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EXHIBIT 10.1
CREDIT AGREEMENT
Dated as of November 20, 1997
among
FLORISTS' TRANSWORLD DELIVERY, INC.,
FTD CORPORATION,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms...............................................................1
1.2 References.........................................................................23
1.3 Supplemental Disclosure............................................................23
ARTICLE II: THE TERM LOAN AND REVOLVING LOAN FACILITIES
2.1. Term Loans.........................................................................23
2.2 Revolving Loans....................................................................25
2.3 Swing Line Loans...................................................................25
2.4 Rate Options for all Advances......................................................27
2.5 Optional Payments; Mandatory Prepayments...........................................27
2.6 Reduction of Commitments...........................................................29
2.7 Method of Borrowing................................................................30
2.8 Method of Selecting Types and Interest Periods for Advances........................30
2.9 Minimum Amount of Each Advance.....................................................30
2.10 Method of Selecting Types and Interest Periods for Conversion and Continuation
of Advances......................................................................31
2.11 Default Rate.......................................................................31
2.12 Method of Payment..................................................................31
2.13 Notes..............................................................................32
2.14 Telephonic Notices.................................................................32
2.15 Promise to Pay; Interest and Commitment Fees; Interest Payment Dates; Interest
and Fee Basis; Taxes; Loan and Control Accounts..................................32
2.16 Notification of Advances, Interest Rates, Prepayments and Aggregate Revolv
Loan Commitment Reductions.......................................................38
2.17 Lending Installations..............................................................38
2.18 Non-Receipt of Funds by the Agent..................................................38
2.19 Termination Date...................................................................39
2.20 Replacement of Certain Lenders.....................................................39
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 Obligation to Issue................................................................40
3.2 Transitional Provision.............................................................40
3.3 Types and Amounts..................................................................40
3.4 Conditions.........................................................................41
3.5 Procedure for Issuance of Letters of Credit........................................41
3.6 Letter of Credit Participation.....................................................42
3.7 Reimbursement Obligation...........................................................42
3.8 Letter of Credit Fees..............................................................43
3.9 Issuing Bank Reporting Requirements................................................43
3.10 Indemnification; Exoneration.......................................................43
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SECTION PAGE
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3.11 Cash Collateral.....................................................................44
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 Yield Protection....................................................................45
4.2 Changes in Capital Adequacy Regulations.............................................46
4.3 Availability of Types of Advances...................................................47
4.4 Funding Indemnification.............................................................47
4.5 Lender Statements; Survival of Indemnity............................................47
ARTICLE V: CONDITIONS PRECEDENT
5.1 Initial Advances and Letters of Credit..............................................48
5.2 Each Advance and Letter of Credit...................................................49
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
6.1 Organization; Corporate Powers......................................................49
6.2 Authority...........................................................................50
6.3 No Conflict; Governmental Consents..................................................50
6.4 Financial Statements................................................................51
6.5 No Material Adverse Change..........................................................51
6.6 Taxes...............................................................................51
6.7 Litigation; Loss Contingencies and Violations.......................................52
6.8 Subsidiaries........................................................................52
6.9 ERISA53
6.10 Accuracy of Information.............................................................54
6.11 Securities Activities...............................................................54
6.12 Material Agreements.................................................................54
6.13 Compliance with Laws................................................................54
6.14 Assets and Properties...............................................................54
6.15 Statutory Indebtedness Restrictions.................................................55
6.16 Insurance...........................................................................55
6.17 Labor Matters.......................................................................55
6.18 Environmental Matters...............................................................55
6.19 Solvency............................................................................56
ARTICLE VII: COVENANTS
7.1 Reporting...........................................................................56
7.2 Affirmative Covenants...............................................................61
7.3 Negative Covenants..................................................................63
7.4 Financial Covenants.................................................................72
ARTICLE VIII: DEFAULTS
8.1 Defaults..........................................................................73
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SECTION PAGE
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ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1 Termination of Commitments; Acceleration............................................76
9.2 Defaulting Lender...................................................................77
9.3 Amendments..........................................................................78
9.4 Preservation of Rights..............................................................79
ARTICLE X: GENERAL PROVISIONS
10.1 Survival of Representations........................................................79
10.2 Governmental Regulation............................................................79
10.3 Performance of Obligations.........................................................79
10.4 Headings...........................................................................80
10.5 Entire Agreement...................................................................80
10.6 Several Obligations; Benefits of this Agreement....................................80
10.7 Expenses; Indemnification..........................................................80
10.8 Numbers of Documents...............................................................82
10.9 Accounting.........................................................................82
10.10 Severability of Provisions.........................................................83
10.11 Nonliability of Lenders............................................................83
10.12 GOVERNING LAW......................................................................83
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL............................83
ARTICLE XI: THE AGENT
11.1 Appointment; Nature of Relationship................................................85
11.2 Powers.............................................................................85
11.3 General Immunity...................................................................85
11.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc.......................85
11.5 Action on Instructions of Lenders..................................................86
11.6 Employment of Agents and Counsel...................................................86
11.7 Reliance on Documents; Counsel.....................................................86
11.8 The Agent's Reimbursement and Indemnification......................................86
11.9 Rights as a Lender.................................................................86
11.10 Lender Credit Decision.............................................................87
11.11 Successor Agent....................................................................87
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 Setoff..............................................................................88
12.2 Ratable Payments....................................................................88
12.3 Application of Payments.............................................................88
12.4 Relations Among Lenders.............................................................89
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SECTION PAGE
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ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns.............................................................90
13.2 Participations.....................................................................90
13.3 Assignments........................................................................91
13.4 Confidentiality....................................................................92
13.5 Dissemination of Information.......................................................93
ARTICLE XIV: NOTICES
14.1 Giving Notice......................................................................93
14.2 Change of Address..................................................................93
ARTICLE XV: COUNTERPARTS
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EXHIBITS
EXHIBIT A -- Commitments
(Definitions)
EXHIBIT B-1 -- Form of Revolving Note
(Definitions)
EXHIBIT B-2 -- Form of Swing Line Note
(Definitions)
EXHIBIT B-3 -- Form of Term Note
(Definitions)
EXHIBIT C -- Form of Borrowing/Conversion/Continuation
Notice (Section 2.8 and Section 2.10)
EXHIBIT D -- Form of Request for Letter of Credit (Section
3.4)
EXHIBIT E -- Form of Assignment and Acceptance Agreement
(Sections 2.20 and 13.3)
EXHIBIT F -- Form of Borrower's Counsel's Opinion
(Section 5.1)
EXHIBIT G -- List of Closing Documents
(Section 5.1)
EXHIBIT H -- Form of Officer's Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT I -- Form of Compliance Certificate
(Sections 5.2 and 7.1(A)(iii))
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SCHEDULES
Schedule 1.1.1 -- Permitted Existing Contingent Obligations
(Definitions)
Schedule 1.1.2 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.3 -- Permitted Existing Investments (Definitions)
Schedule 1.1.4 -- Permitted Existing Liens (Definitions)
Schedule 3.2 -- Transitional Letters of Credit (Section 3.2)
Schedule 3.3 -- Letters of Credit (Section 3.3)
Schedule 6.3 -- Conflicts; Governmental Consents (Section
6.3)
Schedule 6.4(A)(i) -- Pro Forma Balance Sheet (Section 6.4(A))
Schedule 6.4(A)(ii) -- Pro Forma Projections (Section 6.4(A))
Schedule 6.7 -- Litigation; Loss Contingencies (Section 6.7)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 6.9 -- ERISA (Section 6.9)
Schedule 6.16 -- Insurance (Sections 6.16 and 7.2(E))
Schedule 6.18 -- Environmental Matters (Section 6.18)
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CREDIT AGREEMENT
This Credit Agreement dated as of November 20, 1997 is entered into
among Florists' Transworld Delivery, Inc., a Michigan corporation, the
institutions from time to time parties hereto as Lenders, whether by execution
of this Agreement or an Assignment Agreement pursuant to Section 13.3, and The
First National Bank of Chicago, in its capacity as contractual representative
for itself and the other Lenders. The parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined above,
the following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election
of directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of
the outstanding equity interests of another Person.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the Borrower of the same
Type and, in the case of Eurodollar Rate Advances, for the same Interest
Period.
"AFFECTED LENDER" is defined in Section 2.20 hereof.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
A Person shall be deemed to control another Person if the controlling Person is
the "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934) of greater than ten percent (10%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
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"AGENT" means First Chicago in its capacity as contractual
representative for itself and the Lenders pursuant to Article XI hereof and any
successor Agent appointed pursuant to Article XI hereof.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as may be reduced from time to
time pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is Fifty Million and 00/100 Dollars ($50,000,000.00).
"AGGREGATE TERM LOAN COMMITMENT" means the aggregate of the Term Loan
Commitments of all the Lenders. The Aggregate Term Loan Commitment is Fifty
Million and 00/100 Dollars ($50,000,000.00).
"AGREEMENT" means this Credit Agreement, as it may be amended,
restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect as of the date of this Agreement, applied in a manner
consistent with that used in preparing the financial statements referred to in
Section 6.4(B)(1) hereof, provided, however, that with respect to the
calculation of financial ratios and other financial tests required by this
Agreement, "Agreement Accounting Principles" means generally accepted
accounting principles as in effect as of the date of this Agreement, applied in
a manner consistent with that used in preparing the financial statements
referred to in Section 6.4(A) hereof, subject to change as provided in Section
10.9 of this Agreement; provided, further, however, all pro forma financial
statements reflecting Acquisitions shall be prepared in accordance with the
requirements established by the Commission for acquisition accounting for
reporting acquisitions by public companies (whether or not such Acquisitions
are required to be publicly reported).
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Corporate Base Rate for such
day and (ii) the sum of (a) the Federal Funds Effective Rate for such day and
(b) one-half of one percent (0.5%) per annum.
"APPLICABLE COMMITMENT FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.15(C)(i) hereof determined in accordance with
the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE EURODOLLAR MARGIN" means, as at any date of determination,
the rate per annum then applicable to Eurodollar Rate Loans determined in
accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans,
determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
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"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of
determination, a rate per annum equal (i) with respect to standby Letters of
Credit, to the Applicable Eurodollar Margin in effect on such date and (ii)
with respect to commercial and performance Letters of Credit, to 50% of the
Applicable Eurodollar Margin in effect on such date.
"ARRANGER"means First Chicago Capital Markets, Inc., in its capacity
as the arranger for the loan transaction evidenced by this Agreement.
"ASSIGNMENT AGREEMENT" shall mean an assignment and acceptance
agreement entered into in connection with an assignment pursuant to Section
13.3 hereof in substantially the form of Exhibit E.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such
Person).
"AUTHORIZED OFFICER" means any of the President, any Vice President or
Chief Financial Officer of the Borrower, acting singly.
"BENEFIT PLAN" means a defined benefit plan as defined in Section
3(35) of ERISA (other than a Multiemployer Plan) in respect of which the
Borrower or any other member of the Controlled Group is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"BORROWER" means Florists' Transworld Delivery, Inc., a Michigan
corporation, together with its successors and assigns.
"BORROWING DATE" means a date on which an Advance or Swing Line Loan
is made hereunder.
"BORROWING NOTICE" is defined in Section 2.8 hereof.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or
rate selection of Loans bearing interest at the Eurodollar Rate, a day (other
than a Saturday or Sunday) on which banks are open for business in Chicago,
Illinois and New York, New York and on which dealings in Dollars are carried on
in the London interbank market and (ii) for all other purposes a day (other
than a Saturday or Sunday) on which banks are open for business in Chicago,
Illinois and New York, New York.
"CAPITAL EXPENDITURES" means, for any period, (i) the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and Permitted Purchase Money Indebtedness) by the Borrower
and its Subsidiaries during that period that, in conformity with Agreement
Accounting Principles, are required to be included in or reflected
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by the property, plant, equipment (including replacements, capitalized repairs
and improvements) or similar fixed asset accounts reflected in the consolidated
balance sheet of the Borrower and its Subsidiaries minus (ii) the aggregate
amount of all cash proceeds received by the Borrower and its Subsidiaries
during such period from the sale, casualty, condemnation or other disposition
in the ordinary course of business of equipment, motor vehicles or other
capital assets which have become obsolete or redundant. For the purpose of
this definition, the purchase price of equipment which is purchased
simultaneously with the trade-in of existing equipment owned or leased by the
Borrower or any of its Subsidiaries or with insurance proceeds or condemnation
awards shall be included in Capital Expenditures only to the extent of the
gross amount of such purchase price less the reduction in purchase price
granted by the seller of such equipment for the existing equipment being traded
in at such time or the amount of such insurance proceeds or condemnation
awards.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by the
full faith and credit of the United States government; (ii) domestic and
Eurodollar certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, Canada, any foreign bank, or its branches or agencies (fully
protected against currency fluctuations for any such deposits with a term of
more than ninety (90) days); (iii) shares of money market, mutual or similar
funds having assets in excess of $100,000,000 and the investments of which are
limited to investment grade securities (i.e., securities rated at least Baa by
Xxxxx'x Investors Service, Inc. or at least BBB by Standard & Poor's
Corporation); and (iv) commercial paper of United States and foreign banks and
bank holding companies and their subsidiaries and United States and foreign
finance, commercial industrial or utility companies which, at the time of
acquisition, are rated A-1 (or better) by Standard & Poor's Corporation or P-1
(or better) by Xxxxx'x Investors Services, Inc.; provided that the maturities
of such Cash Equivalents shall not exceed 365 days.
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"CHANGE" is defined in Section 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) prior to any initial public offering of Equity Interests in
either the Borrower or Holdings:
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) (other than the Current
Stockholders or any of their Affiliates) becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of 50% or more of the combined voting power of
the Borrower's Capital Stock ordinarily having the right to vote at an
election of directors; or
(ii) during any period of twelve (12) consecutive calendar
months, individuals: (i) who were directors of the Borrower on the
first day of such period, or (ii) whose election or nomination for
election to the board of directors of the Borrower was recommended or
approved by at least a majority of the directors then still in office
who were directors of the Borrower on the first day of such period, or
whose election or nomination for election was so approved, shall cease
to constitute a majority of the board of directors of the Borrower;
and
(b) after any initial public offering of Equity Interests in either
the Borrower or Holdings:
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) (other than the Current
Stockholders or any of their Affiliates), becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of 30% or more of the combined voting power of
the Borrower's Capital Stock ordinarily having the right to vote at an
election of directors; or
(ii) during any period of twelve (12) consecutive calendar
months subsequent to such public offering, individuals: (i) who were
directors of the Borrower on the first day of such period, or (ii)
whose election or nomination for election to the board of directors of
the Borrower was recommended or approved by at least a majority of the
directors then still in office who were directors of the Borrower on
the first day of such period, or whose election or nomination for
election was so approved, shall cease to constitute a majority of the
board of directors of the Borrower.
"CLOSING DATE" means the date on which the initial Revolving Loans are
advanced hereunder.
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"CODE" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"COLLATERAL" means all property and interests in property now owned or
hereafter acquired by the Borrower or any of its Subsidiaries in or upon which
a security interest, lien or mortgage is granted to the Agent, for the benefit
of the Holders of Secured Obligations, or to the Agent, for the benefit of the
Lenders, under any of the Collateral Documents or under any of the other Loan
Documents.
"COLLATERAL DOCUMENTS" means all agreements, instruments and
documents executed in connection with this Agreement, including, without
limitation, the Security Agreement and all other security agreements, loan
agreements, notes, guarantees, pledges, powers of attorney, consents,
assignments, contracts, fee letters, notices, leases, financing statements and
all other written matter whether heretofore, now, or hereafter executed by or
on behalf of the Borrower or any of its Subsidiaries and delivered to the Agent
or any of the Lenders, together with all agreements and documents referred to
therein or contemplated thereby.
"COMMISSION" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"COMMITMENT" means, for each Lender, collectively, such Lender's
Revolving Loan Commitment and Term Loan Commitment.
"CONSOLIDATED ADJUSTED NET WORTH" means Consolidated Net Worth of
Holdings and its consolidated Subsidiaries calculated excluding the effect of
any write-off of unamortized debt discount or financing costs in connection
with the purchase or prepayment of the Subordinated Notes or other Indebtedness
of the Borrower and any prepayment premiums paid in connection with any such
purchase or prepayment.
"CONSOLIDATED ASSETS" means the total assets of Holdings and its
consolidated Subsidiaries on a consolidated basis determined in accordance with
Agreement Accounting Principles.
"CONSOLIDATED NET WORTH" means, at a particular date, all amounts
which would be included under shareholders' equity for Holdings and its
consolidated Subsidiaries determined in accordance with Agreement Accounting
Principles.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
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"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability
of another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or
discounted or sold with recourse by that Person, or in respect of which that
Person is otherwise directly or indirectly liable, including Contractual
Obligations (contingent or otherwise) arising through any agreement to
purchase, repurchase, or otherwise acquire such Indebtedness, obligation or
liability or any security therefor, or to provide funds for the payment or
discharge thereof (whether in the form of loans, advances, stock purchases,
capital contributions or otherwise), or to maintain solvency, assets, level of
income, or other financial condition, or to make payment other than for value
received. The amount of any Contingent Obligation shall be equal to the
present value of the portion of the obligation so guaranteed or otherwise
supported, in the case of known recurring obligations, and the maximum
reasonably anticipated liability in respect of the portion of the obligation so
guaranteed or otherwise supported assuming such Person is required to perform
thereunder, in all other cases.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any equity or debt securities issued by that Person or any
indenture, mortgage, deed of trust, security agreement, pledge agreement,
guaranty, contract, undertaking, agreement or instrument, in any case in
writing, to which that Person is a party or by which it or any of its
properties is bound, or to which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Borrower; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Borrower;
and (iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Borrower, any corporation described in
clause (i) above or any partnership or trade or business described in clause
(ii) above.
"CONTROLLED SUBSIDIARY" of any Person means a Subsidiary of such
Person (i) 90% or more of the total Equity Interests or other ownership
interests of which (other than directors' qualifying shares) shall at the time
be owned by such Person or by one or more wholly-owned Subsidiaries of such
Person and (ii) of which such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies, whether
through the ownership of voting securities, by agreement or otherwise.
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.10(D) hereof.
"CORPORATE BASE RATE" means the corporate base rate of interest
announced by First Chicago from time to time, changing when and as said
corporate base rate changes.
"CURE LOAN" is defined in Section 9.2(iii) hereof.
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"CURRENT STOCKHOLDERS" means Perry Acquisition Partners, L.P., Xxxx
Capital Fund IV, L.P., Xxxx Capital Fund IV-B, L.P., Information Partners
Capital Fund, LP, BCIP Associates, BCIP Trust Associates, L.P., Fleet Growth
Resources, Inc., Fleet Equity Partners VII, L.P. and Xxxxxxxx Partners II L.P.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or (if foreclosure,
distraint, sale or other similar proceedings shall not have been commenced or
any such proceeding after being commenced is stayed) which are being contested
in good faith by appropriate proceedings properly instituted and diligently
conducted and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Agreement Accounting
Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other similar
Liens imposed by law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate proceedings
properly instituted and diligently conducted and with respect to which adequate
reserves or other appropriate provisions are being maintained in accordance
with Agreement Accounting Principles;
(iii) Liens incurred or deposits made in the ordinary course
of business in connection with worker's compensation, unemployment insurance or
other types of social security benefits or to secure the performance of bids,
tenders, sales, contracts (other than for the repayment of borrowed money),
surety, appeal and performance bonds and other obligations of a like nature or
to secure the performance of leases of real property to the extent incurred or
made in the ordinary course of business; provided that (A) all such Liens do
not in the aggregate materially detract from the value of the Borrower's or
such Subsidiary's assets or property taken as a whole or materially impair the
use thereof in the operation of the businesses taken as a whole, and (B) all
Liens securing bonds to stay judgments or in connection with appeals do not
secure at any time an aggregate amount exceeding $1,000,000;
(iv) Liens arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar charges or encumbrances on the use of
real property which do not in any case materially detract from the value of the
property subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments,
writs or warrants of attachment, or similar process against the Borrower or any
of its Subsidiaries which do not constitute a Default under Section 8.1(H)
hereof;
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(vi) any interest or title of the lessor in the property
subject to any operating lease entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business;
(vii) Liens arising from Uniform Commercial Code financing
statements regarding leases permitted by this Agreement; and
(viii) leases or subleases granted to third Persons not
interfering in any material respect with the business of the Borrower or any of
its Subsidiaries.
"DEFAULT" means an event of default described in Article VIII hereof.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
Revolving Loan Termination Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States.
"EBITDA" means, for any period, on a consolidated basis for the
Borrower and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) Net Income, plus (ii) Interest Expense, plus (iii) charges
against income for foreign, federal, state and local taxes to the extent
deducted in computing Net Income, plus (iv) depreciation expense to the extent
deducted in computing Net Income, plus (v) amortization expense, including,
without limitation, amortization of goodwill and other intangible assets to the
extent deducted in computing Net Income, plus (vi) extraordinary non-cash
charges to the extent deducted in computing Net Income; minus (vii)
extraordinary non-cash gains to the extent included in computing Net Income.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to federal, state and local laws
or regulations relating to or addressing pollution or protection of the
environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq., the Occupational Safety and
Health Act of 1970, 29 U.S.C. Section 651 et seq., and the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq., in
each case including any amendments thereto, any successor statutes, and any
regulations or guidance promulgated thereunder, and any state or local
equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages
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arising from, or costs incurred by such Governmental Authority in response to,
a Release or threatened Release of a Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to purchase Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Rate Loan
for the relevant Interest Period, the rate at which deposits in Dollars are
offered by First Chicago to first-class banks in the London interbank market at
approximately 11 a.m. (London time) two Business Days prior to the first day of
such Interest Period, in the approximate amounts of the portions of the
relevant Eurodollar Rate Loan of First Chicago, and having a maturity
approximately equal to such Interest Period, as adjusted for Reserves.
"EURODOLLAR RATE" means, with respect to a Eurodollar Rate Loan for
the relevant Interest Period, the Eurodollar Base Rate applicable to such
Interest Period plus the then Applicable Eurodollar Margin. The Eurodollar
Rate shall be rounded to the next higher multiple of 1/16 of 1% if the rate is
not such a multiple.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest at the
Eurodollar Rate.
"EURODOLLAR RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Eurodollar Rate.
"EXCESS CASH FLOW" means, for any Cash Flow Period, an amount equal to
the Borrower's and its Subsidiaries' consolidated (i) EBITDA for such period,
minus (ii) income taxes paid in cash for such period, minus (iii) Capital
Expenditures paid in cash during such period, minus (iv) Interest Expense for
such period, minus (v) the amount of any payment of the principal portion of
the Term Loans (whether by scheduled amortization or otherwise) and payments of
the principal portion of all other Indebtedness of the Borrower and its
Subsidiaries (whether by scheduled amortization or otherwise) during such
period, minus (vi) cash payments in respect of extraordinary and nonrecurring
items, minus (vii) the increase (or plus
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the decrease) in Working Capital during such period, in each case as calculated
in accordance with Agreement Accounting Principles.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations at approximately 10:00
a.m. (Chicago time) on such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by the Agent in its
sole discretion.
