1
Exhibit 13
EXECUTION COPY
CREDIT AGREEMENT
dated as of July 20, 2001,
among
CB XXXXXXX XXXXX SERVICES, INC.
CBRE HOLDING, INC.
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
---------------------------
CREDIT SUISSE FIRST BOSTON,
as Sole Lead Arranger and Sole Bookrunner
CREDIT LYONNAIS NEW YORK BRANCH
and
HSBC BANK USA,
as Syndication Agents
SCOTIA CAPITAL,
as Documentation Agent
[CS&M Ref No. 5865-102]
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Table of Contents
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ARTICLE I
Definitions
SECTION 1.01. DEFINED TERMS 2
SECTION 1.02 TERMS GENERALLY 25
SECTION 1.03. CLASSIFICATION OF LOANS AND BORROWINGS 25
SECTION 1.04. PRO FORMA CALCULATIONS 25
ARTICLE II
The Credits
SECTION 2.01. COMMITMENTS 26
SECTION 2.02. LOANS 26
SECTION 2.03. BORROWING PROCEDURE 28
SECTION 2.04. EVIDENCE OF DEBT; REPAYMENT OF LOANS 28
SECTION 2.05. FEES 29
SECTION 2.06. INTEREST ON LOANS 30
SECTION 2.07. DEFAULT INTEREST 30
SECTION 2.08. ALTERNATE RATE OF INTEREST 30
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS 30
SECTION 2.10. CONVERSION AND CONTINUATION OF BORROWINGS 31
SECTION 2.11. REPAYMENT OF TERM BORROWINGS 32
SECTION 2.12. PREPAYMENT 35
SECTION 2.13. MANDATORY PREPAYMENTS 36
SECTION 2.14. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES 37
SECTION 2.15. CHANGE IN LEGALITY 39
SECTION 2.16. INDEMNITY 39
SECTION 2.17. PRO RATA TREATMENT 40
SECTION 2.18. SHARING OF SETOFFS 40
SECTION 2.19. PAYMENTS 41
SECTION 2.20. TAXES 41
SECTION 2.21. ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES;
DUTY TO MITIGATE 42
SECTION 2.22. SWINGLINE LOANS 43
SECTION 2.23. LETTERS OF CREDIT 45
SECTION 2.24. INCREASE IN REVOLVING CREDIT COMMITMENTS 49
SECTION 2.25. INCREASE IN TERM LOAN COMMITMENTS 50
ARTICLE III
Representations and Warranties
SECTION 3.01. ORGANIZATION; POWERS 51
SECTION 3.02. AUTHORIZATION 52
SECTION 3.03. ENFORCEABILITY 52
SECTION 3.04. GOVERNMENTAL APPROVALS 52
SECTION 3.05. FINANCIAL STATEMENTS 52
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SECTION 3.06. NO MATERIAL ADVERSE CHANGE 53
SECTION 3.07. TITLE TO PROPERTIES; POSSESSION UNDER LEASES 53
SECTION 3.08. SUBSIDIARIES 53
SECTION 3.09. LITIGATION; COMPLIANCE WITH LAWS 53
SECTION 3.10. AGREEMENTS 54
SECTION 3.11. FEDERAL RESERVE REGULATIONS 54
SECTION 3.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT 54
SECTION 3.13. USE OF PROCEEDS 54
SECTION 3.14. TAX RETURNS 54
SECTION 3.15. NO MATERIAL MISSTATEMENTS 54
SECTION 3.16. EMPLOYEE BENEFIT PLANS 55
SECTION 3.17. ENVIRONMENTAL MATTERS 55
SECTION 3.18. INSURANCE 55
SECTION 3.19. LABOR MATTERS 56
SECTION 3.20. SOLVENCY 57
SECTION 3.21. REPRESENTATIONS AND WARRANTIES IN MERGER AGREEMENT 57
SECTION 3.22. SENIOR INDEBTEDNESS 57
ARTICLE IV
Conditions of Lending
SECTION 4.01. ALL CREDIT EVENTS 57
SECTION 4.02. FIRST CREDIT EVENT. 58
ARTICLE V
Affirmative Covenants
SECTION 5.01. EXISTENCE; BUSINESSES AND PROPERTIES 61
SECTION 5.02. INSURANCE 62
SECTION 5.03. OBLIGATIONS AND TAXES 62
SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC 63
SECTION 5.05. LITIGATION AND OTHER NOTICES 64
SECTION 5.06. INFORMATION REGARDING COLLATERAL 64
SECTION 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND INSPECTIONS 65
SECTION 5.08. USE OF PROCEEDS 65
SECTION 5.09. FURTHER ASSURANCES 65
ARTICLE VI
Negative Covenants
SECTION 6.01. INDEBTEDNESS 66
SECTION 6.02. LIENS 67
SECTION 6.03. SALE AND LEASE-BACK TRANSACTIONS 69
SECTION 6.04. INVESTMENTS, LOANS AND ADVANCES 69
SECTION 6.05. MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND ACQUISITIONS 70
SECTION 6.06. RESTRICTED PAYMENTS; RESTRICTIVE AGREEMENTS 71
SECTION 6.07. TRANSACTIONS WITH AFFILIATES 72
SECTION 6.08. BUSINESS OF HOLDINGS, BORROWER AND SUBSIDIARIES 72
SECTION 6.09. OTHER INDEBTEDNESS AND AGREEMENTS 73
SECTION 6.10. CAPITAL EXPENDITURES 73
SECTION 6.11. INTEREST COVERAGE RATIO 73
SECTION 6.12. FIXED CHARGE COVERAGE RATIO 74
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SECTION 6.13. MAXIMUM LEVERAGE RATIO 74
SECTION 6.14. MAXIMUM SENIOR LEVERAGE RATIO 74
SECTION 6.15. FISCAL YEAR 74
SECTION 6.16. MANAGEMENT FEES 74
SECTION 6.17. INDEBTEDNESS OF CO-INVESTMENT SUBSIDIARIES 74
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent and the Collateral Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. NOTICES 79
SECTION 9.02. SURVIVAL OF AGREEMENT 80
SECTION 9.03. BINDING EFFECT 80
SECTION 9.04. SUCCESSORS AND ASSIGNs 80
SECTION 9.05. EXPENSES; INDEMNITY 84
SECTION 9.06. RIGHT OF SETOFF 85
SECTION 9.07. APPLICABLE LAW 85
SECTION 9.08. WAIVERS; AMENDMENT 86
SECTION 9.09. INTEREST RATE LIMITATION 87
SECTION 9.10. ENTIRE AGREEMENT 87
SECTION 9.11. WAIVER OF JURY TRIAL 87
SECTION 9.12. SEVERABILITY 87
SECTION 9.13. COUNTERPARTS 88
SECTION 9.14. HEADINGS 88
SECTION 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS 88
SECTION 9.16. CONFIDENTIALITY 88
Exhibits
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Exhibit A- Form of Administrative Questionnaire
Exhibit B- Form of Assignment and Acceptance
Exhibit C- Form of Borrowing Request
Exhibit D- Form of Guarantee and Collateral Agreement
Exhibit E-1- Form of Opinion of General Counsel
Exhibit E-2- Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit E-3- Form of Opinion of UK Counsel
Schedules
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Schedule 1.01(a) Subsidiary Guarantors
Schedule 1.01(b) Co-investment Subsidiaries
Schedule 1.01(c) Inactive Subsidiaries
Schedule 2.01 Lenders
Schedule 3.08 Subsidiaries
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Schedule 3.09 Litigation; Compliance with Laws
Schedule 3.18 Insurance
Schedule 4.02(d) Accountants Closing Agreed Procedures - 2001 Cost
Reduction Plan Pro Forma Adjustments
Schedule 4.02(h) Post-closing Lien Searches
Schedule 5.04(d)(1) 2001 Cost Reduction Plan Pro Forma Adjustments
Schedule 5.04(d)(2) Accountants December 2001 Report - 2001 Cost Reduction
Plan Pro Forma Adjustments
Schedule 5.04(d)(3) Accountants December 2001 Agreed Procedures - 2001 Cost
Reduction Plan Pro Forma Adjustments
Schedule 6.01 Indebtedness
Schedule 6.02 Liens
Schedule 6.04(a) Existing Investments, Loans and Advances to Foreign
Subsidiaries
Schedule 6.04(k) Existing Investments
Schedule 6.06(b) Certain Existing Restrictions
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CREDIT AGREEMENT dated as of July 20, 2001, among
CB XXXXXXX XXXXX SERVICES, INC., a Delaware corporation
(the "Borrower"), CBRE HOLDING, INC., a Delaware
corporation ("Holdings"), the Lenders (as defined in
Article I), and CREDIT SUISSE FIRST BOSTON, a bank
organized under the laws of Switzerland, acting through
its New York branch, as administrative agent (in such
capacity, the "Administrative Agent") and as collateral
agent (in such capacity, the "Collateral Agent") for the
Lenders.
Pursuant to the Merger Agreement (such term and each other capitalized term used
but not defined herein having the meaning given it in Article I), Merger Sub
will merge (the "Merger") with and into the Borrower, with the Borrower
surviving the Merger as a wholly owned subsidiary of Holdings. In connection
with the Merger, (a) the Cash Equity Contribution will be made, (b) the existing
stockholders of the Borrower will receive in cash (the "Cash Merger
Consideration") and/or "rollover" equity of Holdings an aggregate amount of
approximately $325,000,000, (c) the Borrower will repay all amounts outstanding
under, and will terminate, the Existing Credit Agreement, (d) the Borrower will
consummate the Debt Tender Offer for the Existing Subordinated Notes and the
Consent Solicitation with respect thereto, (e) Holdings will issue the Holdco
Notes and (f) the Borrower will issue the Senior Subordinated Notes.
The Borrower has requested the Lenders to extend credit in the form of (a)
Tranche A Term Loans on the Closing Date, in an aggregate principal amount not
in excess of $50,000,000, (b) Tranche B Term Loans on the Closing Date, in an
aggregate principal amount not in excess of $185,000,000, and (c) Revolving
Loans at any time and from time to time prior to the Revolving Credit Maturity
Date, in an aggregate principal amount at any time outstanding not in excess of
$90,000,000. The Borrower has requested the Swingline Lender to extend credit,
at any time and from time to time prior to the Revolving Credit Maturity Date,
in the form of Swingline Loans, in an aggregate principal amount at any time
outstanding not in excess of $10,000,000. The Borrower has requested the Issuing
Bank to issue Letters of Credit, in an aggregate face amount at any time
outstanding not in excess of $30,000,000, to support payment obligations
incurred in the ordinary course of business by the Borrower and its
Subsidiaries. The proceeds of the Term Loans are to be used solely (a) to pay
the Cash Merger Consideration, (b) to repay amounts outstanding under the
Existing Debt, (c) to pay related fees and expenses and (d) for working capital
and other general corporate purposes. The proceeds of the Revolving Loans and
the Swingline Loans are to be used solely for working capital and other general
corporate purposes.
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The Lenders are willing to extend such credit to the Borrower and the Issuing
Bank is willing to issue Letters of Credit for the account of the Borrower on
the terms and subject to the conditions set forth herein. Accordingly, the
parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following terms
shall have the meanings specified below:
"2001 Cost Reduction Plan" shall mean that plan to restructure the operations of
the Borrower and its Subsidiaries to reduce costs described in the "Recent
Developments" section of the confidential offering circular dated May 31, 2001,
relating to the Senior Subordinated Notes.
"ABR", when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.
"Additional L/C Facility" shall mean the letter of credit facility provided to
the Borrower by a financial institution, whether or not a Lender, to be used
solely (a) to replace the letters of credit issued under the Existing Credit
Agreement and outstanding on the Closing Date in respect of (i) the seller notes
issued to finance a portion of the acquisition by the Borrower of REI Limited,
(ii) the seller notes issued to finance a portion of the acquisition by the
Borrower of Westmark Realty Advisors, (iii) surety bonds provided to the
Borrower and its Subsidiaries in the ordinary course of their business and (iv)
the obligations of Melody to the Federal Home Loan Mortgage Corporation, the
Federal National Mortgage Association or any other quasi-federal governmental
entity in connection with commercial mortgage-backed securities transactions and
(b) for the purposes described in the foregoing clauses (a)(i) through (iv) and
any extensions, renewals or replacements of such letters of credit to the extent
the aggregate principal amount of such facility is not increased.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum equal to the product of (a) the
LIBO Rate in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative Questionnaire in the
form of Exhibit A, or such other form as may be supplied from time to time by
the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person, another
person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the person specified;
provided, however, that, for purposes of Section 6.07, the term "Affiliate"
shall also include any person that directly or indirectly owns 10% or more of
any class of Equity Interests of the person specified or that is an officer or
director of the person specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of the
Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the
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Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" shall mean, for any day, subject to Section 2.07, (a)
with respect to any Eurodollar Tranche B Term Loan, 3.75%, (b) with respect to
any ABR Tranche B Term Loan, 2.75%, and (c) with respect to any Tranche A Term
Loan or Revolving Loan, the applicable percentage set forth below under the
caption "Eurodollar Spread--Tranche A Term Loans and Revolving Loans" or "ABR
Spread--Tranche A Term Loans and Revolving Loans", as the case may be, based
upon the Leverage Ratio as of the relevant date of determination:
===================================================================
Leverage Ratio Eurodollar ABR Spread--
Spread--Tranche A Term Tranche A Term Loans
Loans and Revolving and Revolving Loans
Loans
-------------------------------------------------------------------
Category 1
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Greater than 2.5
to 1.0 3.25% 2.25%
-------------------------------------------------------------------
Category 2
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Greater than 2.0
to 1.0 but less
than or equal to
2.5 to 1.0 3.00% 2.00%
-------------------------------------------------------------------
Category 3
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Greater than 1.5
to 1.0 but less
than or equal to
2.0 to 1.0 2.75% 1.75%
-------------------------------------------------------------------
Category 4
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Equal to or less
than 1.5 to 1.0 2.50% 1.50%
===================================================================
Each change in the Applicable Percentage resulting from a change in the Leverage
Ratio shall be effective with respect to all Loans and Letters of Credit
outstanding on and after the date of delivery to the Administrative Agent of the
financial statements and certificates required by Section 5.04(a) or (b) and
Section 5.04(c), respectively, indicating such change until the date immediately
preceding the next date of delivery of such financial statements and
certificates indicating another such change. Notwithstanding the foregoing,
until the Borrower shall have delivered the financial statements and
certificates required by Section 5.04(a) or (b) and Section 5.04(c),
respectively, for the period ended December 31, 2001, the Leverage Ratio shall
be deemed to be in Category 1 for purposes of determining the Applicable
Percentage. In addition, (a) at any time during which the Borrower has failed to
deliver the financial statements and certificates required by Section 5.04(a) or
(b) and Section 5.04(c), respectively, or (b) at any time after the occurrence
and during the continuance of an Event of Default, the Leverage Ratio shall be
deemed to be in Category 1 for purposes of determining the Applicable
Percentage.
"Asset Sale" shall mean the sale, transfer or other disposition (by way of
merger, casualty, condemnation or otherwise) by the Borrower or any of the
Subsidiaries to any person other than the Borrower or any Subsidiary Guarantor
of any assets of the Borrower or any of the Subsidiaries (other than (i)
inventory, damaged, obsolete or worn out assets and Permitted Investments, in
each case disposed of in the ordinary course of business, (ii) dispositions
between or among Foreign Subsidiaries, (iii) the sale by Melody of assets
purchased and/or funded pursuant to the Melody Mortgage Warehousing Facility or
the Melody Loan Arbitrage Facility and (iv) the sale by Melody of servicing
rights in respect of mortgage portfolios in the ordinary
9
course of its business and consistent with past practice); provided that any
asset sale or series of related asset sales having a value (net of related
assumed liabilities) not in excess of $500,000 shall be deemed not to be an
"Asset Sale" for purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance entered into
by a Lender and an assignee, and accepted by the Administrative Agent, in the
form of Exhibit B or such other form as shall be approved by the Administrative
Agent.
"Available Cash" shall mean, on any date, the amount of cash and Permitted
Investments held by the Borrower and the Domestic Subsidiaries on such date,
less the amount thereof that is (a) reflected as "Cash Surrender Value for
Insurance Policy for Deferred Compensation Plan" and "Prepaid Pension Costs" on
the most recent balance sheet of the Borrower delivered pursuant to this
Agreement or (b) subject to restrictions, directly or indirectly, on its use.
"Board" shall mean the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrowing" shall mean (a) Loans of the same Class and Type made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" shall mean a request by the Borrower in accordance with the
terms of Section 2.03 and substantially in the form of Exhibit C, or such other
form as shall be approved by the Administrative Agent.
"Business Day" shall mean any day other than a Saturday, Sunday or day on which
banks in New York City are authorized or required by law to close; provided,
however, that when used in connection with a Eurodollar Loan, the term "Business
Day" shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
"Calpers Co-investment" shall mean a Co-investment by Global Innovation
Contributors, LLC (which shall be a Co-investment Subsidiary) in Global
Innovation Partners, LLC (which shall be a Co-investment Vehicle), pursuant to
the terms of such Co-investment contained in the organizational documents of
Global Innovation Contributors, LLC and Global Innovation Partners, LLC as of
the Closing Date.
"Capital Expenditures" shall mean, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrower and
its consolidated Subsidiaries that are set forth as such in a consolidated
statement of cash flows of the Borrower for such period prepared in accordance
with GAAP and (b) Capital Lease Obligations incurred by the Borrower and its
consolidated Subsidiaries during such period, but excluding in each case (i) any
such expenditure made to restore, replace or rebuild property to the condition
of such property immediately prior to any damage, loss, destruction or
condemnation of such property, to the extent such expenditure is made with
insurance proceeds, condemnation awards, damage recovery proceeds or other
indemnity payments relating to any such damage, loss, destruction or
condemnation within 270 days of receipt of such proceeds, (ii) any such
expenditure made at the request of, and for which the Borrower or any
consolidated Subsidiary receives reimbursement in cash from, a person other than
the Borrower or any Subsidiary in the ordinary course of business, and (iii)
expenditures which represent any part of the aggregate consideration made in
connection with any investment or Permitted Acquisition permitted under Section
6.04.
"Capital Lease Obligations" of any person shall mean the obligations of such
person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and
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accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equity Contribution" shall mean (a) the contribution to Holdings of not
less than $98,800,000 in cash in the form of equity (it being understood that
(i) any contribution to Holdings by RCBA of shares of common equity of the
Borrower in excess of 2,345,900 shares will be considered a cash contribution by
RCBA in an amount equal to $16.00 multiplied by the number of shares
constituting such excess and a contribution of such amount from Holdings to the
Borrower and (ii) the transfer by designated managers of an aggregate of up to
$2.6 million of deferred compensation plan account balances (currently reflected
as cash surrender value of insurance policies, deferred compensation plan in the
financial statements of the Borrower) to stock fund units shall be deemed to be
a cash contribution to Holdings of the amount of such transfer and a
contribution of such amount from Holdings to the Borrower to the extent (x)
accounted for as equity of the Borrower and (y) such transfer of an account
balance results in a transfer to the Borrower of cash from the trust relating to
such deferred compensation plan) and (b) the contribution by Holdings of the
amount so received, together with the net proceeds from its sale of the Holdco
Notes, to the Borrower as common equity.
"Change in Control" shall mean (a) the failure by RCBA to own, directly or
indirectly, beneficially and of record, Equity Interests in Holdings
representing at least 75% of the Equity Interests in Holdings owned by RCBA on
the Closing Date; (b) any person or "group" (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934 as in effect on the Closing
Date) other than a group controlled by RCBA shall own, beneficially or of
record, Equity Interests of Holdings that represents a greater percentage of the
Equity Interests of Holdings then owned by RCBA; (c) RCBA shall cease to have
the right or ability, by voting power, contract or otherwise, to elect or
designate for election a majority of the seats on the board of directors of
Holdings; (d) occupation of a majority of the seats (other than vacant seats) on
the board of directors of Holdings by persons who were neither (i) nominated by
the board of directors of Holdings or any Permitted Investor nor (ii) appointed
by the directors so nominated; (e) Holdings shall cease to directly own the
greater of (i) 95% of the issued and outstanding Equity Interests of the
Borrower and (ii) that number of outstanding shares of the Equity Interests of
the Borrower owned by it on the Closing Date; or (f) the occurrence of a "Change
of Control" under and as defined in the Holdco Note Documents or the Senior
Subordinated Note Documents. For purposes hereof, (i) RCBA shall not be deemed
to beneficially own any Equity Interests owned of record by any other person for
purposes of clause (a) and (ii) any person other than RCBA that is member of a
group that includes RCBA shall not be deemed to beneficially own any Equity
Interests owned of record by RCBA as a result of such ownership by RCBA.
"Change in Law" shall mean (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or the Issuing Bank
(or, for purposes of Section 2.14, by any lending office of such Lender or by
such Lender's or Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Revolving Loans, Tranche A
Term Loans, Tranche B Term Loans, Other Term Loans or Swingline Loans and, when
used in reference to any Commitment, refers to whether such Commitment is a
Revolving Credit Commitment, Tranche A Commitment, Tranche B Commitment,
Incremental Term Loan Commitment in respect of Other Term Loans or Swingline
Commitment.
"Closing Date" shall mean July 20, 2001.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time.
"Co-investment" shall mean any investment by a Co-investment Subsidiary in up to
5% of the Equity Interests of a Co-investment Vehicle pursuant to arrangements
substantially similar to arrangements entered into by the Borrower and the
Subsidiaries prior to the Closing Date.
"Co-investment Subsidiary" shall mean (a) any Subsidiary of the Borrower in
which at least 66 2/3% of the Equity Interests is owned by the Borrower or a
wholly owned Subsidiary that is formed solely for the purpose of, and engages in
no business other than the business of, investing in or managing Co-investment
Vehicles and (b) the Co-investment Subsidiaries existing on the Closing Date
listed on Schedule 1.01(b).
"Co-investment Vehicle" shall mean an entity formed for the purpose of investing
principally in commercial real estate and managed by a Co-investment Subsidiary
pursuant to arrangements substantially similar to arrangements entered into by
the Borrower and the Subsidiaries prior to the Closing Date.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document.
"Collateral Agreement" shall mean the Guarantee and Collateral Agreement,
substantially in the form of Exhibit D, among the Borrower, Holdings, the
Subsidiary Guarantors and the Collateral Agent for the benefit of the Secured
Parties.
"Commitment" shall mean, with respect to any Lender, such Lender's Revolving
Credit Commitment, Term Loan Commitment and Swingline Commitment.
"Commitment Fee" shall have the meaning assigned to such term in Section
2.05(a).
"Confidential Information Memorandum" shall mean the Confidential Information
Memorandum of the Borrower dated April 2001, as revised by the Confidential
Information Memorandum of the Borrower dated May 2001.
"Consent Solicitation" shall mean the solicitation of the holders of the
Existing Subordinated Notes to amend the indenture relating thereto to remove,
among other things, the covenants and restrictions therein that would prevent
the Merger and the related transactions.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income for
such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) Consolidated Interest
Expense for such period (including deferred financing costs), (ii) consolidated
income tax expense for such period, (iii) all amounts attributable to
depreciation and amortization for such period, (iv) any non-recurring fees,
expenses or charges in connection with the consummation of the Transactions, (v)
any non-recurring fees, expenses or charges related to any Equity Issuance,
investment permitted under Section 6.04, Permitted Acquisition or incurrence of
Indebtedness, in an amount not exceeding $5,000,000 for all such non-recurring
fees, expenses and charges, (vi) any non-recurring charges that are associated
with the 2001 Cost Reduction Plan announced prior to the Closing Date and
implemented within 90 days thereafter, in an aggregate amount not exceeding
$4,000,000, and (vii) all other non-cash losses, expenses and charges of the
Borrower and its consolidated Subsidiaries (excluding (x) the write-down of
current assets and (y) any such non-cash charge to the extent that it represents
an accrual of or reserve for cash expenditures in any future period) and minus
(b) without duplication (i) all cash payments made during such period on account
of reserves, restructuring charges and other noncash charges added to
Consolidated Net Income pursuant to clause (a)(vi) above in a previous period
and (ii) to the extent included in determining such Consolidated Net Income, any
extraordinary gains for such period, all determined on a consolidated basis in
accordance with GAAP. For purposes of calculating Consolidated EBITDA
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for any period that includes the fiscal quarters ended March 31, 2001, or
June 30, 2001, pro forma effect shall be given to the 2001 Cost Reduction Plan
as described in Schedule 5.04(d)(1).
