administrative 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 8.02 and this Section
8.03 are knowingly made in contemplation of such benefits.
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SECTION 8.04 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, all Letters of Credit and all
Secured Hedge Agreements 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 and all Secured Hedge Agreements, 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 and all
Secured Hedge Agreements 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 8.05 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
"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, shall mean and be a reference to this Guaranty as
supplemented by such Guaranty Supplement.
SECTION 8.06 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 8.06:
(a) Prohibited Payments, Etc. Except during the continuance of a
Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), each Guarantor
may receive payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance
of any Default
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(including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), 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.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law 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 (including all interest and expenses
accruing after the commencement of a proceeding under any Bankruptcy Law,
whether or not constituting an allowed claim in such proceeding ("POST
PETITION INTEREST")) before such Guarantor receives payment of any
Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of
any Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), 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 (including all Post Petition
Interest), 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.
(d) Administrative Agent Authorization. After the occurrence and
during the continuance of any Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to any
other Loan Party), 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 (including any and all Post
Petition Interest).
SECTION 8.07 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 and all
Secured Hedge Agreements, (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 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.
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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 (other than Defaulting
Lenders), and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; 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 3.02, (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 8.01 or release such Guarantor or
otherwise limit such Guarantor's liability with respect to the Obligations owing
to the Administrative Agent and the Lender Parties, (iv) release all or
substantially all of the Collateral in any transaction or series of related
transactions or permit the creation, incurrence, assumption or existence of any
Lien on all or substantially all 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) except as otherwise provided in Section 2.17, 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, or (ix) limit the liability of any Loan Party under
any of the Loan Documents 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, a Term Facility or 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 Swing Line Bank or the Issuing Bank,
as the case may be, in addition to the Lenders required above to take such
action, affect the rights or obligations of the Swing Line Bank or of the
Issuing Banks, as the case may be, under this Agreement, and provided further
that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative 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 electronic
mail communication) and mailed, telegraphed, telecopied, sent by electronic mail
(with an electronic attachment containing a hand-written signature and with
immediate confirmation by mail, telephone or telecopier) or delivered, if to the
Borrower, at its address at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Chief Financial Officer, telecopier number (000) 000-0000
(with a copy to the General Counsel following written notice of such request by
the Borrower to the other parties); if to any Guarantor, at its address at c/o
Grubb & Xxxxx Company, 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Chief Financial Officer, telecopier number (000) 000-0000, (with a
copy to the General Counsel of Xxxxx & Xxxxx Company
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following written notice of such request by a Guarantor to the other parties);
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; and if to the Administrative Agent, at its
address at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx,
telecopier number (000) 000-0000; or, as to any party, at such other address as
shall be designated by such party in a written notice to the other parties. All
such notices and other communications shall, when mailed or telecopied, be
effective when deposited in the mails or transmitted by telecopier,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or VII shall not be effective until received by the
Administrative 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 the Administrative 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 reasonable costs and expenses of the Lead Arranger and the
Administrative 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 the Lead
Arranger and the Administrative Agent with respect thereto (including, without
limitation, with respect to reviewing and advising on matters required to be
completed by the Loan Parties on a post-closing basis), with respect to advising
the Administrative Agent as to its rights and responsibilities, or the
perfection, protection or preservation of rights or interests, under the Loan
Documents, 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 presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors' rights
generally and any proceeding ancillary thereto) and (ii) all costs and expenses
of the Lead Arranger and the Administrative Agent and each Lender Party in
connection with the enforcement of the Loan Documents, 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 Lead Arranger and the
Administrative Agent and each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold
harmless the Lead Arranger, the Administrative 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 thereby 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
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final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross 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 transactions contemplated by this Agreement are
consummated. The Borrower also agrees not to assert any claim against the
Administrative 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 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 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
8.04 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 (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, the Administrative Agent and each Lender Party and
each of their respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and otherwise
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the
Administrative Agent, such Lender Party or such Affiliate to or for the credit
or the account of the Borrower against any and all of the Obligations of the
Borrower now or hereafter existing under the Loan Documents, irrespective of
whether the Administrative Agent or such Lender Party shall have made any demand
under this Agreement or such Note or Notes and although such Obligations may be
unmatured. The Administrative 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 the Administrative Agent and each Lender
Party and their respective Affiliates under this
84
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that the Administrative 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 the Administrative 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, the Administrative 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 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 any or all Facilities, (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender, an Affiliate of any
Lender or an Approved Fund of any 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 $1,000,000 and shall be in an
integral multiple of $500,000 (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) under
each Facility for which a Commitment is being assigned, (iii) each such
assignment shall be to an Eligible Assignee, (iv) no such assignments shall be
permitted without the consent of the Administrative Agent until the
Administrative Agent shall have notified the Lender Parties that syndication of
the Commitments hereunder has been completed and (v) 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.
(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 8.04 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
85
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 the Administrative 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 the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Loan Documents as
are delegated to the Administrative 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 8.02 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
Administrative Agent 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 the
Administrative 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 Administrative 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-1 or A-2 hereto, as
the case may be.
(f) The Issuing Bank may assign to an Eligible Assignee not less
than 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
86
and the Note or Notes (if any) held by it); 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 Administrative Agent
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
8.07, 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 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. In
87
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior Debt of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the
laws of the United States or any State thereof. 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 $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 Banks. 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 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; Patriot Act. Neither the Administrative
Agent nor any Lender Party shall disclose any Confidential Information to any
Person without the consent of the Borrower, other than (a) to the Administrative
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 organization 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 the
Administrative Agent or such Lender Party or any of its Affiliates
88
may be a party or (f) in connection with the exercise of any right or remedy
under this Agreement or any other Loan Document. Each of the Lenders hereby
notifies each Loan Party that, pursuant to the requirements of the Patriot Act,
it is required to obtain, verify and record information that identifies each
Loan Party, which information includes names and addresses and other information
that will allow it to identify each Loan Party in accordance with the Patriot
Act.
SECTION 9.11 Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party in accordance with
the terms of the Loan Documents, the Administrative 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 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 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.
(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 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.
SECTION 9.14 Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent 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 the
Administrative Agent or any Lender Party in the negotiation, administration,
performance or enforcement thereof
[Signature Pages Follow]
89
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.
XXXXX & XXXXX COMPANY
By /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Chief Executive Officer
XXXXX & XXXXX AFFILIATES, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX MANAGEMENT SERVICES,
INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX OF ARIZONA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX ASSET SERVICES COMPANY
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX CONSULTING SERVICES
COMPANY
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX INSTITUTIONAL
PROPERTIES, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX OF MICHIGAN, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX MORTGAGE GROUP, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX OF NEVADA, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX NEW YORK, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX REALTY ADVISERS, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX SOUTHEAST
PARTNERS, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
HSM INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
WM. X. XXXXX/XXXXX & XXXXX INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXXXX HOSPITALITY
INTERNATIONAL, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXXXX SECURITIES, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXX & XXXXX MANAGEMENT
SERVICES OF MICHIGAN, INC.
By /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent, an
Initial Lender, Initial Issuing
Bank and Swing Line Bank
By /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
By /s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION, as an
Initial Lender
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
NATIONAL CITY BANK OF THE MIDWEST,
as an Initial Lender
By /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