"FINANCING" means, with respect to any Person, the issuance or sale by
such Person of any Equity Interests of such Person or any Indebtedness
consisting of debt securities of such Person.
"FIRST CHICAGO" means The First National Bank of Chicago, in its
individual capacity, and its successors.
"FIXED CHARGE COVERAGE RATIO" is defined in Section 7.4(A) hereof.
"FLOATING RATE" means, for any day for any Loan, a rate per annum
equal to the Alternate Base Rate for such day, changing and as the Alternate
Base Rate changes, plus the then Applicable Floating Rate Margin.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"GOVERNMENTAL ACTS" is defined in Section 3.10(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GROSS NEGLIGENCE" means recklessness, or actions taken or omitted
with conscious indifference to or the complete disregard of consequences.
Gross Negligence does not mean the absence of ordinary care or diligence, or an
inadvertent act or inadvertent failure to act. If the term "gross negligence"
is used with respect to the Agent or any Lender or any indemnitee in any of the
other Loan Documents, it shall have the meaning set forth herein.
"HEDGING AGREEMENTS" is defined in Section 7.3(P).
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"HEDGING OBLIGATIONS" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"HOLDERS OF SECURED OBLIGATIONS" shall mean the holders of the Secured
Obligations from time to time and shall include their respective successors,
transferees and assigns.
"HOLDINGS" means FTD Corporation, a Delaware corporation, together
with its successors and assigns.
"INDEBTEDNESS" of any Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the deferred
purchase price of property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (c) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from property or assets now or hereafter
owned or acquired by such Person, (d) obligations which are evidenced by notes,
acceptances or other instruments, (e) Capitalized Lease Obligations, (f)
Contingent Obligations, (g) obligations with respect to letters of credit, (h)
net liabilities of such Person under Hedging Obligations as calculated in
accordance with accepted practice and (i) Off Balance Sheet Liabilities. The
amount of Indebtedness of any Person at any date shall be without duplication
(i) the outstanding balance at such date of all unconditional obligations as
described above and (ii) in the case of Indebtedness of others secured by a
Lien to which the property or assets owned or held by such Person is subject,
the lesser of the fair market value at such date of any asset subject to a Lien
securing the Indebtedness of others and the amount of the Indebtedness secured.
"INDEMNIFIED MATTERS" is defined in Section 10.7(B) hereof.
"INDEMNITEES" is defined in Section 10.7(B) hereof.
"INDENTURE" means the Indenture dated as of December 1, 1994, between
the Borrower (as successor to FTD Acquisition Corp.) and First Trust of New
York, National Association with respect to the Subordinated Notes.
"INTEREST EXPENSE" means, for any period, the total interest expense
of the Borrower and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of
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20
Capitalized Leases, commitment and letter of credit fees, discounts,
commissions and other charges), but excluding interest expense not payable in
cash (including amortization of discount), all as determined in conformity with
Agreement Accounting Principles.
"INTEREST PERIOD" means, with respect to a Eurodollar Rate Loan, a
period of fourteen (14) days or one (1), two (2), three (3) months or six (6)
months or such other period as the Borrower may request and the Lenders, in
their discretion, shall agree to, commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on (but
exclude) the day which corresponds numerically to such date fourteen (14) days
or one, two, three or six months thereafter (or as agreed); provided, however,
that if there is no such numerically corresponding day in such next, second,
third, sixth or other succeeding month, such Interest Period shall end on the
last Business Day of such next, second, third, sixth or other succeeding month.
If an Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business
Day.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests
or other securities, issued by any other Person, (ii) any purchase by that
Person of all or substantially all of the assets of a business conducted by
another Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, trade credit, advances to employees and similar items made or
incurred in the ordinary course of business) or capital contribution by that
Person to any other Person, including all Indebtedness to such Person arising
from a sale of property by such Person other than in the ordinary course of its
business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING BANKS" means First Chicago, Michigan National Bank and any
Lender which, at the Borrower's request, agrees, in each such Lender's sole
discretion, to become an Issuing Bank for the purpose of issuing Letters of
Credit, and their respective successors and assigns, in each case in such
Lender's separate capacity as an issuer of Letters of Credit pursuant to
Section 3.1. The designation of any Lender as an Issuing Bank after the date
hereof shall be subject to the prior written consent of the Agent, which
consent shall not be unreasonably withheld or delayed.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a
Letter of Credit.
"L/C INTEREST" shall have the meaning ascribed to such term in Section
3.6 hereof.
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"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the amount then available for drawing under each of
the Letters of Credit, (ii) the face amount of all outstanding L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have been accepted by
the applicable Issuing Bank, and (iii) the aggregate outstanding amount of all
Reimbursement Obligations at such time.
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement and their respective permitted successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent.
"LETTER OF CREDIT" means the letters of credit to be (a) issued by the
Issuing Banks pursuant to Section 3.1 hereof or (b) deemed issued by the
Issuing Banks pursuant to Section 3.2 hereof.
"LEVERAGE RATIO" is defined in Section 7.4(B) hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of
any Advance made pursuant to Section 2.1 or Section 2.2 hereof, as applicable,
and in the case of the Swing Line Bank, any Swing Line Loan made pursuant to
Section 2.3 hereof, and collectively all Term Loans, Revolving Loans and Swing
Line Loans, whether made or continued as or converted to Floating Rate Loans or
Eurodollar Rate Loans.
"LOAN ACCOUNT" is defined in Section 2.15(F) hereof.
"LOAN DOCUMENTS" means this Agreement, the Notes and all other documents,
instruments and agreements executed in connection therewith, as the same may be
amended, restated or otherwise modified and in effect from time to time.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower, or the Borrower and its Subsidiaries, taken as a
whole, (b) the ability of the Borrower or any of its Subsidiaries to perform
their respective payment or other material obligations under the Loan Documents
to which they are a party, or (c) the ability of the Lenders or the Agent to
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enforce in any material respect the Obligations in accordance with the terms of
the Loan Documents.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in
Section 4001(a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by either the Borrower or any member of the
Controlled Group.
"NET CASH PROCEEDS" means, with respect to any Asset Sale by any
Person, (a) cash (freely convertible into Dollars) received by such Person or
any Subsidiary of such Person from such Asset Sale (including cash received as
consideration for the assumption or incurrence of liabilities incurred in
connection with or in anticipation of such Asset Sale), after (i) provision for
all income or other taxes measured by or resulting from such Asset Sale, (ii)
payment of all brokerage commissions, attorneys' fees and expenses,
accountants' fees and expenses, investment banking fees and expenses, survey
costs, title insurance premiums, and other fees and expenses related to such
Asset Sale, (iii) all amounts used to repay Indebtedness secured by a Lien on
any asset disposed of in such Asset Sale or which is or may be required (by the
express terms of the instrument governing such Indebtedness) to be repaid in
connection with such Asset Sale (including payments made to obtain or avoid the
need for the consent of any holder of such Indebtedness), and (iv) deduction of
appropriate amounts to be provided by such Person or a Subsidiary of such
Person as a reserve, in accordance with Agreement Accounting Principles,
against any liabilities associated with the assets sold or disposed of in such
Asset Sale and retained by such Person or a Subsidiary of such Person after
such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with the assets
sold or disposed of in such Asset Sale; and (b) cash payments in respect of any
other consideration received by such Person or any Subsidiary of such Person
from such Asset Sale upon receipt of such cash payments by such Person or such
Subsidiary, net of such amounts described in clauses (i) through (iv) above, to
the extent applicable.
"NET INCOME" means, for any period, the net earnings (or loss) after
taxes of Holdings and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with Agreement
Accounting Principles.
"NON PRO RATA LOAN" is defined in Section 9.2 hereof.
"NOTES" means the Revolving Notes, Swing Line Notes and Term Notes.
"NOTICE OF ASSIGNMENT" is defined in Section 13.3(B) hereof.
"OBLIGATIONS" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrower to the Agent, any
Lender, the Swing Line Bank, the Arranger, any Affiliate of the Agent or any
Lender, or any Indemnitee, of any kind or nature, present or future, arising
under this Agreement, the Notes or any other Loan Document, whether or not
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evidenced by any note, guaranty or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit, loan,
guaranty, indemnification, or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges, and reasonable expenses,
fees, attorneys' fees and disbursements, and paralegals' fees, and any other
sum chargeable to the Borrower under this Agreement or any other Loan Document.
"OFF BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(b) any liability under any sale and leaseback transactions which do not create
a liability on the consolidated balance sheet of such Person, (c) any liability
under any financing lease or so-called "synthetic" lease transaction, or (d)
any obligations arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheets of such Person and
its Subsidiaries.
"OTHER TAXES" is defined in Section 2.15(E)(ii) hereof.
"PARTICIPANTS" is defined in Section 13.2(A) hereof.
"PAYMENT DATE" means the 15th day of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERMITTED ACQUISITION" is defined in Section 7.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of Holdings and its Subsidiaries identified as such on Schedule
1.1.1 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of Holdings
and its Subsidiaries identified as such on Schedule 1.1.2 to this Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of Holdings and
its Subsidiaries identified as such on Schedule 1.1.3 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of Holdings and
its Subsidiaries identified as such on Schedule 1.1.4 to this Agreement.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" is defined in Section
7.3(A)(viii) hereof.
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability
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24
company or other entity of any kind, or any government or political subdivision
or any agency, department or instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which the Borrower or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"PRO RATA SHARE" means, with respect to any Lender, (i) at any time
prior to the Closing Date, the percentage obtained by dividing (A) such
Lender's Commitments at such time (in each case, as adjusted from time to time
in accordance with the provisions of this Agreement) by (B) the sum of the
Aggregate Term Loan Commitment and the Aggregate Revolving Loan Commitment at
such time and (ii) at any time after the Closing Date, the percentage obtained
by dividing (A) the sum of such Lender's unfunded Term Loan Commitment,
Revolving Loan Commitment and outstanding Term Loans at such time (in each
case, as adjusted from time to time in accordance with the provisions of this
Agreement) by (B) the sum of the aggregate amount of all of the outstanding
Term Loans, the unfunded Aggregate Term Loan Commitment and the Aggregate
Revolving Loan Commitment at such time; provided, however, if all of the
Commitments are terminated pursuant to the terms of this Agreement, then "Pro
Rata Share" means the percentage obtained by dividing (x) the sum of such
Lender's Term Loan and Revolving Loans and, in the case of the Swing Line Bank,
Swing Lines Loans, by (y) the aggregate amount of all Term Loans, Revolving
Loans and Swing Line Loans.
"PURCHASERS" is defined in Section 13.3(A) hereof.
"RATE OPTION" means the Eurodollar Rate or the Floating Rate.
"REGISTER" is defined in Section 13.3(C) hereof.
"REGULATION G" means Regulation G of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by nonbank, nonbroker lenders for the purpose of
purchasing or carrying margin stock (as defined therein).
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by and to brokers and dealers of securities for the
purpose of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by banks for the
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purpose of purchasing or carrying Margin Stock applicable to member banks of
the Federal Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by foreign lenders for the purpose of purchasing or
carrying margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 3.7 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"RENTALS" of a Person means the aggregate fixed amounts payable by
such Person under any lease of real or personal property but does not include
any amounts payable under Capitalized Leases of such Person.
"REPLACEMENT LENDER" is defined in Section 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days
after such event occurs, provided, however, that a failure to meet the minimum
funding standards of Section 412 of the Code and of Section 302 of ERISA shall
be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than fifty percent (50%); provided, however, that, if
any of the Lenders shall have failed to fund its Pro Rata Share of any
Revolving Loan requested by the Borrower, or any Swing Line Loan as requested
by the Agent, which such Lenders are obligated to fund under the terms of this
Agreement and any such failure has not been cured, then for so long as such
failure continues, "REQUIRED LENDERS" means Lenders (excluding all Lenders
whose failure to fund their respective Pro Rata Shares of such Revolving Loans
or Swing Line Loans has not been so cured) whose Pro Rata Shares represent
greater than fifty percent (50%) of the aggregate Pro Rata Shares of such
Lenders; provided further, however, that, if the Commitments have been
terminated pursuant to the terms of this Agreement, "REQUIRED LENDERS" means
Lenders (without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a percentage)
of the aggregate outstanding principal balance of all Loans and L/C Obligations
are greater than fifty percent (50%).
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"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law,
rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its material property or to which such Person or any of its material
property is subject including, without limitation, the Securities Act of 1933,
the Securities Exchange Act of 0000, Xxxxxxxxxxx X, X, U and X, ERISA, the Fair
Labor Standards Act, the Worker Adjustment and Retraining Notification Act,
Americans with Disabilities Act of 1990, and any material certificate of
occupancy, zoning ordinance, building, environmental or land use requirement or
permit or environmental, labor, employment, occupational safety or health law,
rule or regulation, including Environmental, Health or Safety Requirements of
Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed
by the Board of Governors of the Federal Reserve System (or any successor) with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Rate Loans is determined or category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender
to United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of Holdings or the
Borrower now or hereafter outstanding, except a dividend payable solely in
Holdings' or the Borrower's Capital Stock (other than Disqualified Stock) or in
options, warrants or other rights to purchase such Capital Stock, (ii) any
redemption, retirement, purchase or other acquisition for value, direct or
indirect, of any Equity Interests of Holdings or the Borrower or any of its
Subsidiaries now or hereafter outstanding, other than in exchange for, or out
of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Borrower) of other Equity Interests of Holdings or the
Borrower (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Indebtedness other than Indebtedness permitted hereunder and
the other Loan Documents and other than the Obligations, (iv) any payment of a
claim for the rescission of the purchase or sale of, or for material damages
arising from the purchase or sale of, any Indebtedness (other than the
Obligations) or any Equity Interests of Holdings or the Borrower or any of the
Borrower's Subsidiaries, or of a claim for reimbursement, indemnification or
contribution arising out of or related to any such claim for damages or
rescission and (v) any payment of any management fee or similar consulting fee
to any Affiliate of the Borrower.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which the Aggregate Revolving Loan Commitment at such time exceeds
the Revolving Credit Obligations at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal amount of the Revolving Loans at such time,
plus (ii) the outstanding
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principal amount of the Swing Line Loans at such time, plus (iii) the
outstanding L/C Obligations at such time.
"REVOLVING LOAN" is defined in Section 2.2 hereof.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to purchase participations in Letters
of Credit not exceeding the amount set forth on Exhibit A to this Agreement
opposite its name thereon under the heading "Revolving Loan Commitment" or the
signature page of the assignment and acceptance by which it became a Lender, as
such amount may be modified from time to time pursuant to the terms of this
Agreement or to give effect to any applicable assignment and acceptance.
"REVOLVING LOAN TERMINATION DATE" means December 31, 2003.
"REVOLVING NOTE" means a promissory note, in substantially the form of
Exhibit B-1 hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Revolving Loan Commitment, including any amendment,
restatement, modification, renewal or replacement of such Revolving Note.
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 4.2 hereof.
"SECURED OBLIGATIONS" means, collectively, (i) the Obligations and
(ii) all Hedging Obligations owing under Interest Rate Agreements to any Lender
or any affiliate of any Lender.
"SECURITY AGREEMENT" means that certain Security Agreement of even
date herewith executed by the Borrower in favor of the Agent for the benefit of
the Holders of Secured Obligations, as amended, restated or otherwise modified
from time to time.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SOLVENT" shall mean, when used with respect to any Person and its
Subsidiaries, taken as a whole, that at the time of determination:
(i) the fair value of its assets (both at fair valuation and
at present fair saleable value) is equal to or in excess of the total
amount of its liabilities for which Payment is required, including,
without limitation, contingent liabilities as they mature; and
(ii) it is then able and expects to be able to pay its debts
as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
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With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"SUBORDINATED NOTES" means those notes in the original principal
amount of $60,000,000 issued pursuant to that certain Indenture dated as of
December 1, 1994 between the Borrower (formerly, FTD Acquisition Corporation)
and First Trust of New York, National Association.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one
or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, association, joint venture or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled. Unless
otherwise expressly provided, all references herein to a "Subsidiary" shall
mean a Subsidiary of the Borrower.
"SWING LINE BANK" means First Chicago or any other Lender as a
successor Swing Line Bank pursuant to the terms hereof.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum principal amount of $5,000,000 at any one
time outstanding.
"SWING LINE LOAN" means a Loan made available to the Borrower by the
Swing Line Bank pursuant to Section 2.3 hereof.
"SWING LINE NOTE" means a promissory note, in substantially the form
of Exhibit B-2 hereto, duly executed by the Borrower and payable to the order
of the Swing Line Bank in the amount of its Swing Line Commitment, including
any amendment, restatement, modification, renewal or replacement of such Swing
Line Note.
"SYNDICATION PERIOD" is defined in Section 2.4 hereof.
"TAXES" is defined in Section 2.15(E)(i) hereof.
"TERMINATION DATE" means the earlier of (a) the Revolving Loan
Termination Date, and (b) the date of termination in whole of the Aggregate
Revolving Loan Commitment pursuant to Section 2.6 hereof or the Commitments
pursuant to Section 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit
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Plan during a plan year in which the Borrower or such Controlled Group member
was a "substantial employer" as defined in Section 4001(a)(2) of ERISA or the
cessation of operations which results in the termination of employment of
twenty percent (20%) of Benefit Plan participants who are employees of the
Borrower or any member of the Controlled Group; (iii) the imposition of an
obligation on the Borrower or any member of the Controlled Group under Section
4041 of ERISA to provide affected parties written notice of intent to terminate
a Benefit Plan in a distress termination described in Section 4041(c) of ERISA;
(iv) the institution by the PBGC of proceedings to terminate a Benefit Plan;
(v) any event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer,
any Benefit Plan; or (vi) the partial or complete withdrawal of the Borrower or
any member of the Controlled Group from a Multiemployer Plan.
"TERM LOAN" is defined in Section 2.1(A) hereof.
"TERM LOAN COMMITMENT" means, for each Lender, the obligation of such
Lender to make its Term Loan pursuant to the terms and conditions of this
Agreement, and which shall not exceed the principal amount set forth on Exhibit
A to this Agreement opposite its name thereon under the heading "Term Loan
Commitment", as such amount may be modified from time to time pursuant to the
terms hereof.
"TERM LOAN TERMINATION DATE" means December 31, 2003.
"TERM NOTE" means a promissory note, in substantially the form of
Exhibit B-3 hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Term Loan Commitment, including any amendment,
restatement, modification, renewal or replacement of such Term Note.
"TRANSFEREE" is defined in Section 13.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurodollar Rate Loan.
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans,
the amount (if any) by which the present value of all vested nonforfeitable
benefits under all Single Employer Plans exceeds the fair market value of all
such Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plans, and (ii) in the case of Multiemployer
Plans, the withdrawal liability that would be incurred by the Controlled Group
if all members of the Controlled Group completely withdrew from all
Multiemployer Plans.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
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"WORKING CAPITAL" means, as at any date of determination, the excess,
if any, of (i) the Borrower's consolidated current assets, except cash and Cash
Equivalents, over (ii) the Borrower's consolidated current liabilities, except
current maturities of long-term debt and Revolving Credit Obligations as of
such date and all accrued interest as of such date.
Any accounting terms used in this Agreement which are not specifically
defined herein shall have the meanings customarily given them in accordance
with generally accepted accounting principles in existence as of the date
hereof.
1.2 References. The existence throughout the Agreement of references
to the Borrower's Subsidiaries is for a matter of convenience only. Any
references to Subsidiaries of the Borrower set forth herein shall not in any
way be construed as consent by the Agent or any Lender to the establishment,
maintenance or acquisition of any Subsidiary, except as may otherwise be
permitted hereunder or under the other Loan Documents or, to the extent not
prohibited hereunder or such other Loan Documents, by applicable law.
1.3 Supplemental Disclosure. At any time at the reasonable request
of the Agent and at such additional times as the Borrower determines, the
Borrower shall supplement each schedule or representation herein or in the
other Loan Documents with respect to any matter hereafter arising which, if
existing or occurring at the date of this Agreement, would have been required
to be set forth or described in such schedule or as an exception to such
representation or which is necessary to correct any information in such
schedule or representation which has been rendered inaccurate thereby. Unless
any such supplement to such schedule or representation discloses the existence
or occurrence of events, facts or circumstances which are not prohibited by the
terms of this Agreement or any other Loan Documents, such supplement to such
schedule or representation shall not be deemed an amendment thereof unless
expressly consented to in writing by Agent and the Required Lenders, and no
such amendments, except as the same may be consented to in a writing which
expressly includes a waiver, shall be or be deemed a waiver by the Agent or any
Lender of any Default disclosed therein.
ARTICLE II: THE TERM LOAN AND REVOLVING LOAN FACILITIES
2.1. Term Loans. (A) Amount of Term Loans. Subject to the terms and
conditions set forth in this Agreement, each Lender on the Closing Date
severally and not jointly agrees to make on or after the Closing Date but prior
to February 1, 1999, term loans, in Dollars, to the Borrower in an aggregate
amount equal to such Lender's Term Loan Commitment (each individually, a "TERM
LOAN" and, collectively, the "TERM LOANS"). All Term Loans shall be made by
the Lenders on or after the Closing Date but prior to February 1, 1999
simultaneously and proportionately to their respective Pro Rata Shares, it
being understood that no Lender shall be responsible for any failure by any
other Lender to perform its obligation to make any Term Loan hereunder nor
shall the Term Loan Commitment of any Lender be increased or decreased as a
result of any such failure.
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(B) Borrowing Notice. The Borrower may deliver to the Agent a
Borrowing Notice, signed by it, on or after the Closing Date but prior to
February 1, 1999. Such Borrowing Notice shall specify (i) the aggregate amount
of the Term Loans being requested and (ii) instructions for the disbursement of
the proceeds of such Term Loans. The Term Loans made on the Closing Date shall
initially be Floating Rate Loans and thereafter may be continued as Floating
Rate Loans or converted into Eurodollar Rate Loans in the manner provided in
Section 2.10 and subject to the other conditions and limitations therein set
forth and set forth in this Article II. Any Borrowing Notice given pursuant to
this Section 2.1(B) shall be irrevocable.