"Consolidated Interest Expense" shall mean, for any period, the sum of (a) the
interest expense (including imputed interest expense in respect of Capital Lease
Obligations but excluding all non-cash interest expense in respect of the Holdco
Notes) of the Borrower and the Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, plus (b) any interest accrued during
such period in respect of Indebtedness of the Borrower or any Subsidiary that is
required to be capitalized rather than included in consolidated interest expense
for such period in accordance with GAAP, minus (c) deferred financing costs and
(d) any premiums relating to the Debt Tender Offer. For purposes of the
foregoing, interest expense shall be determined after giving effect to any net
payments made or received by the Borrower or any Subsidiary with respect to
interest rate Hedging Agreements.
"Consolidated Net Income" shall mean, for any period, the net income or loss of
the Borrower and the Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the
income of any Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by the Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, statute, rule or governmental regulation
applicable to such Subsidiary, (b) except as set forth in Section 1.04, the
income or loss of any person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with the Borrower or any Subsidiary or the
date that such person's assets are acquired by the Borrower or any Subsidiary,
(c) the income of any person in which any other person (other than the Borrower
or a Subsidiary of which at least 80% of the Equity Interests is owned by the
Borrower or a wholly owned Subsidiary or any director holding qualifying shares
in accordance with applicable law) has a joint interest, except to the extent of
the amount of dividends or other distributions actually received by the Borrower
or a wholly owned Subsidiary from such person during such period, and (d) any
gains attributable to sales of assets out of the ordinary course of business.
"Control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a person, whether
through the ownership of voting securities, by contract or otherwise, and the
terms "Controlling" and "Controlled" shall have meanings correlative thereto.
"Credit Event" shall have the meaning assigned to such term in Section 4.01.
"Debt Tender Offer" shall mean the Borrower's tender offer to repurchase all its
outstanding Existing Subordinated Notes.
"Default" shall mean any event or condition which upon notice, lapse of time or
both would constitute an Event of Default.
"Deferred Compensation Plan" shall mean the Deferred Compensation Plan for
employees of the Borrower and the Subsidiaries and any successor plan thereto.
"Documents" shall mean the Loan Documents and the Transaction Documents.
"dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or organized
under the laws of the United States of America, any State thereof or the
District of Columbia.
"Employee Offering Registration Statement" shall mean the Registration Statement
of Holdings on Form S-1 dated April 24, 2001, as amended.
13
"Environmental Laws" shall mean all former, current and future Federal, state,
local and foreign laws (including common law), treaties, regulations, rules,
ordinances, codes, decrees, judgments, directives, orders (including consent
orders), and agreements in each case, relating to protection of the environment,
natural resources, human health and safety or the presence, Release of, or
exposure to, Hazardous Materials, or the generation, manufacture, processing,
distribution, use, treatment, storage, transport, recycling or handling of, or
the arrangement for such activities with respect to, Hazardous Materials.
"Environmental Liability" shall mean all liabilities, obligations, damages,
losses, claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and costs (including administrative oversight costs, natural resource
damages and remediation costs), whether contingent or otherwise, arising out of
or relating to (a) compliance or non-compliance with any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
Release of any Hazardous Materials or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"Equity Interests" shall mean shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity interests in any person.
"Equity Issuance" shall mean any issuance or sale by Holdings, the Borrower or
any of their respective subsidiaries of any Equity Interests or any obligations
convertible into or exchangeable for, or giving any person a right, option or
warrant to acquire such Equity Interests or such convertible or exchangeable
obligations, as applicable, except in each case for (a) any issuance or sale to
any Sponsor, Holdings, the Borrower or any Subsidiary, (b) any issuance of
directors' qualifying shares, (c) sales or issuances of common stock of Holdings
or stock fund units in the Deferred Compensation Plan to management, employees
or consultants of Holdings, the Borrower or any Subsidiary under the Deferred
Compensation Plan or any employee stock option or stock purchase plan or
employee benefit plan in existence from time to time and (d) sales or issuances
of common stock of Holdings to management, employees or consultants of Holdings,
the Borrower or any Subsidiary pursuant to the Employee Offering Registration
Statement on or prior to August 3, 2001.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as the
same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code, or solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code. "ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan (other than a standard termination pursuant to Section
4041(b) of ERISA) or the withdrawal or partial withdrawal of the Borrower or any
of its ERISA Affiliates from any Plan or Multiemployer Plan; (e) the receipt by
the Borrower or any of its ERISA Affiliates from the PBGC or a plan
administrator of any notice relating to the intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the adoption of any
amendment to a Plan that would require the provision of security pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA; (g) the receipt by the
Borrower or any
14
of its ERISA Affiliates of any intent to withdraw from a Multiemployer Plan, or
the receipt by any Multiemployer Plan from the Borrower or any of its ERISA
Affiliates of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; (h) the occurrence
of a "prohibited transaction" with respect to which the Borrower or any of the
Subsidiaries is a "disqualified person" (within the meaning of Section 4975 of
the Code) or with respect to which the Borrower or any such Subsidiary could
otherwise be liable; (i) any other event or condition with respect to a Plan or
Multiemployer Plan that could result in liability of the Borrower or any
Subsidiary; or (j) any Foreign Benefit Event.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in Article VII.
"Excess Cash Flow" shall mean, for any period, the excess of Consolidated EBITDA
for such period minus the sum, without duplication, of (i) the amount of any
Taxes paid in cash by the Borrower and the Subsidiaries with respect to such
period, (ii) Consolidated Interest Expense for such period paid in cash, (iii)
Capital Expenditures made in cash in accordance with Section 6.10 during such
period, except to the extent financed with the proceeds of Indebtedness, equity
issuances, casualty proceeds, condemnation proceeds or other proceeds that would
not be included in Consolidated EBITDA, (iv) permanent repayments of
Indebtedness (other than mandatory prepayments of Loans under Section 2.13) made
by the Borrower and the subsidiaries during such fiscal year, but only to the
extent that such prepayments by their terms cannot be reborrowed or redrawn and
do not occur in connection with a refinancing of all or any portion of such
Indebtedness, (v) the amount of net investments made in cash in accordance with
Section 6.04(g) or (i) during such period (vi) the amount of Restricted Payments
made in cash by the Borrower in accordance with Section 6.06 during such period,
(vii) any non-recurring fees, expenses or charges in connection with the
consummation of the Transactions to the extent included in Consolidated EBITDA
with respect to such period pursuant to clause (iv) of the definition of
Consolidated EBITDA, and (viii) any costs or charges associated with the 2001
Cost Reduction Plan to the extent included in Consolidated EBITDA with respect
to such period pursuant to clause (vi) of the definition of Consolidated EBITDA.
"Excluded Taxes" shall mean, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by (i) any Governmental
Authority of the United States of America (or any political subdivision or
taxing authority thereof or therein), or the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, or (ii) as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax (or any political subdivision or taxing authority
thereof or therein) other than a connection arising solely as a result of
entering into any Loan Document; (b) any branch profits taxes imposed by any
Governmental Authority of the United States of America (or any political
subdivision or taxing authority thereof or therein) or any similar tax imposed
by any other jurisdiction described in clause (a) above, and (c) in the case of
a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.21(a)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.20(f), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.20(a).
15
"Existing Credit Agreement" shall mean the Amended and Restated Credit Agreement
dated as of May 20, 1998, among the Borrower, Bank of America N.A., as agent,
and the lenders named therein, among others, as amended.
"Existing Debt" shall mean the Indebtedness outstanding under the Existing
Subordinated Notes and the indebtedness outstanding under the Existing Credit
Agreement.
"Existing Subordinated Notes" shall mean the Borrowers' 8- % senior subordinated
notes issued under the First Supplemental Indenture dated as of May 26, 1998,
between the Borrower and State Street Bank and Trust Company of California,
National Association, as trustee.
"Federal Funds Effective Rate" shall mean, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding 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 (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for the day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fees" shall mean the Commitment Fees, the Administrative Agent Fees, the L/C
Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any person shall mean the chief financial officer,
principal accounting officer, Treasurer or Controller of such person.
"Fixed Charge Coverage Ratio" shall mean, for any period, the ratio of (a)
Consolidated EBITDA for such period minus Capital Expenditures and
Co-investments for such period to (b) the sum of Consolidated Interest Expense
plus Restricted Payments made under Section 6.06(a)(ii) by the Borrower for such
period.
"Foreign Benefit Event" shall mean, with respect to any Foreign Pension Plan,
(a) the existence of unfunded liabilities in excess of the amount permitted
under any applicable law, or in excess of the amount that would be permitted
absent a waiver from a Governmental Authority, (b) the failure to make the
required contributions or payments, under any applicable law, on or before the
due date for such contributions or payments, (c) the receipt of a notice by a
Governmental Authority relating to the intention to terminate any such Foreign
Pension Plan or to appoint a trustee or similar official to administer any such
Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension
Plan and (d) the incurrence of any liability in excess of $2,500,000 (or the
equivalent thereof in another currency) by Holdings, the Borrower or any of its
Subsidiaries under applicable law on account of the complete or partial
termination of such Foreign Pension Plan or the complete or partial withdrawal
of any participating employer therein, or (e) the occurrence of any transaction
that is prohibited under any applicable law and could reasonably be expected to
result in the incurrence of any liability by Holdings, the Borrower or any of
its Subsidiaries, or the imposition on Holdings, the Borrower or any of its
Subsidiaries of any fine, excise tax or penalty resulting from any noncompliance
with any applicable law, in each case in excess of $2,500,000 (or the equivalent
thereof in another currency).
"Foreign Lender" shall mean any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
16
"Foreign Pension Plan" shall mean any plan, fund (including any superannuation
fund) or other similar program established or maintained outside the United
States by Holdings, the Borrower or any one or more of its Subsidiaries
primarily for the benefit of employees of Holdings, the Borrower or such
Subsidiaries residing outside the United States, which plan, fund or other
similar program provides, or results in, retirement income, a deferral of income
in contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean United States generally accepted accounting principles applied
on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign court
or governmental agency, authority, instrumentality or regulatory body.
"Granting Lender" shall have the meaning assigned to such term in Section
9.04(i). "Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness or other obligation, (b)
to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation; provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean (a) any petroleum products or byproducts and
all other hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls, chlorofluorocarbons and all other
ozone-depleting substances and (b) any chemical, material, substance or waste
that is prohibited, limited or regulated by or pursuant to any Environmental
Law.
"Hedging Agreement" shall mean any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Holdco Note Documents" shall mean the Holdco Notes, the indenture under which
the Holdco Notes are issued and all other material instruments, agreements and
other documents evidencing or governing the Holdco Notes or providing for any
right in respect thereof.
"Holdco Notes" shall mean Holdings' 16% Senior Unsecured Notes due 2011, in an
initial aggregate principal amount of $65,000,000.
"Inactive Subsidiary" shall mean (a) each Subsidiary that (i) has not conducted
any business during the 12-month period preceding the date of determination,
(ii) has no outstanding Indebtedness, (iii) has total tangible assets of less
than $50,000 and (b) each Subsidiary listed on Schedule 1.01(c), so long as
after the Closing Date such Subsidiary (i) engages in no business, (ii) incurs
no Indebtedness and (iii) acquires no tangible assets.
17
"Incremental Revolving Facility Amount" shall mean, at any time the excess, if
any, of (a) $25,000,000 over (b) the sum of (i) the aggregate amount of all
Incremental Term Loan Commitments established at or prior to such time pursuant
to Section 2.25 and (ii) the aggregate increase in the Revolving Credit
Commitments established prior to such time pursuant to Section 2.24.
"Incremental Term Lender" shall mean a Lender with an Incremental Term Loan
Commitment or an outstanding Incremental Term Loan.
"Incremental Term Loan Amount" shall mean, at any time, the excess, if any, of
(a) $25,000,000 over (b) the sum of (i) the aggregate increase in the Revolving
Credit Commitments established at or prior to such time pursuant to Section 2.24
and (ii) the aggregate amount of all Incremental Term Loan Commitments
established prior to such time pursuant to Section 2.25.
"Incremental Term Loan Assumption Agreement" shall mean an Incremental Term Loan
Assumption Agreement in form and substance reasonably satisfactory to the
Administrative Agent, among the Borrower, the Administrative Agent and one or
more Incremental Term Lenders.
"Incremental Term Loan Commitment" shall mean the commitment of any Lender,
established pursuant to Section 2.25, to make Incremental Term Loans to the
Borrower.
"Incremental Term Loan Maturity Date" shall mean the final maturity date of any
Incremental Term Loan, as set forth in the applicable Incremental Term Loan
Assumption Agreement.
"Incremental Term Loan Repayment Dates" shall mean the dates scheduled for the
repayment of principal of any Incremental Term Loan, as set forth in the
applicable Incremental Term Loan Assumption Agreement.
"Incremental Term Loans" shall mean Term Loans made by one or more Lenders to
the Borrower pursuant to clause (c) of Section 2.01. Incremental Term Loans may
be made in the form of additional Tranche A Term Loans, Tranche B Term Loans or,
to the extent permitted by Section 2.25 and provided for in the relevant
Incremental Term Loan Assumption Agreement, Other Term Loans.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services
(excluding (i) with respect to clause (e), trade accounts payable and accrued
obligations incurred in the ordinary course of business and (ii) only with
respect to clauses (a) through (e), accrued obligations in respect of the
Deferred Compensation Plan), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed, (g)
all Guarantees by such person of Indebtedness of others (other than Guarantees
by a Co-investment Subsidiary of any non-recourse Indebtedness of any
Co-investment Vehicle), (h) all Capital Lease Obligations of such person, (i)
all obligations of such person as an account party in respect of letters of
credit and (j) all obligations of such person in respect of bankers'
acceptances. The Indebtedness of any person shall include all Indebtedness of
any partnership, or other entity in which such person is a general partner, or
other equity holder with unlimited liability other than (x) Indebtedness which
18
by its terms is expressly non-recourse to such person and (y) if such person is
a Co-investment Subsidiary, the Indebtedness of the related Co-investment
Vehicle.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Interest Coverage Ratio" shall mean, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) the sum of Consolidated Interest
Expense plus Restricted Payments made under Section 6.06(a)(ii) by the Borrower
for such period.
"Interest Payment Date" shall mean (a) with respect to any ABR Loan, the last
Business Day of each March, June, September and December and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
that would have been an Interest Payment Date had successive Interest Periods of
three months' duration been applicable to such Borrowing.
"Interest Period" shall mean, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter (or 9 or 12
months thereafter if, at the time of the relevant Borrowing, all Lenders
participating therein agree to make an interest period of such duration
available), as the Borrower may elect; provided, however, that if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day. Interest shall accrue from
and including the first day of an Interest Period to but excluding the last day
of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
"Issuing Bank" shall mean, as the context may require, (a) Credit Suisse First
Boston, in its capacity as the issuer of Letters of Credit hereunder, and (b)
any other Lender that may become an Issuing Bank pursuant to Section 2.23(i) or
(k), with respect to Letters of Credit issued by such Lender. The Issuing Bank
may, in its discretion, arrange for one or more Letters of Credit to be issued
by Affiliates of the Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term in Section
2.05(c).
"JV Subsidiary" shall mean a partially owned Subsidiary in which the Borrower or
any Subsidiary has contributed assets or otherwise made an investment in
(including of cash) with a fair market value (determined on the date of such
contribution or investment, as the case may be) of $250,000 or less in the
aggregate; provided, that the aggregate fair market value (determined on the
date of such contribution or investment, as the case may be) of all assets
contributed, indebtedness assumed or investments made by the Borrower or
Subsidiaries in all JV Subsidiaries shall not exceed in the aggregate
$2,000,000.
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue Letters
of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by the Issuing Bank
pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate undrawn and
unexpired amount of all outstanding Letters of Credit at such time and (b) the
aggregate principal amount of
19
all L/C Disbursements that have not yet been reimbursed at such time. The L/C
Exposure of any Revolving Credit Lender at any time shall equal its Pro Rata
Percentage of the aggregate L/C Exposure at such time.
"L/C Participation Fee" shall have the meaning assigned to such term in Section
2.05(c).
"Lenders" shall mean (a) the persons listed on Schedule 2.01 (other than any
such person that has ceased to be a party hereto pursuant to an Assignment and
Acceptance) and (b) any person that has become a party hereto pursuant to an
Assignment and Acceptance. Unless the context clearly indicates otherwise, the
term "Lenders" shall include the Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant to Section
2.23.
"Leverage Ratio" shall mean, on any date, the ratio of Total Debt less Available
Cash on such date to Consolidated EBITDA for the period of four consecutive
fiscal quarters most recently ended on or prior to such date.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m., London time, on the date that is two Business Days
prior to the commencement of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in dollars (as set
forth by the Bloomberg Information Service or any successor thereto or any other
service selected by the Administrative Agent which has been nominated by the
British Bankers' Association as an authorized information vendor for the purpose
of displaying such rates) for a period equal to such Interest Period; provided
that, to the extent that an interest rate is not ascertainable pursuant to the
foregoing provisions of this definition, the "LIBO Rate" shall be the interest
rate per annum determined by the Administrative Agent to be the average of the
rates per annum at which deposits in dollars are offered for such relevant
Interest Period to major banks in the London interbank market in London, England
by the Administrative Agent at approximately 11:00 a.m. (London time) on the
date that is two Business Days prior to the beginning of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, encumbrance, charge or security interest in or on such asset, (b)
the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to such
asset and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Collateral Agreement, the Security Documents and each Incremental Term Loan
Assumption Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans and the Swingline Loans.
"Margin Stock" shall have the meaning assigned to such term in Regulation U.
"Material Adverse Effect" shall mean a materially adverse effect on (a) the
business, assets, operations or condition (financial or otherwise) of the
Borrower and the Subsidiaries, taken as a whole, (b) the ability of the Borrower
or any other Loan Party to perform any of its obligations under any Loan
Document to which it is or will be a party or (c) the rights of or benefits
available to the Lenders under any Loan Document.
"Material Indebtedness" shall mean Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Holdings, the
20
Borrower and the Subsidiaries in an aggregate principal amount exceeding
$7,500,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of Holdings, the Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that Holdings, the Borrower or
such Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
"Melody" shall mean X.X. Xxxxxx & Company, a Texas corporation.
"Melody Loan Arbitrage Facility" shall mean a credit facility provided to Melody
by any depository bank in which Melody deposits payments relating to mortgage
loans for which Melody is servicer or sub-servicer prior to distribution of such
payments to or for the benefit of the borrower of such loans or the holders of
such loans, so long as (i) Melody applies all proceeds of loans made under such
credit facility to purchase Permitted Investments, and (ii) all such Permitted
Investments purchased by Melody with the proceeds of loans thereunder (and
proceeds thereof and distributions thereon) are pledged to the depository bank
providing such credit facility, and such bank has a first priority perfected
security interest therein, to secure loans made under such credit facility.
"Melody Mortgage Warehousing Facility" shall mean the credit facility provided
by Residential Funding Corporation ("RFC") or any substantially similar facility
extended to any Mortgage Banking Subsidiary in connection with any Mortgage
Banking Activities, pursuant to which RFC or another lender makes loans to
Melody, the proceeds of which loans are applied by Melody (or any Mortgage
Banking Subsidiary) to fund commercial mortgage loans originated and owned by
Melody (or any Mortgage Banking Subsidiary) subject to a commitment (subject to
customary exceptions) to purchase such mortgage loans by the Federal Home Loan
Mortgage Corporation, the Federal National Mortgage Association or any other
quasi-federal governmental entity so long as loans made by RFC or such other
lender to Melody (or any Mortgage Banking Subsidiary) thereunder are secured by
a pledge of commercial mortgage loans made by Melody (or any Mortgage Banking
Subsidiary) with the proceeds of such loans, and RFC or such other lender has a
perfected first priority security interest therein, to secure loans made under
such credit facility.
"Melody Permitted Indebtedness" shall mean Indebtedness of Melody under the
Melody Loan Arbitrage Facility, the Melody Mortgage Warehousing Facility and the
Melody Working Capital Facility and Indebtedness of any Mortgage Banking
Subsidiary under the Melody Mortgage Warehousing Facility that is, in all cases,
non-recourse to the Borrower or any of the other Subsidiaries.
"Melody Working Capital Facility" shall mean a credit facility provided by a
financial institution to Melody, so long as (i) the proceeds of loans thereunder
are applied only to provide working capital to Melody, (ii) loans under such
credit facility are unsecured, and (iii) the aggregate principal amount of loans
outstanding under such credit facility at no time exceeds $1,000,000.
"Merger Agreement" shall mean the amended and restated agreement and plan of
merger dated as of May 31, 2001, among the Borrower, Holdings and Merger Sub and
all other material documents entered into or delivered in connection with the
Merger Agreement.
"Merger Sub" shall mean XXXX XX Corp., a Delaware corporation and wholly owned
Subsidiary of Holdings.
"Mortgage Banking Activities" shall mean the origination by a Mortgage Banking
Subsidiary of mortgage loans in respect of commercial and multi-family
residential real property, and the sale or assignment of such mortgage loans and
the related mortgages to another person (other than the Borrower or any other
Subsidiary) within sixty days after the origination thereof; provided, however,
that in each case prior to origination of any mortgage loan, the Borrower or a
Mortgage
21
Banking Subsidiary, as the case may be, shall have entered into a legally
binding and enforceable purchase and sale agreement with respect to such
mortgage loan with a person that purchases such loans in the ordinary course of
business.
"Mortgage Banking Subsidiary" shall mean Melody and its subsidiaries that are
engaged in Mortgage Banking Activities.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the cash
proceeds (including cash proceeds subsequently received (as and when received)
in respect of noncash consideration initially received), net of (i) selling
expenses (including reasonable broker's fees or commissions, legal fees,
transfer and similar taxes and the Borrower's good faith estimate of taxes paid
or reasonably estimated to be payable in connection with such sale), (ii)
amounts provided as a reserve, in accordance with GAAP, against any liabilities
under any indemnification obligations or purchase price adjustment associated
with such Asset Sale (provided that, to the extent and at the time any such
amounts are released from such reserve, such amounts shall constitute Net Cash
Proceeds) and (iii) the principal amount, premium or penalty, if any, interest
and other amounts on any Indebtedness for borrowed money which is secured by the
asset sold in such Asset Sale and which is required to be repaid with such
proceeds (other than any such Indebtedness assumed by the purchaser of such
asset); provided, however, that, if (x) the Borrower shall deliver a certificate
of a Financial Officer to the Administrative Agent at the time of receipt
thereof setting forth the Borrower's intent to reinvest such proceeds in assets
of a kind then used or usable in the business of the Borrower and its
Subsidiaries or in the Equity Interests of a person engaged in the same or
related business as that of the Borrower or any Subsidiary within 270 days of
receipt of such proceeds and (y) no Default or Event of Default shall have
occurred and shall be continuing at the time of such certificate or at the
proposed time of the application of such proceeds, such proceeds shall not
constitute Net Cash Proceeds except to the extent not so used or contractually
committed to be used at the end of such 270-day period, at which time such
proceeds shall be deemed to be Net Cash Proceeds; and (b) with respect to any
incurrence or disposition of Indebtedness or any Equity Issuance, the cash
proceeds thereof, net of all taxes and customary fees, commissions, costs and
other expenses incurred in connection therewith.
"Obligations" shall have the meaning assigned to such term in the Collateral
Agreement.
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"Other Term Loans" shall have the meaning assigned to such term in Section
2.25(a).
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate substantially in
the form of Annex 2 to the Collateral Agreement.
"Permitted Acquisition" shall have the meaning assigned to such term in Section
6.04(g).
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"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from Standard & Poor's Ratings
Service or from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within one year from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, the Administrative Agent or any domestic
office of any commercial bank organized under the laws of the United
States of America or any State thereof that has a combined capital and
surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria of
clause (c) above;
(e) investments in "money market funds" within the meaning of
Rule 2a-7 of the Investment Company Act of 1940, as amended,
substantially all of whose assets are invested in investments of the
type described in clauses (a) through (d) above; and
(f) other short-term investments utilized by Foreign Subsidiaries
in accordance with normal investment practices for cash management in
investments of a type analogous to the foregoing.
"Permitted Investors" shall mean (a) the Sponsors and any other person who is an
Affiliate of any of the foregoing and (b) any member of senior management of the
Borrower on the Closing Date.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, limited liability company, partnership,
Governmental Authority or other entity.
"Plan" shall mean any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 307 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" shall mean the rate of interest per annum publicly announced from
time to time by Credit Suisse First Boston as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as being effective.
"Pro Forma Basis" shall mean, with respect to compliance with any test or
covenant hereunder, in connection with or after the occurrence of any Permitted
Acquisition or Restricted Payment permitted under Section 6.06(a)(ii),
compliance with such covenant or test after giving effect to any such proposed
Permitted Acquisition (including pro forma adjustments arising out of events
which are directly attributable to the proposed Permitted Acquisition, are
factually supportable and are expected to have a continuing impact, in each case
determined on a basis consistent with Article 11 of Regulation S-X of the
Securities Act of 1933, as amended, and as interpreted by the
23
staff of the Securities and Exchange Commission using, for purposes of
determining such compliance, the historical financial statements of all entities
or assets so acquired or to be acquired and the consolidated financial
statements of the Borrower and the Subsidiaries which shall be reformulated as
if such Permitted Acquisition, and any other Permitted Acquisitions or Asset
Sales that have been consummated during or after the end of the relevant period,
and any Indebtedness or other liabilities incurred in connection with any such
Permitted Acquisitions or otherwise after the end of the relevant period had
been consummated or incurred, respectively, at the beginning of such period and
assuming that any such Indebtedness bears interest during any portion of the
applicable measurement period prior to the relevant acquisition at the weighted
average of the interest rates applicable to outstanding Loans during such
period) or such proposed Restricted Payment.
"Pro Forma Compliance" shall mean, at any date of determination, that the
Borrower shall be in pro forma compliance with the covenants set forth in
Sections 6.11, 6.12, 6.13 and 6.14 as of the last day of the most recent fiscal
quarter-end (computed on the basis of (a) balance sheet amounts as of the most
recently completed fiscal quarter, and (b) income statement amounts for the most
recently completed period of four consecutive fiscal quarters, in each case, for
which financial statements shall have been delivered to the Administrative Agent
and calculated on a Pro Forma Basis).
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall mean the
percentage of the Total Revolving Credit Commitment represented by such Lender's
Revolving Credit Commitment. In the event the Revolving Credit Commitments shall
have expired or been terminated, the Pro Rata Percentages shall be determined on
the basis of the Revolving Credit Commitments most recently in effect.
""RCBA" shall mean (i) RCBA Strategic Partners, L.P. and its successors, (ii)
XXXX Capital Partners, L.P. and its successors and (iii) any investment fund
which is an Affiliate of Xxxx Capital Partners, L.P. or its successors.
"Register" shall have the meaning assigned to such term in Section 9.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Fund" shall mean, with respect to any Lender, any other person that (x)
invests in bank loans and (y) is advised or managed by the same investment
advisor as such Lender, by an Affiliate of such investment advisor or by such
Lender.
"Related Parties" shall mean, with respect to any specified person, such
person's Affiliates and the respective directors, officers, employees, agents
and advisors of such person and such person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration into or
through the environment or within or upon any building, structure, facility or
fixture.
"Required Lenders" shall mean, at any time, Lenders having Loans (excluding
Swingline Loans), L/C Exposure, Swingline Exposure and unused Revolving Credit
Commitments and Term Loan
24
Commitments representing at least a majority of the sum of all Loans outstanding
(excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused
Revolving Credit Commitments and Term Loan Commitments at such time.
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
"Restricted Indebtedness" shall mean Indebtedness of Holdings, the Borrower or
any Subsidiary, the payment, prepayment, repurchase or defeasance of which is
restricted under Section 6.09(b).
"Restricted Payment" shall mean any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interests in
Holdings, the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in Holdings, the Borrower or any Subsidiary
or any option, warrant or other right to acquire any such Equity Interests in
Holdings, the Borrower or any Subsidiary.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at any time,
the aggregate principal amount at such time of all outstanding Revolving Loans
of such Lender, plus the aggregate amount at such time of such Lender's L/C
Exposure, plus the aggregate amount at such time of such Lender's Swingline
Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit Commitment
or outstanding Revolving Credit Exposure.
"Revolving Credit Maturity Date" shall mean July 20, 2007.
"Revolving Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to clause (d) of Section 2.01.
"Secured Parties" shall have the meaning assigned to such term in the Collateral
Agreement.
"Security Documents" shall mean the Collateral Agreement and each of the
security agreements and other instruments and documents executed and delivered
pursuant to any of the foregoing or pursuant to Section 5.09.
"Senior Leverage Ratio" shall mean, on any date, the ratio of Total Debt less
the sum of (a) the aggregate outstanding principal amount of the Senior
Subordinated Notes plus (b) Available Cash on such date to Consolidated EBITDA
for the period of four consecutive fiscal quarters most recently ended on or
prior to such date.
"Senior Subordinated Note Documents" shall mean the Senior Subordinated Notes,
the Senior Subordinated Note Indenture and all other material instruments,
agreements and other documents
25
evidencing or governing the Senior Subordinated Notes or providing for any right
in respect thereof.
"Senior Subordinated Note Indenture" shall mean the indenture dated as of
June 7, 2001, between the Borrower, Holdings and First State Street Bank, as
trustee, as in effect on the Closing Date and as thereafter amended from time to
time in accordance with the requirements thereof and of this Agreement.
"Senior Subordinated Notes" shall mean the Borrower's 11 1/4% Senior
Subordinated Notes Due June 15, 2011 issued pursuant to the Senior Subordinated
Note Indenture and any notes issued by the Borrower in exchange for, and as
contemplated by, the Senior Subordinated Notes with substantially identical
terms as the Senior Subordinated Notes.
"Sponsors" shall mean RCBA and Xxxxxxx Xxxxxx & Co. Incorporated.
"SPC" shall have the meaning assigned to such term in Section 9.04(i).
"Special Co-investment Subsidiary" shall mean any wholly-owned Co-investment
Subsidiary that is or could become an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 as a result of
becoming a Subsidiary Guarantor or a guarantor under the Senior Subordinated
Note Indenture.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent or any Lender (including any branch,
Affiliate, or other fronting office making or holding a Loan) is subject for
Eurocurrency Liabilities (as defined in Regulation D of the Board). Eurodollar
Loans shall be deemed to constitute Eurocurrency Liabilities as defined in
Regulation D of the Board) and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D. Statutory
Reserves shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
"subsidiary" shall mean, with respect to any person (herein referred to as the
"parent"), any corporation, partnership, association or other business entity of
which securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or more than 50% of the
general partnership interests (other than the general partnership interests
owned controlled or held by the Borrower or any Subsidiary in any Co-investment
Vehicle) are, at the time any determination is being made, owned, controlled or
held.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Guarantor" shall mean each Domestic Subsidiary listed on Schedule
1.01(a), and each other Subsidiary that is or becomes a party to a Collateral
Agreement.
"Swingline Commitment" shall mean the commitment of the Swingline Lender to make
loans pursuant to Section 2.22, as the same may be reduced from time to time
pursuant to Section 2.09.
"Swingline Exposure" shall mean at any time the aggregate principal amount at
such time of all outstanding Swingline Loans. The Swingline Exposure of any
Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the
aggregate Swingline Exposure at such time.
"Swingline Lender" shall mean Credit Suisse First Boston, in its capacity as
lender of Swingline Loans hereunder.
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"Swingline Loan" shall mean any loan made by the Swingline Lender pursuant to
Section 2.22.
"Synthetic Purchase Agreement" shall mean any swap, derivative or other
agreement or combination of agreements pursuant to which Holdings, the Borrower
or any Subsidiary is or may become obligated to make (a) any payment in
connection with a purchase by any third party from a person other than Holdings,
the Borrower or any Subsidiary of any Equity Interest or Restricted Indebtedness
or (b) any payment (other than on account of a permitted purchase by it of any
Equity Interest or Restricted Indebtedness) the amount of which is determined by
reference to the price or value at any time of any Equity Interest or Restricted
Indebtedness; provided that no phantom stock or similar plan providing for
payments only to current or former directors, officers, employees or consultants
of Holdings, the Borrower or the Subsidiaries (or to their heirs or estates)
shall be deemed to be a Synthetic Purchase Agreement.
"Taxes" shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges, liabilities or withholdings imposed by any Governmental
Authority.
"Term Borrowing" shall mean a Borrowing comprised of Tranche A Term Loans,
Tranche B Term Loans or Incremental Term Loans.
"Term Lender" shall mean a Lender with a Term Loan Commitment or an outstanding
Term Loan.
"Term Loan Commitments" shall mean the Tranche A Commitments and the Tranche B
Commitments. Unless the context shall otherwise require, after the effectiveness
of any Incremental Term Loan Commitment the term "Term Loan Commitments" shall
include such Incremental Term Loan Commitment.
"Term Loan Repayment Dates" shall mean the Tranche A Term Loan Repayment Dates,
the Tranche B Term Loan Repayment Dates and the Incremental Term Loan Repayment
Dates.
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B Term Loans.
Unless the context shall otherwise require, the term "Term Loans" shall include
any Incremental Term Loans.
"Total Debt" shall mean, at any time, the total Indebtedness of the Borrower and
the Subsidiaries at such time (excluding (a) Melody Permitted Indebtedness and
(b) Indebtedness of the type described in clause (i) of the definition of such
term, except to the extent of any unreimbursed drawings thereunder).
"Total Revolving Credit Commitment" shall mean, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such time. The
initial Total Revolving Credit Commitment is $90,000,000.
"Total Senior Debt" at any time shall mean the Total Debt at such time less the
aggregate amount outstanding of Senior Subordinated Notes.
"Tranche A Commitment" shall mean, with respect to each Lender, the commitment
of such Lender to make Tranche A Term Loans hereunder as set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed
its Term Loan Commitment, as applicable, as the same may be (a) reduced from
time to time pursuant to Section 2.09 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of the aggregate Tranche A Commitments is $50,000,000.
"Tranche A Maturity Date" shall mean July 20, 2007.
27
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche A Term
Loans.
"Tranche A Term Loan Repayment Date" shall have the meaning assigned to such
term in Section 2.11(a)(i).
"Tranche A Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to clause (a) of Section 2.01. Unless the context shall
otherwise require, the term "Tranche A Term Loans" shall include any Incremental
Term Loans that are designated as such in the applicable Incremental Term Loan
Assumption Agreement and that are made on terms identical to the Tranche A Term
Loans.
"Tranche B Commitment" shall mean, with respect to each Lender, the commitment
of such Lender to make Tranche B Term Loans hereunder as set forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender assumed
its Term Loan Commitment, as applicable, as the same may be (a) reduced from
time to time pursuant to Section 2.09 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of the aggregate Tranche B Commitments is $185,000,000.
"Tranche B Maturity Date" shall mean July 18, 2008.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche B Term
Loans.
"Tranche B Term Loan Repayment Date" shall have the meaning assigned to such
term in Section 2.11(a)(ii).
"Tranche B Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to clause (b) of Section 2.01. Unless the context shall
otherwise require, the term "Tranche B Term Loans" shall include any Incremental
Term Loans that are designated as such in the applicable Incremental Term Loan
Assumption Agreement and that are made on terms identical to the Tranche B Term
Loans.
"Transaction Documents" shall mean the (a) Merger Agreement, (b) the Securities
Purchase Agreement, Anti-Dilution Agreement, Registration Rights Agreement,
Warrant Agreement and Tax Sharing Agreement entered into in connection with the
Merger Agreement and the Cash Equity Contribution, (c) the Holdco Note Documents
and (d) the Senior Subordinated Note Documents.
"Transactions" shall mean, collectively, the transactions to occur on or prior
to the Closing Date pursuant to the Documents, including (a) the consummation of
the Merger, (b) the execution and delivery of the Loan Documents and the initial
borrowings hereunder, (c) the execution and delivery of the Holdco Note
Documents and the issuance of the Holdco Notes, (d) the execution and delivery
of the Senior Subordinated Note Documents and the issuance of the Senior
Subordinated Notes, (e) the closing of the Debt Tender Offer and the related
Consent Solicitation, (f) the Cash Equity Contribution and (g) the payment of
all fees and expenses to be paid on or prior to the Closing Date and owing in
connection with the foregoing.
"Type", when used in respect of any Loan or Borrowing, shall refer to the Rate
by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such person
of which securities (except for directors' qualifying shares) or other ownership
interests representing 100%
28
of the Equity Interests are, at the time any determination is being made, owned,
controlled or held by such person or one or more wholly owned Subsidiaries of
such person or by such person and one or more wholly owned Subsidiaries of such
person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 TERMS GENERALLY. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall"; and
the words "asset" and "property" shall be construed as having the same meaning
and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights. All
references herein to Articles, Sections, Exhibits and Schedules shall be deemed
references to Articles and Sections of, and Exhibits and Schedules to, this
Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI or any related definition to eliminate the effect of any change in GAAP
occurring after the date of this Agreement on the operation of such covenant (or
if the Administrative Agent notifies the Borrower that the Required Lenders wish
to amend Article VI or any related definition for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
SECTION 1.03. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
SECTION 1.04. PRO FORMA CALCULATIONS. With respect to any period during which
any Permitted Acquisition occurs as permitted pursuant to the terms hereof, for
purposes of determining compliance or Pro Forma Compliance with the covenants
set forth in Sections 6.11, 6.12, 6.13 and 6.14, the Interest Coverage Ratio,
Fixed Charge Coverage Ratio, Leverage Ratio and Senior Leverage Ratio shall be
calculated with respect to such periods and such Permitted Acquisition on a Pro
Forma Basis.
29
ARTICLE II
The Credits
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, (a) to make a Tranche A Term Loan to the Borrower on
the Closing Date in a principal amount not to exceed its Tranche A Commitment,
(b) to make a Tranche B Term Loan to the Borrower on the Closing Date in a
principal amount not to exceed its Tranche B Commitment, (c) if such Lender has
so committed pursuant to Section 2.25, to make Incremental Term Loans to the
Borrower, in an aggregate principal amount not to exceed its Incremental Term
Loan Commitment, and (d) to make Revolving Loans to the Borrower, at any time
and from time to time on or after the date hereof, and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitment of such Lender in accordance with the terms hereof, in an aggregate
principal amount at any time outstanding that will not result in such Lender's
Revolving Credit Exposure exceeding such Lender's Revolving Credit Commitment.
Within the limits set forth in clause (d) of the preceding sentence and subject
to the terms, conditions and limitations set forth herein, the Borrower may
borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in
respect of Term Loans may not be reborrowed.
SECTION 2.02. LOANS. (a) Each Loan (other than Swingline Loans) shall be made as
part of a Borrowing consisting of Loans made by the Lenders ratably in
accordance with their respective applicable Commitments; provided, however, that
the failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $1,000,000 and
not less than $5,000,000 (except with respect to any Incremental Term Borrowing,
to the extent otherwise provided in the related Incremental Term Loan Assumption
Agreement) or (ii) equal to the remaining available balance of the applicable
Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same time;
provided, however, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in more than 10 Eurodollar Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
(c) Except with respect to Loans deemed made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 2:00 p.m.,
New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account in the name of the Borrower, designated by the
Borrower in the applicable Borrowing Request, or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not make available to
the Administrative Agent such Lender's portion of such Borrowing, the
Administrative Agent may assume that such Lender has
30
made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with paragraph (c) above and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If the Administrative Agent shall have so made
funds available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower shall
not be entitled to request any Revolving Credit Borrowing if (i) the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date or (ii) any Swingline Loan would be outstanding after giving
effect to the use of proceeds of such Borrowing.
(f) If the Issuing Bank shall not have received from the Borrower the payment
required to be made by Section 2.23(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., New York
City time, on such date (or, if such Revolving Credit Lender shall have received
such notice later than 12:00 (noon), New York City time, on any day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day),
an amount equal to such Lender's Pro Rata Percentage of such L/C Disbursement
(it being understood that such amount shall be deemed to constitute an ABR
Revolving Loan of such Lender and such payment shall be deemed to have reduced
the L/C Exposure), and the Administrative Agent will promptly pay to the Issuing
Bank amounts so received by it from the Revolving Credit Lenders. The
Administrative Agent will promptly pay to the Issuing Bank any amounts received
by it from the Borrower pursuant to Section 2.23(e) prior to the time that any
Revolving Credit Lender makes any payment pursuant to this paragraph (f); any
such amounts received by the Administrative Agent thereafter will be promptly
remitted by the Administrative Agent to the Revolving Credit Lenders that shall
have made such payments and to the Issuing Bank, as their interests may appear.
If any Revolving Credit Lender shall not have made its Pro Rata Percentage of
such L/C Disbursement available to the Administrative Agent as provided above,
such Lender and the Borrower severally agree to pay interest on such amount, for
each day from and including the date such amount is required to be paid in
accordance with this paragraph to but excluding the date such amount is paid, to
the Administrative Agent for the account of the Issuing Bank at (i) in the case
of the Borrower, a rate per annum equal to the interest rate applicable to
Revolving Loans pursuant to Section 2.06(a), and (ii) in the case of such
Lender, for the first such day, the Federal Funds Effective Rate, and for each
day thereafter, the Alternate Base Rate.
SECTION 2.03. BORROWING PROCEDURE. In order to request a Borrowing (other than a
Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f), as to which
this Section 2.03 shall not apply), the Borrower shall hand deliver or fax to
the Administrative Agent a duly completed Borrowing Request (a) in the case of a
Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 12:00 noon, New York City time, on the Business Day of
a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be
signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing
31
then being requested is to be a Tranche A Term Borrowing, a Tranche B Term
Borrowing, an Incremental Term Borrowing or a Revolving Credit Borrowing, and
whether such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing
(provided that until the Administrative Agent shall have notified the Borrower
that the primary syndication of the Commitments and Loans has been completed
(which notice shall be given as promptly as practicable and, in any event, on or
prior to July 27, 2001) the Borrower shall not be permitted to request a
Eurodollar Borrowing); (ii) the date of such Borrowing (which shall be a
Business Day); (iii) the number and location of the account to which funds are
to be disbursed (which shall be an account that complies with the requirements
of Section 2.02(c)); (iv) the amount of such Borrowing; and (v) if such
Borrowing is to be a Eurodollar Borrowing, the Interest Period with respect
thereto; provided, however, that, notwithstanding any contrary specification in
any Borrowing Request, each requested Borrowing shall comply with the
requirements set forth in Section 2.02. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall be
an ABR Borrowing. If no Interest Period with respect to any Eurodollar Borrowing
is specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative Agent
shall promptly advise the applicable Lenders of any notice given pursuant to
this Section 2.03 (and the contents thereof), and of each Lender's portion of
the requested Borrowing.
SECTION 2.04. EVIDENCE OF DEBT; REPAYMENT OF LOANS. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender (i) the principal amount of each Term Loan of such Lender as
provided in Section 2.11 and (ii) the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Credit Maturity Date. The
Borrower hereby promises to pay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an account
or accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will record (i)
the amount of each Loan made hereunder, the Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder from
the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b) and
(c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(e) Any Lender may request that Loans made by it hereunder be evidenced by a
promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to such Lender and its registered assigns and
in a form and substance reasonably acceptable to the Administrative Agent and
the Borrower. Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive such a promissory note, the interests
represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by one or
more promissory notes payable to the payee named therein or its registered
assigns.
SECTION 2.05. FEES. (a) The Borrower agrees to pay to each Lender, through the
Administrative Agent, on the last Business Day of March, June, September and
December in each
32
year and on each date on which any Commitment of such Lender shall expire or be
terminated as provided herein, a commitment fee (a "Commitment Fee") equal to
1/2 of 1% per annum on the daily unused amount of the Commitments of such Lender
(other than the Swingline Commitment) during the preceding quarter (or other
period commencing with the date hereof or ending with the Revolving Credit
Maturity Date or the date on which the Commitments of such Lender shall expire
or be terminated). All Commitment Fees shall be computed on the basis of the
actual number of days elapsed in a year of 360 days. The Commitment Fee due to
each Lender shall commence to accrue on the date hereof and shall cease to
accrue on the date on which the Commitment of such Lender shall expire or be
terminated as provided herein. For purposes of calculating Commitment Fees only,
no portion of the Revolving Credit Commitments shall be deemed utilized under
Section 2.17 as a result of outstanding Swingline Loans.
(b) The Borrower agrees to pay to the Administrative Agent, for its own account,
the administrative fees at the times and in the amounts agreed to by the
Borrower and the Administrative Agent from time to time (the "Administrative
Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender, through the
Administrative Agent, on the last Business Day of March, June, September and
December of each year and on the date on which the Revolving Credit Commitment
of such Lender shall be terminated as provided herein, a fee (an "L/C
Participation Fee") calculated on such Lender's Pro Rata Percentage of the daily
aggregate L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements) during the preceding quarter (or shorter period
commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which all Letters of Credit have been canceled or have
expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate per annum equal to the Applicable Percentage from time to
time used to determine the interest rate on Revolving Credit Borrowings
comprised of Eurodollar Loans pursuant to Section 2.06, and (ii) to the Issuing
Bank with respect to each Letter of Credit the standard fronting, issuance and
drawing fees as agreed by the Issuing Bank and the Borrower (the "Issuing Bank
Fees"). All L/C Participation Fees and Issuing Bank Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately available funds, to
the Administrative Agent for distribution, if and as appropriate, among the
Lenders, except that the Issuing Bank Fees shall be paid directly to the Issuing
Bank. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.06. INTEREST ON LOANS. (a) Subject to the provisions of Section 2.07,
the Loans comprising each ABR Borrowing, including each Swingline Loan, shall
bear interest (computed on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as the case may be, when the Alternate Base Rate is
determined by reference to the Prime Rate and over a year of 360 days at all
other times) at a rate per annum equal to the Alternate Base Rate plus the
Applicable Percentage in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
33
SECTION 2.07. DEFAULT INTEREST. If the Borrower shall default in the payment of
the principal of or interest on any Loan or any other amount becoming due
hereunder, by acceleration or otherwise, or under any other Loan Document, the
Borrower shall on demand from time to time pay interest, to the extent permitted
by law, on such defaulted amount to but excluding the date of actual payment
(after as well as before judgment) (a) in the case of overdue principal, at the
rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00% per
annum and (b) in all other cases, at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 365 or 366 days, as the case
may be, when determined by reference to the Prime Rate and over a year of 360
days at all other times) equal to the rate that would be applicable to an ABR
Revolving Loan plus 2.00%.
SECTION 2.08. ALTERNATE RATE OF INTEREST. In the event, and on each occasion,
that on the day two Business Days prior to the commencement of any Interest
Period for a Eurodollar Borrowing the Administrative Agent shall have determined
that dollar deposits in the principal amounts of the Loans comprising such
Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not adequately
and fairly reflect the cost to the Required Lenders of making or maintaining its
Eurodollar Loan during such Interest Period, or that reasonable means do not
exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or fax notice of such
determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent under this Section 2.08 shall be
conclusive absent manifest error.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS. (a) The Term Loan
Commitments (other than any Incremental Term Loan Commitments, which shall
terminate in accordance with the applicable Incremental Term Loan Assumption
Agreement) shall automatically terminate upon the making of the Term Loans to be
made on the Closing Date. The Revolving Credit Commitments, the Swingline
Commitment and the L/C Commitment shall automatically terminate on the Revolving
Credit Maturity Date. Notwithstanding the foregoing, all the Commitments shall
automatically terminate at 5:00 p.m., New York City time, on July 20, 2001, if
the initial Credit Event shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or fax notice
to the Administrative Agent, the Borrower may, without premium or penalty, at
any time in whole permanently terminate, or from time to time in part
permanently reduce, the Term Loan Commitments or the Revolving Credit
Commitments; provided, however, that (i) each partial reduction of the Term Loan
Commitments or the Revolving Credit Commitments shall be in an integral multiple
of $1,000,000 and in a minimum amount of $5,000,000 and (ii) the Total Revolving
Credit Commitment shall not be reduced to an amount that is less than the sum of
the Aggregate Revolving Credit Exposure at the time.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or reduction, the Commitment Fees on the amount of the
Commitments so terminated or reduced accrued to but excluding the date of such
termination or reduction.