(C) Making of Term Loans. Promptly after receipt of the Borrowing
Notice under Section 2.1(B) in respect of the Term Loans, the Agent shall
notify each Lender by telex or telecopy, or other similar form of transmission,
of the proposed Advance. Each Lender shall deposit an amount equal to its Pro
Rata Share of the Term Loans with the Agent at its office in Chicago, Illinois,
in immediately available funds, on the date specified in the Borrowing Notice
(which date shall be prior to February 1, 1999). Subject to the fulfillment of
the conditions precedent set forth in Sections 5.1 and 5.2, as applicable, the
Agent shall make the proceeds of such amounts received by it available to the
Borrower at the Agent's office in Chicago, Illinois on such date and shall
disburse such proceeds in accordance with the Borrower's disbursement
instructions set forth in such Borrowing Notice. The failure of any Lender to
deposit the amount described above with the Agent on such date shall not
relieve any other Lender of its obligations hereunder to make its Term Loan on
such date.
(D) Repayment of the Term Loans. (i) The Term Loans shall be repaid
in twenty (20) consecutive quarterly installments, payable on the last Business
Day of each fiscal quarter of the Borrower, commencing on March 31, 1999 and
continuing thereafter until the Term Loan Termination Date, and the Term Loans
shall be permanently reduced by the amount of each installment on the date
payment thereof is made hereunder. The installments shall be in the aggregate
amounts set forth below:
INSTALLMENT AMOUNT
AS A PERCENTAGE OF
TERM LOANS OUTSTANDING
INSTALLMENT DATE AS OF FEBRUARY 1, 1999
March 31, 1999 2.50%
June 30, 1999 2.50%
September 30, 1999 2.50%
December 31, 1999 2.50%
March 31, 2000 3.75%
June 30, 2000 3.75%
September 30, 2000 3.75%
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December 31, 2000 3.75%
March 31, 2001 5.00%
June 30, 2001 5.00%
September 30, 2001 5.00%
December 31, 2001 5.00%
March 31, 2002 6.25%
6.25%
June 30, 2002 6.25%
September 30, 2002 6.25%
December 31, 2002 6.25%
March 31, 2003 7.50%
June 30, 2003 7.50%
September 30, 2003 7.50%
December 31, 2003 7.50%
Notwithstanding the foregoing, the final installment shall be in the amount of
the then outstanding principal balance of the Term Loans. In addition, the
then outstanding principal balance of the Term Loans, if any, shall be due and
payable on the Termination Date. No installment of any Term Loan shall be
reborrowed once repaid.
(ii) In addition to the scheduled payments on the Term Loans, the
Borrower (a) may make the voluntary prepayments described in Section
2.5(A) for credit against the scheduled payments on the Term Loans pursuant to
Section 2.5(A) and (b) shall make the mandatory prepayments prescribed in
Section 2.5(B) for credit against the scheduled payments on the Term Loans
pursuant to Section 2.5(B).
2.2 Revolving Loans. Upon the satisfaction of the conditions
precedent set forth in Sections 5.1 and 5.2, as applicable, from and including
the date of this Agreement and prior to the Termination Date, each Lender
severally and not jointly agrees, on the terms and conditions set forth in this
Agreement, to make revolving loans to the Borrower from time to time, in
Dollars, in an amount not to exceed such Lender's Pro Rata Share of Revolving
Credit Availability at such time (each individually, a "REVOLVING LOAN" and,
collectively, the "REVOLVING LOANS"); provided, however, at no time shall the
Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment.
Subject to the terms of this Agreement, the Borrower may borrow, repay and
reborrow Revolving Loans at any time prior to the Termination Date. The
Revolving Loans made on the Closing Date shall initially be Floating Rate Loans
and thereafter may be continued as Floating Rate Loans or converted into
Eurodollar Rate Loans in the manner provided in Section 2.10 and subject to
the other conditions and limitations therein set forth and set forth in this
Article II. On the Termination Date, the Borrower shall repay in full the
outstanding principal balance of the Revolving Loans. Each Advance under this
Section 2.2 shall consist of Revolving Loans made by each Lender ratably in
proportion to such Lender's respective Pro Rata Share.
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2.3 Swing Line Loans. (A) Amount of Swing Line Loans. Upon the
satisfaction of the conditions precedent set forth in Section 5.1 and 5.2, as
applicable, from and including the date of this Agreement and prior to the
Termination Date, the Swing Line Bank agrees, on the terms and conditions set
forth in this Agreement, to make swing line loans to the Borrower from time to
time, in Dollars, in an amount not to exceed the Swing Line Commitment (each,
individually, a "SWING LINE LOAN" and collectively, the "SWING LINE LOANS");
provided, however, at no time shall the Revolving Credit Obligations exceed the
Aggregate Revolving Loan Commitment; and provided, further, that at no time
shall the sum of (a) the outstanding amount of the Swing Line Loans, plus (b)
the outstanding amount of Revolving Loans made by the Swing Line Bank pursuant
to Section 2.2, exceed the Swing Line Bank's Revolving Loan Commitment at such
time. Subject to the terms of this Agreement, the Borrower may borrow, repay
and reborrow Swing Line Loans at any time prior to the Termination Date.
(B) Borrowing Notice. The Borrower may deliver to the Agent and the
Swing Line Bank a Borrowing Notice, signed by it, not later than 2:00 p.m.
(Chicago time) on the Borrowing Date of each Swing Line Loan, specifying (i)
the applicable Borrowing Date (which date shall be a Business Day and which may
be the same date as the date the Borrowing Notice is given), and (ii) the
aggregate amount of the requested Swing Line Loan which shall be an amount not
less than $100,000. The Swing Line Loans shall at all times be Floating Rate
Loans.
(C) Making of Swing Line Loans. Promptly after receipt of the
Borrowing Notice under Section 2.3(B) in respect of Swing Line Loans, the Agent
shall notify each Lender by telex or telecopy, or other similar form of
transmission, of the requested Swing Line Loan. Not later than 3:00 p.m.
(Chicago time) on the applicable Borrowing Date, the Swing Line Bank shall make
available its Swing Line Loan, in funds immediately available in Chicago to the
Agent at its address specified pursuant to Article XIV. The Agent will
promptly make the funds so received from the Swing Line Bank available to the
Borrower on the Borrowing Date at the Agent's aforesaid address.
(D) Repayment of Swing Line Loans. The Swing Line Loans shall be
evidenced by the Swing Line Note, and each Swing Line Loan shall be paid in
full by the Borrower on or before the fifth Business Day after the Borrowing
Date for such Swing Line Loan. The Borrower may at any time pay, without
penalty or premium, all outstanding Swing Line Loans or, in a minimum amount
and increments of $100,000, any portion of the outstanding Swing Line Loans,
upon notice to the Agent and the Swing Line Bank. In addition, the Agent (i)
may at any time in its sole discretion with respect to any outstanding Swing
Line Loan, or (ii) shall on the fifth Business Day after the Borrowing Date of
any Swing Line Loan, require each Lender (including the Swing Line Bank) to
make a Revolving Loan in the amount of such Lender's Pro Rata Share of such
Swing Line Loan, for the purpose of repaying such Swing Line Loan. Not later
than 2:00 p.m. (Chicago time) on the date of any notice received pursuant to
this Section 2.3(D), each Lender shall make available its required Revolving
Loan or Revolving Loans, in funds immediately available in Chicago to the Agent
at its address specified pursuant to Article XIV. Revolving Loans made
pursuant to this Section 2.3(D) shall initially be
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Floating Rate Loans and thereafter may be continued as Floating Rate Loans or
converted into Eurodollar Rate Loans in the manner provided in Section 2.10 and
subject to the other conditions and limitations therein set forth and set forth
in this Article II. Unless a Lender shall have notified the Swing Line Bank,
prior to its making any Swing Line Loan, that any applicable condition
precedent set forth in Sections 5.1 and 5.2, as applicable, had not then been
satisfied, such Lender's obligation to make Revolving Loans pursuant to this
Section 2.3(D) to repay Swing Line Loans shall be unconditional, continuing,
irrevocable and absolute and shall not be affected by any circumstances,
including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Agent, the Swing Line Bank or any other Person, (b) the occurrence of
continuance of a Default or Unmatured Default, (c) any adverse change in the
condition (financial or otherwise) of the Borrower, or (d) any other
circumstances, happening or event whatsoever. In the event that any Lender
fails to make payment to the Agent of any amount due under this Section 2.3(D),
the Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender
hereunder until the Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the foregoing, if for
any reason any Lender fails to make payment to the Agent of any amount due
under this Section 2.3(D), such Lender shall be deemed, at the option of the
Agent, to have unconditionally and irrevocably purchased from the Swing Line
Bank, without recourse or warranty, an undivided interest and participation in
the applicable Swing Line Loan in the amount of such Revolving Loan, and such
interest and participation may be recovered from such Lender together with
interest thereon at the Federal Funds Effective Rate for each day during the
period commencing on the date of demand and ending on the date such amount is
received. On the Termination Date, the Borrower shall repay in full the
outstanding principal balance of the Swing Line Loans.
2.4 Rate Options for all Advances. The Swing Line Loans shall be
Floating Rate Advances at all times. The Revolving Loans and Term Loans may be
Floating Rate Advances or Eurodollar Rate Advances, or a combination thereof,
selected by the Borrower in accordance with Section 2.10. The Borrower may
select, in accordance with Section 2.10, Rate Options and Interest Periods
applicable to portions of the Revolving Loans and the Term Loans; provided that
there shall be no more than thirteen (13) Interest Periods in effect with
respect to all of the Loans at any time. Notwithstanding anything herein to
the contrary, the Borrower may not select the Eurodollar Rate with Interest
Periods longer than fourteen (14) days for any Loans without the Agent's
consent during the period from the Closing Date through the earlier to occur of
(i) the date that is 90 days after the Closing Date and (ii) the date on which
the Arranger notifies the Borrower that the primary syndication of the Loans
and Commitments has been completed (the "SYNDICATION PERIOD"). The Swing Line
Loans shall at all times be Floating Rate Loans.
2.5 Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Borrower may from time to time and at any
time repay or prepay, without penalty or premium all or any part of outstanding
Floating Rate Advances;
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provided, that the Borrower may not so prepay Floating Rate Advances consisting
of Term Loans unless it shall have provided at least one Business Day's written
notice to the Agent of such prepayment. Eurodollar Rate Advances may be
voluntarily repaid or prepaid prior to the last day of the applicable Interest
Period, subject to the indemnification provisions contained in Section 4.4,
provided, that the Borrower may not so prepay Eurodollar Rate Advances unless
it shall have provided at least three Business Days' written notice to the
Agent of such prepayment. Unless the aggregate outstanding principal balance
of the Term Loans is to be prepaid in full, voluntary prepayments of the Term
Loans shall be in an aggregate minimum amount of $500,000 and integral
multiples of $100,000 in excess of that amount, and shall be applied to each of
the then remaining installments payable thereunder, on a ratable basis based
upon the respective amounts of such installments.
(B) Mandatory Prepayments.
(i) Mandatory Prepayments of Term Loans.
(a) Upon the consummation of any Asset Sale by the Borrower
or any Subsidiary of the Borrower, other than those Asset Sales
permitted pursuant to Section 7.3(B), except to the extent that the
Net Cash Proceeds of such Asset Sale, when combined with the Net Cash
Proceeds of all such Asset Sales during the immediately preceding four
fiscal quarters of the Borrower do not exceed $500,000, and except as
provided in the second sentence of this Section 2.5(B)(i)(a), within
three (3) Business Days after the Borrower's or any of its
Subsidiaries' (i) receipt of any Net Cash Proceeds from any such Asset
Sale, or (ii) conversion to cash or Cash Equivalents of non-cash
proceeds (whether principal or interest and including securities,
release of escrow arrangements or lease payments) received from any
Asset Sale, the Borrower shall make a mandatory prepayment of the
Obligations (to be applied in accordance with the priority set forth
in clause (d) of this Section 2.5(B)(i)) in an amount equal to one
hundred percent (100%) of such Net Cash Proceeds or such proceeds
converted from non-cash to cash or Cash Equivalents received by the
Borrower or such Subsidiary. Net Cash Proceeds of Asset Sales with
respect to which the Borrower shall have given the Agent written
notice of its intention to replace the assets within six months, in
the case of a sale of equipment or other assets (other than real
property), or twelve months, in the case of a sale of real property,
following such Asset Sale shall not be subject to the provisions of
the first sentence of this Section 2.5(B)(i)(a) unless and to the
extent that such applicable period shall have expired without such
replacement having been made.
(b) Simultaneously with the delivery of the annual audited
financial statements required to be delivered pursuant to Section
7.1(A)(ii) for each fiscal year beginning with the fiscal year ending
June 30, 1999, the Borrower shall calculate Excess Cash Flow for such
fiscal year and shall make a mandatory prepayment, payable not later
than the earlier of ten (10) days after such financial statements and
calculation are
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delivered or one hundred and fifteen (115) days after the end of such
fiscal year, in an amount equal to fifty percent (50.0%) of such
Excess Cash Flow.
(c) Nothing in this Section 2.5(B)(i) shall be construed to
constitute the Lenders' consent to any transaction referred to in
clause (a) above which is otherwise prohibited by the terms of this
Agreement.
(d) Each mandatory prepayment required by clauses (a) and (b)
of this Section 2.5(B) shall be referred to herein as a "Designated
Prepayment." Designated Prepayments shall be allocated and applied to
the Obligations as follows:
(I) the amount of each Designated Prepayment shall
be applied to each of the then remaining installments payable
under the Term Loans, on a ratable basis based on the
respective amounts of such installments; and
(II) following the payment in full of the Term
Loans, the amount of each Designated Prepayment shall be
applied to repay Revolving Loans (but shall reduce Revolving
Loan Commitments only at the option of the Borrower).
(e) On the date any Designated Prepayment is received by the
Agent, such prepayment shall be applied first to Floating Rate Loans
and to any Eurodollar Rate Loans maturing on such date and then to
subsequently maturing Eurodollar Rate Loans in order of maturity.
(ii) Mandatory Prepayments of Revolving Loans. In addition to
repayments under Section 2.5(B)(i)(d)(II), if at any time and for any reason
the Revolving Credit Obligations (net of the amount of any cash collateral
deposited with the Agent pursuant to the immediately following sentence) are
greater than the Aggregate Revolving Loan Commitment, the Borrower shall
immediately make a mandatory prepayment of the Revolving Credit Obligations in
an amount equal to such excess. In addition, if the amount of L/C Obligations
outstanding at any time is greater than the Aggregate Revolving Loan Commitment
at such time minus the sum of the outstanding principal amount of the Revolving
Loans at such time and the outstanding principal amount of the Swing Line Loans
at such time, the Borrower shall deposit cash collateral with the Agent in an
amount equal to such excess.
(iii) Subject to the preceding provisions of this Section 2.5(B), all
of the mandatory prepayments made under this Section 2.5(B) shall be applied
first to Floating Rate Loans and to any Eurodollar Rate Loans maturing on such
date. The Agent shall hold the remaining portion of such mandatory prepayment
as cash collateral in an interest bearing deposit account and shall apply funds
from such account to subsequently maturing Eurodollar Rate Loans in order of
maturity.
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2.6 Reduction of Commitments. The Borrower may, in its sole
discretion, permanently reduce the Aggregate Revolving Loan Commitment or the
Aggregate Term Loan Commitment in whole, or in part ratably among the Lenders,
in an aggregate minimum amount of $1,000,000 with respect to each such
Commitment and integral multiples of $100,000 in excess of that amount with
respect to each such Commitment (unless the Aggregate Revolving Loan Commitment
or the Aggregate Term Loan Commitment is reduced in whole), upon at least one
Business Day's written notice to the Agent, which notice shall specify the
amount of any such reduction; provided, however, that the amount of the
Aggregate Revolving Loan Commitment may not be reduced below the aggregate
principal amount of the outstanding Revolving Credit Obligations, and the
Aggregate Term Loan Commitment may not be reduced below the Aggregate principal
amount of the outstanding Term Loans. All accrued commitment fees shall be
payable on the effective date of any termination of the obligations of the
Lenders to make Loans hereunder.
2.7 Method of Borrowing. Not later than 2:00 p.m. (Chicago time) on
each Borrowing Date, each Lender shall make available its Revolving Loan or
Term Loan, in funds immediately available in Chicago to the Agent at its
address specified pursuant to Article XIV. The Agent will promptly make the
funds so received from the Lenders available to the Borrower at the Agent's
aforesaid address.
2.8 Method of Selecting Types and Interest Periods for Advances. The
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Rate Advance, the Interest Period applicable to each Advance from time to time.
The Borrower shall give the Agent irrevocable notice in substantially the form
of Exhibit C hereto (a "BORROWING/CONVERSION/CONTINUATION NOTICE") not later
than 10:00 a.m. (Chicago time) (a) on or before the Borrowing Date of each
Floating Rate Advance and (b) three Business Days before the Borrowing Date for
each Eurodollar Rate Advance, specifying: (i) the Borrowing Date (which shall
be a Business Day) of such Advance; (ii) the aggregate amount of such Advance;
(iii) the Type of Advance selected; and (iv) in the case of each Eurodollar
Rate Advance, the Interest Period applicable thereto. The Borrower shall
select Interest Periods so that, to the best of the Borrower's knowledge, it
will not be necessary to prepay all or any portion of any Eurodollar Rate
Advance prior to the last day of the applicable Interest Period in order to
make mandatory prepayments as required pursuant to the terms hereof. Each
Floating Rate Advance and all Obligations other than Loans shall bear interest
from and including the date of the making of such Advance, in the case of
Loans, and the date such Obligation is due and owing in the case of such other
Obligations, to (but not including) the date of repayment thereof at the
Floating Rate, changing when and as such Floating Rate changes. Changes in the
rate of interest on that portion of any Advance maintained as a Floating Rate
Loan will take effect simultaneously with each change in the Alternate Base
Rate. Each Eurodollar Rate Advance shall bear interest from and including the
first day of the Interest Period applicable thereto to (but not including) the
last day of such Interest Period at the interest rate determined as applicable
to such Eurodollar Rate Advance.
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2.9 Minimum Amount of Each Advance. Each Advance (other than an
Advance to repay Swing Line Loans or a Reimbursement Obligation) shall be in
the minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof), provided, however, that any Floating Rate Advance may be in the
amount of the unused Aggregate Revolving Loan Commitment.
2.10 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.
(A) Right to Convert. The Borrower may elect from time to time,
subject to the provisions of Section 2.4 and this Section 2.10, to convert all
or any part of a Loan of any Type into any other Type or Types of Loans;
provided that any conversion of any Eurodollar Rate Advance shall be made on,
and only on, the last day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall continue as
Eurodollar Rate Loans until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Rate Loans shall be automatically
converted into Floating Rate Loans unless the Borrower shall have given the
Agent notice in accordance with Section 2.10(D) requesting that, at the end of
such Interest Period, such Eurodollar Rate Loans continue as a Eurodollar Rate
Loan.
(C) No Conversion Post-Default or Post-Unmatured Default.
Notwithstanding anything to the contrary contained in Section 2.10(A) or
Section 2.10(B), no Loan may be converted into or continued as a Eurodollar
Rate Loan (except with the consent of the Required Lenders) when any Default or
Unmatured Default has occurred and is continuing.
(D) Conversion/Continuation Notice. The Borrower shall give the
Agent irrevocable notice (a "BORROWING/CONVERSION/CONTINUATION NOTICE") of each
conversion of a Floating Rate Loan into a Eurodollar Rate Loan or continuation
of a Eurodollar Rate Loan not later than 10:00 a.m. (Chicago time) three
Business Days prior to the date of the requested conversion or continuation,
specifying: (1) the requested date (which shall be a Business Day) of such
conversion or continuation; (2) the amount and Type of the Loan to be converted
or continued; and (3) the amount of Eurodollar Rate Loan(s) into which such
Loan is to be converted or continued and the duration of the Interest Period
applicable thereto.
2.11 Default Rate. After the occurrence and during the continuance of
(i) any Default described in Section 8.1(B) through (P) and following the
written direction of all of the Lenders or (ii) a Default described in Section
8.1(A), the interest rate(s) applicable to the Obligations and the fees payable
under Section 3.8 with respect to Letters of Credit shall be increased by two
percent (2.0%) per annum above the Floating Rate or Eurodollar Rate, as
applicable.
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2.12 Method of Payment. All payments of principal, interest, and fees
hereunder shall be made, without setoff, deduction or counterclaim, in
immediately available funds to the Agent at the Agent's address specified
pursuant to Article XIV, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Borrower, by 2:00 p.m. (Chicago time)
on the date when due and shall be made ratably among the Lenders (unless such
amount is not to be shared ratably in accordance with the terms hereof). Each
payment delivered to the Agent for the account of any Lender shall be delivered
promptly by the Agent to such Lender in the same type of funds which the Agent
received at its address specified pursuant to Article XIV or at any Lending
Installation specified in a notice received by the Agent from such Lender. The
Borrower authorizes the Agent to charge the account of the Borrower maintained
with First Chicago for each payment of principal, interest and fees as it
becomes due hereunder.
2.13 Notes. Each Lender is authorized to record the principal amount
of each of its Loans and each repayment with respect to its Loans on the
schedule attached to its respective Notes; provided, however, that the failure
to so record shall not affect the Borrower's obligations under any such Note.
2.14 Telephonic Notices. The Borrower authorizes the Lenders and the
Agent to extend Advances, effect selections of Types of Advances and to
transfer funds based on telephonic notices made by any person or persons the
Agent or any Lender in good faith believes to be acting on behalf of the
Borrower. The Borrower agrees to deliver promptly to the Agent a written
confirmation, signed by an Authorized Officer, if such confirmation is
requested by the Agent or any Lender, of each telephonic notice. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, (i) the telephonic notice shall govern absent
manifest error and (ii) the Agent or the Lender, as applicable, shall promptly
notify the Authorized Officer who provided such confirmation of such
difference.
2.15 Promise to Pay; Interest and Commitment Fees; Interest Payment
Dates; Interest and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. The Borrower unconditionally promises to pay
when due the principal amount of each Loan and all other Obligations incurred
by it, and to pay all unpaid interest accrued thereon, in accordance with the
terms of this Agreement, the Notes and the other Loan Documents.
(B) Interest Payment Dates. Interest accrued on each Floating Rate
Loan shall be payable on each Payment Date, commencing with the first such date
to occur after the date hereof, and at maturity (whether by acceleration or
otherwise). Interest accrued on each Eurodollar Rate Loan shall be payable on
the last day of its applicable Interest Period, on any date on which the
Eurodollar Rate Loan is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurodollar Rate Loan having an Interest
Period longer than three months shall also be payable on the last day of each
three-month interval during
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such Interest Period. Interest accrued on the principal balance of all other
Obligations, unless otherwise set forth herein, shall be payable in arrears (i)
on the last day of each calendar month, commencing on the first such day
following the incurrence of such Obligation, (ii) upon repayment thereof in
full or in part, and (iii) if not theretofore paid in full, at the time such
other Obligation becomes due and payable (whether by acceleration or
otherwise).