34
SECTION 2.10. CONVERSION AND CONTINUATION OF BORROWINGS. The Borrower shall have
the right at any time upon prior irrevocable notice to the Administrative Agent
(a) not later than 12:00 noon, New York City time, two Business Days prior to
conversion, to convert any Eurodollar Borrowing into an ABR Borrowing, (b) not
later than 1:00 p.m., New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar Borrowing as a Eurodollar Borrowing for
an additional Interest Period, and (c) not later than 1:00 p.m., New York City
time, three Business Days prior to conversion, to convert the Interest Period
with respect to any Eurodollar Borrowing to another permissible Interest Period,
subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among
the Lenders in accordance with the respective principal amounts of the
Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and 2.02(b)
regarding the principal amount and maximum number of Borrowings of the
relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurodollar Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurodollar Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid
in less than one month may not be converted into or continued as a
Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the end
of the Interest Period in effect for such Borrowing into an ABR
Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than a Term Loan Repayment Date occurring
on or after the first day of such Interest Period if, after giving
effect to such selection, the aggregate outstanding amount of (A) the
Eurodollar Term Borrowings comprised of Tranche A Term Loans, Tranche B
Term Loans or Incremental Term Loans, as applicable, with Interest
Periods ending on or prior to such Term Loan Repayment Date and (B) the
ABR Term Borrowings comprised of Tranche A Term Loans, Tranche B Term
Loans or Incremental Term Loans, as applicable, would not be at least
equal to the principal amount of Term Borrowings to be paid on such Term
Loan Repayment Date; and
(viii) upon notice to the Borrower from the Administrative Agent
given at the request of the Required Lenders, after the occurrence and
during the continuance of a Default or Event of Default, no outstanding
Loan may be converted into, or continued as, a Eurodollar Loan and any
outstanding Eurodollar Borrowing shall, at the end of the Interest
Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be converted to an ABR Borrowing.
35
Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer
to this Agreement and specify (i) the identity and amount of the Borrowing that
the Borrower requests be converted or continued, (ii) whether such Borrowing is
to be converted to or continued as a Eurodollar Borrowing or an ABR Borrowing,
(iii) if such notice requests a conversion, the date of such conversion (which
shall be a Business Day) and (iv) if such Borrowing is to be converted to or
continued as a Eurodollar Borrowing, the Interest Period with respect thereto.
If no Interest Period is specified in any such notice with respect to any
conversion to or continuation as a Eurodollar Borrowing, the Borrower shall be
deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall advise the Lenders of any notice given pursuant to
this Section 2.10 and of each Lender's portion of any converted or continued
Borrowing. If the Borrower shall not have given notice in accordance with this
Section 2.10 to continue any Borrowing into a subsequent Interest Period (and
shall not otherwise have given notice in accordance with this Section 2.10 to
convert such Borrowing), such Borrowing shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof), automatically
be converted to an ABR Borrowing.
SECTION 2.11. REPAYMENT OF TERM BORROWINGS. (a) (i) The Borrower shall pay to
the Administrative Agent, for the account of the Lenders, on the dates set forth
below, or if any such date is not a Business Day, on the next preceding Business
Day (each such date being a "Tranche A Term Loan Repayment Date"), a principal
amount of the Tranche A Term Loans (as adjusted from time to time pursuant to
Sections 2.11(b), 2.12, 2.13(f) and 2.25(d)) equal to the amount set forth below
for such date, together in each case with accrued and unpaid interest on the
principal amount to be paid to but excluding the date of such payment:
Date Amount
---- ------
September 30, 2001 $1,875,000
December 31, 2001 $1,875,000
March 31, 2002 $1,875,000
June 30, 2002 $1,875,000
September 30, 2002 $1,875,000
December 31, 2002 $1,875,000
March 31, 2003 $1,875,000
June 30, 2003 $1,875,000
September 30, 2003 $2,187,500
December 31, 2003 $2,187,500
March 31, 2004 $2,187,500
June 30, 2004 $2,187,500
September 30, 2004 $2,187,500
December 31, 2004 $2,187,500
March 31, 2005 $2,187,500
June 30, 2005 $2,187,500
September 30, 2005 $2,187,500
December 31, 2005 $2,187,500
March 31, 2006 $2,187,500
June 30, 2006 $2,187,500
September 30, 2006 $2,187,500
December 31, 2006 $2,187,500
March 31, 2007 $2,187,500
Tranche A Maturity Date $2,187,500
36
(ii) The Borrower shall pay to the Administrative Agent, for the account of the
Lenders, on the dates set forth below, or if any such date is not a Business
Day, on the next preceding Business Day (each such date being a "Tranche B Term
Loan Repayment Date"), a principal amount of the Tranche B Term Loans (as
adjusted from time to time pursuant to Sections 2.11(b), 2.12, 2.13(f) and
2.25(d)) equal to the amount set forth below for such date, together in each
case with accrued and unpaid interest on the principal amount to be paid to but
excluding the date of such payment:
Date Amount
---- ------
September 30, 2001 $462,500
December 31, 2001 $462,500
March 31, 2002 $462,500
June 30, 2002 $462,500
September 30, 2002 $462,500
December 31, 2002 $462,500
March 31, 2003 $462,500
June 30, 2003 $462,500
September 30, 2003 $462,500
December 31, 2003 $462,500
March 31, 2004 $462,500
June 30, 2004 $462,500
September 30, 2004 $462,500
December 31, 2004 $462,500
March 31, 2005 $462,500
June 30, 2005 $462,500
September 30, 2005 $462,500
December 31, 2005 $462,500
March 31, 2006 $462,500
June 30, 2006 $462,500
September 30, 2006 $462,500
December 31, 2006 $462,500
March 31, 2007 $462,500
June 30, 2007 $462,500
September 30, 2007 $462,500
December 31, 2007 $462,500
March 31, 2008 $462,500
Tranche B Maturity Date $172,512,500
(iii) The Borrower shall pay to the Administrative Agent, for the account of the
Lenders, on each Incremental Term Loan Repayment Date, a principal amount of the
Other Term Loans (as adjusted from time to time pursuant to Sections 2.11(b),
2.12 and 2.13(f)) equal to the amount set forth for such date in the applicable
Incremental Term Loan Assumption Agreement, together in each case with accrued
and unpaid interest on the principal amount to be paid to but excluding the date
of such payment.
(b) In the event and on each occasion that any Term Loan Commitments shall be
reduced or shall expire or terminate other than as a result of the making of a
Term Loan, the installments payable on each Term Loan Repayment Date shall be
reduced pro rata by an aggregate amount equal to the amount of such reduction,
expiration or termination.
(c) To the extent not previously paid, all Tranche A Term Loans, Tranche B Term
Loans and Incremental Term Loans shall be due and payable on the Tranche A
Maturity Date, Tranche B Maturity Date and Incremental Term Loan Maturity Date,
respectively, together with accrued and unpaid interest on the principal amount
to be paid to but excluding the date of payment.
37
(d) All repayments pursuant to this Section 2.11 shall be subject to Section
2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. PREPAYMENT. (a) The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part, upon at least
three Business Days' prior written or fax notice (or telephone notice promptly
confirmed by written or fax notice) in the case of Eurodollar Loans, or written
or fax notice (or telephone notice promptly confirmed by written or fax notice)
on the Business Day of prepayment in the case of ABR Loans, to the
Administrative Agent before 1:00 p.m., New York City time; provided, however,
that each partial prepayment shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000.
(b) Optional prepayments of Term Loans shall be allocated pro rata among the
then outstanding Tranche A Term Loans, Tranche B Term Loans and Other Term Loans
and applied, first, to the scheduled installments of principal due in respect of
the Tranche A Term Loans, Tranche B Terms Loans and Other Term Loans within the
12 months following such prepayment, then pro rata against the remaining
scheduled installments of principal due in respect of the Tranche A Term Loans,
Tranche B Term Loans and Other Term Loans under Sections 2.11(a)(i), (ii) and
(iii), respectively.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty,
except as provided in paragraph (d) below. All prepayments under this Section
2.12 shall be accompanied by accrued and unpaid interest on the principal amount
to be prepaid to but excluding the date of payment.
(d) Any optional prepayment of Tranche B Term Loans made at any time (i) from
the Closing Date to and including the first anniversary thereof will be in an
amount equal to 102% of the principal amount of such Loans prepaid, (ii) after
the first anniversary of the Closing Date to and including the second
anniversary of the Closing Date will be in an amount equal to 101% of the
principal amount of such Loans prepaid and (iii) after the second anniversary of
the Closing Date will be in an amount equal to 100% of the principal amount of
such Loans prepaid.
SECTION 2.13. MANDATORY PREPAYMENTS. (a) In the event of any termination of all
the Revolving Credit Commitments, the Borrower shall, on the date of such
termination, repay or prepay all its outstanding Revolving Credit Borrowings and
all outstanding Swingline Loans and replace all outstanding Letters of Credit
and/or deposit an amount equal to the L/C Exposure in cash in a cash collateral
account established with the Collateral Agent for the benefit of the Secured
Parties. If as a result of any partial reduction of the Revolving Credit
Commitments the Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit Commitment after giving effect thereto, then the Borrower
shall, on the date of such reduction, repay or prepay Revolving Credit
Borrowings or Swingline Loans (or a combination thereof) and/or cash
collateralize Letters of Credit in an amount sufficient to eliminate such
excess.
(b) Not later than the third Business Day following the completion of any Asset
Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with
respect thereto to prepay (i) outstanding Term Loans in accordance with Section
2.13(f) and (ii) after the payment in full of the outstanding Term Loans,
outstanding Revolving Loans (without any reduction in Revolving Credit
Commitments).
(c) In the event and on each occasion that an Equity Issuance occurs, the
Borrower shall, substantially simultaneously with (and in any event not later
than the third Business Day next
38
following) the occurrence of such Equity Issuance, apply 100% of the Net Cash
Proceeds therefrom to prepay outstanding Term Loans in accordance with Section
2.13(f).
(d) No later than the earlier of (i) 45 days after the end of the second fiscal
quarter of each fiscal year of the Borrower, commencing with the fiscal quarter
ending on June 30, 2002, and (ii) the date on which the financial statements
with respect to such fiscal quarter are delivered pursuant to Section 5.04(b),
the Borrower shall prepay outstanding Term Loans in accordance with Section
2.13(f) in an aggregate principal amount equal to (A) 75% of Excess Cash Flow
for the period of twelve consecutive months then ended if the Leverage Ratio at
the end of such period shall have been greater than or equal to 2.0 to 1.0, or
(B) 50% of Excess Cash Flow for the period of twelve consecutive months then
ended if the Leverage Ratio at the end of such period of twelve consecutive
months shall have been less than 2.0 to 1.0.
(e) In the event that any Loan Party or any subsidiary of a Loan Party shall
receive Net Cash Proceeds from the incurrence or disposition of Indebtedness
(other than Indebtedness permitted pursuant to Section 6.01), the Borrower
shall, substantially simultaneously with (and in any event not later than the
third Business Day next following) the receipt of such Net Cash Proceeds by such
Loan Party or such subsidiary, apply an amount equal to 100% of such Net Cash
Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(f).
(f) Mandatory prepayments of outstanding Term Loans under this Agreement shall
be allocated pro rata among the then outstanding Tranche A Term Loans, Tranche B
Term Loans and Other Term Loans, and, subject to paragraph (h) below, applied
pro rata against the remaining scheduled installments of principal due in
respect of Tranche A Term Loans, Tranche B Term Loans and Other Term Loans under
Sections 2.11(a)(i), (ii) and (iii), respectively.
(g) The Borrower shall deliver to the Administrative Agent, at the time of each
prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days' prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(h) So long as any Tranche A Term Loans shall remain outstanding, any Tranche B
Lender or, to the extent so provided in the applicable Incremental Term Loan
Assumption Agreement, any Incremental Term Lender, may elect, by notice to the
Administrative Agent in writing no later than 3:00 p.m., New York City time, at
least three Business Days prior to any prepayment of Tranche B Term Loans or
Incremental Term Loans required to be made by the Borrower for the account of
such Lender pursuant to this Section 2.13, to cause all or a portion of such
prepayment to be applied instead to prepay Tranche A Term Loans in accordance
with paragraph (f) above.
(i) For a period of 45 consecutive days (the "Cleanup Period") commencing on any
day in the month of December of each year, chosen at the option of the Borrower,
the Borrower shall ensure that no Revolving Loans or Swingline Loans are
outstanding under this Agreement. In order to comply with the previous sentence,
the Borrower shall, if necessary, prepay in full the aggregate principal amount
of all Revolving Loans and Swingline Loans outstanding at the commencement of
the Cleanup Period and shall not during the Cleanup Period request any Revolving
Loans or Swingline Loans; provided that such limitation shall not affect the
ability of the Borrower to request a Letter of Credit during the Cleanup Period.
The obligations of the Borrower under this paragraph are in addition to, and
shall not in any manner limit, any other obligation of the Borrower hereunder to
prepay or repay Revolving Loans and Swingline Loans.
39
SECTION 2.14. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a) Notwithstanding
any other provision of this Agreement, if any Change in Law shall impose, modify
or deem applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of or credit extended by any Lender
or the Issuing Bank (except any such reserve requirement which is reflected in
the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Bank or
the London interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or participation
therein (other than any change to the basis or rate of taxation applicable to
any Lender), and the result of any of the foregoing shall be to increase the
cost to such Lender or the Issuing Bank of making or maintaining any Eurodollar
Loan or increase the cost to any Lender of issuing or maintaining any Letter of
Credit or purchasing or maintaining a participation therein or to reduce the
amount of any sum received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or otherwise) by an amount deemed by
such Lender or the Issuing Bank to be material, then the Borrower will pay to
such Lender or the Issuing Bank, as the case may be, upon demand such additional
amount or amounts (without duplication of amounts paid by the Borrower pursuant
to Section 2.20) as will compensate such Lender or the Issuing Bank, as the case
may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that any Change in
Law regarding capital adequacy has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made or participations in Letters of Credit
purchased by such Lender pursuant hereto or the Letters of Credit issued by the
Issuing Bank pursuant hereto to a level below that which such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
the Issuing Bank's policies and the policies of such Lender's or the Issuing
Bank's holding company with respect to capital adequacy) by an amount deemed by
such Lender or the Issuing Bank to be material, then from time to time the
Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount or
amounts necessary to compensate such Lender or the Issuing Bank or its holding
company, as applicable, as specified in paragraph (a) or (b) above, and setting
forth in reasonable detail the basis on which such amount or amounts were
calculated shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank the
amount shown as due on any such certificate delivered by it within 20 days after
its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be under any obligation to compensate any Lender or
the Issuing Bank under paragraph (a) or (b) above with respect to increased
costs or reductions with respect to any period prior to the date that is 120
days prior to such request if such Lender or the Issuing Bank knew or could
reasonably have been expected to know of the circumstances giving rise to such
increased costs or reductions and of the fact that such circumstances would
result in a claim for increased compensation by reason of such increased costs
or reductions; provided further that the foregoing limitation shall not apply to
any increased costs or reductions arising out of the retroactive application of
any Change in Law within such 120-day period. The protection of this Section
shall be available to each Lender and the Issuing Bank regardless of any
possible contention of the invalidity or inapplicability of the Change in Law
that shall have occurred or been imposed.
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SECTION 2.15. CHANGE IN LEGALITY. (a) Notwithstanding any other provision of
this Agreement, if any Change in Law shall make it unlawful for any Lender to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period) shall, as to
such Lender only, be deemed a request for an ABR Loan (or a request to
continue an ABR Loan as such or to convert a Eurodollar Loan into an ABR
Loan, as the case may be), unless such declaration shall be subsequently
withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar
Loans made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans as of the
effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any Lender
shall be effective as to each Eurodollar Loan made by such Lender, if lawful, on
the last day of the Interest Period then applicable to such Eurodollar Loan; in
all other cases such notice shall be effective on the date of receipt by the
Borrower.
SECTION 2.16. INDEMNITY. The Borrower shall indemnify each Lender against any
loss or expense that such Lender may sustain or incur as a consequence of (a)
any event, other than a default by such Lender in the performance of its
obligations hereunder, which results in (i) such Lender receiving or being
deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion
of any Eurodollar Loan to an ABR Loan, or the conversion of the Interest Period
with respect to any Eurodollar Loan, in each case other than on the last day of
the Interest Period in effect therefor, or (iii) any Eurodollar Loan to be made
by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice of
such Loan shall have been given by the Borrower hereunder (any of the events
referred to in this clause (a) being called a "Breakage Event") or (b) any
default in the making of any payment or prepayment of any Eurodollar Loan
required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Eurodollar Loan that is the
subject of such Breakage Event for the period from the date of such Breakage
Event to the last day of the Interest Period in effect (or that would have been
in effect) for such Loan over (ii) the amount of interest likely to be realized
by such Lender in redeploying the funds released or not utilized by reason of
such Breakage Event for such period. A certificate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section 2.16, and setting forth in reasonable detail the basis on which such
amount or amounts were calculated, shall be delivered to the Borrower and shall
be conclusive absent manifest error.
SECTION 2.17. PRO RATA TREATMENT. Except as provided below in this Section 2.17
with respect to Swingline Loans and as required under Sections 2.13(h) and 2.15,
each Borrowing,
41
each payment or prepayment of principal of any Borrowing, each payment of
interest on the Loans, each payment of the Commitment Fees, each reduction of
the Term Loan Commitments or the Revolving Credit Commitments and each
conversion of any Borrowing to or continuation of any Borrowing as a Borrowing
of any Type shall be allocated pro rata among the Lenders in accordance with
their respective applicable Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective principal amounts
of their outstanding Loans). For purposes of determining the available Revolving
Credit Commitments of the Lenders at any time, each outstanding Swingline Loan
shall be deemed to have utilized the Revolving Credit Commitments of the Lenders
(including those Lenders which shall not have made Swingline Loans) pro rata in
accordance with such respective Revolving Credit Commitments. Each Lender agrees
that in computing such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender's percentage
of such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.18. SHARING OF SETOFFS. Each Lender agrees that if it shall, through
the exercise of a right of banker's lien, setoff or counterclaim against the
Borrower or any other Loan Party, or pursuant to a secured claim under Section
506 of Title 11 of the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Lender under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means, obtain payment (voluntary or involuntary) in respect of any Loan or
Loans or L/C Disbursement as a result of which the unpaid principal portion of
its Loans and participations in L/C Disbursements shall be proportionately less
than the unpaid principal portion of the Loans and participations in L/C
Disbursements of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such
other Lender the purchase price for, a participation in the Loans and L/C
Exposure of such other Lender, so that the aggregate unpaid principal amount of
the Loans and L/C Exposure and participations in Loans and L/C Exposure held by
each Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Loans and L/C Exposure then outstanding as the principal amount of
its Loans and L/C Exposure prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all Loans and L/C
Exposure outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.18 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower and Holdings expressly consent to the foregoing arrangements and agree
that any Lender holding a participation in a Loan or L/C Disbursement deemed to
have been so purchased may exercise any and all rights of banker's lien, setoff
or counterclaim with respect to any and all moneys owing by the Borrower and
Holdings to such Lender by reason thereof as fully as if such Lender had made a
Loan directly to the Borrower in the amount of such participation.
SECTION 2.19. PAYMENTS. (a) The Borrower shall make each payment (including
principal of or interest on any Borrowing or any L/C Disbursement or any Fees or
other amounts) hereunder and under any other Loan Document not later than 2:00
p.m., New York City time, on the date when due in immediately available dollars,
without setoff, defense or counterclaim. Each such payment (other than (i)
Issuing Bank Fees, which shall be paid directly to the Issuing Bank, and (ii)
principal of and interest on Swingline Loans, which shall be paid directly to
the Swingline Lender except as otherwise provided in Section 2.22(e)) shall be
made to the Administrative Agent at its offices at Eleven Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000.
(b) Except as otherwise expressly provided herein, whenever any payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
42
SECTION 2.20. TAXES. (a) Any and all payments by or on account of any obligation
of the Borrower or any Loan Party hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if the Borrower or any Loan Party shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to Indemnified Taxes and
Other Taxes payable under this Section) the Administrative Agent or such Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower or such Loan Party shall
make such deductions and (iii) the Borrower or such Loan Party shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender,
within 15 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower or any Loan Party hereunder or under any other
Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender,
or by the Administrative Agent on its behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) If the Borrower determines in good faith that a reasonable basis exists for
contesting a Tax, the relevant Lender (or participant), or the Administrative
Agent, as applicable, shall cooperate with the Borrower in challenging such Tax
at the Borrower's expense if requested by the Borrower. If a Lender (or
participant) or the Administrative Agent receives a refund (including pursuant
to a claim for refund made pursuant to the preceding sentence) in respect of any
Indemnified Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.20, it shall within 30 days from the date of such
receipt pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.20 with respect to the Indemnified Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of such Lender (or participant)
or the Administrative Agent (together with any interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that the
Borrower, upon the request of such Lender (or participant) or the Administrative
Agent, agrees to repay the amount paid over to the Borrower (plus penalties,
interest or other charges) to such Lender (or participant) or the Administrative
Agent in the event such Lender (or participant) or the Administrative Agent is
required to repay such refund to such Governmental Authority.
(e) As soon as practicable after any payment of Indemnified Taxes or Other Taxes
by the Borrower or any other Loan Party to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(f) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is
located, or pursuant to any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by
43
applicable law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate and shall deliver
to the Borrower and the Administrative Agent two further copies of any such form
or certification (or any applicable successor form) on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower. Each Lender that shall become a participant or
a Lender pursuant to Section 9.04 shall, upon the effectiveness of the related
transfer, be required to provide all the forms and statements required pursuant
to this Section 2.20(f) provided that in the case of a participant such
participant shall furnish all such required forms and statements to the Lender
from which the related participation shall have been purchased.
SECTION 2.21. ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES; DUTY TO
MITIGATE. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described in Section 2.15, (iii) the Borrower
is required to pay any additional amount to any Lender or the Issuing Bank or
any Governmental Authority on account of any Lender or the Issuing Bank pursuant
to Section 2.20 or (iv) any Lender refuses to consent to a proposed amendment,
waiver, consent or other modification of this Agreement or any other Loan
Document which has been approved by the Required Lenders and which additionally
requires the consent of such Lender for approval pursuant to Section 9.08(b),
the Borrower may, at its sole expense and effort, upon notice to such Lender or
the Issuing Bank and the Administrative Agent, require such Lender or the
Issuing Bank to transfer and assign, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all of its interests,
rights and obligations under this Agreement to an assignee that shall assume
such assigned obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (x) such assignment shall not conflict
with any law, rule or regulation or order of any court or other Governmental
Authority having jurisdiction, (y) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Credit
Commitment is being assigned, of the Issuing Bank and the Swingline Lender),
which consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender or the Issuing Bank in
immediately available funds an amount equal to the sum of the principal of and
interest accrued to the date of such payment on the outstanding Loans or L/C
Disbursements of such Lender or the Issuing Bank, respectively, plus all Fees
and other amounts accrued for the account of such Lender or the Issuing Bank
hereunder (including any amounts under Section 2.14 and Section 2.16); provided
further that, if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender's or the Issuing Bank's claim for
compensation under Section 2.14 or notice under Section 2.15 or the amounts paid
pursuant to Section 2.20, as the case may be, cease to cause such Lender or the
Issuing Bank to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the consequences
specified in Section 2.15, or cease to result in amounts being payable under
Section 2.20, as the case may be (including as a result of any action taken by
such Lender or the Issuing Bank pursuant to paragraph (b) below), or if such
Lender or the Issuing Bank shall waive its right to claim further compensation
under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under
Section 2.20 in respect of such circumstances or event or shall consent to the
proposed amendment, waiver, consent or other modification, as the case may be,
then such Lender or the Issuing Bank shall not thereafter be required to make
any such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation under
Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice described in
Section 2.15 or (iii) the Borrower is required to pay any additional amount to
any Lender or the Issuing Bank or any Governmental Authority on account of any
Lender or the Issuing Bank, pursuant to Section 2.20, then such Lender or the
Issuing Bank shall use reasonable efforts (which shall not require such Lender
or
44
the Issuing Bank to incur an unreimbursed loss or unreimbursed cost or expense
or otherwise take any action inconsistent with its internal policies or legal or
regulatory restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its obligations hereunder to another of its offices, branches or affiliates, if
such filing or assignment would reduce its claims for compensation under Section
2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would
reduce amounts payable pursuant to Section 2.20, as the case may be, in the
future. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender or the Issuing Bank in connection with any such filing or
assignment, delegation and transfer.