(C) Commitment Fees. (i) Subject to Section 9.2(vi), the Borrower
shall pay to the Agent, for the account of the Lenders in accordance with their
Pro Rata Shares, from and after the Closing Date until the date on which the
Aggregate Revolving Loan Commitment shall be terminated in whole, a commitment
fee accruing at the rate of the then Applicable Commitment Fee Percentage, on
the amount by which (A) the Aggregate Revolving Loan Commitment plus, at all
times prior to February 1, 1999, the Aggregate Term Loan Commitment in effect
from time to time exceeds (B) the Revolving Credit Obligations plus, at all
times prior to February 1, 1999, the aggregate principal amount of the Term
Loans from time to time. All such commitment fees payable under this clause
(C) shall be payable quarterly in arrears on the last day of each fiscal
quarter of the Borrower occurring after the Closing Date (with the first such
payment being calculated for the period from the Closing Date and ending on
December 31, 1997), and, in addition, on the date on which the Aggregate
Revolving Loan Commitment shall be terminated in whole.
(ii) The Borrower agrees to pay to the Agent for the sole account of
the Agent and the Arranger (unless otherwise agreed between the Agent and the
Arranger and any Lender) the fees set forth in the letter agreement between the
Agent and the Borrower dated October 14, 1997, payable at the times and in the
amounts set forth therein.
(D) Interest and Fee Basis; Applicable Floating Rate Margin,
Applicable Eurodollar Margin and Applicable Commitment Fee Percentage.
(i) Interest and fees shall be calculated for actual days elapsed on
the basis of a 360-day year. Interest shall be payable for the day an
Obligation is incurred but not for the day of any payment on the amount paid if
payment is received prior to 2:00 p.m. (Chicago time) at the place of payment.
If any payment of principal of or interest on a Loan or any payment of any
other Obligations shall become due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
(ii) The Applicable Floating Rate Margin, Applicable Eurodollar and
Applicable Commitment Fee Percentage shall be determined from time to time by
reference to the table set forth below, on the basis of the then applicable
Leverage Ratio as described in this Section 2.15(D)(ii):
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Applicable Applicable Applicable
Eurodollar Floating Rate Commitment
Leverage Ratio Margin Margin Fee Percentage
Greater than
3.0 to 1.0 2.00% 0.50% 0.50%
Greater than
2.5 to 1.0 and
less than or equal
to 3.0 to 1.0 1.75% 0.25% 0.375%
Greater than
2.0 to 1.0 and
less than or equal
to 2.5 to 1.0 1.50% 0.00% 0.375%
Greater than
1.5 to 1.0 and
less than or equal
to 2.0 to 1.0 1.25% 0.00% 0.25%
Less than or equal
to 1.5 to 1.0 1.00% 0.00% 0.25%
For purposes of this Section 2.15(D)(ii), the Leverage Ratio shall be
determined as of the last day of each fiscal quarter based upon (a) for
Indebtedness for borrowed money, Indebtedness for borrowed money as of the last
day of each such fiscal quarter; and (b) for EBITDA, the actual amount for the
four-quarter period ending on such day, calculated, with respect to Permitted
Acquisitions, on a pro forma basis using historical audited and reviewed
unaudited financial statements obtained from the seller, broken down by fiscal
quarter in the Borrower's reasonable judgment. Upon receipt of the financial
statements delivered pursuant to Sections 7.1(A)(i) and (ii), as applicable,
the Applicable Floating Rate Margin, Applicable Eurodollar Margin and
Applicable Commitment Fee Percentage shall be adjusted, such adjustment being
effective five (5) Business Days following the Agent's receipt of such
financial statements and the compliance certificate required to be delivered in
connection therewith pursuant to Section 7.1(A)(iii); provided, that if the
Borrower shall not have timely delivered its financial statements in accordance
with Section 7.1(A)(i) or (ii), as applicable, then commencing on the date upon
which such financial statements should have been delivered and continuing until
such financial statements are actually delivered, it shall be assumed for
purposes of determining the Applicable Floating Rate Margin, Applicable
Eurodollar Margin and Applicable Commitment Fee Percentage that the Leverage
Ratio was greater than 3.0 to 1.0. Notwithstanding anything herein to the
contrary, from the Closing Date to but not including the fifth Business Day
following receipt of the Borrower's financial statements in accordance
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with Section 7.1(A)(i) for the fiscal quarter ending December 31, 1997, the
Applicable Eurodollar Margin and Applicable Commitment Fee Percentage shall be
determined based upon an assumption that the Leverage Ratio is greater than 3.0
to 1.0.
(E) Taxes.
(i) Any and all payments by the Borrower hereunder shall be
made free and clear of and without deduction for any and all present
or future taxes, levies, imposts, deductions, charges or other
governmental withholdings with respect thereto including those arising
after the date hereof as a result of the adoption of or any
change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental Authority but
excluding, in the case of each Lender and the Agent, such taxes
(including income taxes, franchise taxes and branch profit taxes) as
are imposed on or measured by such Lender's or Agent's, as the case
may be, income by the United States of America or any subdivision
thereof or any Governmental Authority of the jurisdiction under the
laws of which such Lender or Agent, as the case may be, is organized
or maintains a Lending Installation (all such non-excluded taxes,
levies, imposts, deductions, charges and withholdings being
hereinafter referred to as "TAXES"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under the other Loan Documents to any Lender or
the Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.15(E)) such
Lender or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law. If a withholding
tax of the United States of America or any other Governmental
Authority shall be or become applicable (y) after the date of this
Agreement, to such payments by the Borrower made to the Lending
Installation or any other office that a Lender may claim as its
Lending Installation, or (z) after such Lender's selection and
designation of any other Lending Installation, to such payments made
to such other Lending Installation, such Lender shall use reasonable
efforts to make, fund and maintain its Loans through another Lending
Installation of such Lender in another jurisdiction so as to reduce
the Borrower's liability hereunder, if the making, funding or
maintenance of such Loans through such other Lending Installation of
such Lender does not, in the judgment of such Lender, otherwise
adversely affect such Loans, or obligations under the Revolving Loan
Commitments or such Lender.
(ii) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the
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Term Loan Commitments, the Loans or the Letters of Credit (hereinafter
referred to as "OTHER TAXES"); provided, however, that the Borrower
shall not be required to pay (or otherwise indemnify any Lender or
the Agent for) any Other Taxes incurred as a result of an assignment
pursuant to Section 13.3 hereof.
(iii) The Borrower indemnifies each Lender and the Agent for
the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Section 2.15(E)) paid by such
Lender or the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within thirty
(30) days after the date such Lender or the Agent (as the case may be)
makes written demand therefor. A certificate as to any additional
amount payable to any Lender or the Agent under this Section 2.15(E)
submitted to the Borrower and the Agent (if a Lender is so submitting)
by such Lender or the Agent shall show in reasonable detail the amount
payable and the calculations used to determine such amount and shall,
absent manifest error, be final, conclusive and binding upon all
parties hereto. With respect to such deduction or withholding for or
on account of any Taxes and to confirm that all such Taxes have been
paid to the appropriate Governmental Authorities, the Borrower shall
promptly (and in any event not later than thirty (30) days after
receipt) furnish to each Lender and the Agent such certificates,
receipts and other documents as are available from the relevant
Governmental Authority in respect of the Taxes or Other Taxes withheld
or deduced and as may be required (in the judgment of such Lender or
the Agent) to establish any tax credit to which such Lender or the
Agent may be entitled.
(iv) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.15(E) shall survive the
payment in full of principal and interest hereunder, the termination
of the Letters of Credit and the termination of this Agreement.
(v) Each Lender that is not created or organized under the
laws of the United States of America or a political subdivision
thereof shall deliver to the Borrower and the Agent on or before the
Closing Date, or, if later, the date on which such Lender becomes a
Lender pursuant to Section 13.3, a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender, in
a form satisfactory to the Borrower and the Agent, to the effect that
such Lender is eligible under the provisions of an applicable tax
treaty concluded by the United States of America (in which case the
certificate shall be accompanied by two executed copies of Form 1001
of the IRS) or under Section 1442 of the Code (in which case the
certificate shall be accompanied by two copies of Form 4224 of the
IRS) to receive payments of interest hereunder without deduction or
withholding of United States federal income tax. Each such Lender
further agrees to deliver to the Borrower and the Agent from time to
time a true and accurate certificate executed in duplicate by a duly
authorized officer of such
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Lender substantially in a form satisfactory to the Borrower and the
Agent, before or promptly upon the occurrence of any event requiring a
change in the most recent certificate previously delivered by it to
the Borrower and the Agent pursuant to this Section 2.15(E)(v).
Further, each Lender which delivers a certificate accompanied by Form
1001 of the IRS covenants and agrees to deliver to the Borrower and
the Agent within fifteen (15) days prior to January 1, 1998, and every
third (3rd) anniversary of such date thereafter on which this
Agreement is still in effect, another such certificate and two
accurate and complete original signed copies of Form 1001 (or any
successor form or forms required under the Code or the applicable
regulations promulgated thereunder), and each Lender that delivers a
certificate accompanied by Form 4224 of the IRS covenants and agrees
to deliver to the Borrower and the Agent within fifteen (15) days
prior to the beginning of each subsequent taxable year of such Lender
during which this Agreement is still in effect, another such
certificate and two accurate and complete original signed copies of
IRS Form 4224 (or any successor form or forms required under the Code
or the applicable regulations promulgated thereunder). Each
certificate delivered pursuant to either of the two immediately
preceding sentences shall certify as to one of the following:
(a) that such Lender is eligible to receive payments
of interest hereunder without deduction or withholding of
United States federal income tax;
(b) that such Lender is not eligible to receive
payments of interest hereunder without deduction or
withholding of United States federal income tax as specified
therein but is capable of recovering the full amount of any
such deduction or withholding from a source other than the
Borrower and will not seek any such recovery from the
Borrower; or
(c) that, as a result of the adoption of or any
change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental
Authority after the date such Lender became a party hereto,
such Lender is not eligible to receive payments of interest
hereunder without deduction or withholding of United States
federal income tax as specified therein and that it is not
capable of recovering the full amount of the same from a
source other than the Borrower.
Each Lender shall promptly furnish to the Borrower and the Agent such
additional documents as may be reasonably required by the Borrower or
the Agent to establish any exemption from or reduction of any Taxes or
Other Taxes required to be deducted or withheld and which may be
obtained without undue expense to such Lender. The Borrower shall not
indemnify any Lender or make any increased payment to any
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Lender under this Section 2.15 in respect of any United States federal
income tax if such Lender delivers a certificate described in the
preceding clause (b).
(F) Loan Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
Obligations of the Borrower to such Lender owing to such Lender from time to
time, including the amount of principal and interest payable and paid to such
Lender from time to time hereunder and under the Notes.
(G) Control Account. The Register maintained by the Agent pursuant
to Section 13.3(C) shall include a control account, and a subsidiary account
for each Lender, in which accounts (taken together) shall be recorded (i) the
date and amount of each Advance made hereunder, the type of Loan comprising
such Advance and any Interest Period applicable thereto, (ii) the effective
date and amount of each Assignment Agreement delivered to and accepted by it
and the parties thereto pursuant to Section 13.3, (iii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder or under the Notes, (iv) the amount of any
sum received by the Agent from the Borrower hereunder and each Lender's share
thereof, and (v) all other appropriate debits and credits as provided in this
Agreement, including, without limitation, all fees, charges, expenses and
interest.
(H) Entries Binding. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest
error, unless the Borrower objects to information contained in the Register and
each Loan Account within thirty (30) days of the Borrower's receipt of such
information.
2.16 Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions. Promptly after receipt
thereof, the Agent will notify each Lender of the contents of each Aggregate
Revolving Loan Commitment reduction notice, Borrowing Notice,
Continuation/Conversion Notice, and repayment notice received by it hereunder.
The Agent will notify each Lender of the interest rate applicable to each
Eurodollar Rate Loan promptly upon determination of such interest rate and will
give each Lender prompt notice of each change in the Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or
facsimile notice to the Agent and the Borrower, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments are to be made.
2.18 Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the
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Borrower, a payment of principal, interest or fees to the Agent for the account
of the Lenders, that it does not intend to make such payment, the Agent may
assume that such payment has been made. The Agent may, but shall not be
obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender or the Borrower, as
the case may be, has not in fact made such payment to the Agent, the recipient
of such payment shall, on demand by the Agent, repay to the Agent the amount so
made available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the Agent
until the date the Agent recovers such amount at a rate per annum equal to (i)
in the case of payment by a Lender, the Federal Funds Effective Rate for such
day or (ii) in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan.
2.19 Termination Date. This Agreement shall be effective until the
Termination Date. Notwithstanding the termination of this Agreement on the
Termination Date, until all of the Obligations (other than contingent indemnity
obligations) shall have been fully and indefeasibly paid and satisfied, all
financing arrangements among the Borrower and the Lenders with respect to the
transactions contemplated herein and in the other Loan Agreements shall have
been terminated (other than under Interest Rate Agreements or other agreements
with respect to Hedging Obligations) and all of the Letters of Credit shall
have expired, been canceled or terminated, all of the rights and remedies under
this Agreement and the other Loan Documents shall survive. Upon the
termination of this Agreement and payment in full of the Obligations (i) all
security interests created pursuant to any Collateral Document shall terminate
and all rights to the Collateral shall automatically revert to the Borrower and
(ii) each of the Lenders will, upon the Borrower's request and at the
Borrower's expense, (A) return to the Borrower such of the Collateral as shall
not have been sold or otherwise disposed of or applied pursuant to the terms
thereof and (B) execute and deliver to the Borrower such documents as the
Borrower shall reasonably request to evidence such termination.
2.20 Replacement of Certain Lenders. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Pro Rata Share of any Advance
requested by the Borrower, or to fund a Revolving Loan in order to repay Swing
Line Loans pursuant to Section 2.3(D), which such Lender is obligated to fund
under the terms of this Agreement and which failure has not been cured within
five Business Days, (ii) requested compensation from the Borrower under
Sections 2.15(E), 4.1 or 4.2 to recover Taxes, Other Taxes or other additional
costs incurred by such Lender which are not being incurred generally by the
other Lenders, (iii) delivered a notice pursuant to Section 4.3 claiming that
such Lender is unable to extend Eurodollar Rate Loans to the Borrower for
reasons not generally applicable to the other Lenders or (iv) has invoked
Section 10.2, then, in any such case, the Borrower or the Agent may make
written demand on such Affected Lender (with a copy to the Agent in the case of
a demand by the Borrower and a copy to the Borrower in the case of a demand by
the Agent) for the Affected Lender to assign, and such Affected Lender shall
use its best efforts to assign pursuant to one or more duly executed Assignment
Agreements five (5) Business Days after the date of such demand, to one or more
financial institutions that comply with the provisions of Section 13.3(A) which
the Borrower or the Agent, as the case may be, shall have engaged
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for such purpose ("REPLACEMENT LENDER"), all of such Affected Lender's rights
and obligations under this Agreement and the other Loan Documents (including,
without limitation, its Revolving Loan Commitment, all Loans owing to it, all
of its participation interests in existing Letters of Credit, and its
obligation to participate in additional Letters of Credit hereunder) in
accordance with Section 13.3. The Agent agrees, upon the occurrence of such
events with respect to an Affected Lender and upon the written request of the
Borrower, to use its reasonable efforts to obtain the commitments from one or
more financial institutions to act as a Replacement Lender. The Agent is
authorized to execute one or more of such assignment agreements as
attorney-in-fact for any Affected Lender failing to execute and deliver the
same within five (5) Business Days after the date of such demand. Further,
with respect to such assignment the Affected Lender shall have concurrently
received, in cash, all amounts due and owing to the Affected Lender hereunder
or under any other Loan Document, including, without limitation, the aggregate
outstanding principal amount of the Loans owed to such Lender, together with
accrued interest thereon through the date of such assignment, amounts payable
under Sections 2.15(E), 4.1, and 4.2 with respect to such Affected Lender and
compensation payable under Section 2.15(C) in the event of any replacement of
any Affected Lender under clause (ii) or clause (iii) of this Section 2.20;
provided that upon such Affected Lender's replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15(E), 4.1, 4.2, 4.4, and 10.7, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under Section 11.8. Upon the replacement of any Affected Lender
pursuant to this Section 2.20, the provisions of Section 9.2 shall continue to
apply with respect to Borrowings which are then outstanding with respect to
which the Affected Lender failed to fund its Pro Rata Share and which failure
has not been cured.
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations, warranties and covenants of
the Borrower herein set forth, each Issuing Bank hereby agrees to issue for the
account of the Borrower through such Issuing Bank's branches as it and the
Borrower may jointly agree, one or more Letters of Credit denominated in
Dollars in accordance with this Article III, from time to time during the
period, commencing on the date hereof and ending on the Business Day prior to
the Termination Date.
3.2 Transitional Provision. Schedule 3.2 contains a schedule of
certain letters of credit issued for the account of the Borrower prior to the
Closing Date. Subject to the satisfaction of the conditions contained in
Sections 5.1 and 5.2, as applicable, from and after the Closing Date such
letters of credit shall be deemed to be Letters of Credit issued pursuant to
this Article III.
3.3 Types and Amounts. No Issuing Bank shall have any obligation to
and no Issuing Bank shall:
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(i) issue any Letter of Credit if on the date of issuance,
before or after giving effect to the Letter of Credit requested
hereunder, (a) the Revolving Credit Obligations at such time would
exceed the Aggregate Revolving Loan Commitment at such time, or (b)
the aggregate outstanding amount of the L/C Obligations would exceed
$15,000,000; or
(ii) except as set forth in Schedule 3.3, issue any Letter of
Credit which has an expiration date later than the date which is the
earlier of one (1) year after the date of issuance thereof (except
that any such Letter of Credit may provide for automatic annual
extension of such expiration date upon notice to or from the Issuing
Bank) or five (5) Business Days immediately preceding the Termination
Date.
3.4 Conditions. In addition to being subject to the satisfaction of
the conditions contained in Sections 5.1 and 5.2, the obligation of an Issuing
Bank to issue any Letter of Credit is subject to the satisfaction in full of
the following conditions:
(i) the Borrower shall have delivered to the applicable
Issuing Bank at such times and in such manner as such Issuing Bank may
reasonably prescribe, a request for issuance of such Letter of Credit
in substantially the form of Exhibit D hereto, duly executed
applications for such Letter of Credit, and such other documents,
instructions and agreements as may be required pursuant to the terms
thereof, and the proposed Letter of Credit shall be reasonably
satisfactory to such Issuing Bank as to form and content; and
(ii) as of the date of issuance no order, judgment or decree
of any court, arbitrator or Governmental Authority shall purport by
its terms to enjoin or restrain the applicable Issuing Bank from
issuing such Letter of Credit and no law, rule or regulation
applicable to such Issuing Bank and no request or directive (whether
or not having the force of law) from a Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit or request that
such Issuing Bank refrain from the issuance of Letters of Credit
generally or the issuance of that Letter of Credit.
3.5 Procedure for Issuance of Letters of Credit. (a) Subject to the
terms and conditions of this Article III and provided that the applicable
conditions set forth in Sections 5.1 and 5.2 hereof have been satisfied, the
applicable Issuing Bank shall, on the requested date, issue a Letter of Credit
on behalf of the Borrower in accordance with such Issuing Bank's usual and
customary business practices and, in this connection, such Issuing Bank may
assume that the applicable conditions set forth in Section 5.2 hereof have been
satisfied unless it shall have received notice to the contrary from the Agent
or a Lender or has knowledge that the applicable conditions have not been met.
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(b) The applicable Issuing Bank shall give the Agent written or telex
notice, or telephonic notice confirmed promptly thereafter in writing, of the
issuance of a Letter of Credit, provided, however, that the failure to provide
such notice shall not result in any liability on the part of such Issuing Bank.
(c) No Issuing Bank shall extend or amend any Letter of Credit unless
the applicable requirements of this Section 3.5 are met as though a new Letter
of Credit was being requested and issued.
3.6 Letter of Credit Participation. Immediately upon the issuance of
each Letter of Credit hereunder, each Lender shall be deemed to have
automatically, irrevocably and unconditionally purchased and received from the
applicable Issuing Bank an undivided interest and participation in and to such
Letter of Credit, the obligations of the Borrower in respect thereof, and the
liability of such Issuing Bank thereunder (collectively, an "L/C INTEREST") in
an amount equal to the amount available for drawing under such Letter of Credit
multiplied by such Lender's Pro Rata Share. Each Issuing Bank will notify each
Lender promptly upon presentation to it of an L/C Draft or upon any other draw
under a Letter of Credit. On or before the Business Day on which an Issuing
Bank makes payment of each such L/C Draft or, in the case of any other draw on
a Letter of Credit, on demand by the Agent or the applicable Issuing Bank, each
Lender shall make payment to the applicable Issuing Bank, as directed by such
Issuing Bank, in immediately available funds in an amount equal to such
Lender's Pro Rata Share of the amount of such payment or draw. The obligation
of each Lender to reimburse the Issuing Banks under this Section 3.6 shall be
unconditional, continuing, irrevocable and absolute. In the event that any
Lender fails to make payment of any amount due under this Section 3.6, the
Agent shall be entitled to receive, retain and apply against such obligation
the principal and interest otherwise payable to such Lender hereunder until the
Agent receives such payment from such Lender or such obligation is otherwise
fully satisfied; provided, however, that nothing contained in this sentence
shall relieve such Lender of its obligation to reimburse the applicable Issuing
Bank for such amount in accordance with this Section 3.6.
3.7 Reimbursement Obligation. The Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to the applicable Issuing Bank or
to the Agent, for the account of the Lenders, the amount of each advance which
may be drawn under or pursuant to a Letter of Credit related thereto (such
obligation of the Borrower to reimburse the applicable Issuing Bank or the
Agent for an advance made under a Letter of Credit being hereinafter referred
to as a "REIMBURSEMENT OBLIGATION" with respect to such Letter of Credit). If
the applicable Issuing Bank or the Agent makes demand before 2:00 p.m. (Chicago
time), payment shall be due from the Borrower on same day as demand; if demand
is made after 2:00 p.m. (Chicago time), payment shall be due from the Borrower
on the next Business Day. If the Borrower at any time fails to repay a
Reimbursement Obligation pursuant to this Section 3.7, the Borrower shall be
deemed to have elected to borrow Revolving Loans from the Lenders, as of the
date of the payment giving rise to the Reimbursement Obligation, equal in
amount to the amount of the unpaid Reimbursement Obligation. Such Revolving
Loans shall be made as of the date of
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the payment giving rise to such Reimbursement Obligation, automatically,
without notice and without any requirement to satisfy the conditions precedent
otherwise applicable to an Advance of Revolving Loans, provided that the
Issuing Bank shall use reasonable efforts to provide notice of such
Reimbursement Obligation to the Borrower. Such Revolving Loans shall
constitute a Floating Rate Advance, the proceeds of which Advance shall be used
to repay such Reimbursement Obligation. If, for any reason, the Borrower fails
to repay a Reimbursement Obligation on the day such Reimbursement Obligation
arises and, for any reason, the Lenders are unable to make or have no
obligation to make Revolving Loans, then such Reimbursement Obligation shall
bear interest from and after such day, until paid in full, at the interest rate
applicable to a Floating Rate Advance.
3.8 Letter of Credit Fees. The Borrower agrees to pay (i) quarterly,
in arrears, no later than the tenth Business Day following the last day of each
quarter, to the Agent for the ratable benefit of the Lenders, except as set
forth in Section 9.2, a letter of credit fee at a rate per annum equal to the
Applicable L/C Fee Percentage on the average daily outstanding face amount
available for drawing under all Letters of Credit, (ii) quarterly, in arrears,
to the applicable Issuing Bank, a letter of credit fronting fee at such
percentage rate as may be agreed between the Borrower and each Issuing Bank on
the average daily outstanding face amount available for drawing under all
Letters of Credit issued by such Issuing Bank, and (iii) to the applicable
Issuing Bank, all customary fees and other issuance, amendment, document
examination, negotiation and presentment expenses and related charges in
connection with the issuance, amendment, presentation of L/C Drafts, and the
like customarily charged by such Issuing Banks with respect to standby and
commercial Letters of Credit in general to comparable customers under
comparable circumstances, including, without limitation, standard commissions
with respect to commercial Letters of Credit, payable at the time the invoice
of such amounts is received by the Borrower.
3.9 Issuing Bank Reporting Requirements. In addition to the notices
required by Section 3.5(C), each Issuing Bank shall, no later than the fifth
Business Day following the last day of each month, provide to the Agent, upon
the Agent's request, schedules, in form and substance reasonably satisfactory
to the Agent, showing the date of issue, account party, amount, expiration date
and the reference number of each Letter of Credit issued by it outstanding at
any time during such month. In addition, upon the request of the Agent, each
Issuing Bank shall furnish to the Agent copies of any Letter of Credit and any
application for or reimbursement agreement with respect to a Letter of Credit
to which the Issuing Bank is party and such other documentation as may
reasonably be requested by the Agent. Upon the request of any Lender, the
Agent will provide to such Lender information concerning such Letters of
Credit.
3.10 Indemnification; Exoneration. (A) In addition to amounts
payable as elsewhere provided in this Article III, the Borrower hereby agrees
to protect, indemnify, pay and save harmless the Agent, each Issuing Bank and
each Lender from and against any and all liabilities and costs which the Agent,
such Issuing Bank or such Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit other than, in
the
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case of the applicable Issuing Bank, as a result of its Gross Negligence or
willful misconduct, as determined by the final judgment of a court of competent
jurisdiction, or (ii) the failure of the applicable Issuing Bank to honor a
drawing under a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto Governmental
Authority (all such acts or omissions herein called "GOVERNMENTAL ACTS").
(B) As among the Borrower, the Lenders, the Agent and the Issuing
Banks, the Borrower assumes all risks of the acts and omissions of, or misuse
of such Letter of Credit by, the beneficiary of any Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions
of the Letter of Credit applications and Letter of Credit reimbursement
agreements executed by the Borrower at the time of request for any Letter of
Credit, neither the Agent, any Issuing Bank nor any Lender shall be responsible
(in the absence of Gross Negligence or willful misconduct in connection
therewith, as determined by the final judgment of a court of competent
jurisdiction): (i) for the form, validity, sufficiency, accuracy, genuineness
or legal effect of any document submitted by any party in connection with the
application for and issuance of the Letters of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of a Letter of Credit to comply duly with conditions
required in order to draw upon such Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex, or other similar form of teletransmission or
otherwise; (v) for errors in interpretation of technical trade terms; (vi) for
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit or of the proceeds thereof;
(vii) for the misapplication by the beneficiary of a Letter of Credit of the
proceeds of any drawing under such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the Agent, the Issuing
Banks and the Lenders, including, without limitation, any Governmental Acts.
None of the above shall affect, impair, or prevent the vesting of any Issuing
Bank's rights or powers under this Section 3.10.
(C) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by any
Issuing Bank under or in connection with the Letters of Credit or any related
certificates, in accordance with the terms thereof, shall not, in the absence
of Gross Negligence or willful misconduct, as determined by the final judgment
of a court of competent jurisdiction, put the applicable Issuing Bank, the
Agent or any Lender under any resulting liability to the Borrower or relieve
the Borrower of any of its obligations hereunder to any such Person.
(D) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 3.10 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
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3.11 Cash Collateral. Notwithstanding anything to the contrary herein
or in any application for a Letter of Credit, after the occurrence and during
the continuance of a Default, the Borrower shall, upon the Agent's written
demand, deliver to the Agent for the benefit of the Lenders and the Issuing
Banks, cash, or other collateral of a type satisfactory to the Required
Lenders, having a value, as reasonably determined in good faith by such
Lenders, equal to the aggregate outstanding L/C Obligations. In addition, if
the Revolving Credit Availability is at any time less than the amount of
contingent L/C Obligations outstanding at any time, the Borrower shall deposit
cash collateral with the Agent in an amount equal to the amount by which such
L/C Obligations exceed such Revolving Credit Availability. Any such collateral
shall be held by the Agent in a separate account appropriately designated as a
cash collateral account in relation to this Agreement and the Letters of Credit
and retained by the Agent for the benefit of the Lenders and the Issuing Banks
as collateral security for the Borrower's obligations in respect of this
Agreement and each of the Letters of Credit and L/C Drafts. Such amounts shall
be applied to reimburse the Issuing Banks for drawings or payments under or
pursuant to Letters of Credit or L/C Drafts, or if no such reimbursement is
required and a Default has occurred and is continuing, to payment of such of
the other Obligations as the Agent shall determine. If no Default shall be
continuing, amounts remaining in any cash collateral account established
pursuant to this Section 3.11 which are not to be applied to reimburse an
Issuing Bank for amounts actually paid or to be paid by such Issuing Bank in
respect of a Letter of Credit or L/C Draft, shall be returned to the Borrower
(after deduction of the Agent's expenses incurred in connection with such cash
collateral account).
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement and
having general applicability to all banks within the jurisdiction in which such
Lender operates (excluding, for the avoidance of doubt, the effect of and
phasing in of capital requirements or other regulations or guidelines passed
prior to the date of this Agreement), or, after the date of this Agreement, any
interpretation or application thereof by any Governmental Authority charged
with the interpretation or application thereof, or the compliance of any Lender
therewith,
(i) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on or from
payments due from the Borrower (excluding any tax, duty, charge or
withholding in respect of net income of any Lender or applicable
Lending Installation, branch profits taxes and Taxes covered by
Section 2.15(E) hereof), or changes the basis of taxation of payments
to any Lender in respect of its Loans, its L/C Interests, the Letters
of Credit or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with
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or for the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and assessments
taken into account in determining the interest rate applicable to
Eurodollar Rate Loans) with respect to its Loans, L/C Interests or the
Letters of Credit, or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining the Loans, the L/C Interests or the
Letters of Credit or reduces any amount received by any Lender or any
applicable Lending Installation in connection with Loans or Letters of
Credit, or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of Loans or
L/C Interests held or interest received by it or by reference to the
Letters of Credit, by an amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender
of making, renewing or maintaining its Loans, L/C Interests or Letters of
Credit or to reduce any amount received under this Agreement, then, within 15
days after receipt by the Borrower of written demand by such Lender pursuant to
Section 4.5, the Borrower shall pay such Lender that portion of such increased
expense incurred or reduction in an amount received which such Lender
determines is attributable to making, funding and maintaining its Loans, L/C
Interests, Letters of Credit and its Revolving Loan Commitment. If any Lender
fails to give the notice described in this Section 4.1 within 90 days after it
obtains such actual knowledge of the event required to be described in such
notice, such Lender shall, with respect to any compensation that would
otherwise be owing to such Lender under such Section, only be entitled to
payment for increased costs incurred from and after the date that is 90 days
prior to the date such Lender does give such notice.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines
(i) the amount of capital required or expected to be maintained by such Lender,
any Lending Installation of such Lender or any corporation controlling such
Lender is increased as a result of a "Change" (as defined below), and (ii)
such increase in capital will result in an increase in the cost to such Lender
of maintaining its Loans, L/C Interests, the Letters of Credit or its
obligation to make Loans hereunder, then, within 15 days after receipt by the
Borrower of written demand by such Lender pursuant to Section 4.5, the Borrower
shall pay such Lender the amount necessary to compensate for any shortfall in
the rate of return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Loans, its L/C Interests, the
Letters of Credit or its obligation to make Loans hereunder (after taking into
account such Lender's policies as to capital adequacy). "CHANGE" means (i) any
change after the date of this Agreement in the "Risk-Based Capital Guidelines"
(as defined below) excluding, for the avoidance of doubt, the effect of any
phasing in of such Risk-Based Capital Guidelines or any other capital
requirements passed prior to the date hereof, or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of
law) after the date of this Agreement and having general applicability to all
banks and financial institutions
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within the jurisdiction in which such Lender operates which affects the amount
of capital required or expected to be maintained by any Lender or any Lending
Installation or any corporation controlling any Lender. "RISK-BASED CAPITAL
GUIDELINES" means (i) the risk-based capital guidelines in effect in the United
States on the date of this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International
Convergence of Capital Measurements and Capital Standards," including
transition rules, and any amendments to such regulations adopted prior to the
date of this Agreement. If any Lender fails to give the notice described in
this Section 4.2 within 90 days after it obtains such actual knowledge of the
event required to be described in such notice, such Lender shall, with respect
to any compensation that would otherwise be owing to such Lender under such
Section, only be entitled to payment for increased costs incurred from and
after the date that is 90 days prior to the date such Lender does give such
notice.
4.3 Availability of Types of Advances. If (i) any Lender determines
that maintenance of its Eurodollar Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that prior to the first day of any Interest Period (x) deposits of a type and
maturity appropriate to match fund Eurodollar Rate Advances are not available
or (y) the interest rate applicable to a Eurodollar Rate Advance does not
accurately reflect the cost of making or maintaining such an Advance, then the
Agent shall suspend the availability of Eurodollar Rate Advances and, in the
case of any occurrence set forth in clause (i) require any Eurodollar Rate
Advances to be converted to Floating Rate Loans at the end of the then-current
Interest Period or sooner if so required by law.
4.4 Funding Indemnification. If any payment of a Eurodollar Rate
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment, or otherwise, or a
Eurodollar Rate Advance is not made on the date specified by the Borrower for
any reason other than default by the Agent or the Lenders, the Borrower shall
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Eurodollar Rate Advance. In
connection with any assignment by any Lender of any portion of the Loans made
pursuant to Section 13.3 and made during the Syndication Period, and if,
notwithstanding the provisions of Section 2.4, the Borrower has requested and
the Agent has consented to the use of the Eurodollar Rate, the Borrower shall
be deemed to have repaid all outstanding Eurodollar Rate Advances as of the
effective date of such assignment and reborrowed such amount as a Floating Rate
Advance and/or Eurodollar Rate Advance (chosen in accordance with the
provisions of Section 2.4) and the indemnification provisions under this
Section 4.4 shall apply. The Agent shall exercise its reasonable best efforts
to make any such assignment during the Syndication Period at the end of the 14
day Interest Period selected by the Borrower.
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4.5 Lender Statements; Survival of Indemnity. Each Lender shall use
its reasonable efforts to designate an alternate Lending Installation with
respect to its Eurodollar Rate Loans to reduce any liability of the Borrower to
such Lender under Sections 4.1 and 4.2 or to avoid the unavailability of a Type
of Advance under Section 4.3, so long as such designation is not
disadvantageous to such Lender. Each Lender requiring compensation pursuant to
Section 2.15(E) or to this Article IV shall with reasonable promptness notify
the Borrower and the Agent in writing of any Change, law, policy, rule,
guideline or directive giving rise to such demand for compensation not later
than ninety (90) days following the date upon which the responsible account
officer of such Lender knows or should have known of such Change, law, policy,
rule, guideline or directive. Any demand for compensation pursuant to this
Article IV shall be in writing and shall state the amount due, if any, under
Section 4.1, 4.2 or 4.4 and shall set forth in reasonable detail the reasons
for and the calculations upon which such Lender determined such amount. Such
written demand shall be rebuttably presumed correct for all purposes.
Determination of amounts payable under such Sections in connection with a
Eurodollar Rate Loan shall be calculated as though each Lender funded its
Eurodollar Rate Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Eurodollar
Rate applicable to such Loan, whether in fact that is the case or not. The
obligations of the Borrower under Sections 4.1, 4.2 and 4.4 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
5.1 Initial Advances and Letters of Credit. The Lenders shall not be
required to make the initial Loans or issue any Letters of Credit unless the
Borrower has furnished to the Agent each of the following, with sufficient
copies for the Lenders, all in form and substance satisfactory to the Agent and
the Lenders:
(1) Copies of the Articles of Incorporation of the Borrower,
together with all amendments and a certificate of good standing, both
certified by the appropriate governmental officer in its jurisdiction
of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary
of the Borrower, of its By-Laws and of its Board of Directors'
resolutions (and resolutions of other bodies, if any are reasonably
deemed necessary by counsel for any Lender) authorizing the execution
of the Loan Documents;
(3) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by name and
title and bear the signature of the officers of the Borrower
authorized to sign the Loan Documents and to make borrowings
hereunder, upon which certificate the Lenders shall be entitled to
rely until informed of any change in writing by the Borrower;
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(4) A certificate, in form and substance satisfactory to the
Agent, signed by the chief financial officer of the Borrower, stating
that on Closing Date no Default or Unmatured Default has occurred and
is continuing;
(5) A written opinion of the Borrower's counsel, addressed to
the Agent and the Lenders, addressing the issues identified in
Exhibit F hereto containing assumptions and qualifications acceptable to the
Agent and the Lenders;
(6) Notes payable to the order of each of the applicable
Lenders;
(7) Written money transfer instructions reasonably requested
by the Agent, addressed to the Agent and signed by an Authorized
Officer; and
(8) Such other documents as the Agent or any Lender or its
counsel may have reasonably requested, including, without limitation
all of the documents reflected on the List of Closing Documents
attached as Exhibit G to this Agreement.
5.2 Each Advance and Letter of Credit. The Lenders shall not be
required to make any Advance or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date on
which the Letter of Credit is to be issued:
(i) There exists no Default or Unmatured Default; and
(ii) The representations and warranties contained in Article
VI are true and correct as of such Borrowing Date except to the extent
such representations and warranties relate solely to an earlier date
and except for changes in the Schedules to this Agreement reflecting
transactions permitted by or not in violation of this Agreement.
Each Borrowing Notice with respect to each such Advance and the letter
of credit application with respect to a Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 5.2(i) and (ii) have been satisfied in all material respects. Any
Lender may, with reasonable advance notice to the Borrower, require a duly
completed officer's certificate in substantially the form of Exhibit H hereto
and/or a duly completed compliance certificate in substantially the form of
Exhibit I hereto as a condition to making an Advance.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Agreement and to make the Loans and the other financial accommodations to the
Borrower and to issue the Letters of Credit described herein, the Borrower
represents and warrants as follows to each Lender and
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the Agent as of the Closing Date, and thereafter on each date as required by
and to the extent set forth in Section 5.2(ii):
6.1 Organization; Corporate Powers. Holdings, the Borrower and each
of its Subsidiaries (i) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (ii)
is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which failure to be so
qualified and in good standing could not reasonably be expected to have a
Material Adverse Effect, and (iii) has all requisite corporate power and
authority to own, operate and encumber its property and to conduct its business
as presently conducted and as proposed to be conducted to the extent the
failure to do so is reasonably likely to result in a Material Adverse Effect.
6.2 Authority.
(A) Holdings, the Borrower and each of the Borrower's Subsidiaries
has the requisite corporate power and authority to execute, deliver and perform
each of the Loan Documents.
(B) The execution, delivery and performance of each of the Loan
Documents and the consummation of the transactions contemplated thereby, have
been duly approved by the respective boards of directors and, if necessary, the
shareholders of Holdings, the Borrower and the Borrower's Subsidiaries, and
such approvals have not been rescinded. No other corporate action or
proceedings on the part of Holdings, the Borrower or the Borrower's
Subsidiaries are necessary to consummate such transactions.
(C) Each of the Loan Documents to which Holdings, the Borrower or any
of the Borrower's Subsidiaries is a party has been duly executed and delivered
by it and constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms (except as enforceability may be
limited by bankruptcy, insolvency, fraudulent transfer, or similar laws
affecting the enforcement of creditors' rights generally and by principles of
equity in effect from time to time), and no Unmatured Default or Default by any
such party exists thereunder.
6.3 No Conflict; Governmental Consents. The execution, delivery and
performance of each of the Loan Documents to which Holdings, the Borrower or
any of the Borrower's Subsidiaries is a party do not and will not (i) conflict
with the certificate or articles of incorporation or by-laws of Holdings, the
Borrower or any such Subsidiary, (ii) constitute a tortious interference with
any Contractual Obligation to which it is bound or conflict with, result in a
breach of or constitute (with or without notice or lapse of time or both) a
default under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or Contractual Obligation of Holdings, the
Borrower or any such Subsidiary, or require termination of any Contractual
Obligation, except such interference, breach, default or termination which
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect, (iii) with respect to the Loan Documents, constitute
a tortious
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interference with any Contractual Obligation of any Person or conflict with,
result in a breach of or constitute (with or without notice or lapse of time or
both) a default under any Requirement of Law (including, without limitation,
any Environmental Property Transfer Act) or Contractual Obligation of Holdings,
the Borrower or any such Subsidiary, or require termination of any Contractual
Obligation, except such interference, breach, default or termination which
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect, (iv) result in or require the creation or imposition
of any Lien whatsoever upon any of the property or assets of Holdings, the
Borrower or any such Subsidiary, other than Liens permitted by the Loan
Documents, or (v) require any approval of Holdings', the Borrower's or any such
Subsidiary's shareholders except such as have been obtained. Except as set
forth on Schedule 6.3 to this Agreement, the execution, delivery and
performance of each of the Loan Documents to which the Borrower or any of its
Subsidiaries is a party do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by any
Governmental Authority, including under any Environmental Property Transfer
Act, except filings, consents, approvals, notices and other actions which have
been made, obtained, given, or taken or which, if not made, obtained, given, or
taken individually or in the aggregate could not reasonably be expected to have
a Material Adverse Effect.
6.4 Financial Statements.
(A) The pro forma balance sheet of the Borrower and its Subsidiaries,
copies of which are attached hereto as Schedule 6.4(A)(i) to this Agreement,
present on a pro forma basis the financial condition of the Borrower and such
Subsidiaries as of September 30, 1997, and reflect on a pro forma basis those
liabilities reflected in the notes thereto and the payment or accrual of all
transaction costs payable on the Closing Date with respect to any of the
foregoing. The projections attached hereto as Schedule 6.4(A)(ii) were
prepared in good faith and represent management's opinion based on the
information available to the Borrower at the time so furnished.
(B) Complete and accurate copies of the following financial
statements and the following related information have been delivered to the
Agent: (1) the balance sheet of the Borrower as at June 30, 1997; and the
related combined statements of income, changes in stockholders' equity and cash
flows of the Borrower for the fiscal year then ended, and the audit report
related thereto; and (2) the unaudited balance sheet of the Borrower for the
fiscal period ended September 30, 1997, and the related statements of
operations, changes in stockholder's equity and cash flows of the Borrower for
the fiscal quarter then ended.
6.5 No Material Adverse Change. (a) Since June 30, 1997 up to the
Closing Date, there has occurred no change in the business, properties,
condition (financial or otherwise) or results of operations of the Borrower, or
the Borrower and its Subsidiaries taken as a whole or any other event which has
had or could reasonably be expected to have a Material Adverse Effect.
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(b) Since the Closing Date, there has occurred no change in the
business, properties, condition (financial or otherwise) or results of
operations of the Borrower or the Borrower and its Subsidiaries taken as a
whole or any other event which has had or could reasonably be expected to have
a Material Adverse Effect.
6.6 Taxes.
(A) Tax Examinations. All material deficiencies which have been
asserted against the Borrower or any of the Borrower's Subsidiaries as a result
of any federal, state, local or foreign tax examination for each taxable year
in respect of which an examination has been conducted have been fully paid or
finally settled or are being contested in good faith, and as of the Closing
Date no material issue has been raised by any taxing authority in any such
examination which, by application of similar principles, reasonably can be
expected to result in assertion by such taxing authority of a material
deficiency for any other year not so examined which has not been reserved for
in the Borrower's consolidated financial statements to the extent, if any,
required by Agreement Accounting Principles. Except as permitted pursuant to
Section 7.2(D), neither the Borrower nor any of the Borrower's Subsidiaries
anticipates any material tax liability with respect to the years which have not
been closed pursuant to applicable law.
(B) Payment of Taxes. All tax returns and reports of the Borrower
and its Subsidiaries required to be filed have been timely filed, and all
taxes, assessments, fees and other governmental charges thereupon and upon
their respective property, assets, income and franchises which are shown in
such returns or reports to be due and payable have been paid except those items
which are being contested in good faith and have been reserved for in
accordance with Agreement Accounting Principles. The Borrower has no knowledge
of any proposed tax assessment against the Borrower or any of its Subsidiaries
that will have or could reasonably be expected to have a Material Adverse
Effect.
6.7 Litigation; Loss Contingencies and Violations. Except as set
forth in Schedule 6.7 to this Agreement, there is no action, suit, proceeding,
arbitration or (to the Borrower's knowledge) investigation before or by any
Governmental Authority or private arbitrator pending or, to the Borrower's
knowledge, threatened against the Borrower or any of its Subsidiaries or any
property of any of them which will have or could reasonably be expected to have
a Material Adverse Effect. There is no material loss contingency within the
meaning of Agreement Accounting Principles which has not been reflected in the
consolidated financial statements of the Borrower prepared and delivered
pursuant to Section 7.1(A) to the extent required by such Agreement Accounting
Principles for the fiscal period during which such material loss contingency
was incurred. Neither the Borrower nor any of its Subsidiaries is (A) in
violation of any applicable Requirements of Law which violation will have or
could reasonably be expected to have a Material Adverse Effect, or (B) subject
to or in default with respect to any final judgment, writ, injunction,
restraining order or order of any nature, decree, rule or regulation of any
court or Governmental Authority which will have or could reasonably be expected
to have a Material Adverse Effect.