SECTION 2.22. SWINGLINE LOANS. (a) Swingline Commitment. Subject to the terms
and conditions and relying upon the representations and warranties herein set
forth, the Swingline Lender agrees to make loans to the Borrower at any time and
from time to time on and after the Closing Date and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitments in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in (i) the aggregate
principal amount of all Swingline Loans exceeding $10,000,000 in the aggregate
or (ii) the Aggregate Revolving Credit Exposure, after giving effect to any
Swingline Loan, exceeding the Total Revolving Credit Commitment. Each Swingline
Loan shall be in a principal amount that is an integral multiple of $250,000.
The Swingline Commitment may be terminated or reduced from time to time as
provided herein. Within the foregoing limits, the Borrower may borrow, pay or
prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions
and limitations set forth herein.
(b) Swingline Loans. The Borrower shall notify the Administrative Agent by fax,
or by telephone (confirmed by fax), not later than 12:00 noon, New York City
time, on the day of a proposed Swingline Loan. Such notice shall be delivered on
a Business Day, shall be irrevocable and shall refer to this Agreement and shall
specify the requested date (which shall be a Business Day) and amount of such
Swingline Loan. The Administrative Agent will promptly advise the Swingline
Lender of any notice received from the Borrower pursuant to this paragraph (b).
The Swingline Lender shall make each Swingline Loan available to the Borrower by
means of a credit to an account in the name of the Borrower as designated by the
Borrower in such notice by 3:00 p.m., New York City time, on the date such
Swingline Loan is so requested.
(c) Prepayment. The Borrower shall have the right at any time and from time to
time to prepay any Swingline Loan, in whole or in part, upon giving written or
fax notice (or telephone notice promptly confirmed by written, or fax notice) to
the Swingline Lender and to the Administrative Agent before 2:00 p.m., New York
City time, on the date of prepayment at the Swingline Lender's address for
notices specified on Schedule 2.01. All principal payments of Swingline Loans
shall be accompanied by accrued interest on the principal amount being repaid to
the date of payment.
(d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to the
provisions of Section 2.07, shall bear interest as provided in Section 2.06(a).
(e) Participations. The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Revolving Credit Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Revolving
Credit Lenders will participate. The Administrative Agent will, promptly upon
receipt of such notice, give notice to each Revolving Credit Lender, specifying
in such notice such Lender's Pro Rata Percentage of such Swingline Loan or
Loans. In furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline
45
Lender, such Revolving Credit Lender's Pro Rata Percentage of such Swingline
Loan or Loans. Each Revolving Credit Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Revolving Credit
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.02(c)
with respect to Loans made by such Lender (and Section 2.02(c) shall apply,
mutatis mutandis, to the payment obligations of the Lenders) and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Lenders. The Administrative Agent shall notify the
Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph and thereafter payments in respect of such Swingline Loan shall be
made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower (or other party liable for obligations of the Borrower) of any
default in the payment thereof.
SECTION 2.23. LETTERS OF CREDIT. (a) General. The Borrower may request the
issuance of a Letter of Credit for its own account or for the account of any of
its wholly owned Subsidiaries (in which case the Borrower and such wholly owned
Subsidiary shall be co-applicants with respect to such Letter of Credit), in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time while the Revolving Credit Commitments remain in
effect. This Section shall not be construed to impose an obligation upon the
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms
and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. In
order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the Borrower shall hand deliver or fax to
the Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, the date of issuance, amendment, renewal or
extension, the date on which such Letter of Credit is to expire (which shall
comply with paragraph (c) below), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare such Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if, and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that, after giving effect to such issuance, amendment, renewal or
extension (i) the L/C Exposure shall not exceed $30,000,000 and (ii) the
Aggregate Revolving Credit Exposure shall not exceed the Total Revolving Credit
Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of business
on the earlier of the date that is one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date; provided, however, that a Letter of Credit may, upon
the request of the Borrower, include a provision whereby such Letter of Credit
shall be renewed automatically for additional consecutive periods of 12 months
or less (but not beyond the date that is five Business Days prior to the
Revolving Credit Maturity Date) unless the Issuing Bank notifies the beneficiary
thereof at least 30 days prior to the then applicable expiration date that such
Letter of Credit will not be renewed.
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(d) Participations. By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Pro Rata Percentage of the aggregate amount available to be
drawn under such Letter of Credit, effective upon the issuance of such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender's Pro
Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as provided
in Section 2.02(f). Each Revolving Credit Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Issuing Bank an
amount equal to such L/C Disbursement on the same Business Day on which the
Borrower shall have received notice from the Issuing Bank that payment of such
draft will be made, or, if the Borrower shall have received such notice later
than 1:00 p.m., New York City time, on any Business Day, not later than 1:00
p.m., New York City time, on the immediately following Business Day; provided
that to satisfy its reimbursement obligation under this paragraph (e), the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 or 2.22 an ABR Revolving Loan or Swingline Loan
to be made by the Revolving Credit Lenders or the Swingline Lender,
respectively, in the aggregate amount of any such L/C Disbursement.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from
all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other right
that the Borrower, any other party guaranteeing, or otherwise obligated
with, the Borrower, any Subsidiary or other Affiliate thereof or any
other person may at any time have against the beneficiary under any
Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other person, whether in connection with this Agreement,
any other Loan Document or any other related or unrelated agreement or
transaction;
(iv) any draft or 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;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other person
or any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the
47
provisions of this Section, constitute a legal or equitable discharge of
the Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly understood and
agreed that the absolute and unconditional obligation of the Borrower hereunder
to reimburse L/C Disbursements will not be excused by the gross negligence or
wilful misconduct of the Issuing Bank. However, the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank's
gross negligence or wilful misconduct in determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof; it
is understood that 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 and, in making any
payment under any Letter of Credit (i) the Issuing Bank's exclusive reliance on
the documents presented to it under such Letter of Credit as to any and all
matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by fax, to the Administrative Agent and
the Borrower of such demand for payment and whether the Issuing Bank has made or
will make an L/C Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Credit Lenders with respect to any
such L/C Disbursement. The Administrative Agent shall promptly give each
Revolving Credit Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of the Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(f), at the rate per annum that would apply
to such amount if such amount were an ABR Revolving Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may resign at
any time by giving 30 days' prior written notice to the Administrative Agent,
the Lenders and the Borrower, and may be removed at any time by the Borrower by
notice to the Issuing Bank, the Administrative Agent and the Lenders. Subject to
the next succeeding paragraph, upon the acceptance of any appointment as the
Issuing Bank hereunder by a Lender that shall agree to serve as successor
Issuing Bank, such successor shall succeed to and become vested with all the
interests, rights and obligations of the retiring Issuing Bank and the retiring
Issuing Bank shall be discharged from its obligations to issue additional
Letters of Credit hereunder. At the time such removal or resignation shall
become effective, the Borrower shall pay all accrued and unpaid fees pursuant to
Section 2.05(c)(ii). The acceptance of any appointment as the Issuing Bank
hereunder by a successor Lender shall be evidenced by an agreement entered into
by such successor, in a form satisfactory to the Borrower and the Administrative
Agent, and, from and after the effective date of such agreement, (i) such
successor Lender shall have all the rights and
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obligations of the previous Issuing Bank under this Agreement and the other Loan
Documents and (ii) references herein and in the other Loan Documents to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the resignation or removal of the Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement and the other Loan Documents with respect to Letters of Credit issued
by it prior to such resignation or removal, but shall not be required to issue
additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
(k) Additional Issuing Banks. The Borrower may, at any time and from time to
time with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender, designate one or more additional Lenders
to act as an issuing bank under the terms of this Agreement. Any Lender
designated as an issuing bank pursuant to this paragraph (k) shall be deemed (in
addition to being a Lender) to be the Issuing Bank with respect to Letters of
Credit issued or to be issued by such Lender, and all references herein and in
the other Loan Documents to the term "Issuing Bank" shall, with respect to such
Letters of Credit, be deemed to refer to such Lender in its capacity as Issuing
Bank, as the context shall require.
SECTION 2.24. INCREASE IN REVOLVING CREDIT COMMITMENTS. (a) The Borrower may, by
written notice to the Administrative Agent from time to time, request that the
Total Revolving Credit Commitment be increased by an amount not to exceed the
Incremental Revolving Facility Amount at such time. Upon the approval of such
request by the Administrative Agent (which approval shall not be unreasonably
withheld), the Administrative Agent shall deliver a copy thereof to each
Revolving Credit Lender. Such notice shall set forth the amount of the requested
increase in the Total Revolving Credit Commitment (which shall be in minimum
increments of $5,000,000 and a minimum amount of $10,000,000 or equal to the
remaining Incremental Revolving Facility Amount) and the date on which such
increase is requested to become effective (which shall be not less than 10
Business Days nor more than 60 days after the date of such notice and which, in
any event, must be on or prior to the Revolving Credit Maturity Date), and shall
offer each Revolving Credit Lender the opportunity to increase its Revolving
Credit Commitment by its Pro Rata Percentage of the proposed increased amount.
Each Revolving Credit Lender shall, by notice to the Borrower and the
Administrative Agent given not more than 10 days after
49
the date of the Administrative Agent's notice, either agree to increase its
Revolving Credit Commitment by all or a portion of the offered amount (each
Revolving Credit Lender so agreeing being an "Increasing Revolving Lender") or
decline to increase its Revolving Credit Commitment (and any Revolving Credit
Lender that does not deliver such a notice within such period of 10 days shall
be deemed to have declined to increase its Revolving Credit Commitment) (each
Revolving Credit Lender so declining or being deemed to have declined being a
"Non-Increasing Revolving Lender"). In the event that, on the 10th day after the
Administrative Agent shall have delivered a notice pursuant to the second
sentence of this paragraph, the Revolving Credit Lenders shall have agreed
pursuant to the preceding sentence to increase their Revolving Credit
Commitments by an aggregate amount less than the increase in the Total Revolving
Credit Commitment requested by the Borrower, the Borrower may arrange for one or
more banks or other entities (any such bank or other entity referred to in this
clause (a) being called an "Augmenting Revolving Lender"), which may include any
Lender, to extend Revolving Credit Commitments or increase their existing
Revolving Credit Commitments in an aggregate amount equal to the unsubscribed
amount; provided that each Augmenting Revolving Lender, if not already a
Revolving Credit Lender hereunder, shall be subject to the approval of the
Administrative Agent, the Swingline Lender and the Issuing Bank (which approvals
shall not be unreasonably withheld) and the Borrower and each Augmenting
Revolving Lender shall execute all such documentation as the Administrative
Agent shall reasonably specify to evidence its Revolving Credit Commitment
and/or its status as a Revolving Credit Lender hereunder. Any increase in the
Total Revolving Credit Commitment may be made in an amount which is less than
the increase requested by the Borrower if the Borrower is unable to arrange for,
or chooses not to arrange for, Augmenting Revolving Lenders.
(b) Each of the parties hereto hereby agrees that the Administrative Agent may
take any and all actions as may be reasonably necessary to ensure that, after
giving effect to any increase in the Total Revolving Credit Commitment pursuant
to this Section 2.24, the outstanding Revolving Loans (if any) are held by the
Revolving Credit Lenders in accordance with their new Pro Rata Percentages. This
may be accomplished at the discretion of the Administrative Agent (i) by
requiring the outstanding Revolving Loans to be prepaid with the proceeds of a
new Revolving Credit Borrowing, (ii) by causing Non-Increasing Revolving Lenders
to assign portions of their outstanding Revolving Loans to Increasing Revolving
Lenders and Augmenting Revolving Lenders, (iii) by permitting the Revolving
Credit Borrowings outstanding at the time of any increase in the Total Revolving
Credit Commitment pursuant to this Section 2.24 to remain outstanding until the
last days of the respective Interest Periods therefor, even though the Revolving
Credit Lenders would hold such Revolving Credit Borrowings other than in
accordance with their new Pro Rata Percentages, or (iv) by any combination of
the foregoing. Any prepayment or assignment described in this paragraph (b)
shall be subject to Section 2.16, but otherwise without premium or penalty.
(c) Notwithstanding the foregoing, no increase in the Total Revolving Credit
Commitment (or in the Revolving Credit Commitment of any Revolving Credit
Lender) or addition of a new Revolving Credit Lender shall become effective
under this Section 2.24 unless, (i) on the date of such increase, the conditions
set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the
Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer of the Borrower, and (ii) the
Administrative Agent shall have received (with sufficient copies for each of the
Revolving Credit Lenders) legal opinions, board resolutions and an officer's
certificate consistent with those delivered on the Closing Date under clauses
(a)(i), (a)(ii), (c)(ii)(B) and (d) of Section 4.02.
SECTION 2.25. INCREASE IN TERM LOAN COMMITMENTS. (a) The Borrower may, by
written notice to the Administrative Agent from time to time, request
Incremental Term Loan Commitments in an amount not to exceed the Incremental
Term Loan Amount from one or more Incremental Term Lenders, which may include
any existing Lender; provided that each Incremental Term Lender, if not already
a Lender hereunder, shall be subject to the approval of
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the Administrative Agent (which approval shall not be unreasonably withheld).
Such notice shall set forth (i) the amount of the Incremental Term Loan
Commitments being requested (which shall be in minimum increments of $5,000,000
and a minimum amount of $10,000,000 or equal to the remaining Incremental Term
Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are
requested to become effective (which shall not be less than 10 Business Days nor
more than 60 days after the date of such notice), and (iii) whether such
Incremental Term Loan Commitments are to be Tranche A Commitments, Tranche B
Commitments or commitments to make Term Loans with terms different from the
Tranche A Term Loans and Tranche B Term Loans ("Other Term Loans").
(b) The Borrower and each Incremental Term Lender shall execute and deliver to
the Administrative Agent an Incremental Term Loan Assumption Agreement and such
other documentation as the Administrative Agent shall reasonably specify to
evidence the Incremental Term Loan Commitment of such Incremental Term Lender.
Each Incremental Term Loan Assumption Agreement shall specify the terms of the
Incremental Term Loans to be made thereunder; provided that, without the prior
written consent of the Required Lenders, (i) the interest rate spreads in
respect of any Other Term Loans shall not exceed by more than 1/2 of 1% the
Applicable Percentage for the Tranche B Term Loans, (ii) the final maturity date
of any Other Term Loans shall be no earlier than the Tranche B Maturity Date and
(iii) the average life to maturity of any Other Term Loans shall be no shorter
than the average life to maturity of the Tranche B Term Loans. The
Administrative Agent shall promptly notify each Lender as to the effectiveness
of each Incremental Term Loan Assumption Agreement. Each of the parties hereto
hereby agrees that, upon the effectiveness of any Incremental Term Loan
Assumption Agreement, this Agreement shall be deemed amended to the extent (but
only to the extent) necessary to reflect the existence and terms of the
Incremental Term Loan Commitment evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall
become effective under this Section 2.25 unless (i) on the date of such
effectiveness, the conditions set forth in paragraphs (b) and (c) of Section
4.01 shall be satisfied and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of the Borrower, and (ii) the Administrative Agent shall have received (with
sufficient copies for each of the Incremental Term Lenders) legal opinions,
board resolutions and an officer's certificate consistent with those delivered
on the Closing Date under clauses (a)(i), (a)(ii), (c)(ii)(B) and (d) of Section
4.02.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may
take any and all action as may be reasonably necessary to ensure that all
Incremental Term Loans (other than Other Term Loans), when originally made, are
included in each Borrowing of outstanding Tranche A Term Loans or Tranche B Term
Loans, as the case may be, on a pro rata basis. This may be accomplished at the
discretion of the Administrative Agent by requiring each outstanding Eurodollar
Tranche A Term Borrowing or Eurodollar Tranche B Term Borrowing, as the case may
be, to be converted into an ABR Term Borrowing on the date of each Incremental
Term Loan, or by allocating a portion of each Incremental Term Loan to each
outstanding Eurodollar Tranche A Term Borrowing or Eurodollar Tranche B Term
Borrowing, as the case may be, on a pro rata basis, even though as a result
thereof such Incremental Term Loan may effectively have a shorter Interest
Period than the Term Loans included in the Borrowing of which they are a part
(and notwithstanding any other provision of this Agreement that would prohibit
such an initial Interest Period). Any conversion of Eurodollar Term Loans to ABR
Term Loans required by the preceding sentence shall be subject to Section 2.16.
If any Incremental Term Loan is to be allocated to an existing Interest Period
for a Eurodollar Term Borrowing then, subject to Section 2.07, the interest rate
applicable to such Incremental Term Loan for the remainder of such Interest
Period shall equal the Adjusted LIBO Rate for a period approximately equal to
the remainder of such Interest Period (as determined by the Administrative Agent
two Business Days before the date such Incremental Term Loan is made) plus the
Applicable Percentage. In addition, to the extent any Incremental Term Loans are
the Tranche A Term Loans or Tranche B Term Loans, the scheduled amortization
payments under Sections 2.11(a)(i) or 2.11(a)(ii), as the case may be,
51
required to be made after the making of such Incremental Term Loans shall be
ratably increased by the aggregate principal amount of such Incremental Term
Loans.
ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower, with respect to itself and its Subsidiaries,
represents and warrants to the Administrative Agent, the Collateral Agent, the
Issuing Bank and each of the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of Holdings, the Borrower and the
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has all requisite power
and authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required, except where the failure so to qualify could not reasonably be
expected to result in a Material Adverse Effect, and (d) has the power and
authority to execute, deliver and perform its obligations under each of the
Transaction Documents and each other agreement or instrument contemplated
thereby to which it is or will be a party and, in the case of the Borrower, to
borrow hereunder.
SECTION 3.02. AUTHORIZATION. The execution, delivery and performance by the Loan
Parties of the Documents to which each will be a party and the consummation by
the Loan Parties of the Transactions (including the borrowings hereunder) (a)
have been duly authorized by all requisite corporate and, if required,
stockholder action and (b) will not (i) violate (A) any provision of law,
statute, rule or regulation in any material respect, or of the certificate or
articles of incorporation or other constitutive documents or by-laws of
Holdings, the Borrower or any Subsidiary, (B) any order of any Governmental
Authority or (C) any provision of any indenture, agreement or other instrument
to which Holdings, the Borrower or any Subsidiary is a party or by which any of
them or any of their property is or may be bound in any material respect, (ii)
or give rise to any right to accelerate or to require the prepayment, repurchase
or redemption of any obligation under any such indenture, agreement or other
instrument or (iii) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by
Holdings, the Borrower or any Subsidiary (other than any Lien created hereunder
or under the Security Documents).
SECTION 3.03. ENFORCEABILITY. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by the each Loan Party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, moratorium and other similar laws
relating to or affecting creditors' rights generally and to general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
SECTION 3.04. GOVERNMENTAL APPROVALS. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for (a) the
filing of Uniform Commercial Code financing statements and filings with the
United States Patent and Trademark Office and the United States Copyright Office
and (b) such as have been made or obtained and are in full force and effect, and
except where the failure to obtain such consent or approval to make such
registration or filing or other action, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
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SECTION 3.05. FINANCIAL STATEMENTS. (a) The Borrower has heretofore furnished to
the Lenders its consolidated balance sheets and statements of income,
stockholder's equity and cash flows (i) as of and for the fiscal year ended
December 31, 2000, audited by and accompanied by the opinion of Xxxxxx Xxxxxxxx
LLP, independent public accountants, and (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended March 31, 2001, certified by its chief
financial officer. Such financial statements present fairly the financial
condition and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods. Such balance
sheets and the notes thereto disclose all material liabilities, direct or
contingent, of the Borrower and its consolidated Subsidiaries as of the dates
thereof. Such financial statements were prepared in accordance with GAAP applied
on a consistent basis.
(b) The Borrower has heretofore delivered to the Lenders its unaudited pro forma
consolidated balance sheet and statements of income, stockholder's equity and
cash flows as of December 31, 2000 and March 31, 2001, prepared giving effect to
the Transactions as if they had occurred, with respect to such balance sheets,
on such dates and, with respect to such other financial statements, on the first
day of the 12-month and 3-month period, respectively, ending on such date. Such
pro forma financial statements have been prepared in good faith by the Borrower,
based on the assumptions used to prepare the pro forma financial information
contained in the Employee Offering Registration Statement (which assumptions are
believed by the Borrower on the date hereof and on the Closing Date to be
reasonable), accurately reflect all adjustments required to be made to give
effect to the Transactions and present fairly on a pro forma basis the estimated
consolidated financial position of the Borrower and its consolidated
Subsidiaries as of such date and for such period, assuming that the Transactions
had actually occurred at such date or at the beginning of such period, as the
case may be.
SECTION 3.06. NO MATERIAL ADVERSE CHANGE. No event, change or condition has
occurred that has had, or could reasonably be expected to have, a material
adverse effect on the business, assets, operations or condition, financial or
otherwise, of Holdings, the Borrower and the Subsidiaries, taken as a whole,
since December 31, 2000.
SECTION 3.07. TITLE TO PROPERTIES. Each of Holdings, the Borrower and the
Subsidiaries has good and marketable title to, or valid leasehold interests in,
all its material properties and assets necessary for the conduct of its
business, except for minor defects in title that do not interfere in any
material respect with its ability to conduct its business as currently conducted
or to utilize such properties and assets for their intended purposes. All such
material properties and assets are free and clear of Liens, other than Liens
expressly permitted by Section 6.02.
SECTION 3.08. SUBSIDIARIES. Schedule 3.08 sets forth as of the Closing Date a
list of all Subsidiaries, the percentage ownership interest of Holdings, the
Borrower or other Subsidiaries therein and whether such Subsidiary is an
Inactive Subsidiary. The shares of capital stock or other ownership interests so
indicated on Schedule 3.08 are fully paid and non-assessable and are owned by
Holdings or the Borrower, directly or indirectly, free and clear of all Liens
(other than Liens created under the Security Documents).
SECTION 3.09. LITIGATION; COMPLIANCE WITH LAWS. (a) Except as set forth on
Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of Holdings or the Borrower, threatened against or affecting Holdings
or the Borrower or any Subsidiary or any business, property or rights of any
such person (i) that involve any Loan Document or the Transactions or (ii) that
could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(b) Since the date of this Agreement, there has been no change in the status of
the matters disclosed on Schedule 3.09 that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
53
(c) None of Holdings, the Borrower or any of the Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation, or is in default with respect to
any judgment, writ, injunction, decree or order of any Governmental Authority,
where such violation or default could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. AGREEMENTS. (a) None of Holdings, the Borrower or any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries is in default in
any manner under any provision of any indenture or other agreement or instrument
evidencing Material Indebtedness, or any other material agreement or instrument
to which it is a party or by which it or any of its properties or assets are or
may be bound, where such default could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.11. FEDERAL RESERVE REGULATIONS. (a) None of Holdings, the Borrower or
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of the provisions of
Regulation T, U or X.
SECTION 3.12. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT. None
of Holdings, the Borrower or any Subsidiary (other than any Co-investment
Subsidiary) is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
SECTION 3.13. USE OF PROCEEDS. The Borrower will use the proceeds of the Loans
and will request the issuance of Letters of Credit only for the purposes
specified in the preamble to this Agreement (or, in the case of Incremental Term
Loans, as set forth in the applicable Incremental Term Loan Assumption
Agreement).
SECTION 3.14. TAX RETURNS. Each of the Holdings, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal and all material state,
local and foreign tax returns or materials required to have been filed by it and
has paid or caused to be paid all material taxes due and payable by it and all
assessments received by it, except taxes that are being contested in good faith
by appropriate proceedings and for which Holdings, the Borrower or such
Subsidiary, as applicable, shall have set aside on its books adequate reserves.
SECTION 3.15. NO MATERIAL MISSTATEMENTS. None of (a) the Confidential
Information Memorandum (other than changes relating solely to a change in the
amount of the Tranche B Commitment, the Total Revolving Credit Commitment or the
amount of the Senior Subordinated Notes as reflected in this Agreement) or (b)
any other information, report, financial statement, exhibit or schedule
furnished by or on behalf of Holdings or the Borrower to the Administrative
Agent or any Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto contained, contains or will
contain any material misstatement of fact or omitted, omits or will omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were, are or will be made, not misleading
as of the time when made or delivered; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, each of Holdings and the Borrower
represents only that it acted in good
54
faith and utilized reasonable assumptions and due care in the preparation of
such information, report, financial statement, exhibit or schedule.
SECTION 3.16. EMPLOYEE BENEFIT PLANS. (a) Each of the Borrower and its ERISA
Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder except for such non-compliance as could not
reasonably be expected to result in a Material Adverse Effect. No ERISA Event
has occurred or is reasonably expected to occur that, when taken together with
all other such ERISA Events, could reasonably be expected to result in a
Material Adverse Effect. The present value of all benefit liabilities under all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the last annual valuation
dates applicable thereto, exceed the fair market value of the assets of all such
underfunded Plans by an amount that could reasonably be expected to result in a
Material Adverse Effect.
(b) Each Foreign Pension Plan is in compliance in all material respects with all
requirements of law applicable thereto and the respective requirements of the
governing documents for such plan except to the extent such non-compliance could
not reasonably be expected to result in a Material Adverse Effect. With respect
to each Foreign Pension Plan, none of the Holdings, its Subsidiaries or any of
its directors, officers, employees or agents has engaged in a transaction that
subject Holdings or any of its Subsidiaries, directly or indirectly, to a tax or
civil penalty that could reasonably be expected to have a Material Adverse
Effect. With respect to each Foreign Pension Plan, reserves have been
established in the financial statements furnished to Lenders in respect of any
unfunded liabilities in accordance with applicable law and prudent business
practice or, where required, in accordance with ordinary accounting practices in
the jurisdiction in which such Foreign Pension Plan is maintained, except for
such failure as could not reasonably be expected to result in a Material Adverse
Effect The aggregate unfunded liabilities, with respect to such Foreign Pension
Plans could not reasonably be expected to result in a Material Adverse Effect.
There are no actions, suits or claims (other than routine claims for benefits)
pending or threatened against the Holdings or any of its Affiliates with respect
to any Foreign Pension Plan which could reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Effect.
SECTION 3.17. ENVIRONMENTAL MATTERS. Except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, none of Holdings, the Borrower or any of the
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
SECTION 3.18. INSURANCE. Schedule 3.18 sets forth a true, complete and correct
description of all insurance maintained by the Borrower or by the Borrower for
its Subsidiaries as of the date hereof and the Closing Date. As of each such
date, such insurance is in full force and effect and all premiums have been duly
paid. The Borrower and its Subsidiaries have insurance in such amounts and
covering such risks and liabilities as are in accordance with normal industry
practice.
SECTION 3.19. LABOR MATTERS. As of the date hereof and the Closing Date, there
are no material strikes, lockouts or slowdowns against Holdings, the Borrower or
any Subsidiary pending or, to the knowledge of Holdings or the Borrower,
threatened. The hours worked by and payments made to employees of Holdings, the
Borrower and the Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters, except to the extent that such violations, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
All payments due from Holdings, the Borrower or any Subsidiary, or for which any
claim may be made against Holdings, the Borrower or any Subsidiary, on account
of wages and employee health and welfare insurance and
55
other benefits, have been paid or accrued as a liability on the books of
Holdings, the Borrower or such Subsidiary, except to the extent that non-payment
or non-accrual could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect. The consummation of the Transactions will not give rise
to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which Holdings, the Borrower or any
Subsidiary is bound.
SECTION 3.20. SOLVENCY. Immediately after the consummation of the Transactions
to occur on the Closing Date and immediately following the making of each Loan
and after giving effect to the application of the proceeds of each Loan, (a) the
fair value of the assets of Holdings and its subsidiaries, on a consolidated
basis, and the assets of the Borrower and its subsidiaries, on a consolidated
basis, at a fair valuation, will exceed their debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of Holdings and its subsidiaries, on a consolidated basis, will be
greater than the amount that will be required to pay the probable liability of
their debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured; (c) Holdings and
its subsidiaries, on a consolidated basis, will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) Holdings and its subsidiaries,
on a consolidated basis, will not have unreasonably small capital with which to
conduct the business in which they are engaged as such business is now conducted
and is proposed to be conducted following the Closing Date.
SECTION 3.21. REPRESENTATIONS AND WARRANTIES IN MERGER AGREEMENT. All
representations and warranties of the Borrower set forth in the Merger Agreement
were true and correct in all material respects at the time as of which such
representations and warranties were made (or deemed made).
SECTION 3.22. SENIOR INDEBTEDNESS. The Obligations constitute "Senior
Indebtedness" under and as defined in the Senior Subordinated Note Indenture and
the indenture relating to the Existing Subordinated Notes.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder are subject to the satisfaction of the following
conditions:
SECTION 4.01. ALL CREDIT EVENTS. On the date of each Borrowing, including each
Borrowing of a Swingline Loan and on the date of each issuance, amendment,
extension or renewal of a Letter of Credit (each such event being called a
"Credit Event"):
(a) The Administrative Agent shall have received a notice of
such Borrowing as required by Section 2.03 (or such notice shall have
been deemed given in accordance with Section 2.03) or, in the case of
the issuance, amendment, extension or renewal of a Letter of Credit, the
Issuing Bank and the Administrative Agent shall have received a notice
requesting the issuance, amendment, extension or renewal of such Letter
of Credit as required by Section 2.23(b) or, in the case of the
Borrowing of a Swingline Loan, the Swingline Lender and the
Administrative Agent shall have received a notice requesting such
Swingline Loan as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III
hereof and in each other Loan Document shall be true and correct in all
material respects on and as of the
56
date of such Credit Event with the same effect as though made on and as
of such date, except to the extent such representations and warranties
expressly relate to an earlier date.
(c) At the time of and immediately after such Credit Event, no
Event of Default or Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower and Holdings on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. FIRST CREDIT EVENT. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Bank, a favorable written opinion of
(i) Xxxxxx X. Xxxxxxxx, Esq., General Counsel of the Borrower,
substantially to the effect set forth in Exhibit E-1, (ii) Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for Holdings and the Borrower, substantially
to the effect set forth in Exhibit E-2, and (iii) the opinion of UK
counsel, substantially to the effect set forth in Exhibit E-3, in each
case (A) dated the Closing Date, (B) addressed to the Issuing Bank, the
Administrative Agent and the Lenders, and (C) covering such other
matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and Holdings and the
Borrower hereby request such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the Borrowings
and extensions of credit hereunder and the other Loan Documents shall be
reasonably satisfactory to the Lenders, to the Issuing Bank and to the
Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, including all amendments
thereto, of each Loan Party, certified as of a recent date by the
Secretary of State of the state of its organization, and a certificate
as to the good standing of each Loan Party (other than Holdpar A or
Holdpar B which are not required to be registered with the Secretary of
State of their state of organization) as of a recent date, from such
Secretary of State; (ii) a certificate of the Secretary or Assistant
Secretary of each Loan Party dated the Closing Date and certifying (A)
that attached thereto is a true and complete copy of the by-laws of such
Loan Party as in effect on the Closing Date and at all times since a
date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions
duly adopted by the Board of Directors of such Loan Party authorizing
the execution, delivery and performance of the Loan Documents to which
such person is a party and, in the case of the Borrower, the borrowings
hereunder, and that such resolutions have not been modified, rescinded
or amended and are in full force and effect, (C) that the certificate or
articles of incorporation of such Loan Party have not been amended since
the date of the last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (i) above, and (D) as to the
incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on
behalf of such Loan Party; (iii) a certificate of another officer as to
the incumbency and specimen signature of the Secretary or Assistant
Secretary executing the certificate pursuant to (ii) above; and (iv)
such other documents as the Lenders, the Issuing Bank or the
Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate,
dated the Closing Date and signed by a Financial Officer of the
Borrower, confirming compliance with the conditions precedent set forth
in paragraphs (b) and (c) of Section 4.01. Such certificate shall
include a reasonably detailed schedule showing the pro forma adjustments
made to calculate Consolidated EBITDA as of and for the fiscal quarters
ended March 31, 2001
57
and June 30, 2001, as contemplated by the last sentence of the
definition of Consolidated EBITDA, and which shall be accompanied by the
report of Xxxxxx Xxxxxxxx LLP substantially in the form of Schedule
4.02(d).
(e) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Closing Date,
including, to the extent invoiced prior to the Closing Date,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder or under any other Loan
Document.
(f) The Collateral Agreement shall have been duly executed by
the parties thereto and delivered to the Collateral Agent and shall be
in full force and effect, and all the outstanding Equity Interests of
the Borrower and the Subsidiaries shall have been duly and validly
pledged thereunder to the extent required thereby to the Collateral
Agent for the ratable benefit of the Secured Parties and certificates
representing such Equity Interests to the extent such Equity Interests
are evidenced by certificated securities, accompanied by instruments of
transfer and stock powers endorsed in blank, shall be in the actual
possession of the Collateral Agent; provided that to the extent to do so
would cause adverse tax consequences to the Borrower, (i) neither the
Borrower nor any Domestic Subsidiary shall be required to pledge more
than 65% of the voting stock of any Foreign Subsidiary and (ii) no
Foreign Subsidiary shall be required to pledge the Equity Interests of
any of its Subsidiaries.
(g) Each document (including each Uniform Commercial Code
financing statement) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority (except to the
extent otherwise provided therein) security interest in and lien on the
Collateral (subject to any Lien expressly permitted by Section 6.02)
described in the Collateral Agreement shall have been delivered to the
Collateral Agent.
(h) Except as stated on Schedule 4.02(h), the Collateral Agent
shall have received the results of a search of the Uniform Commercial
Code filings (or equivalent filings) made with respect to the Loan
Parties in the jurisdictions contemplated by the Perfection Certificate,
together with copies of the financing statements (or similar documents)
disclosed by such search, and accompanied by evidence reasonably
satisfactory to the Collateral Agent that the Liens indicated in any
such financing statement (or similar document) would be permitted under
Section 6.02 or have been released.
(i) The Collateral Agent shall have received a Perfection
Certificate with respect to the Loan Parties dated the Closing Date and
duly executed by a Responsible Officer and the General Counsel of the
Borrower.
(j) The Transactions shall have been consummated or shall be
consummated simultaneously on the Closing Date, in each case in all
material respects in accordance with the terms hereof, the terms of the
Documents and applicable law; the Cash Equity Contribution shall have
been made; the Senior Subordinated Notes shall have been issued and the
Lenders shall be reasonably satisfied with the capitalization structure
and equity ownership of Holdings and the Borrower after giving effect to
the Transactions.
(k) The Lenders shall be reasonably satisfied as to the amount
and nature of any environmental and employee health and safety exposures
to which the Borrower and its Subsidiaries may be subject after giving
effect to the Transactions, and with the plans of the Borrower or such
Subsidiaries with respect thereto.
58
(l) All requisite Governmental Authorities and third parties
shall have approved or consented to the Transactions and the other
transactions contemplated hereby to the extent the failure to obtain
such consent or approval could, individually or in the aggregate,
reasonably be expected to restrain, prevent or impose materially
burdensome conditions on the Transactions or the other transactions
contemplated hereby, and there shall be no litigation, governmental,
administrative or judicial action, actual or threatened, that could
reasonably be expected to restrain, prevent or impose materially
burdensome conditions on the Transactions or the other transactions
contemplated hereby.
(m) The Administrative Agent shall have received a copy of, or a
certificate as to coverage under, the insurance policies required by
Section 5.02 and the applicable provisions of the Security Documents,
each of which shall be endorsed or otherwise amended to include a
customary lender's loss payable endorsement and to name the Collateral
Agent as additional insured, in form and substance reasonably
satisfactory to the Administrative Agent.
(n) The Lenders shall have received the audited, unaudited and
pro forma financial statements referred to in Section 3.05.
(o) Holdings shall have issued not less than $65,000,000 of
Holdco Notes and the Borrower shall have received net cash proceeds of
not less than $62,700,000 from the issuance of the Holdco Notes. The
terms and conditions of the Holdco Notes (including terms and conditions
relating to the interest rate, fees, amortization, maturity, covenants,
pay-in-kind provisions, events of default and remedies) shall be
reasonably satisfactory in all respects to the Lenders. Without limiting
the foregoing, the Notes shall provide that, at any time during which
the Borrower's ability to pay cash dividends to Holdings is restricted
under the terms of this Agreement, Holdings may, in lieu of paying
interest on the Holdco Notes in cash and without causing a default
thereunder, satisfy its obligation to pay interest on the Holdco Notes
by issuing to the holders thereof additional Holdco Notes.
(p) The Borrower shall have repurchased all Existing
Subordinated Notes tendered and not withdrawn pursuant to the Debt
Tender Offer; if less than all the outstanding Existing Subordinated
Notes shall have been tendered and so purchased, the Consent
Solicitation shall have become effective.
(q) The Lenders shall have received a solvency letter from
Houlihan, Lokey, Xxxxxx & Xxxxx, Inc., in form and substance reasonably
satisfactory to the Lenders, as to the solvency of the Borrower and its
subsidiaries on a consolidated basis after giving effect to the
Transactions and the consummation of the other transactions contemplated
hereby.
(r) All principal, premium, if any, interest, fees and other
amounts due and owing under the Existing Credit Agreement shall have
been paid in full, the commitments thereunder terminated and all
guarantees and security in support thereof released, and the
Administrative Agent shall have received reasonably satisfactory
evidence thereof, and after giving effect to the Transactions and the
other transactions contemplated hereby, Holdings, the Borrower and its
subsidiaries shall have outstanding no Indebtedness or preferred stock
other than (i) the Loans and Letters of Credit hereunder, (ii) the
Holdco Notes, (iii) the Senior Subordinated Notes, (iv) Existing
Subordinated Notes not tendered (or tendered and subsequently withdrawn)
in the Debt Tender Offer and (v) the Indebtedness listed on Schedule
6.01.
(s) Immediately after giving effect to the Transactions and the
other transactions contemplated hereby to occur on or about the Closing
Date, no more than $50,000,000 of
59
Revolving Loans shall have been borrowed (excluding the aggregate
undrawn and unexpired amount of all outstanding Letters of Credit).
ARTICLE V
Affirmative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender that so
long as this Agreement shall remain in effect and until the Commitments have
been terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document shall have been paid
in full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, each of Holdings and the Borrower
will, and will cause each of the Subsidiaries to:
SECTION 5.01. EXISTENCE; BUSINESSES AND PROPERTIES. (a) Do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence, except as otherwise expressly permitted under Section 6.05.
(b) Except as could not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect: (i) do or cause to be done
all things necessary to obtain, preserve, renew, extend and keep in full force
and effect the rights, licenses, permits, franchises, authorizations, patents,
copyrights, trademarks and trade names necessary to the conduct of its business;
(ii) comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Governmental Authority, including
Environmental Laws, whether now in effect or hereafter enacted; and (iii) at all
times maintain and preserve all property necessary to the conduct of such
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times.
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SECTION 5.02. INSURANCE. (a) Keep its insurable properties adequately insured at
all times by financially sound and reputable insurers; maintain such other
insurance, to such extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with companies in the same
or similar businesses operating in the same or similar locations, including
public liability insurance against claims for personal injury or death or
property damage occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies covering any Collateral to be endorsed or otherwise
amended to include a customary lender's loss payable endorsement, in form and
substance reasonably satisfactory to the Administrative Agent and the Collateral
Agent, which endorsement shall provide that, from and after the Closing Date, if
the insurance carrier shall have received written notice from the Administrative
Agent or the Collateral Agent of the occurrence of an Event of Default, the
insurance carrier shall pay all proceeds otherwise payable to the Borrower or
the Loan Parties under such policies directly to the Collateral Agent; cause all
such policies to provide that neither the Borrower, the Administrative Agent,
the Collateral Agent nor any other party shall be a coinsurer thereunder and to
contain a "Replacement Cost Endorsement", without any deduction for
depreciation, and such other provisions as the Administrative Agent or the
Collateral Agent may reasonably require from time to time to protect their
interests; deliver original or certified copies of all such policies to the
Collateral Agent; cause each such policy to provide that it shall not be
canceled, modified or not renewed (i) by reason of nonpayment of premium upon
not less than 10 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent (giving the Administrative Agent
and the Collateral Agent the right to cure defaults in the payment of premiums)
or (ii) for any other reason upon not less than 30 days' prior written notice
thereof by the insurer to the Administrative Agent and the Collateral Agent;
deliver to the Administrative Agent and the Collateral Agent, prior to the
cancelation, modification or nonrenewal of any such policy of insurance, a copy
of a renewal or replacement policy (or other evidence of renewal of a policy
previously delivered to the Administrative Agent and the Collateral Agent)
together with evidence reasonably satisfactory to the Administrative Agent and
the Collateral Agent of payment of the premium therefor.
SECTION 5.03. OBLIGATIONS AND TAXES. Pay its Material Indebtedness and other
material obligations promptly and in accordance with their terms and pay and
discharge promptly when due all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect of
its property, before the same shall become delinquent or in default, as well as
all lawful material claims for labor, materials and supplies or otherwise that,
if unpaid, might give rise to a Lien upon such properties or any part thereof;
provided, however, that such payment and discharge shall not be required with
respect to any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the Borrower shall have set aside on its books adequate reserves
with respect thereto in accordance with GAAP and such contest operates to
suspend collection of the contested obligation, tax, assessment or charge and
enforcement of a Lien.
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SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC. In the case of the Borrower,
furnish to the Administrative Agent (which shall furnish such statements,
certificates or other documents received pursuant to this Section 5.04 to each
Lender and Issuing Bank):
(a) within 90 days after the end of each fiscal year, its
consolidated balance sheet and related statements of income,
stockholders' equity and cash flows showing the financial condition of
the Borrower and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of such
Subsidiaries during such year, together with comparative figures for the
immediately preceding fiscal year, all audited by Xxxxxx Xxxxxxxx LLP or
other independent public accountants of recognized national standing and
accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet and
related statements of income, stockholders' equity and cash flows
showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such Subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year, and
comparative figures for the same periods in the immediately preceding
fiscal year, all certified by one of its Financial Officers as fairly
presenting the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments;
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of a Financial Officer opining
on or certifying such statements (i) certifying that no Event of Default
or Default has occurred or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii)
setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.11, 6.12, 6.13 and 6.14 and (x) in the case of a
certificate delivered with the financial statements required by
paragraph (b) above for the second fiscal quarter of each year, setting
forth the Borrower's calculation of Excess Cash Flow, and (y) in the
case of the certificate delivered pursuant to this paragraph (c) with
the financial statements under paragraph (a) above for the fiscal year
ended December 31, 2001, a reasonably detailed schedule showing the pro
forma adjustments made to calculate Consolidated EBITDA for the fiscal
quarters ended March 31, 2001 and June 30, 2001, as contemplated by the
last sentence of the definition of Consolidated EBITDA (which shall
include all pro forma adjustments resulting from the 2001 Cost Reduction
Plan calculated as contemplated pursuant to Schedule 5.04(d)(1)),
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any
Default or Event of Default (which certificate may be limited to the
extent required by accounting rules or guidelines); and in the case of
the certificate delivered pursuant to this paragraph (d) with the
financial statements under paragraph (a) above for the fiscal year ended
December 31, 2001, such report of such accounting firm shall be
substantially in the form of Schedule 5.04(d)(2) and shall be
accompanied by the additional report of such accounting firm in the form
of 5.04(d)(3).
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(e) no later than 45 days after the end of each fiscal year of
the Borrower, a detailed consolidated budget for the then current fiscal
year (including a projected consolidated balance sheet and related
statements of projected operations and cash flows as of the end of and
for such fiscal year and setting forth the assumptions used for purposes
of preparing such budget) and, promptly when available, any significant
revisions of such budget;
(f) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by Holdings, the Borrower or any Subsidiary with the Securities
and Exchange Commission, or any Governmental Authority succeeding to any
or all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case may
be;
(g) promptly after the receipt thereof by Holdings or the
Borrower or any of their respective subsidiaries, a copy of any
"management letter" received by any such person from its certified
public accountants and the management's response thereto; and
(h) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
Holdings, the Borrower or any Subsidiary, or compliance with the terms
of any Loan Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.05. LITIGATION AND OTHER NOTICES. Furnish to the Administrative Agent
(which shall furnish such notice to each Lender and Issuing Bank) prompt written
notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against Holdings, the Borrower or any Subsidiary that could
reasonably be expected to result in a Material Adverse Effect; and
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of Holdings, the Borrower and the
Subsidiaries in an aggregate amount exceeding $5,000,000; and
(d) any other development that has resulted in, or could
reasonably be expected to result in, a Material Adverse Effect.
SECTION 5.06. INFORMATION REGARDING COLLATERAL. (a) Furnish to the
Administrative Agent prompt written notice of any change (i) in any Loan Party's
corporate name or in any trade name used to identify it in the conduct of its
business or in the ownership of its properties, (ii) in the location of any Loan
Party's chief executive office, its principal place of business, any office in
which it maintains books or records relating to Collateral owned by it to the
extent that such collateral has an aggregate fair market value in excess of
$1,000,000 or any office or facility at which Collateral owned by it is located
(including the establishment of any such new office or facility), (iii) in any
Loan Party's identity or corporate structure or (iv) in any Loan Party's Federal
Taxpayer Identification Number. Holdings and the Borrower agree not to effect or
permit any change referred to in the preceding sentence unless all filings have
been made under the Uniform Commercial Code or otherwise that are required in
order for the Collateral Agent to continue at all times following such change to
have a valid, legal and perfected security interest in all the Collateral.
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(b) In the case of the Borrower, each year, at the time of delivery of the
annual financial statements with respect to the preceding fiscal year pursuant
to Section 5.04(a), deliver to the Administrative Agent a certificate of a
Financial Officer setting forth the information required pursuant to Section 2
of the Perfection Certificate or confirming that there has been no change in
such information since the date of the Perfection Certificate delivered on the
Closing Date or the date of the most recent certificate delivered pursuant to
this Section 5.06.
SECTION 5.07. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND INSPECTIONS. Keep
proper books of record and account in which full, true and correct entries in
conformity with GAAP and all material requirements of law are made of all
dealings and transactions in relation to its business and activities. Each Loan
Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the properties of Holdings, the Borrower
or any Subsidiary at reasonable times and as often as reasonably requested and
to make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of Holdings, the Borrower or any Subsidiary
with the officers thereof and independent accountants therefor. Without limiting
the foregoing, Holdings and the Borrower agree to discuss their affairs,
finances and condition in conference calls with Lenders within one week after
the date of delivery of the financial statements required by Sections 5.04(a)
and (b) for the fiscal periods ending September 2001, December 2001 and March
2002, and at such times and at such intervals thereafter (but no more frequently
than on a quarterly basis within one week after the date of delivery of
financial statements required by Sections 5.04(a) and (b)) as shall be requested
in writing by the Administrative Agent or the Required Lenders.
SECTION 5.08. USE OF PROCEEDS. Use the proceeds of the Loans and request the
issuance of Letters of Credit only for the purposes set forth in the preamble to
this Agreement (or, in the case of the Incremental Term Loans, as set forth in
the applicable Incremental Term Loan Assumption Agreement).
SECTION 5.09. FURTHER ASSURANCES. Execute any and all further documents,
financing statements, agreements and instruments, and take all further action
(including filing Uniform Commercial Code and other financing statements) that
may be required under applicable law, or that the Required Lenders, the
Administrative Agent or the Collateral Agent may reasonably request, in order to
effectuate the transactions contemplated by the Loan Documents and in order to
grant, preserve, protect and perfect the validity and priority of the security
interests created or intended to be created by the Security Documents. The
Borrower will cause any subsequently acquired or organized Domestic Subsidiary
(other than an Inactive Subsidiary, a Co-investment Subsidiary which is not a
wholly owned Subsidiary, a Special Co-investment Subsidiary or a JV Subsidiary),
or any Domestic Subsidiary that ceases to be an Inactive Subsidiary, a Special
Co-investment Subsidiary or a JV Subsidiary or that becomes a wholly owned
Co-investment Subsidiary (other than a Special Co-investment Subsidiary), to
become party to the Collateral Agreement and each other applicable Security
Document in favor of the Collateral Agent. In addition, from time to time, the
Borrower will, at its cost and expense, promptly secure the Obligations by
pledging or creating, or causing to be pledged or created, perfected security
interests with respect to such of its material assets and properties as the
Administrative Agent or the Required Lenders shall designate (it being
understood that it is the intent of the parties that the Obligations shall be
secured by, among other things, substantially all the assets of the Borrower and
its Domestic Subsidiaries (other than Inactive Subsidiaries, partially owned
Co-investment Subsidiaries, Special Co-investment Subsidiaries, JV Subsidiaries
and any assets consisting of Co-investment Vehicles) (including material real
property, properties of the types which constitute collateral under the Security
Documents on the Closing Date which are acquired subsequent to the Closing Date
and such other property that may be so pledged without imposing undue burden or
cost on the Borrower and its Subsidiaries)). Such security interests and Liens
will be created under the Security Documents and other security agreements and
other
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instruments and documents in form and substance reasonably satisfactory to the
Collateral Agent, and the Borrower shall deliver or cause to be delivered to the
Lenders all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Collateral Agent shall reasonably
request to evidence compliance with this Section. In addition, within 15 days
after the Closing Date, Holdings and the Borrower shall deliver to the
Administrative Agent the documents contemplated by Section 4.02(h) with respect
to the matters set forth on Schedules 4.02(h), respectively, and such related
documentation as the Adminstrative Agent may reasonably request.