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6.8 Subsidiaries. As of the Closing Date, Schedule 6.8 to this
Agreement (i) contains a description of the corporate structure of Holdings,
the Borrower, its Subsidiaries and any other Person in which the Borrower or
any of its Subsidiaries holds an Equity Interest; and (ii) accurately sets
forth (A) the correct legal name, the jurisdiction of incorporation, (B) the
authorized, issued and outstanding shares of each class of Capital Stock of
Holdings, the Borrower and each of its Subsidiaries and the owners of such
shares (both as of the Closing Date and on a fully-diluted basis), and (C) a
summary of the direct and indirect partnership, joint venture, or other Equity
Interests, if any, of Holdings, the Borrower and each Subsidiary of the
Borrower in any Person that is not a corporation. None of the issued and
outstanding Capital Stock of Holdings, the Borrower or any of its Subsidiaries
is subject to any vesting, redemption, or repurchase agreement, and there are
no warrants or options outstanding with respect to such Capital Stock. The
outstanding Capital Stock of Holdings, the Borrower and each of the Borrower's
Subsidiaries is duly authorized, validly issued, fully paid and nonassessable.
6.9 ERISA. Except as disclosed on Schedule 6.9, no Benefit Plan has
incurred any accumulated funding deficiency (as defined in Sections 302(a)(2)
of ERISA and 412(a) of the Code) whether or not waived. Neither the Borrower
nor any member of the Controlled Group has incurred any liability to the PBGC
which remains outstanding other than the payment of premiums, and there are no
premium payments which have become due which are unpaid. Schedule B to the
most recent annual report filed with the IRS with respect to each Benefit Plan
and furnished to the lenders is complete and accurate. Since the date of each
such Schedule B, there has been no material adverse change in the funding
status or financial condition of the Benefit Plan relating to such Schedule B.
Neither the Borrower nor any member of the Controlled Group has (i) failed to
make a required contribution or payment to a Multiemployer Plan or (ii) made a
complete or partial withdrawal under Sections 4203 or 4205 of ERISA from a
Multiemployer Plan. Neither the Borrower nor any member of the Controlled
Group has failed to make a required installment or any other required payment
under Section 412 of the Code on or before the due date for such installment or
other payment. Neither the Borrower nor any member of the Controlled Group is
required to provide security to a Benefit Plan under Section 401(a)(29) of the
Code due to a Plan amendment that results in an increase in current liability
for the plan year. Except as disclosed on Schedule 6.9, neither the Borrower
nor any of its Subsidiaries maintains or contributes to any employee welfare
benefit plan within the meaning of Section 3(1) of ERISA which provides
benefits to employees after termination of employment other than as required by
Section 601 of ERISA. Each Plan which is intended to be qualified under
Section 401(a) of the Code as currently in effect is so qualified, and each
trust related to any such Plan is exempt from federal income tax under Section
501(a) of the Code as currently in effect. The Borrower and all Subsidiaries
are in compliance in all material respects with the responsibilities,
obligations and duties imposed on them by ERISA and the Code with respect to
all Plans. Neither the Borrower nor any of its Subsidiaries nor any fiduciary
of any Plan has engaged in a nonexempt prohibited transaction described in
Sections 406 of ERISA or 4975 of the Code which could reasonably be expected to
subject the Borrower to liability in excess of $1,000,000. Neither the
Borrower nor any member of the Controlled Group has
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taken or failed to take any action which would constitute or result in a
Termination Event, which action or inaction could reasonably be expected to
subject the Borrower to liability in excess of $1,000,000. Neither the
Borrower nor any Subsidiary is subject to any liability under Sections 4063,
4064, 4069, 4204 or 4212(c) of ERISA and no other member of the Controlled
Group is subject to any liability under Sections 4063, 4064, 4069, 4204 or
4212(c) of ERISA which could reasonably be expected to subject the Borrower to
liability in excess of $1,000,000. Neither the Borrower nor any of its
Subsidiaries has, by reason of the transactions contemplated hereby, any
obligation to make any payment to any employee pursuant to any Plan or existing
contract or arrangement.
6.10 Accuracy of Information. The information, exhibits and reports
furnished by or on behalf of the Borrower and any of its Subsidiaries to the
Agent or to any Lender in connection with the negotiation, execution and
delivery of, or compliance with, the Loan Documents, the representations and
warranties of the Borrower and its Subsidiaries contained in the Loan
Documents, and all certificates and documents delivered to the Agent and the
Lenders pursuant to the terms thereof, taken as a whole, do not contain as of
the date furnished any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
misleading in any material respect.
6.11 Securities Activities. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
6.12 Material Agreements. Neither the Borrower nor any Subsidiary is
a party to any Contractual Obligation or subject to any charter or other
corporate restriction which individually or in the aggregate will have or could
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any of its Subsidiaries has received written notice or has actual knowledge
that (i) it is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any Contractual
Obligation applicable to it, or (ii) any condition exists which, with the
giving of notice or the lapse of time or both, would constitute a default with
respect to any such Contractual Obligation, in each case, except where such
default or defaults, if any, individually or in the aggregate will not have or
could not reasonably be expected to have a Material Adverse Effect.
6.13 Compliance with Laws. The Borrower and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
6.14 Assets and Properties. The Borrower and each of its Subsidiaries
has good and marketable title to all of its material assets and properties
(tangible and intangible, real or personal) owned by it or a valid leasehold
interest in all of its leased assets (except insofar as marketability may be
limited by any laws or regulations of any Governmental Authority affecting such
assets), and all such assets and property are free and clear of all Liens,
except
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Liens permitted under Section 7.3(C). Substantially all of the material assets
and properties owned by, leased to or used by the Borrower and/or each such
Subsidiary of the Borrower are in adequate operating condition and repair,
ordinary wear and tear excepted. Neither this Agreement nor any other Loan
Document, nor any transaction contemplated under any such agreement, will
affect any right, title or interest of the Borrower or such Subsidiary in and
to any of such assets in a manner that would have or could reasonably be
expected to have a Material Adverse Effect.
6.15 Statutory Indebtedness Restrictions. Neither the Borrower nor
any of its Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce
Act, or the Investment Company Act of 1940, or any other federal or state
statute or regulation which limits its ability to incur indebtedness or its
ability to consummate the transactions contemplated hereby.
6.16 Insurance. Schedule 6.16 to this Agreement accurately sets forth
as of the Closing Date all insurance policies and programs currently in effect
with respect to the respective properties and assets and business of the
Borrower and its Subsidiaries, specifying, for each such policy and program,
(i) the amount thereof, (ii) the risks insured against thereby, (iii) the name
of the insurer and each insured party thereunder, (iv) the policy or other
identification number thereof, and (v) the expiration date thereof. Such
insurance policies and programs reflect coverage that is reasonably consistent
with prudent industry practice for Persons in comparable circumstances as the
Borrower and its Subsidiaries taken as a whole.
6.17 Labor Matters.
As of the Closing Date, no attempt to organize the employees of the
Borrower, and no labor disputes, strikes or walkouts affecting the operations
of the Borrower or any of its Subsidiaries, is pending, or, to the Borrower's
knowledge, threatened, planned or contemplated.
6.18 Environmental Matters. (A) Except as disclosed on Schedule 6.18
to this Agreement
(i) the operations of the Borrower and its Subsidiaries
comply in all material respects with Environmental, Health or Safety
Requirements of Law;
(ii) the Borrower and its Subsidiaries have all material
permits, licenses or other authorizations required under
Environmental, Health or Safety Requirements of Law and are in
material compliance with such permits;
(iii) neither the Borrower, any of its Subsidiaries nor any
of their respective present property or operations, or, to the
Borrower's or any of its Subsidiaries' knowledge, any of their
respective past property or operations, are subject to or the subject
of, any investigation known to the Borrower or any of its
Subsidiaries, any
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judicial or administrative proceeding, order, judgment, decree,
settlement or other agreement respecting: (A) any material violation
of Environmental, Health or Safety Requirements of Law; (B) any
material remedial action; or (C) any material claims or liabilities
arising from the Release or threatened Release of a Contaminant into
the environment;
(iv) there is not now, nor to the Borrower's or any of its
Subsidiaries' knowledge has there ever been on or in the property of
the Borrower or any of its Subsidiaries any landfill, waste pile,
underground storage tanks, aboveground storage tanks, surface
impoundment or hazardous waste storage facility of any kind, any
polychlorinated biphenyls (PCBs) used in hydraulic oils, electric
transformers or other equipment, or any asbestos containing material
in violation of any Environmental, Health or Safety Requirements of
Law in any material respect; and
(v) neither the Borrower nor any of its Subsidiaries has any
material Contingent Obligation in connection with any Release or
threatened Release of a Contaminant into the environment.
(B) For purposes of this Section 6.18 "material" means any
noncompliance or basis for liability which could reasonably be likely to
subject the Borrower to liability in excess of $1,000,000.
6.19 Solvency. After giving effect to the (i) Loans to be made on the
Closing Date or such other date as Loans requested hereunder are made and (ii)
the payment and accrual of all transaction costs with respect to the foregoing,
the Borrower and its Subsidiaries taken as a whole is Solvent.
ARTICLE VII : COVENANTS
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than contingent indemnity obligations), unless the Required Lenders
shall otherwise give prior written consent:
7.1 Reporting. The Borrower shall:
(A) Financial Reporting. Furnish to the Agent (with sufficient copies
for each of the Lenders):
(i) Quarterly Reports. As soon as practicable, and in any
event within fifty (50) days after the end of each of the first three
fiscal quarters in each fiscal year, the consolidated balance sheet of
Holdings and its Subsidiaries as at the end of such period and the
related consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for each such fiscal quarters and for
the period from the beginning of
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the then current fiscal year to the end of such fiscal quarters,
certified by the chief financial officer of the Borrower on behalf of
the Borrower as fairly presenting the consolidated financial position
of the Borrower and its Subsidiaries as at the dates indicated and the
results of their operations and cash flows for the periods indicated
in accordance with Agreement Accounting Principles, subject to normal
year end adjustments.
(ii) Annual Reports. As soon as practicable, and in any
event within one- hundred and five (105) days after the end of each
fiscal year, (a) the consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, stockholders' equity and cash flows
of the Borrower and its Subsidiaries for such fiscal year, and in
comparative form the corresponding figures for the previous fiscal
year along with schedules in form and substance sufficient to
calculate the financial covenants set forth in Section 7.4, and (b) an
audit report on the items listed in clause (a) hereof of independent
certified public accountants of recognized national standing, which
audit report shall be unqualified and shall state that such financial
statements fairly present the consolidated financial position of the
Borrower and its Subsidiaries as at the dates indicated and the
results of their operations and cash flows for the periods indicated
in conformity with Agreement Accounting Principles and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally
accepted auditing standards. The deliveries made pursuant to this
clause (ii) shall be accompanied by (x) any management letter prepared
by the above-referenced accountants, and (y) a certificate of such
accountants that, in the course of their examination necessary for
their certification of the foregoing, they have obtained no knowledge
of any Default or Unmatured Default with respect to the financial
covenants set forth in Section 7.4, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist, stating the
nature and status thereof.
(iii) Officer's Certificate. Together with each delivery of
any financial statement (a) pursuant to clauses (i), and (ii)
of this Section 7.1(A), an Officer's Certificate of the Borrower,
substantially in the form of Exhibit H attached hereto and made a part
hereof, stating that no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and status
thereof and (b) pursuant to clauses (i) and (ii) of this Section
7.1(A), a compliance certificate, substantially in the form of
Exhibit I attached hereto and made a part hereof, signed by the
Borrower's Chief Financial Officer or Treasurer, setting forth
calculations for the period then ended for Section 2.5(B), if
applicable, which demonstrate compliance, when applicable, with the
provisions of Section 7.4, and which calculate the Leverage Ratio for
purposes of determining the then Applicable Floating Rate Margin,
Applicable Eurodollar Margin and Applicable Commitment Fee Percentage.
(iv) Budgets; Business Plans; Financial Projections. As soon
as practicable and in any event not later than sixty (60) days after
the beginning of each fiscal year, a
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copy of the plan and forecast (including a projected balance sheet,
income statement and a statement of cash flow) of Holdings and its
Subsidiaries for such fiscal year prepared in such detail as shall be
reasonably satisfactory to the Agent together with Holdings' plan and
projections for the succeeding four (4) years.
(B) Notice of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer or
controller of the Borrower obtaining knowledge (i) of any condition or event
which constitutes a Default or Unmatured Default, or becoming aware that any
Lender or Agent has given any written notice with respect to a claimed Default
or Unmatured Default under this Agreement, or (ii) that any Person has given
any written notice to the Borrower or any Subsidiary of the Borrower or taken
any other action with respect to a claimed default or event or condition of the
type referred to in Section 8.1(E) with respect to Indebtedness the outstanding
principal amount of which is in excess of $5,000,000, deliver to the Agent and
the Lenders an Officer's Certificate specifying (a) the nature and period of
existence of any such claimed default, Default, Unmatured Default, condition or
event, (b) the notice given or action taken by such Person in connection
therewith, and (c) what action the Borrower has taken, is taking and proposes
to take with respect thereto.
(C) Lawsuits. (i) Promptly upon the Borrower obtaining knowledge of
the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries or any property of the Borrower or any of its
Subsidiaries not previously disclosed pursuant to Section 6.7, which action,
suit, proceeding, governmental investigation or arbitration exposes, or in the
case of multiple actions, suits, proceedings, governmental investigations or
arbitrations arising out of the same general allegations or circumstances which
expose, in the Borrower's reasonable judgment, the Borrower or any of its
Subsidiaries to liability in an amount aggregating $1,000,000 or more
(exclusive of claims covered by insurance policies of the Borrower or any of
its Subsidiaries unless the insurers of such claims have disclaimed coverage or
reserved the right to disclaim coverage on such claims and exclusive of claims
covered by the indemnity of a financially responsible indemnitor in favor of
the Borrower or any of its Subsidiaries unless the indemnitor has disclaimed or
reserved the right to disclaim coverage thereof), give written notice thereof
to the Agent and the Lenders and provide such other information as may be
reasonably available to enable each Lender and the Agent and its counsel to
evaluate such matters; and (ii) in addition to the requirements set forth in
clause (i) of this Section 7.1(C), upon request of the Agent or the Required
Lenders, promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) above and provide such other information as
may be reasonably available to it that would not violate any attorney-client
privilege by disclosure to the Lenders to enable each Lender and the Agent and
its counsel to evaluate such matters.
(D) ERISA Notices. Deliver or cause to be delivered to the Agent and
the Lenders, at the Borrower's expense, the following information and notices
as soon as reasonably possible, and in any event:
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(i) (a) within ten (10) Business Days after the Borrower
obtains knowledge that a Termination Event has occurred, a written
statement of the chief financial officer of the Borrower describing
such Termination Event and the action, if any, which the Borrower has
taken, is taking or proposes to take with respect thereto, and when
known, any action taken or threatened by the IRS, DOL or PBGC with
respect thereto and (b) within ten (10) Business Days after any member
of the Controlled Group obtains knowledge that a Termination Event has
occurred which could reasonably be expected to subject the Borrower to
liability in excess of $1,000,000, a written statement of the chief
financial officer of the Borrower describing such Termination Event
and the action, if any, which the member of the Controlled Group has
taken, is taking or proposes to take with respect thereto, and when
known, any action taken or threatened by the IRS, DOL or PBGC with
respect thereto;
(ii) within ten (10) Business Days after the Borrower or any
of its Subsidiaries obtains knowledge that a prohibited transaction
(defined in Sections 406 of ERISA and Section 4975 of the Code) has
occurred, a statement of the chief financial officer of the Borrower
describing such transaction and the action which the Borrower or such
Subsidiary has taken, is taking or proposes to take with respect
thereto;
(iii) within ten (10) Business Days after the material
increase in the benefits of any existing Benefit Plan or the
establishment of any new Benefit Plan or the commencement of, or
obligation to commence, contributions to any Benefit Plan or
Multiemployer Plan to which the Borrower or any member of the
Controlled Group was not previously contributing, notification of such
increase, establishment, commencement or obligation to commence and
the amount of such contributions provided that such increase,
establishment, commencement or obligation could reasonably be expected
to subject the Borrower to liability in excess of $1,000,000;
(iv) within ten (10) Business Days after the Borrower or any
of its Subsidiaries receives notice of any unfavorable determination
letter from the IRS regarding the qualification of a Plan under
Section 401(a) of the Code, copies of each such letter;
(v) within ten (10) Business Days after the establishment of
any foreign employee benefit plan or the commencement of, or
obligation to commence, contributions to any foreign employee benefit
plan to which the Borrower or any Subsidiary was not previously
contributing, notification of such establishment, commencement or
obligation to commence and the amount of such contributions provided
that such establishment, commencement or obligation could reasonably
be expected to subject the Borrower to liability in excess of
$1,000,000;
(vi) within ten (10) Business Days after the filing thereof
with the DOL, IRS or PBGC, copies of each annual report (form 5500
series), including Schedule B thereto, filed with respect to each
Benefit Plan;
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(vii) within ten (10) Business Days after receipt by the
Borrower or any member of the Controlled Group of each actuarial
report for any Benefit Plan or Multiemployer Plan and each annual
report for any Multiemployer Plan, copies of each such report;
(viii) within ten (10) Business Days after the filing thereof
with the IRS, a copy of each funding waiver request filed with respect
to any Benefit Plan and all communications received by the Borrower or
a member of the Controlled Group with respect to such request;
(ix) within ten (10) Business Days after receipt by the
Borrower or any member of the Controlled Group of the PBGC's intention
to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice;
(x) within ten (10) Business Days after receipt by the
Borrower or any member of the Controlled Group of a notice from a
Multiemployer Plan regarding the imposition of withdrawal liability,
copies of each such notice;
(xi) within ten (10) Business Days after the Borrower or any
member of the Controlled Group fails to make a required installment or
any other required payment under Section 412 of the Code on or before
the due date for such installment or payment, a notification of such
failure; and
(xii) within ten (10) Business Days after the Borrower or any
member of the Controlled Group knows or has reason to know that (a) a
Multiemployer Plan has been terminated, (b) the administrator or plan
sponsor of a Multiemployer Plan intends to terminate a Multiemployer
Plan, or (c) the PBGC has instituted or will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan.
For purposes of this Section 7.1(D), the Borrower, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the Administrator of any Plan of which the Borrower or any member of the
Controlled Group or such Subsidiary is the plan sponsor.
(E) Labor Matters. Notify the Agent and the Lenders in writing,
promptly upon the Borrower's learning thereof, of (i) any material labor
dispute to which the Borrower or any of its Subsidiaries may become a party,
including, without limitation, any strikes, lockouts or other disputes relating
to such Persons' plants and other facilities and (ii) any Worker Adjustment and
Retraining Notification Act liability incurred with respect to the closing of
any plant or other facility of the Borrower or any of its Subsidiaries, in each
case which is reasonably likely to result in a Material Adverse Effect.
(F) Other Indebtedness. Deliver to the Agent (i) a copy of each
regular written report, notice or communication regarding potential or actual
defaults (including any accompanying
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officer's certificate) delivered by or on behalf of the Borrower to the holders
of funded Indebtedness in a principal amount in excess of $500,000 pursuant to
the terms of the agreements governing such Indebtedness, such delivery to be
made at the same time and by the same means as such notice or other
communication is delivered to such holders, and (ii) a copy of each notice or
other communication received by the Borrower from the from the holders of
funded Indebtedness in a principal amount in excess of $500,000 pursuant to the
terms of such Indebtedness, such delivery to be made promptly after such notice
or other communication is received by the Borrower.
(G) Other Reports. Deliver or cause to be delivered to the Agent and
the Lenders copies of all financial statements, reports and notices, if
any, sent or made available generally by the Borrower to its securities holders
or filed with the Commission by the Borrower, all press releases made available
generally by the Borrower or any of the Borrower's Subsidiaries to the public
concerning material developments in the business of the Borrower or any such
Subsidiary and all material notifications received from the Commission by the
Borrower or its Subsidiaries pursuant to the Securities Exchange Act of 1934
and the rules promulgated thereunder.
(H) Environmental Notices. As soon as possible and in any event
within ten (10) days after receipt by the Borrower, a copy of (i) any notice or
claim to the effect that the Borrower or any of its Subsidiaries is or may be
liable to any Person as a result of the Release by the Borrower, any of its
Subsidiaries, or any other Person of any Contaminant into the environment, and
(ii) any written notice alleging any violation of any Environmental, Health or
Safety Requirements of Law by the Borrower or any of its Subsidiaries if, in
either case, such notice or claim relates to an event which could reasonably be
expected to subject the Borrower to liability in excess of $1,000,000.
(I) Other Information. Promptly upon receiving a written request
therefor from the Agent, prepare and deliver to the Agent and the Lenders such
other information with respect to the Borrower, any of its Subsidiaries, or the
Collateral, including, without limitation, schedules identifying and describing
the Collateral and any dispositions thereof or any Asset Sale or Financing (and
the use of the Net Cash Proceeds thereof), as from time to time may be
reasonably requested by the Agent.
7.2 Affirmative Covenants.
(A) Corporate Existence, Etc. The Borrower shall, and shall cause
each of its Subsidiaries to, at all times maintain its corporate existence (it
being understood that this clause (A) shall not prevent any Subsidiary of the
Borrower from merging or consolidating with or into the Borrower (as long as
the Borrower is the surviving corporation) or any other Subsidiary of the
Borrower) and preserve and keep, or cause to be preserved and kept, in full
force and effect its rights and franchises material to its businesses.
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(B) Corporate Powers; Conduct of Business. The Borrower shall, and
shall cause each of its Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires it
to be so qualified and where the failure to be so qualified will have or could
reasonably be expected to have a Material Adverse Effect. The Borrower will,
and will cause each Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of
enterprise as it is presently conducted.
(C) Compliance with Laws, Etc. The Borrower shall, and shall cause
its Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants material to the business, properties, assets or
operations of the Borrower, and (b) obtain as needed all permits material to
its operations and maintain such permits in good standing.
(D) Payment of Taxes and Claims; Tax Consolidation. The Borrower
shall pay, and cause each of its Subsidiaries to pay, (i) all taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business, income
or property before any penalty or interest accrues thereon, and (ii) all claims
(including, without limitation, claims for labor, services, materials and
supplies) for sums which have become due and payable and which by law have or
may become a Lien (other than a Lien permitted by Section 7.3(C)) upon any of
the Borrower's or such Subsidiary's property or assets, prior to the time when
any penalty or fine shall be incurred with respect thereto; provided, however,
that no such taxes, assessments and governmental charges referred to in clause
(i) above or claims referred to in clause (ii) above (and interest, penalties,
fines or other amounts relating thereto) need be paid if being contested in
good faith by appropriate proceedings diligently instituted and conducted and
if such reserve or other appropriate provision, if any, as shall be required in
conformity with Agreement Accounting Principles shall have been made therefor.
(E) Insurance. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect, the insurance policies and programs listed on Schedule 6.16 to this
Agreement or substantially similar policies and programs or other policies and
programs as reflect coverage that is reasonably consistent with prudent
industry practice. The Borrowers shall deliver to the Agent endorsements (y)
to all "All Risk" physical damage insurance policies on all of the Borrowers'
tangible real and personal property and assets and business interruption
insurance policies naming the Agent loss payee, and (z) to all general
liability and other liability policies naming the Agent an additional insured.
In the event the Borrower or any of its Subsidiaries at any time or times
hereafter shall fail to obtain or maintain any of the policies or insurance
required herein or to pay any premium in whole or in part relating thereto,
then the Agent, without waiving or releasing any obligations or resulting
Default hereunder, may at any time or times thereafter (but shall be under no
obligation to do so) obtain and maintain such policies of insurance and pay
such premiums and take any other action with respect thereto which the Agent
deems advisable. All sums so disbursed by the Agent shall constitute part of
the Obligations, payable as provided in this Agreement.
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(F) Inspection of Property; Books and Records; Discussions. The
Borrower shall permit and cause each of the Borrower's Subsidiaries to permit,
any authorized representative(s) designated by either the Agent or any Lender
to visit and inspect any of the properties of the Borrower or any of its
Subsidiaries, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their officers and independent certified
public accountants, all upon reasonable notice and at such reasonable times
during normal business hours, as often as may be reasonably requested. The
Borrower shall keep and maintain, and cause each of the Borrower's Subsidiaries
to keep and maintain, in all material respects, proper books of record and
account in which entries in conformity with Agreement Accounting Principles
shall be made of all dealings and transactions in relation to their respective
businesses and activities. If a Default has occurred and is continuing, the
Borrower, upon the Agent's request, shall turn over copies of any such records
to the Agent or its representatives.
(G) ERISA Compliance. The Borrower shall, and shall cause each of
the Borrower's Subsidiaries to, establish, maintain and operate all Plans to
comply in all material respects with the provisions of ERISA, the Code, all
other applicable laws, and the regulations and interpretations thereunder and
the respective requirements of the governing documents for such Plans.
(H) Maintenance of Property. The Borrower shall cause all property
used or useful in the conduct of its business or the business of any Subsidiary
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Borrower may be necessary so that the business carried
on in connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section 7.2(H) shall prevent the
Borrower from discontinuing the operation or maintenance of any of such
property if such discontinuance is, in the judgment of the Borrower, desirable
in the conduct of its business or the business of any Subsidiary.
(I) Environmental Compliance. The Borrower and its Subsidiaries
shall comply with all Environmental, Health or Safety Requirements of Law,
except where noncompliance will not have or is not reasonably likely to subject
the Borrower to liability in excess of $1,000,000.
(J) Use of Proceeds. The Borrower shall use the proceeds of the
Revolving Loans and the Term Loans to (i) purchase or prepay Subordinated Notes
and make all payments related thereto, including, without limitation, payments
of premiums and interest in connection therewith, (ii) repay existing
Indebtedness, and (iii) provide funds for the additional working capital needs
and other general corporate purposes of the Borrower and its Subsidiaries. The
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Borrower will not, nor will it permit any Subsidiary to, use any of the
proceeds of the Loans to purchase or carry any Margin Stock or to make any
Acquisition, other than a Permitted Acquisition pursuant to Section 7.3(G).
7.3 Negative Covenants.
(A) Indebtedness. Neither Holdings, nor the Borrower nor any of the
Borrower's Subsidiaries shall directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
(i) the Obligations;
(ii) the Subordinated Notes (including all interest, premiums,
fees and other amounts due and owing with respect thereto pursuant to
the Indenture);
(iii) Permitted Existing Indebtedness and any refinancings,
refundings, renewals or extensions thereof (without any increase in
the principal amount thereof);
(iv) Indebtedness in respect of obligations secured by Liens
permitted by Section 7.3(C);
(v) Indebtedness constituting Contingent Obligations
permitted by Section 7.3(E);
(vi) Indebtedness arising from intercompany loans from any
Subsidiary to the Borrower or any wholly-owned Subsidiary;
(vii) Indebtedness arising from intercompany loans from the
Borrower to any wholly-owned Subsidiary in an aggregate amount not to
exceed $5,000,000;
(viii) secured or unsecured purchase money Indebtedness
(including Capitalized Leases) incurred by the Borrower or any of its
Subsidiaries after the Closing Date to finance the acquisition of
fixed assets, if (1) at the time of such incurrence, no Default has
occurred and is continuing or would result from such incurrence, (2)
such Indebtedness has a scheduled maturity and is not due on demand,
(3) such Indebtedness does not exceed the lower of the fair market
value or the cost of the applicable fixed assets on the date acquired,
(4) such Indebtedness does not exceed $5,000,000 in the aggregate
outstanding at any time, and (5) any Lien securing such Indebtedness
is permitted under Section 7.3(C) (such Indebtedness being referred to
herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
(ix) Indebtedness with respect to surety, appeal and
performance bonds obtained by the Borrower or any of its Subsidiaries
in the ordinary course of business;
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(x) Indebtedness incurred by the Borrower to the seller in
any Permitted Acquisition as part of the consideration therefor,
provided that such Indebtedness does not exceed $10,000,000 in the
aggregate outstanding at any time, is unsecured and is subordinated to
the Obligations on terms reasonably acceptable to the Agent;
(xi) Indebtedness in addition to that referred to elsewhere
in this Section 7.3(A) in an amount not to exceed $1,000,000 at any
time; and
(xii) Indebtedness in respect of Hedging Obligations
permitted under Section 7.3(P).
(B) Sales of Assets. Neither Holdings nor any of its Subsidiaries
shall sell, assign, transfer, lease, convey or otherwise dispose of any
property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so, except:
(i) sales of Inventory in the ordinary course of business;
(ii) the disposition in the ordinary course of business of
equipment that is obsolete, excess or no longer useful in the
Borrower's business;
(iii) sales, assignments, transfers, leases, conveyances or
other dispositions of other assets if such transaction (a) is for
consideration consisting at least 75% of cash or Cash Equivalents, (b)
is for not less than fair market value, and (c) when combined with all
such other transactions (each such transaction being valued at book
value) (i) during the immediately preceding twelve-month period,
represents the disposition of not greater than ten percent (10%) of
the Borrower's Consolidated Assets at the end of the fiscal year
immediately preceding that in which such transaction is proposed to be
entered into, and (ii) during the period from the Closing Date to the
date of such proposed transaction, represents the disposition of not
greater than twenty percent (20%) of the Borrower's Consolidated
Assets at the end of the fiscal year immediately preceding that in
which such transaction is proposed to be entered into;
(iv) the sale or issuance of any of the Capital Stock of a
Subsidiary of the Borrower to the Borrower or its Subsidiaries which
have executed and delivered a guaranty and security agreement
satisfactory in form and substance to the Agent;
(v) transfers resulting from casualty or condemnation of
property or assets;
(vi) licenses or sublicenses of intellectual property and
general intangibles and licenses, leases or subleases or other
property in the ordinary course of business which do not materially
interfere with the Borrower's business;
(vii) consignment or similar arrangements in the ordinary
course of business;
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(viii) the lease of real or personal property in the ordinary
course of business;
(ix) discounts or sale of overdue accounts receivable for
collection in the ordinary course of business; and
(x) sale or other disposition of assets to a Subsidiary that
has executed and delivered a guaranty and security agreement
satisfactory in form and substance to the Agent.
(C) Liens. Neither Holdings nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any of their respective property or assets except:
(i) Liens securing the Secured Obligations;
(ii) Permitted Existing Liens;
(iii) Customary Permitted Liens;
(iv) purchase money Liens (including the interest of a lessor
under a Capitalized Lease and Liens to which any property is subject
at the time of the Borrower's acquisition thereof) securing Permitted
Purchase Money Indebtedness; provided that such Liens shall not apply
to any property of the Borrower or its Subsidiaries other than that
purchased or subject to such Capitalized Lease; and
(v) Liens not otherwise permitted by this Section 7.3(C) so
long as neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(as determined as of the date such Lien is incurred) of the assets
subject thereto exceeds (as to the Borrower and its Subsidiaries)
$1,000,000 at any one time.
In addition, neither Holdings nor any of its Subsidiaries shall become a party
to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Agent for the benefit of itself and the Lenders,
as collateral for the Obligations; provided that any agreement, note, indenture
or other instrument in connection with Permitted Purchase Money Indebtedness
(including Capitalized Leases) may prohibit the creation of a Lien in favor of
the Agent for the benefit of itself and the Lenders on the items of property
obtained with the proceeds of such Permitted Purchase Money Indebtedness.
(D) Investments. Except to the extent permitted pursuant to paragraph
(G) below, neither Holdings nor any of its Subsidiaries shall directly or
indirectly make or own any Investment except:
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(i) Investments in cash and Cash Equivalents;
(ii) Permitted Existing Investments, and any refinancings,
renewals, replacements, modifications, restatements or extensions
thereof, in an amount not greater than the amount thereof on the
Closing Date;
(iii) Investments in trade receivables or received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(iv) Investments consisting of deposit accounts maintained by
the Borrower;
(v) Investments consisting of non-cash consideration from a
sale, assignment, transfer, lease, conveyance or other disposition of
property permitted by Section 7.3(B);
(vi) Investments consisting of intercompany loans from any
Subsidiary to the Borrower or any other Subsidiary permitted by
Section 7.3(A)(vi);
(vii) Investments consisting of intercompany loans from the
Borrower to any wholly-owned Subsidiary permitted by Section
7.3(A)(vii);
(viii) Investments constituting Permitted Acquisitions;
(ix) Investments constituting Indebtedness permitted by
Section 7.3(A) or Contingent Obligations permitted by Section 7.3(E)
or Restricted Payments permitted by Section 7.3(F);
(x) Investments consisting of loans or advances made by the
Borrower and its Subsidiaries to employees of Holdings or its
Subsidiaries, other than those permitted by
Section 7.3(D)(xi), in an aggregate
amount outstanding at any one time not in excess of $1,000,000.
(xi) loans and advances to officers or other employees of
Holdings or its Subsidiaries in connection with such officers' or
employees' acquisition of shares of Holdings' common stock in an
aggregate amount outstanding at any one time not in excess of
$1,000,000; and
(xii) Investments in addition to those referred to elsewhere
in this Section 7.3(D) in an amount not to exceed $5,000,000 in the
aggregate at any time outstanding;
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provided, however, that the Investments described in clause (viii) above shall
not be permitted if either a Default or an Unmatured Default shall have
occurred and be continuing on the date thereof or would result therefrom.
(E) Contingent Obligations. Neither Holdings nor any of its
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except: (i) recourse obligations
resulting from endorsement of negotiable instruments for collection in the
ordinary course of business; (ii) Permitted Existing Contingent Obligations;
(iii) obligations, warranties, and indemnities, not relating to Indebtedness of
any Person, which have been or are undertaken or made in the ordinary course of
business and not for the benefit of or in favor of an Affiliate of Holdings or
such Subsidiary; (iv) additional Contingent Obligations which do not exceed
$1,000,000 in the aggregate at any time; and (v) Contingent Obligations with
respect to surety, appeal and performance bonds obtained by Holdings or any
Subsidiary in the ordinary course of business.
(F) Restricted Payments. Neither Holdings nor any of its
Subsidiaries shall declare or make any Restricted Payment, except:
(i) the defeasance, redemption or repurchase of the
Subordinated Notes outstanding as of the Closing Date, including
premiums and interest;
(ii) management fees in an amount not to exceed $2,000,000 in
any one fiscal year pursuant to the Management Consulting Services
Agreement dated December 18, 1994 among Holdings, Perry Principals,
L.L.C., Xxxx Capital, Inc. and Fleet Growth Resources, Inc. (the
"Management Consulting Services Agreement"), provided, however, that
if Holdings is prohibited from paying all or any portion of such
management fees in any particular fiscal year, and such prohibition
ceases to be applicable for any reason, then the portion of such
management fees which was permitted to be paid pursuant to this
Agreement but which Holdings was otherwise prohibited from paying may
be paid in the immediately following fiscal year, but not thereafter;
(iii) the reimbursement of Perry Principals, L.L.C., Xxxx
Capital, Inc. and Fleet Growth Resources, Inc. or any of their
respective successors or assigns for their reasonable out-of-pocket
expenses permitted pursuant to the Management Consulting Services
Agreement not to exceed $150,000 per annum incurred by them in
connection with performing management services to the Borrower and its
Subsidiaries;
(iv) additional Restricted Payments which do not exceed, for
the period commencing with the Borrower's fiscal year ending June 30,
1998, and ending on the last day of the last quarter ending prior to
such Restricted Payment, the sum of (a) fifty percent (50.0%) of Net
Income for such period (or, if Net Income for such period is a
deficit, less 100% of such deficit) and (b) the aggregate Net Cash
Proceeds from the
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sale or issuance of Equity Interests (other than Disqualified Stock)
of Holdings or the Borrower for such period;
(v) the repurchase or redemption of Capital Stock or options
to purchase Capital Stock of Holdings held by employees or former
employees of Holdings and its Subsidiaries in an aggregate amount not
in excess of $1,000,000 plus the proceeds received by the Borrower or
Holdings from the sale of any management or employee Capital Stock or
other rights;
(vi) the repurchase or redemption of Capital Stock or options
to purchase Capital Stock of Holdings held by retail florist shops
which are current or former members of FTD Association, an Ohio
non-profit corporation structured as a member-owned trade association,
and its predecessor in an aggregate amount not in excess of
$2,000,000;
(vii) the Borrower may pay cash dividends to Holdings so long
as Holdings uses such proceeds for the purposes described in the
immediately preceding clauses (v) and (vi) and subject to the limits
contained therein; and
(viii) any Subsidiary of the Borrower may make Restricted
Payments to the Borrower or any wholly-owned Subsidiary of the
Borrower.
provided, however, that the Restricted Payments described in clauses (i), (ii)
and (iv) above shall not be permitted if either a Default or an Unmatured
Default shall have occurred and be continuing at the date of declaration or
payment thereof or would result therefrom.
(G) Conduct of Business; Subsidiaries; Acquisitions. Neither the
Borrower nor any of its Subsidiaries shall engage in any business other than
the businesses engaged in by the Borrower on the date hereof and any business
or activities which are substantially similar, related or incidental thereto.
Holdings shall not create, capitalize, acquire or own any Subsidiary other than
the Borrower unless such Subsidiary executes and delivers a guaranty and
security agreement satisfactory in form and substance to the Agent. Holdings
shall not conduct any business other than owning the stock of the Borrower or
such other Subsidiaries and such other activities as are customary for holding
companies and providing guaranties of obligations of the Borrower and its
Subsidiaries which are permitted hereunder. The Borrower shall not create,
acquire or any Subsidiary after the date hereof unless such Subsidiary executes
a guaranty and security agreement satisfactory in form and substance to the
Agent. The Borrower shall not make any Acquisitions, other than Acquisitions
meeting the following requirements or otherwise approved by the Required
Lenders (each such Acquisition constituting a "PERMITTED ACQUISITION"):
(i) no Default or Unmatured Default shall have occurred and
be continuing or would result from such Acquisition or the incurrence
of any Indebtedness in connection therewith;
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(ii) the Acquisition shall be consummated pursuant to
acquisition documents reasonably satisfactory to the Agent with
representations, indemnities and opinions reasonably satisfactory to
the Agent and results of due diligence reasonably satisfactory to the
Agent, it being understood that the Agent shall not unreasonably
withhold its consent to any such Acquisition and shall respond and
cause its representatives and agents to respond with comments to any
such documents within a reasonable time period under the
circumstances;
(iii) the businesses being acquired shall be substantially
similar to the businesses or activities engaged in by the Borrower or
its Subsidiaries on the Closing Date; and
(iv) prior to each such Acquisition, the Borrower shall
deliver to the Agent and the Lenders a certificate from one of the
Authorized Officers, demonstrating to the satisfaction of the Agent
that after giving effect to such Acquisition and the incurrence of any
Indebtedness permitted by Section 7.3(A) in connection therewith, on a
pro forma basis using historical audited and reviewed unaudited
financial statements obtained form the seller, broken down by fiscal
quarter in the Borrower's reasonable judgment, as if the Acquisition
and such incurrence of Indebtedness had occurred on the first day of
the twelve-month period ending on the last day of the Borrower's most
recently completed fiscal quarter, the Borrower would have been in
compliance with the financial covenants in Section 7.4 and not
otherwise in Default and the Borrower's Leverage Ratio would not have
exceeded 3.25 to 1.0 if such Acquisition occurs prior to the second
anniversary of the Closing Date or 2.75 to 1.0 if such Acquisition
occurs after the second anniversary of the Closing Date.
(H) Transactions with Shareholders and Affiliates. Neither the
Borrower nor any of its Subsidiaries shall directly or indirectly enter into or
permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of the Borrower which is not its Subsidiary, on terms that are
less favorable to the Borrower or any of its Subsidiaries, as applicable, than
those that might be obtained in an arm's length transaction at the time from
Persons who are not an Affiliate, except for (i) Restricted Payments permitted
by Section 7.3(F), including, without limitation performance of the management
agreements for which management fees and expenses are permitted pursuant to
such Section 7.3(F), and (ii) any tax sharing or tax allocation agreements
entered into by Holdings or any of its Subsidiaries.
(I) Restriction on Fundamental Changes. Neither the Borrower nor any
of its Subsidiaries shall enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution), or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of the Borrower's or any such
Subsidiary's business or property, whether now or hereafter acquired, except
transactions permitted under Sections 7.3(B) or 7.3(G) and provided that (i)
any Subsidiary of the Borrower may be merged or consolidated with or into the
Borrower (provided the Borrower shall be the continuing or surviving
corporation) or with or into any other Subsidiary that has
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signed a guaranty and security agreement satisfactory in form and substance to
the Agent (provided such Subsidiary shall be the continuing or surviving
corporation) and (ii) any Subsidiary of the Borrower may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any Subsidiary that has signed a guaranty and
security agreement satisfactory in form and substance to the Agent.
(J) Sales and Leasebacks. Neither the Borrower nor any of its
Subsidiaries shall become liable, directly, by assumption or by Contingent
Obligation, with respect to any lease, whether an operating lease or a
Capitalized Lease, of any property (whether real or personal or mixed) (i)
which it or one of its Subsidiaries sold or transferred or is to sell or
transfer to any other Person, or (ii) which it or one of its Subsidiaries
intends to use for substantially the same purposes as any other property which
has been or is to be sold or transferred by it or one of its Subsidiaries to
any other Person in connection with such lease, unless in either case the sale
involved is not prohibited under Section 7.3(B) and the lease involved is not
prohibited under Section 7.3(A).
(K) Margin Regulations. Neither the Borrower nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
(L) ERISA. The Borrower shall not
(i) engage, or permit any of its Subsidiaries to engage, in
any prohibited transaction described in Sections 406 of ERISA or 4975
of the Code for which a statutory or class exemption is not available
or a private exemption has not been previously obtained from the DOL;
(ii) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Code), with respect to
any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail, to
pay timely required contributions or annual installments due with
respect to any waived funding deficiency to any Benefit Plan;
(iv) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any liability of the
Borrower or any Controlled Group member under Title IV of ERISA in
excess of $1,000,000;
(v) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any Controlled Group member
may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto;
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(vi) fail, or permit any Controlled Group member to fail, to
pay any required installment or any other payment required under
Section 412 of the Code on or before the due date for such installment
or other payment; or
(vii) amend, or permit any Controlled Group member to amend,
a Plan resulting in an increase in current liability for the plan year
such that the Borrower or any Controlled Group member is required to
provide security to such Plan under Section 401(a)(29) of the Code.
(M) Corporate Documents. Neither the Borrower nor any of its
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective constituent documents as in effect on the
date hereof that is reasonably likely to result in a Material Adverse Effect,
without the prior written consent of the Required Lenders.
(N) Fiscal Year. Neither the Borrower nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the 12-month period ending on the last day of June of each
year.
(O) Subsidiary Covenants. Except as herein provided, the Borrower
will not permit any Subsidiary to, create or otherwise cause to become
effective any consensual encumbrance or restriction of any kind on the ability
of any Subsidiary to pay dividends or make any other distribution on its stock,
or make any other Restricted Payment, pay any Indebtedness or other Obligation
owed to the Borrower or any other Subsidiary, make loans or advances or other
Investments in the Borrower or any other Subsidiary, or sell, transfer or
otherwise convey any of its property to the Borrower or any other Subsidiary.
(P) Hedging Obligations. The Borrower shall not and shall not permit
any of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Borrower pursuant
to which the Borrower has hedged its actual interest rate, foreign currency or
commodity exposure. Such permitted hedging agreements are sometimes referred
to herein as "HEDGING AGREEMENTS."
7.4 Financial Covenants. Holdings and the Borrower shall comply with
the following:
(A) Minimum Fixed Charge Coverage Ratio. Holdings and its
consolidated Subsidiaries shall maintain a ratio ("FIXED CHARGE COVERAGE
RATIO") of (i) the sum of the amounts of (a) EBITDA for Holdings and its
consolidated Subsidiaries minus (b) Capital Expenditures for Holdings and its
consolidated Subsidiaries plus (c) Rentals for Holdings and its consolidated
Subsidiaries to (ii) the sum of the amounts of (a) Interest Expense for
Holdings and its consolidated Subsidiaries plus (b) scheduled amortization of
the principal portion of the Term Loans and scheduled amortization of the
principal portion of all other Indebtedness for borrowed money of Holdings and
its consolidated Subsidiaries plus (c) Rentals of Holdings or
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any of its consolidated Subsidiaries plus (d) cash taxes paid by Holdings and
its consolidated Subsidiaries during such period plus (e) Restricted Payments
paid by Holdings or any of its consolidated Subsidiaries pursuant to Section
7.3(F)(ii), (iii), (iv), (v) and (vi) during such period of at least 1.25 to
1.00 for each fiscal quarter until the Termination Date.
In each case, the Fixed Charge Coverage Ratio shall be determined as of the
last day of each fiscal quarter for the four fiscal quarter period ending on
such day, calculated, with respect to Permitted Acquisitions, on a pro forma
basis using historical audited and reviewed unaudited financial statements
obtained from the seller, broken down by fiscal quarter in Holdings' reasonable
judgment.
(B) Maximum Leverage Ratio. Holdings and its consolidated
Subsidiaries shall not permit the ratio (the "LEVERAGE RATIO") of (i) the sum
of (a) Indebtedness for borrowed money of Holdings and its consolidated
Subsidiaries and (b) Capitalized Lease Obligations of Holdings and its
consolidated Subsidiaries to (ii) EBITDA of Holdings and its consolidated
Subsidiaries to be greater than:
(i) 3.5 to 1.00 for each fiscal quarter for the period
commencing with the fiscal quarter ending December 31, 1997 through
the fiscal quarter ending September 30, 1999; and
(ii) 3.0 to 1.00 for each fiscal quarter thereafter until
the Termination Date.