ARTICLE VI
Negative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender that, so
long as this Agreement shall remain in effect and until the Commitments have
been terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document have been paid in full
and all Letters of Credit have been cancelled or have expired and all amounts
drawn thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, neither Holdings nor the Borrower will, nor will
they cause or permit any of the Subsidiaries to:
SECTION 6.01. INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 and any extensions, renewals or replacements of such
Indebtedness to the extent the principal amount of such Indebtedness is
not increased, neither the final maturity nor the weighted average life
to maturity of such Indebtedness is decreased, such Indebtedness, if
subordinated to the Obligations, remains so subordinated on terms no
less favorable to the Lenders, and the obligors in respect of such
Indebtedness at the time of such refinancing remain the only obligors
thereon;
(b) Indebtedness created hereunder and under the other Loan
Documents;
(c) intercompany Indebtedness of the Borrower and the
Subsidiaries to the extent permitted by Section 6.04(c);
(d) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of
Indebtedness permitted by this Section 6.01(d), when combined with the
aggregate principal amount of all Capital Lease Obligations incurred
pursuant to Section 6.01(e) shall not exceed $20,000,000 at any time
outstanding;
(e) Capital Lease Obligations in an aggregate principal amount,
when combined with the aggregate principal amount of all Indebtedness
incurred pursuant to Section 6.01(d), not in excess of $20,000,000 at
any time outstanding;
(f) Indebtedness under performance bonds or with respect to
workers' compensation claims, in each case incurred in the ordinary
course of business;
(g) Melody Permitted Indebtedness;
65
(h) Indebtedness incurred by Foreign Subsidiaries for working
capital in an aggregate principal amount not exceeding $25,000,000 at
any time outstanding, up to $10,000,000 of which may be Guaranteed on an
unsecured basis by the Borrower and/or one or more Domestic
Subsidiaries;
(i) Indebtedness of any Subsidiary that exists at the time such
person becomes a Subsidiary and that was not incurred in contemplation
of or in connection with the acquisition by the Borrower or a Subsidiary
of such person, in an aggregate principal amount not to exceed
$10,000,000 at any time outstanding;
(j) Guarantees by the Borrower or any Subsidiary of any
Indebtedness permitted under this Section 6.01; provided, however, that
(i) no Indebtedness of Holdings may be Guaranteed under this paragraph
(j) and (ii) Indebtedness of Foreign Subsidiaries may be Guaranteed by
the Borrower and the Domestic Subsidiaries only to the extent provided
for in paragraph (h) above;
(k) Indebtedness in respect of the Additional L/C Facility in an
aggregate amount outstanding at any time not to exceed $10,000,000; and
(l) other unsecured Indebtedness of the Borrower or the
Subsidiaries in an aggregate principal amount not exceeding $30,000,000
at any time outstanding.
SECTION 6.02. LIENS. Create, incur, assume or permit to exist any Lien on any
property or assets (including Equity Interests or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its
Subsidiaries existing on the date hereof and set forth in Schedule 6.02;
provided that such Liens shall secure only those obligations which they
secure on the date hereof and extensions, renewals and replacements
thereof permitted hereunder;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary; provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition, and (ii) such Lien does not apply to any other property or
assets of the Borrower or any Subsidiary
(d) Liens for taxes, fees, assessments or other governmental
charges not yet due or which are being contested in compliance with
Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due and payable or which
are being contested in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business
in compliance with workmen's compensation, unemployment insurance and
other social security laws or regulations;
(g) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
66
(h) zoning restrictions, easements, rights-of-way, restrictions
on use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial
in amount and do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Subsidiaries;
(i) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case of
improvements, constructed) by the Borrower or any Subsidiary; provided
that (i) such security interests secure Indebtedness permitted by
Section 6.01(d), (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (iii) the Indebtedness secured thereby
does not exceed 100% of the cost of such real property, improvements or
equipment at the time of such acquisition (or construction) and (iv)
such security interests do not apply to any other property or assets of
the Borrower or any Subsidiary;
(j) Liens arising out of judgments or awards in respect of which
Holdings, the Borrower or any of the Subsidiaries shall in good faith be
prosecuting an appeal or proceedings for review in respect of which
there shall be secured a subsisting stay of execution pending such
appeal or proceedings; provided that the aggregate amount of all such
judgments or awards (and any cash and the fair market value of any
property subject to such Liens) does not exceed $7,500,000 at any time
outstanding;
(k) Liens on assets of Foreign Subsidiaries; provided that (i)
such Liens do not extend to, or encumber, assets which constitute
Collateral or the Equity Interests of the Borrower or any of the
Subsidiaries, and (ii) such Liens secure only Indebtedness incurred by
such Foreign Subsidiary pursuant to Section 6.01(h);
(l) Liens on investments made by Melody in connection with the
Melody Loan Arbitrage Facility or the Melody Mortgage Warehousing
Facility to secure Indebtedness under the Melody Loan Arbitrage
Facility, if such investments were acquired by Melody with the proceeds
of such Indebtedness;
(m) Liens on commercial mortgage loans originated and owned by
Melody or any Mortgage Banking Subsidiary pursuant to the Melody
Mortgage Warehousing Facility;
(n) any Lien existing on any property or asset of any person
that exists at the time such person becomes a Subsidiary and that
secured Indebtedness permitted by Section 6.01(i); provided that (i)
such Lien was not created in contemplation of or in connection with such
acquisition and (ii) such Lien does not apply to any property or assets
of the Borrower or any other Subsidiary;
(o) Liens arising solely by virtue of any statutory or common
law provision relating to bankers' liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided, that (i) such deposit
account is not a dedicated cash collateral account and is not subject to
restrictions against access by the Borrower or any Subsidiary in excess
of those set forth by regulations promulgated by the Board and (ii) such
deposit account is not intended by the Borrower or any Subsidiary to
provide collateral to such depository institution; and
(p) other Liens in respect of obligations (other than
Indebtedness) on property with a fair market value not in excess of
$2,000,000.
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SECTION 6.03. SALE AND LEASE-BACK TRANSACTIONS. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred unless (a) the sale of such property is
permitted by Section 6.05 and (b) any Capital Lease Obligations or Liens arising
in connection therewith are permitted by Sections 6.01 and 6.02, respectively.
SECTION 6.04. INVESTMENTS, LOANS AND ADVANCES. Purchase, hold or acquire any
Equity Interests, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person (other than investments in
insurance contracts pursuant to the Deferred Compensation Plan), except:
(a) (i) investments by Holdings, the Borrower and the
Subsidiaries existing on the date hereof in the Equity Interests of the
Borrower and the Subsidiaries and (ii) additional investments by
Holdings, the Borrower and the Subsidiaries in the Equity Interests of
the Borrower and the Subsidiaries; provided that (A) any such Equity
Interests held by a Loan Party shall be pledged pursuant to the
Collateral Agreement (subject to the limitations applicable to voting
stock of a Foreign Subsidiary referred to in Section 4.02(f)) and (B)
the aggregate amount of investments by Loan Parties in, and loans and
advances by Loan Parties to, Subsidiaries that are not Loan Parties
(other than investments in Co-investment Subsidiaries to implement
Co-investments pursuant to clause (i) below) shall not exceed at any
time outstanding the sum of (x) the aggregate amount of the investments,
loans and advances indicated on Schedule 6.04(a) and (y) $10,000,000;
(b) Permitted Investments;
(c) loans or advances made by the Borrower to any Subsidiary and
made by any Subsidiary to the Borrower or any other Subsidiary; provided
that (i) any such loans and advances made by a Loan Party shall be
evidenced by a promissory note pledged to the Collateral Agent for the
ratable benefit of the Secured Parties pursuant to the Collateral
Agreement and (ii) the amount of such loans and advances made by Loan
Parties to Subsidiaries that are not Loan Parties shall be subject to
the limitation set forth in clause (a) above;
(d) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(e) the Borrower and the Subsidiaries may make loans and
advances in the ordinary course of business consistent with past
practice to their respective employees so long as the aggregate
principal amount (determined without regard to any write-downs or
write-offs of such loans and advances, other than write-downs or
write-offs for which the total amount of such write-down or write-off is
included as a charge in Consolidated EBITDA) does not exceed $15,000,000
in the aggregate outstanding at any time;
(f) the Borrower may enter into Hedging Agreements that are not
speculative in nature and are related to income derived from operations
of the Borrower or any Subsidiary or otherwise related to purchases from
suppliers;
(g) the Borrower or any Subsidiary may acquire all or
substantially all the assets of a person or line of business of such
person, or all or substantially all of the Equity Interests of a person
that as a result becomes a wholly owned Subsidiary (referred to herein
as the "Acquired Entity"); provided that (i) such acquisition was not
preceded by
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an unsolicited tender offer for such Equity Interests by, or proxy
contest initiated by, Holdings, the Borrower or any Subsidiary; (ii) the
Acquired Entity shall be a going concern and shall be in a similar line
of business as that of the Borrower and the Subsidiaries as conducted
during the current and most recent calendar year; and (iii) at the time
of such transaction (A) both before and after giving effect thereto, no
Event of Default or Default shall have occurred and be continuing; (B)
the Borrower would be in Pro Forma Compliance, as evidenced by a
certificate of a Financial Officer of the Borrower which shall have been
prepared in good faith and based on reasonably detailed written
assumptions; (C) after giving effect to such acquisition, there must be
at least $40,000,000 of unused and available Revolving Credit
Commitments; and (D) the aggregate consideration paid in connection with
such acquisition and any related acquisitions pursuant to this Section
6.04(g) (including any Indebtedness of the Acquired Entity that is
assumed by the Borrower or any Subsidiary following such acquisition)
shall not exceed (x) $20,000,000 for such acquisition and (y)
$60,000,000 for all such acquisitions pursuant to this Section 6.04(g)
(any acquisition of an Acquired Entity meeting all the criteria of this
Section 6.04(g) being referred to herein as a "Permitted Acquisition");
(h) investments made by Melody in connection with the Melody
Loan Arbitrage Facility or the Melody Mortgage Warehousing Facility;
(i) Co-investments (other than with respect to the Calpers
Co-investment) not to exceed $20,000,000 in any fiscal year of the
Borrower and Co-investments pursuant to the Calpers Co-investment not to
exceed $26,000,000 in the aggregate outstanding at any time; provided,
however, that the aggregate amount of Co-investments in each fiscal year
made in Co-investment Vehicles that are organized in, or the principal
real estate investments of which are located in, countries that are not
members of the Organization for Economic Co-operation and Development,
shall not exceed $5,000,000;
(j) investments to the extent consisting of noncash
consideration received in connection with a sale of assets permitted by
Section 6.05;
(k) investments by Holdings, the Borrower and the Subsidiaries
existing on the Closing Date and listed on Schedule 6.04(k);
(l) extensions of credit in the nature of accounts receivable or
notes receivable arising from the sale or lease of goods and services in
the ordinary course of business; and
(m) in addition to investments permitted by paragraphs (a)
through (l) above, additional investments, loans and advances by the
Borrower and the Subsidiaries so long as the aggregate amount invested,
loaned or advanced pursuant to this paragraph (m) (determined without
regard to any write-downs or write-offs of such investments, loans and
advances) does not exceed $25,000,000 in the aggregate outstanding at
any time.
SECTION 6.05. MERGERS, CONSOLIDATIONS, SALES OF ASSETS AND ACQUISITIONS. (a)
Merge into or consolidate with any other person, or permit any other person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or substantially all
the assets (whether now owned or hereafter acquired) of the Borrower, or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other person,
except that if at the time thereof and immediately after giving effect thereto
no Event of Default or Default shall have occurred and be continuing (i) any
wholly owned Subsidiary may merge into the Borrower in a transaction in which
the Borrower is the surviving corporation, (ii) any wholly owned Subsidiary may
merge into or consolidate with any other wholly owned Subsidiary in a
transaction in which the
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surviving entity is a wholly owned Subsidiary and no person other than the
Borrower or a wholly owned Subsidiary receives any consideration (provided that
if any party to any such transaction is a Loan Party, the surviving entity of
such transaction shall be a Loan Party) and (z) the Borrower and the
Subsidiaries may make Permitted Acquisitions.
(b) Engage in any other Asset Sale except:
(i)(A) any such Asset Sale the consideration for which is at
least 80% cash, (B) such consideration is at least equal to the fair
market value of the assets being sold, transferred, leased or disposed
of, (C) the fair market value of all assets sold, transferred, leased or
disposed of pursuant to this clause (i) (other than sales of Equity
Interests by Foreign Subsidiaries to investors) shall not exceed in any
fiscal year the sum of $5,000,000 plus, with respect to each fiscal year
commencing on or after January 1, 2002, the excess, if any, of
$5,000,000 over the amount of Asset Sales made by the Borrower and the
Subsidiaries during the preceding fiscal year and (D) sales of Equity
Interests by Foreign Subsidiaries to investors shall not exceed
$10,000,000 in any fiscal year; and
(ii) sales by the Borrower or the Subsidiaries of brokerage
offices, or transfers of the assets of brokerage offices and related
assets, to joint ventures in the ordinary course of business.
SECTION 6.06. RESTRICTED PAYMENTS; RESTRICTIVE AGREEMENTS. (a) Declare or make,
or agree to declare or make, directly or indirectly, any Restricted Payment
(including pursuant to any Synthetic Purchase Agreement), or incur any
obligation (contingent or otherwise) to do so; provided, however, that (i) any
Subsidiary may declare and pay dividends or make other distributions ratably to
its equity holders, (ii) so long as (x) no Event of Default shall have occurred
and be continuing and (y) the Borrower shall be in Pro Forma Compliance after
giving effect thereto, the Borrower may make Restricted Payments to Holdings in
the amounts and at the times necessary to enable Holdings to pay interest in
cash on the Holdco Notes, (iii) so long as no Event of Default or Default shall
have occurred and be continuing or would result therefrom, the Borrower may, or
the Borrower may make distributions to Holdings so that Holdings may, repurchase
its Equity Interests owned by employees of Holdings, the Borrower or the
Subsidiaries or make payments to employees of Holdings, the Borrower or the
Subsidiaries upon termination of employment in connection with the exercise of
stock options, stock appreciation rights or similar equity incentives or equity
based incentives pursuant to management incentive plans or in connection with
the death or disability of such employees in an aggregate amount (excluding any
amount of any such repurchase paid for with the cancellation of Indebtedness of
such employee to the Borrower or Holdings, as the case may be) not to exceed
$3,000,000 in any fiscal year, (iv) the Borrower may, or the Borrower may make
distributions to Holdings, so that Holdings may, repurchase or redeem shares of
its Equity Interests pursuant to the Borrower's 401(k) plan as in effect on the
Closing Date and to the extent required by law, (v) so long as no Event of
Default shall have occurred and be continuing or would result therefrom, the
Borrower may, or the Borrower may make distributions to Holdings, so the
Holdings may, repurchase or redeem shares (including any repurchase or
redemption paid for with the cancellation of Indebtedness of the applicable
employee to the Borrower or Holdings, as the case may be) of its Equity
Interests issued or granted by Holdings to employees (including substantially
full-time independent contractors) and held by such employees in an aggregate
amount not to exceed $2,500,000 during any fiscal year of the Borrower, provided
that any such purchases or redemptions paid for with the cancellation of
Indebtedness of employees to the Borrower or Holdings, as the case may be, shall
not be limited in amount, (vi) the Borrower may make Restricted Payments to
Holdings (x) in an amount not to exceed $500,000 in any fiscal year, to the
extent necessary to pay actual out-of-pocket general corporate and overhead
expenses incurred by Holdings in the ordinary course of business and (y) in an
amount necessary to pay Tax liabilities directly attributable to (or arising as
a result of) the Borrower and the Subsidiaries, (vii) Holdings may issue common
stock of Holdings in exchange for stock fund units in the Deferred Compensation
Plan pursuant to the
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Deferred Compensation Plan and (viii) to the extent the Cash Equity Contribution
exceeds $98,800,000 then on or prior to August 31, 2001, Holdings may redeem its
Equity Interests from RCBA and other stockholders party to a securityholders
agreement with RCBA entered into on or prior to the Closing Date in an amount
not greater than the Net Cash Proceeds received by Holdings after the Closing
Date and prior to August 3, 2001 from Equity Issuances pursuant to the Employee
Offering Registration Statement to the extent such Net Cash Proceeds were not
included in calculating the Cash Equity Contribution. Notwithstanding the
foregoing, all Restricted Payments made to Holdings pursuant to clause (ii), (v)
or (vi) above will be used by Holdings for the purposes specified herein within
10 Business Days of the receipt thereof or returned to the Borrower.
(b) Enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (i) the ability of Holdings,
the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon
any of its property or assets, or (ii) the ability of any Subsidiary to pay
dividends or other distributions with respect to any of its Equity Interests or
to make or repay loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that
(A) the foregoing shall not apply to restrictions and conditions imposed by law
or by any Loan Document or Senior Subordinated Note Document, (B) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (C) the foregoing shall not apply to
restrictions and conditions imposed on any Foreign Subsidiary by the terms of
any Indebtedness of such Foreign Subsidiary permitted to be incurred hereunder,
(D) clause (i) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (E) the foregoing shall not apply to
restrictions and conditions existing on the date hereof and identified on
Schedule 6.06(b), (F) the foregoing shall not apply to customary restrictions on
or customary conditions to the payment of dividends or other distributions on,
or the creation of Liens on, Equity Interests owned by the Borrower or any
Subsidiary in any joint venture or similar enterprise that is not a Subsidiary
contained in the constitutive documents of such joint venture or enterprise, and
(G) clause (i) of the foregoing shall not apply to customary provisions in
leases and other contracts restricting the assignment thereof.
SECTION 6.07. TRANSACTIONS WITH AFFILIATES. Except for transactions by or among
Loan Parties, sell or transfer any property or assets to, or purchase or acquire
any property or assets from, or otherwise engage in any other transactions with,
any of its Affiliates, except that (x) the Borrower or any Subsidiary may engage
in any of the foregoing transactions at prices and on terms and conditions not
less favorable to the Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (y) on or prior to October 1,
2001, Holdings and the Borrower may pay fees in connection with the Transactions
in the aggregate amount not to exceed $5,000,000 to the Sponsors or their
Affiliates and (z) Holdings and/or the Borrower, as applicable, may enter into,
and perform their obligations under, the Transaction Documents.
SECTION 6.08. BUSINESS OF HOLDINGS, BORROWER AND SUBSIDIARIES. (a) With respect
to Holdings, engage in any business activities or have any assets or liabilities
other than (i) its ownership of the Equity Interests of the Borrower and
liabilities incidental thereto, including its liabilities pursuant to the
Collateral Agreement, and (ii) its liabilities pursuant to the Holdco Note
Documents and the Senior Subordinated Note Documents.
(b) With respect to the Borrower and its Subsidiaries, engage at any time in any
business or business activity other than the business currently conducted by the
Borrower or any of the Subsidiaries and business activities reasonably
incidental thereto.
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SECTION 6.09. OTHER INDEBTEDNESS AND AGREEMENTS. (a) (i) Permit any waiver,
supplement, modification, amendment, termination or release of any indenture,
instrument or agreement pursuant to which any Material Indebtedness of Holdings,
the Borrower or any of the Subsidiaries is outstanding if the effect of such
waiver, supplement, modification, amendment, termination or release would
materially increase the obligations of the obligor or confer additional material
rights on the holder of such Indebtedness in a manner adverse to Holdings, the
Borrower, any of the Subsidiaries or the Lenders or (ii) modify its charter or
by-laws to the extent that any such modification would be adverse to the Lenders
in any material respect.
(b)(i) Make any distribution, whether in cash, property, securities or a
combination thereof, other than regular scheduled payments of principal and
interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to pay, or
directly or indirectly (including pursuant to any Synthetic Purchase Agreement)
redeem, repurchase, retire or otherwise acquire for consideration, or set apart
any sum for the aforesaid purposes, the Holdco Notes or any subordinated
Indebtedness, or (ii) pay in cash any amount in respect of any Indebtedness
(other than the Holdco Notes, to the extent permitted by Section 6.06(a)) or
preferred Equity Interests that may at the obligor's option be paid in kind or
in other securities.
SECTION 6.10. CAPITAL EXPENDITURES. Permit the aggregate amount of Capital
Expenditures made by the Borrower and the Subsidiaries in any year to exceed
$30,000,000. The amount of permitted Capital Expenditures set forth above in
respect of any fiscal year commencing with the fiscal year ending on December
31, 2002, shall be increased (but not decreased) by (a) the amount of unused
permitted Capital Expenditures for the immediately preceding fiscal year less
(b) an amount equal to unused Capital Expenditures carried forward to such
preceding fiscal year.
SECTION 6.11. INTEREST COVERAGE RATIO. Permit the Interest Coverage Ratio for
any period of four consecutive fiscal quarters, in each case taken as one
accounting period, ending on the last day of any fiscal quarter during any
period set forth below to be less than the ratio set forth opposite such period
below:
Date or Period Ratio
-------------- -----
September 30, 2001 through December 31, 2002 2.50:1.0
March 31, 2003 and thereafter 2.75:1.0
SECTION 6.12. FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge Coverage
Ratio for any period of four consecutive fiscal quarters, in each case taken as
one accounting period, ending on the last day of any fiscal quarter during any
period set forth below to be the less than the ratio set forth opposite such
date or period below:
Date or Period Ratio
-------------- -----
September 30, 2001 through March 31, 2002 1.50:1.0
June 30, 2002 through December 31, 2002 1.75:1.0
March 31, 2003 through June 30, 2003 2.00:1.0
September 30, 2003 through December 31, 2003 2.25:1.0
March 31, 2004 and thereafter 2.50:1.0
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SECTION 6.13. MAXIMUM LEVERAGE RATIO. Permit the Leverage Ratio on the last day
of any fiscal quarter during any period set forth below to be greater than the
ratio set forth opposite such date or period below:
Period Ratio
------ -----
September 30, 2001 through December 31, 2001 3.50:1.0
March 31, 2002 through June 30, 2002 4.00:1.0
September 30, 2002 3.75:1.0
December 31, 2002 3.00:1.0
March 31, 2003 through June 30, 2003 3.50:1.0
September 30, 2003 3.00:1.0
December 31, 2003 2.50:1.0
March 31, 2004 through June 30, 2004 3.00:1.0
September 30, 2004 and thereafter 2.25:1.0
SECTION 6.14. MAXIMUM SENIOR LEVERAGE RATIO. Permit the Senior Leverage Ratio on
the last day of any fiscal quarter during any period set forth below to be
greater than the ratio set forth opposite such date or period below:
Period Ratio
------ -----
September 30, 2001 2.50:1.0
December 31, 2001 2.00:1.0
March 31, 2002 through June 30, 2002 2.50:1.0
September 30, 2002 2.00:1.0
December 31, 2002 1.50:1.0
March 31, 2003 through June 30, 2003 2.00:1.0
September 30, 2003 1.50:1.0
December 31, 2003 and thereafter 1.25:1.0
SECTION 6.15. FISCAL YEAR. With respect to Holdings and the Borrower, change
their fiscal year-end to a date other than December 31.
SECTION 6.16. MANAGEMENT FEES. With respect to Holdings and the Borrower, pay or
agree to pay to any Sponsor any management fees, transaction fees or similar
charges, other than fees in connection with the Transactions in the aggregate
amount not to exceed $5,000,000 payable to the Sponsors or their Affiliates on
or prior to October 1, 2001.
SECTION 6.17. INDEBTEDNESS OF CO-INVESTMENT SUBSIDIARIES. (a) Incur, create,
assume or permit to exist any Indebtedness of any Co-investment Subsidiary; or
(b) permit any JV Subsidiary to incur, create, assume or permit to exist any
Indebtedness of such JV Subsidiary in an aggregate amount outstanding at any
time not to exceed $2,000,000; provided that the debt permitted pursuant to this
clause (b) shall not be in addition to any Indebtedness permitted to be
incurred, created, assumed or permitted to exist pursuant to Section 6.01.
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ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of
Letters of Credit hereunder, or any representation, warranty, statement
or information contained in any report, certificate, financial statement
or other instrument furnished in connection with or pursuant to any Loan
Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any
Loan or the reimbursement with respect to any L/C Disbursement when and
as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on any
Loan or L/C Disbursement or any Fee or any other amount (other than an
amount referred to in (b) above) due under any Loan Document, when and
as the same shall become due and payable, and such default shall
continue unremedied for a period of three Business Days;
(d) default shall be made in the due observance or performance
by Holdings, the Borrower or any Subsidiary of any covenant, condition
or agreement contained in Section 2.13(i), 5.01(a), 5.05(a) or 5.08 or
in Article VI;
(e) default shall be made in the due observance or performance
by Holdings, the Borrower or any Subsidiary of any covenant, condition
or agreement contained in any Loan Document (other than those specified
in (b), (c) or (d) above) and such default shall continue unremedied for
a period of 30 days after notice thereof from the Administrative Agent
or any Lender to the Borrower;
(f) (i) Holdings, the Borrower or any Subsidiary shall fail to
pay any principal or interest, regardless of amount, due in respect of
any Material Indebtedness, when and as the same shall become due and
payable, or (ii) any other event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or
that enables or permits (with or without the giving of notice, the lapse
of time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (ii) shall not apply to (x) secured
Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness and (y)
Indebtedness existing on the Closing Date which by its terms provides
for an option by the payee thereof to require repayment prior to the
scheduled maturity thereof;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of Holdings, the Borrower or any
Subsidiary, or of a substantial part of the property or assets of
Holdings, the Borrower or a Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for Holdings, the Borrower
or any Subsidiary or for a substantial part of the property or assets of
Holdings, the Borrower or
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a Subsidiary or (iii) the winding-up or liquidation of Holdings, the
Borrower or any Subsidiary; and such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(h) Holdings, the Borrower or any Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) above, (iii)
apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings,
the Borrower or any Subsidiary or for a substantial part of the property
or assets of Holdings, the Borrower or any Subsidiary, (iv) file an
answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action
for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $7,500,000 shall be rendered against
Holdings, the Borrower, any Subsidiary or any combination thereof and
the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action
shall be legally taken by a judgment creditor to levy upon assets or
properties of Holdings, the Borrower or any Subsidiary to enforce any
such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other such ERISA
Events, could reasonably be expected to result in a Material Adverse
Effect;
(k) any Guarantee under the Collateral Agreement for any reason
shall cease to be in full force and effect (other than in accordance
with its terms), or any Guarantor shall deny in writing that it has any
further liability under the Collateral Agreement (other than as a result
of the discharge of such Guarantor in accordance with the terms of the
Loan Documents);
(l) any security interest purported to be created by any
Security Document shall cease to be, or shall be asserted by the
Borrower or any other Loan Party not to be, a valid, perfected, first
priority (except as otherwise expressly provided in this Agreement or
such Security Document) security interest in the securities, assets or
properties covered thereby, except to the extent that any such loss of
perfection or priority results from (i) the sale or other disposition of
the applicable Collateral in a transaction permitted by any Loan
Document, (ii) any action taken by the Collateral Agent to release any
such Lien in compliance with the provisions of this Agreement or any
other Loan Document, (iii) the Collateral Agent's failure to properly
file (A) Uniform Commercial Code financing statements or comparable
filings delivered to it for filing under the Security Documents or (B)
Uniform Commercial Code continuation statements or comparable filings
necessary to maintain perfection or (iv) the failure of the Collateral
Agent to maintain possession of certificates representing securities
pledged and delivered to it under the Collateral Agreement;
(m) any of the Obligations shall cease to constitute "Senior
Indebtedness" under and as defined in the Senior Subordinated Note
Indenture; or
(n) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to Holdings or
the Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of
75
such event, the Administrative Agent may, and at the request of the Required
Lenders shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (i) terminate forthwith the Commitments
and (ii) declare the Loans then outstanding to be forthwith due and payable in
whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and
all other liabilities of the Borrower accrued hereunder and under any other Loan
Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein or in any other Loan Document
to the contrary notwithstanding; and in any event with respect to Holdings or
the Borrower described in paragraph (g) or (h) above, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall automatically become due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent and the Collateral Agent (for purposes of this Article
VIII, the Administrative Agent and the Collateral Agent are referred to
collectively as the "Agents") its agent and authorizes the Agents to take such
actions on its behalf and to exercise such powers as are delegated to such Agent
by the terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto. Without limiting the generality of the foregoing,
the Agents are hereby expressly authorized to execute any and all documents
(including releases) with respect to the Collateral and the rights of the
Secured Parties with respect thereto, as contemplated by and in accordance with
the provisions of this Agreement and the Security Documents.
The bank serving as the Administrative Agent and/or the Collateral Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not an Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.
Neither Agent shall have any duties or obligations except those expressly set
forth in the Loan Documents. Without limiting the generality of the foregoing,
(a) neither Agent shall be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) neither
Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that such Agent is required to exercise in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.08), and (c) except
as expressly set forth in the Loan Documents, neither Agent shall have any duty
to disclose, nor shall it be liable for the failure to disclose, any information
relating to Holdings, the Borrower or any of the Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent and/or
Collateral Agent or any of its Affiliates in any capacity. Neither Agent shall
be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.08) or in the absence of its own gross negligence or wilful misconduct.
Neither Agent shall be deemed to have knowledge of any Default unless and until
written notice thereof is given to such Agent by Holdings, the Borrower or a
Lender, and neither Agent shall be responsible for or have any duty to ascertain
or
76
inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed
or sent by the proper person. Each Agent may also rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper
person, and shall not incur any liability for relying thereon. Each Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by it. Each Agent and any
such sub-agent may perform any and all its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as provided
below, either Agent may resign at any time by notifying the Lenders, the Issuing
Bank and the Borrower. Upon any such resignation, the Required Lenders shall
have the right, in consultation with the Borrower and, unless an Event of
Default shall have occurred and be continuing, with the consent of the Borrower
(which shall not be unreasonably withheld), to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice
of its resignation, then the retiring Agent may, on behalf of the Lenders and
the Issuing Bank, appoint a successor Agent which shall be a bank with an office
in New York, New York, or an Affiliate of any such bank. Upon the acceptance of
its appointment as Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After an Agent's resignation hereunder,
the provisions of this Article and Section 9.05 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while acting as Agent.
Each Lender acknowledges that it has, independently and without reliance upon
the Agents or any other Lender and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agents or any other Lender and based on such documents
and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement or any other Loan Document, any related agreement or any document
furnished hereunder or thereunder.
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ARTICLE IX
Miscellaneous
SECTION 9.01. NOTICES. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by fax, as follows:
(a) if to the Borrower or Holdings, to it at CB Xxxxxxx Xxxxx
Services, Inc., 000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xx Xxxxxxx, XX
00000-0000, Attention of Chief Financial Officer (Fax No. (310)
563-8642) and at CB Xxxxxxx Xxxxx Services, Inc., 000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxxxxxxx, XX 00000, Attention of General Counsel (Fax
No. (000) 000-0000);
(b) if to the Administrative Agent, to Credit Suisse First
Boston, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of
Syndicated Finance/Agency Department Manager (Fax No. (000) 000-0000,
with a copy to Credit Suisse First Boston, at Eleven Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention of Xxxx X. Xxxxxxx (Fax No. (000) 000-0000);
and
(c) if to a Lender, to it at its address (or fax number or
e-mail address) set forth on Schedule 2.01 or in the Assignment and
Acceptance pursuant to which such Lender shall have become a party
hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by fax
or on the date five Business Days after dispatch by certified or registered mail
if mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 9.01.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants, agreements, representations
and warranties made by the Borrower or Holdings herein and in the certificates
or other instruments prepared or delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the Lenders and the Issuing Bank and shall survive the making by
the Lenders of the Loans and the issuance of Letters of Credit by the Issuing
Bank, regardless of any investigation made by the Lenders or the Issuing Bank or
on their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the expiration of any Letter of Credit, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or the Issuing Bank.
SECTION 9.03. BINDING EFFECT. This Agreement shall become effective when it
shall have been executed by the Borrower, Holdings and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto.
SECTION 9.04. SUCCESSORS AND ASSIGNs. (a) Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
permitted successors and
78
assigns of such party; and all covenants, promises and agreements by or on
behalf of the Borrower, Holdings, the Administrative Agent, the Collateral
Agent, the Issuing Bank or the Lenders that are contained in this Agreement
shall bind and inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate or Related Fund of a Lender which does not result in any increased
costs or other additional amounts being paid by the Borrower, (x) the Borrower
and the Administrative Agent (and, in the case of any assignment of a Revolving
Credit Commitment, the Issuing Bank and the Swingline Lender) must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld); provided, however, that the consent of the Borrower
shall not be required to any such assignment during the continuance of any Event
of Default, and (y) the amount of the Commitment of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $1,000,000 (or, if less, the entire remaining amount of such
Lender's Commitment), (ii) subject to paragraph (l) below, the parties to each
such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (iii) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16,
2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Holdings, the Borrower or any
Subsidiary or the performance or observance by Holdings, the Borrower or any
Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05(a) or delivered pursuant to
Section 5.04 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; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, such assigning
Lender or any other Lender 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; (vi) such
79
assignee appoints and authorizes the Administrative Agent and the Collateral
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent and the
Collateral Agent, respectively, by the terms hereof, together with such powers
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it (and shall promptly provide the
Borrower with a copy thereof) and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive and the Borrower,
the Administrative Agent, the Issuing Bank, the Collateral Agent and the Lenders
may treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank, the Collateral Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed by
an assigning Lender and an assignee, an Administrative Questionnaire (including
any tax documentation required therein) completed in respect of the assignee
(unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) above, if any, and, if required,
the written consent of the Borrower, the Swingline Lender, the Issuing Bank and
the Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Borrower,
the Issuing Bank and the Swingline Lender. No assignment shall be effective
unless it has been recorded in the Register as provided in this paragraph (e),
and it shall be the sole responsibility of each assignee to confirm such
recordation.
(f) Each Lender may without the consent of the Borrower, the Swingline Lender,
the Issuing Bank or the Administrative Agent sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be entitled to the benefit
of the cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to
the same extent as if they were Lenders (but, with respect to any particular
participant, to no greater extent than the Lender that sold the participation to
such participant and solely to the extent that such participant agrees to comply
with the requirements of Section 2.20(f) as though it were a Lender) and (iv)
the Borrower, the Administrative Agent, the Issuing Bank and the Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of the Borrower relating to the
Loans or L/C Disbursements and to approve any amendment, modification or waiver
of any provision of this Agreement (other than amendments, modifications or
waivers decreasing any fees payable hereunder or the amount of principal of or
the rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans,
increasing or extending the Commitments or releasing any Guarantor or all or any
substantial part of the Collateral).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
80
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time assign all or any portion of its rights under
this Agreement to secure extensions of credit to such Lender or in support of
obligations owed by such Lender; provided that no such assignment shall release
a Lender from any of its obligations hereunder or substitute any such assignee
for such Lender as a party hereto.
(i) Notwithstanding anything to the contrary contained herein, any Lender (a
"Granting Lender") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In 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 indebtedness 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 proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any SPC
may (i) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by the Borrower and Administrative
Agent) providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC, subject to an agreement to preserve
the confidentiality of such non-public information.
(j) Neither Holdings nor the Borrower shall assign or delegate any of its rights
or duties hereunder without the prior written consent of the Administrative
Agent, the Issuing Bank and each Lender, and any attempted assignment without
such consent shall be null and void.
(k) In the event that Standard & Poor's Ratings Service, Xxxxx'x Investors
Service, Inc., and Xxxxxxxx'x Bank Watch (or Insurance Watch Ratings Service, in
the case of Lenders that are insurance companies (or Best's Insurance Reports,
if such insurance company is not rated by Insurance Watch Ratings Service))
shall, after the date that any Lender becomes a Revolving Credit Lender,
downgrade the long-term certificate of deposit ratings of such Lender, and the
resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a
Lender that is an insurance company (or B, in the case of an insurance company
not rated by Insurance Watch Ratings Service)), then the Issuing Bank shall have
the right, but not the obligation, at its own expense, upon notice to such
Lender and the Administrative Agent, to replace (or to request the Borrower to
use its reasonable efforts to replace) such Lender with an assignee (in
accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions
81
contained in paragraph (b) above) all its interests, rights and obligations in
respect of its Revolving Credit Commitment to such assignee; provided, however,
that (i) no such assignment shall conflict with any law, rule and regulation or
order of any Governmental Authority and (ii) the Issuing Bank or such assignee,
as the case may be, shall pay to such Lender in immediately available funds on
the date of such assignment the principal of and interest accrued to the date of
payment on the Loans made by such Lender hereunder and all other amounts accrued
for such Lender's account or owed to it hereunder.
(l) Notwithstanding the foregoing, the processing and recordation fee payable to
the Administrative Agent pursuant to paragraph (b) above shall be waived in
connection with any assignment made to either (i) a person that is not a bank,
an investment bank or an Affiliate of a bank or an investment bank or (ii) a
bank, an investment bank or an Affiliate of a bank or an investment bank (a
"Financial Institution") which has, to the satisfaction of the Administrative
Agent, announced and adopted a general policy that (x) is in effect on the date
of the proposed assignment, (y) is binding on such Financial Institution, and
(z) provides that such Financial Institution has agreed to waive its rights to
receive all similar processing, recordation or assignment fees which would be
payable as a result of an assignment by any person of any commitments, loans or
other extensions of credit under a syndicated leveraged credit facility.
SECTION 9.05. EXPENSES; INDEMNITY. (a) The Borrower and Holdings agree, jointly
and severally, to pay all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Swingline
Lender in connection with the syndication of the credit facilities provided for
herein and the preparation and administration of this Agreement and the other
Loan Documents or in connection with any amendments, modifications or waivers of
the provisions hereof or thereof (whether or not the transactions hereby or
thereby contemplated shall be consummated) or incurred by the Administrative
Agent, the Collateral Agent or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Loan
Documents or in connection with the Loans made or Letters of Credit issued
hereunder, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent and the Collateral Agent,
and, in connection with any such enforcement or protection, the reasonable fees,
charges and disbursements of any other counsel for the Administrative Agent, the
Collateral Agent or any Lender.
(b) The Borrower and Holdings agree, jointly and severally, to indemnify the
Administrative Agent, the Collateral Agent, each Lender, the Issuing Bank and
each Related Party of any of the foregoing persons (each such person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses (other than
Excluded Taxes), including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or issuance of
Letters of Credit, (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence or Release of Hazardous
Materials on any property owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or the Subsidiaries; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that Holdings and the Borrower fail to pay any amount required
to be paid by them to the Administrative Agent, the Collateral Agent, the
Issuing Bank or the Swingline Lender
82
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent, the Collateral Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender's pro rata share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent, the Collateral
Agent, the Issuing Bank or the Swingline Lender in its capacity as such. For
purposes hereof, a Lender's "pro rata share" shall be determined based upon its
share of the sum of the Aggregate Revolving Credit Exposure, outstanding Term
Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Holdings nor the Borrower
shall assert, and each hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) The provisions of this Section 9.05 shall remain operative and in full force
and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the expiration of any Letter of
Credit, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent, the Collateral Agent, any Lender or the Issuing
Bank. All amounts due under this Section 9.05 shall be payable on written demand
therefor.
SECTION 9.06. RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time,
except to the extent prohibited by law, to set off and 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 such Lender to or for the
credit or the account of the Borrower or Holdings against any of and all the
obligations of the Borrower or Holdings now or hereafter existing under this
Agreement and other Loan Documents (to the extent such obligations of Holdings
or the Borrower are then due and payable (by acceleration or otherwise)) held by
such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement or such other Loan Document and although such
obligations may be unmatured. The rights of each Lender under this Section 9.06
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.07. APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER
THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL
BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO
SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH
LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE
"UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. WAIVERS; AMENDMENT. (a) No failure or delay of the Administrative
Agent, the Collateral Agent, any Lender or the Issuing Bank in exercising any
power or right hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce
83
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower or Holdings in
any case shall entitle the Borrower or Holdings to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into
by the Borrower, Holdings and the Required Lenders; provided, however, that no
such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement,
or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (ii) increase or extend the Commitment or decrease
or extend the date for payment of any Fees of any Lender without the prior
written consent of such Lender, (iii) amend or modify the pro rata requirements
of Section 2.17, the provisions of Section 9.04(j) or the provisions of this
Section, or release any Guarantor or all or substantially all of the Collateral,
without the prior written consent of each Lender, (iv) change the provisions of
any Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of one Class differently from
the rights of Lenders holding Loans of any other Class without the prior written
consent of Lenders holding a majority in interest of the outstanding Loans and
unused Commitments of each adversely affected Class, (v) change the rights of
Lenders holding Tranche B Term Loans to reject prepayments under Section 2.13(h)
without the prior written consent of the Lenders holding a majority of the
aggregate outstanding principal amount of the Tranche B Term Loans, (vi) modify
the protections afforded to an SPC pursuant to the provisions of Section 9.04(i)
without the written consent of such SPC or (vii) reduce the percentage contained
in the definition of the term "Required Lenders" without the consent of each
Lender affected thereby (it being understood that with the consent of the
Required Lenders, additional extensions of credit pursuant to this Agreement may
be included in the determination of the Required Lenders on substantially the
same basis as the Term Loan Commitments and Revolving Credit Commitments are
included on the date hereof); provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender hereunder
or under any other Loan Document without the prior written consent of the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline
Lender, as the case may be.
SECTION 9.09. INTEREST RATE LIMITATION. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
84
SECTION 9.10. ENTIRE AGREEMENT. This Agreement, the Fee Letter dated February
23, 2001, as amended, between Merger Sub and the Administrative Agent, and the
other Loan Documents constitute the entire contract between the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement and
the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any person (other
than the parties hereto and thereto, their respective successors and assigns
permitted hereunder (including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Collateral Agent, the Issuing
Bank and the Lenders) any rights, remedies, obligations or liabilities under or
by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13. COUNTERPARTS. This Agreement may be executed in counterparts (and
by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 9.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. HEADINGS. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each of Holdings
and the Borrower 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 the other Loan Documents, 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 such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding
85
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 the Administrative Agent, the Collateral Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against the Borrower,
Holdings or their respective properties in the courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which 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 the other
Loan Documents 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.
(c) Each party to this Agreement irrevocably consents to service of process in
the manner provided for notices in Section 9.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
SECTION 9.16. CONFIDENTIALITY. Each of the Administrative Agent, the Collateral
Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' officers, directors, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested or required by any regulatory
authority or quasi-regulatory authority (such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) in connection with
the exercise of any remedies hereunder or under the other Loan Documents or any
suit, action or proceeding relating to the enforcement of its rights hereunder
or thereunder, (e) subject to an agreement containing provisions substantially
the same as those of this Section 9.16, to (i) any actual or prospective
assignee of or participant in any of its rights or obligations under this
Agreement and the other Loan Documents or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower or any Subsidiary or any of their respective obligations, (f) with
the consent of the Borrower, (g) to any nationally recognized rating agency that
requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender or (h) to the extent
such Information becomes publicly available other than as a result of a breach
of this Section 9.16. For the purposes of this Section, "Information" shall mean
all information received from the Borrower or Holdings and related to the
Borrower or Holdings or their business, other than any such information that was
available to the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender on a nonconfidential basis prior to its disclosure by the Borrower or
Holdings. Any person required to maintain the confidentiality of Information as
provided in this Section 9.16 shall be considered to have complied with its
obligation to do so if such person has exercised the same degree of care to
maintain the confidentiality of such Information as such person would accord its
own confidential information.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
CB XXXXXXX XXXXX SERVICES, INC.,
by:
-------------------------
Name:
Title:
86
CBRE HOLDING, INC.,
by:
-------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
Collateral Agent, Swingline Lender and
Issuing Bank,
by:
-------------------------
Name:
Title:
by:
-------------------------
Name:
Title:
(OTHER BANKS),
by:
-------------------------
Name:
Title:
87
Exhibit 4.02(d)
[separate document received]
88
Exhibit 5.04(d)(1)
Page 1
For purposes of calculating Consolidated EBITDA for any period that includes the
fiscal quarters ended March 31, 2001, or June 30, 2001, pro forma effect shall
be given to the 2001 Cost Reduction Plan prior to the delivery of the
certificate of the Borrower required to be delivered under Section 5.04(c) for
the fiscal year ended December 31, 2001, by adding to Consolidated EBITDA (a)
$12,200,000 for the fiscal quarter ended March 31, 2001 and (b) $8,100,000 for
the fiscal quarter ended June 30, 2001.
For purposes of calculating Consolidated EBITDA for any period that includes the
fiscal quarters ended March 31, 2001, or June 30, 2001, pro forma effect shall
be given to the 2001 Cost Reduction Plan upon delivery of the certificate
required to be delivered by the Borrower under Section 5.04(c) for the fiscal
year ended December 31, 2001 and thereafter, by adding (or subtracting, if the
amount is negative) to Consolidated EBITDA (a) 60% of the 2001 Cost Reduction
Amount for the fiscal quarter ended March 31, 2001 and (b) 40% of the 2001 Cost
Reduction Amount for the fiscal quarter ended June 30, 2001. For purposes of
this paragraph "2001 Operating Expense Reduction" shall mean $286,667,000 minus
the Operating Expenses (as defined below) for the seven month fiscal period
ending December 31, 2001 (the "Seven Month Ending 2001 Operating Expenses")
divided by $287,667,000; and the "2001 Cost Reduction Amount" shall mean the
2001 Operating Expense Reduction multiplied by the Operating Expenses for the
fiscal five month period ending May 31, 2001. For purposes of this paragraph
"Operating Expenses" shall be limited to include expenses reported on the
borrower's historical internal income statements as operating expenses, prepared
in accordance with GAAP, exclusive of any bonus, key executive incentives,
profit sharing, or project award costs, which shall include, or fall within the
following income statement accounts or categories of expenses incurred:
Compensation category of expenses, Draw costs net of recovery, Business
Promotion & Advertising expense category; Travel & Entertainment, Management and
Administrative expense category; Travel & Entertainment, Producer expense
category; Occupancy expenses category; Office Operating expense category; Other
Operating expense category; Shared expense category; and other expenses reported
on the general ledger under the category of operating expenses.
For purposes of this Schedule 4.02(d), historical Operating Expenses for the
fiscal five month period ended May 31, 2001 shall be $205,900,000.
89
Exhibit 5.04(d)(2)
AA Report
We have audited, in accordance with auditing standards generally
accepted in the United States, the consolidated balance sheet of CB
Xxxxxxx Xxxxx Services, Inc. (the "Company") as of December 31, 2001,
and the related consolidated statements of operations, retained earnings
and cash flows for the year then ended, and have issued our report
thereon dated [*], 2002. We have also read, but did not separately
audit, the Company's "Calculation of Covenants Under * [To be replaced
with actual title of the calculations attached]" presented in the
accompanying Exhibit(s).
In connection with our audit, nothing came to our attention that caused
us to believe that (a) the Company was not in compliance with any of the
terms, covenants, provisions or conditions of Sections 6.11, 6.12, 6.13
and 6.14 of the Credit Agreement dated July 20, 2001, among the Company,
CBRE Holding, Inc., Credit Suisse First Boston, and the other Lenders
party thereto, based on the calculation of Consolidated EBITDA as
provided for in such Credit Agreement, insofar as they relate to
accounting matters, although our audit was not directed primarily toward
obtaining knowledge of such noncompliance, and (b) the information set
forth and as defined in the accompanying Exhibit is not fairly stated,
in all material respects, in relation to the financial statements from
which it has been derived, .
This report is intended solely for the information and use of the boards
of directors and managements of the Company and the Lenders (as defined
in Article I of the Credit Agreement) and is not intended to be and
should not be used by anyone other than these specified parties.
Exhibit 5.04(d)(3)
[document to come]