The Leverage Ratio shall be calculated, in each case, determined as of the last
day of each fiscal quarter based upon (a) for Indebtedness for borrowed money
and Capitalized Lease Obligations, Indebtedness for borrowed money and
Capitalized Lease Obligations as of the last day of each such fiscal quarter;
and (b) for EBITDA, the actual amount for the four-quarter period ending on
such day, calculated, with respect to Permitted Acquisitions, on a pro forma
basis using historical audited and reviewed unaudited financial statements
obtained from the seller, broken down by fiscal quarter in Holdings' reasonable
judgment.
(C) Minimum Consolidated Adjusted Net Worth. Holdings shall not
permit its Consolidated Adjusted Net Worth at any time to be less than the sum
of (a) $20,055,000, plus (b) fifty percent (50%) of Net Income (if positive)
calculated separately for each fiscal quarter ending after December 31, 1997,
plus (c) one hundred percent (100%) of the net cash proceeds resulting from the
issuance by the Borrower or Holdings of any Capital Stock.
(D) Capital Expenditures. Holdings will not, nor will it permit any
Subsidiary to, expend, or be committed to expend, for Capital Expenditures in
the acquisition of fixed assets in any fiscal year, on a non-cumulative basis,
in the aggregate for Holdings and its Subsidiaries, in excess of the greater of
(i) $7,500,000 or (ii) an amount equal to twenty-five percent (25%) of
Holdings' Consolidated Adjusted Net Worth as at the end of the most recently
completed fiscal year.
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ARTICLE VIII: DEFAULTS
8.1 Defaults. Each of the following occurrences shall constitute a
Default under this Agreement:
(A) Failure to Make Payments When Due. The Borrower shall (i) fail
to pay when due any of the Obligations consisting of principal with respect to
the Loans or (ii) shall fail to pay within three (3) Business Days of the date
when due any of the other Obligations under this Agreement or the other Loan
Documents.
(B) Breach of Certain Covenants. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on the Borrower under:
(i) Section 7.1 or 7.2 and such failure shall continue
unremedied for thirty (30) days after the Borrower has knowledge of
such failure; or
(ii) Xxxxxxx 0.0(X)(x)-(xxx), (X), (X), (X), (X), (X), (X) or
(O) and such failure shall continue unremedied for fifteen (15) days
after the Borrower has knowledge of such failure; or
(iii) Xxxxxxx 0.0(X), (X), (X), (X)(xxxx)-(xxx), (X), (X),
(X), (X) or (P) or 7.4.
(C) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Borrower to the Agent or any Lender herein
or by the Borrower or any of its Subsidiaries in any of the other Loan
Documents or in any certificate at any time given by any such Person pursuant
to any of the Loan Documents shall be false or misleading in any material
respect on the date as of which made (or deemed made).
(D) Other Defaults. The Borrower shall default in the performance of
or compliance with any term contained in this Agreement (other than as covered
by paragraphs (A), (B) or (C) of this Section 8.1), or the Borrower or any of
its Subsidiaries shall default in the performance of or compliance with any
term contained in any of the other Loan Documents, and such default shall
continue for thirty (30) days after the occurrence thereof.
(E) Default as to Other Indebtedness. The Borrower or any of its
Subsidiaries shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue beyond any applicable grace period, with respect to any
Indebtedness the outstanding principal amount of which Indebtedness is in
excess of $5,000,000 (excluding the Subordinated Notes at all times that the
unfunded Aggregate Term Loan Commitment is at least equal to seventy-five
percent of the outstanding principal amount of the Subordinated Notes); or any
breach, default or event of default shall occur and continue beyond any
applicable grace period, or any other condition shall exist under any
instrument, agreement or indenture pertaining to any such Indebtedness, if the
effect thereof is to cause an acceleration, mandatory redemption, a requirement
that the
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Borrower offer to purchase such Indebtedness or other required repurchase of
such Indebtedness, or permit the holder(s) of such Indebtedness to accelerate
the maturity of any such Indebtedness or require a redemption or other
repurchase of such Indebtedness; or any such Indebtedness shall be otherwise
declared to be due and payable (by acceleration or otherwise) or required to be
prepaid, redeemed or otherwise repurchased by the Borrower or any of its
Subsidiaries (other than by a regularly scheduled required prepayment) prior to
the stated maturity thereof.
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the
Borrower or any of the Borrower's Subsidiaries and the petition shall
not be dismissed, stayed, bonded or discharged within sixty (60) days
after commencement of the case; or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the
Borrower or any of the Borrower's Subsidiaries in an involuntary case,
under any applicable bankruptcy, insolvency or other similar law now
or hereinafter in effect; or any other similar relief shall be granted
under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Borrower or any of the Borrower's Subsidiaries or over all or a
substantial part of the property of the Borrower or any of the
Borrower's Subsidiaries shall be entered; or an interim receiver,
trustee or other custodian of the Borrower or any of the Borrower's
Subsidiaries or of all or a substantial part of the property of the
Borrower or any of the Borrower's Subsidiaries shall be appointed or a
warrant of attachment, execution or similar process against any
substantial part of the property of the Borrower or any of the
Borrower's Subsidiaries shall be issued and any such event shall not
be stayed, dismissed, bonded or discharged within sixty (60) days
after entry, appointment or issuance.
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower
or any of the Borrower's Subsidiaries shall (i) commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (ii) consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under
any such law, (iii) consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
property, (iv) make any assignment for the benefit of creditors or (v) take any
corporate action to authorize any of the foregoing.
(H) Judgments and Attachments. Any money judgment(s) (other than a
money judgment covered by insurance as to which the insurance company has not
disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against the Borrower or any of its Subsidiaries
or any of their respective assets involving in
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any single case or in the aggregate an amount in excess of $2,500,000 is or are
entered and shall remain undischarged, unvacated, unbonded or unstayed for a
period of sixty (60) days or in any event later than fifteen (15) days prior to
the date of any proposed sale thereunder.
(I) Dissolution. Any order, judgment or decree shall be entered
against the Borrower decreeing its involuntary dissolution or split up and such
order shall remain undischarged and unstayed for a period in excess of sixty
(60) days; or the Borrower shall otherwise dissolve or cease to exist in
violation of this Agreement.
(J) Loan Documents. At any time, for any reason, any Loan Document
as a whole that materially affects the ability of the Agent, or any of the
Lenders to enforce the Obligations ceases to be in full force and effect or the
Borrower or any of the Borrower's Subsidiaries party thereto seeks to repudiate
its obligations thereunder.
(K) Termination Event. Any Termination Event occurs which the
Required Lenders believe is reasonably likely to subject the Borrower to
liability in excess of $1,000,000.
(L) Waiver of Minimum Funding Standard. If the plan administrator of
any Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and any Lender believes the
substantial business hardship upon which the application for the waiver is
based could reasonably be expected to subject either the Borrower or any
Controlled Group member to liability in excess of $1,000,000.
(M) Change of Control. A Change of Control shall occur after the
Closing Date.
(N) Hedging Agreements. Nonpayment by the Borrower of any obligation
in excess of $1,000,000 under any Hedging Agreement with any Person other than
a Lender or the breach by the Borrower of any term, provision or condition
contained in any such Hedging Agreement resulting in liability to the Borrower
in excess of $1,000,000.
(O) Environmental Matters. The Borrower or any of its Subsidiaries
shall be the subject of any proceeding or investigation pertaining to (i) the
Release by the Borrower or any of its Subsidiaries of any Contaminant into the
environment, (ii) the liability of the Borrower or any of its Subsidiaries
arising from the Release by any other Person of any Contaminant into the
environment, or (iii) any violation of any Environmental, Health or Safety
Requirements of Law which by the Borrower or any of its Subsidiaries, which, in
any case, has or is reasonably likely to subject the Borrower to liability in
excess of $1,000,000.
(P) Liens. Any Environmental Lien or Liens or any Liens in favor of
the IRS or the PBGC which, individually or in the aggregate, secure claims in
excess of $1,000,000, are filed publicly unless each such Lien has been
subordinated or released within sixty (60) days of the date it is filed
publicly or unless such Lien is being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with respect to
which adequate
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reserves or other appropriate provisions are being maintained in accordance
with Agreement Accounting Principles in an amount and on a basis reasonably
acceptable to the Agent.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.3.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1 Termination of Commitments; Acceleration. If any Default
described in Section 8.1(F) or 8.1(G) occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder and the obligation of the
Agent to issue Letters of Credit hereunder shall automatically terminate and
the Obligations shall immediately become due and payable without any election
or action on the part of the Agent or any Lender. If any other Default occurs,
the Required Lenders may terminate or suspend the obligations of the Lenders to
make Loans hereunder and the obligation of the Issuing Banks to issue Letters
of Credit hereunder, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower
expressly waives.
9.2 Defaulting Lender. In the event that any Lender fails to fund
its Pro Rata Share of any Advance requested or deemed requested by the
Borrower, which such Lender is obligated to fund under the terms of this
Agreement (the funded portion of such Advance being hereinafter referred to as
a "NON PRO RATA LOAN"), until the earlier of such Lender's cure of such failure
and the termination of the Revolving Loan Commitments, the proceeds of all
amounts thereafter repaid to the Agent by the Borrower and otherwise required
to be applied to such Lender's share of all other Obligations pursuant to the
terms of this Agreement shall be advanced to the Borrower by the Agent on
behalf of such Lender to cure, in full or in part, such failure by such Lender,
but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything in this
Agreement to the contrary:
(i) the foregoing provisions of this Section 9.2 shall apply
only with respect to the proceeds of payments of Obligations and shall
not affect the conversion or continuation of Loans pursuant to Section
2.10;
(ii) any such Lender shall be deemed to have cured its
failure to fund its Pro Rata Share of any Advance at such time as an
amount equal to such Lender's original Pro Rata Share of the requested
principal portion of such Advance is fully funded to the Borrower,
whether made by such Lender itself or by operation of the terms of
this Section 9.2, and whether or not the Non Pro Rata Loan with
respect thereto has been repaid, converted or continued;
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(iii) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Pro Rata Share of any
Advance ("CURE LOANS") shall bear interest at the rate applicable to
Floating Rate Loans in effect from time to time, and for all other
purposes of this Agreement shall be treated as if they were Floating
Rate Loans;
(iv) regardless of whether or not a Default has occurred or
is continuing, and notwithstanding the instructions of the Borrower as
to its desired application, all repayments of principal which, in
accordance with the other terms of this Agreement, would be applied to
the outstanding Floating Rate Loans shall be applied first, ratably to
all Floating Rate Loans constituting Non Pro Rata Loans, second,
ratably to Floating Rate Loans other than those constituting Non Pro
Rata Loans or Cure Loans and, third, ratably to Floating Rate Loans
constituting Cure Loans;
(v) for so long as and until the earlier of any such Lender's
cure of the failure to fund its Pro Rata Share of any Advance and the
termination of the Revolving Loan Commitments, the term "Required
Lenders" for purposes of this Agreement shall mean Lenders (excluding
all Lenders whose failure to fund their respective Pro Rata Shares of
such Advance have not been so cured) whose Pro Rata Shares represent
greater than fifty percent (50%) of the aggregate Pro Rata Shares of
such Lenders; and
(vi) for so long as and until any such Lender's failure to
fund its Pro Rata Share of any Advance is cured in accordance with
Section 9.2(ii), (A) such Lender shall not be entitled to any
commitment fees with respect to its Revolving Loan Commitment and (B)
such Lender shall not be entitled to any letter of credit fees, which
commitment fees and letter of credit fees shall accrue in favor of the
Lenders which have funded their respective Pro Rata Share of such
requested Advance, shall be allocated among such performing Lenders
ratably based upon their relative Revolving Loan Commitments, and
shall be calculated based upon the average amount by which the
aggregate Revolving Loan Commitments of such performing Lenders
exceeds the sum of (I) the outstanding principal amount of the Loans
owing to such performing Lenders, plus (II) the outstanding
Reimbursement Obligations owing to such performing Lenders, plus (III)
the aggregate participation interests of such performing Lenders
arising pursuant to Section 3.6 with respect to undrawn and
outstanding Letters of Credit.
9.3 Amendments. Subject to the provisions of this Article IX, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving
any Default hereunder; provided, however, that no such
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supplemental agreement shall, without the consent of each Lender (which is not
a defaulting Lender under the provisions of Section 9.2) affected thereby:
(i) Postpone or extend the Revolving Loan Termination Date or
Term Loan Termination Date or any other date fixed for any payment of
principal of, or interest on, the Loans, the Reimbursement Obligations
or any fees or other amounts payable to such Lender (except with
respect to (a) any modifications of the provisions relating to
prepayments of Loans and other Obligations and (b) a waiver of the
application of the default rate of interest pursuant to
Section 2.11 hereof).
(ii) Reduce the principal amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon.
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be
the applicable percentage in this Agreement to act on specified
matters.
(iv) Increase the amount of the Revolving Loan Commitment of
any Lender hereunder.
(v) Permit the Borrower to assign its rights under this
Agreement.
(vi) Amend this Section 9.3.
No amendment of any provision of this Agreement relating to (a) the Agent shall
be effective without the written consent of the Agent, and (b) Swing Line Loans
shall be effective without the written consent of the Swing Line Bank. The
Agent may waive payment of the fee required under Section 13.3(B) without
obtaining the consent of any of the Lenders.
9.4 Preservation of Rights. No delay or omission of the Lenders or
the Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence therein,
and the making of a Loan or the issuance of a Letter of Credit notwithstanding
the existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Loan or issuance of such Letter of Credit shall
not constitute any waiver or acquiescence. Any single or partial exercise of
any such right shall not preclude other or further exercise thereof or the
exercise of any other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to Section 9.3, and
then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Agent and the Lenders until the Obligations have been
paid in full.
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ARTICLE X: GENERAL PROVISIONS
10.1 Survival of Representations. All representations and warranties
of the Borrower contained in this Agreement shall survive delivery of the Notes
and the making of the Loans herein contemplated.
10.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 Performance of Obligations. The Borrower agrees that the Agent
may, but shall have no obligation, after the occurrence and during the
continuance of a Default, to make any other payment or perform any act required
of the Borrower under any Loan Document if the Borrower fails to do so. The
Agent shall use its reasonable efforts to give the Borrower notice of any
action taken under this Section 10.3 prior to the taking of such action or
promptly thereafter provided the failure to give such notice shall not affect
the Borrower's obligations in respect thereof. The Borrower agrees to pay the
Agent, upon demand, the principal amount of all funds advanced by the Agent
under this Section 10.3, together with interest thereon at the rate from time
to time applicable to Floating Rate Loans from the date of such advance until
the outstanding principal balance thereof is paid in full. If the Borrower
fails to make payment in respect of any such advance under this Section 10.3
within one (1) Business Day after the date the Borrower receives written demand
therefor from the Agent, the Agent shall promptly notify each Lender and each
Lender agrees that it shall thereupon make available to the Agent, in Dollars
in immediately available funds, the amount equal to such Lender's Pro Rata
Share of such advance. If such funds are not made available to the Agent by
such Lender within one (1) Business Day after the Agent's demand therefor, the
Agent will be entitled to recover any such amount from such Lender together
with interest thereon at the Federal Funds Effective Rate for each day during
the period commencing on the date of such demand and ending on the date such
amount is received. The failure of any Lender to make available to the Agent
its Pro Rata Share of any such unreimbursed advance under this Section 10.3
shall neither relieve any other Lender of its obligation hereunder to make
available to the Agent such other Lender's Pro Rata Share of such advance on
the date such payment is to be made nor increase the obligation of any other
Lender to make such payment to the Agent. All outstanding principal of, and
interest on, advances made under this Section 10.3 shall constitute
Obligations.
10.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any
of the provisions of the Loan Documents.
10.5 Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent and the Lenders and supersede
all prior
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agreements and understandings among the Borrower, the Agent and the Lenders
relating to the subject matter thereof.
10.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to
which the Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender
from any of its obligations hereunder. This Agreement shall not be construed
so as to confer any right or benefit upon any Person other than the parties to
this Agreement and their respective successors and assigns.
10.7 Expenses; Indemnification.
(A) Expenses. The Borrower shall reimburse the Agent and the
Arranger for any reasonable costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' and paralegals' fees and time charges of
attorneys and paralegals for the Agent, which attorneys and paralegals may be
employees of the Agent) paid or incurred by the Agent or the Arranger in
connection with the preparation, negotiation, execution, delivery, syndication,
amendment, modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Agent and the Arranger and the Lenders
for any reasonable costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' and paralegals' fees and time charges of
attorneys and paralegals for the Agent and the Arranger and the Lenders, which
attorneys and paralegals may be employees of the Agent or the Arranger or the
Lenders) paid or incurred by the Agent or the Arranger or any Lender in
connection with the collection of the Obligations and enforcement of the Loan
Documents. In addition to expenses set forth above, the Borrower agrees to
reimburse the Agent, promptly after the Agent's request therefor, for each
audit, or other business analysis performed by or for the benefit of the
Lenders in connection with this Agreement or the other Loan Documents in an
amount equal to the Agent's then reasonable and customary charges for each
person employed to perform such audit or analysis (it being understood each
such audit and analysis shall be reasonably staffed), plus all reasonable costs
and expenses (including without limitation, travel expenses) incurred by the
Agent in the performance of such audit or analysis. Unless a Default shall
have occurred and be continuing, no such right to perform any such audit or
analysis shall be exercised by any of the Agent, any Lender or any
representative of any of them more than once in any year. Agent shall provide
the Borrower with a detailed statement of all reimbursements requested under
this Section 10.7(A).
(B) Indemnity. The Borrower further agrees to defend, protect,
indemnify, and hold harmless the Agent, the Arranger and each and all of the
Lenders and each of their respective Affiliates, and each of such Agent's,
Arranger's, Lender's, or Affiliate's respective officers, directors, employees,
attorneys and agents (including, without limitation, those retained in
connection with the satisfaction or attempted satisfaction of any of the
conditions set forth in Article V) (collectively, the "INDEMNITEES") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses of
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any kind or nature whatsoever (including, without limitation, the reasonable
fees and disbursements of counsel for such Indemnitees in connection with any
related investigative, administrative or judicial proceeding, whether or not
such Indemnitees shall be designated a party thereto), imposed on, incurred by,
or asserted against such Indemnitees in any manner relating to or arising out
of:
(i) this Agreement, the other Loan Documents, or any act,
event or transaction related or attendant thereto or to the making of
the Loans, and the issuance of and participation in Letters of Credit
hereunder, the management of such Loans or Letters of Credit, the use
or intended use of the proceeds of the Loans or Letters of Credit
hereunder, or any of the other transactions contemplated by the Loan
Documents; or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton
injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without
limitation, attorney, expert and consulting fees and costs of
investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known
or unknown, absolute or contingent, past, present or future relating
to violation of any Environmental, Health or Safety Requirements of
Law arising from or in connection with the past, present or future
operations of the Borrower, its Subsidiaries or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective property
of the Borrower or its Subsidiaries, the presence of
asbestos-containing materials at any respective property of the
Borrower or its Subsidiaries or the Release or threatened Release of
any Contaminant into the environment (collectively, the "INDEMNIFIED
MATTERS");
provided, however, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused solely by or resulting
solely from the willful misconduct or Gross Negligence of such Indemnitee or
breach of contract by such Indemnitee with respect to the Loan Documents or any
other agreements, documents or instruments, in each case, as determined by the
final non-appealed judgment of a court of competent jurisdiction. If the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall contribute the maximum portion which it is permitted
to pay and satisfy under applicable law, to the payment and satisfaction of all
Indemnified Matters incurred by the Indemnitees.
(C) Waiver of Certain Claims; Settlement of Claims. The Borrower
further agrees to assert no claim against any of the Indemnitees on any theory
of liability for consequential, special, indirect, exemplary or punitive
damages. No settlement shall be entered into by the Borrower or any if its
Subsidiaries with respect to any claim, litigation, arbitration or other
proceeding relating to or arising out of the transactions evidenced by this
Agreement or the other Loan Documents (whether or not the Agent or any Lender
or any Indemnitee is a party
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thereto) unless such settlement releases all Indemnitees from any and all
liability with respect thereto.
(D) Survival of Agreements. The obligations and agreements of the
Borrower under this Section 10.7 shall survive the termination of this
Agreement.
10.8 Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
10.9 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles. If any changes in generally accepted accounting principles are
hereafter required or permitted and are adopted by the Borrower with the
agreement of its independent public accountants and such changes result in a
change in the method of calculation of any of the financial covenants,
restrictions or standards herein or in the related definitions or terms used
therein ("Accounting Changes"), the parties hereto agree to enter into
negotiations, in good faith, in order to amend such provisions in a credit
neutral manner so as to reflect equitably such Accounting Changes with the
desired result that the criteria for evaluating the Borrower's financial
condition shall be the same after such changes as if such changes had not been
made; provided, however, until such provisions are amended in a manner
reasonably satisfactory to the Agent and the Required Lenders, no Accounting
Change shall be given effect in such calculations and all financial statements
and reports required to be delivered hereunder shall be prepared in accordance
with Agreement Accounting Principles without taking into account such
Accounting Changes. In the event such amendment is entered into with respect
to any Accounting Changes, all references to this Agreement to Agreement
Accounting Principles shall mean generally accepted accounting principles as of
the date of such amendment.
10.10 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
10.11 Nonliability of Lenders. The relationship between the Borrower
and the Lenders and the Agent shall be solely that of borrower and lender.
Neither the Agent nor any Lender shall have any fiduciary responsibilities to
the Borrower. Neither the Agent nor any Lender undertakes any responsibility
to the Borrower to review or inform the Borrower of any matter in connection
with any phase of the Borrower's business or operations.
10.12 GOVERNING LAW. THE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF OF
ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO
IT THERE. ANY DISPUTE BETWEEN
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THE BORROWER AND THE AGENT OR ANY LENDER ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN
ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B),
EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE
DISPUTE.
(B) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE AGENT, OR ANY
LENDER SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN
A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL
JURISDICTION OVER THE BORROWER OR (2) REALIZE ON ANY SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON ANY
SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF SUCH PERSON. THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO
THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING
DESCRIBED IN THIS SUBSECTION (B).
(C) VENUE. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER
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INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
ARTICLE XI: THE AGENT
11.1 Appointment; Nature of Relationship. The First National Bank of
Chicago is appointed by the Lenders as the Agent hereunder and under each other
Loan Document, and each of the Lenders irrevocably authorizes the Agent to act
as the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Agent agrees
to act as such contractual representative upon the express conditions contained
in this Article XI. Notwithstanding the use of the defined term "Agent," it is
expressly understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement and that the Agent
is merely acting as the representative of the Lenders with only those duties as
are expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
assume any fiduciary duties to any of the Lenders, (ii) is a "representative"
of the Lenders within the meaning of Section 9-105 of the Uniform Commercial
Code and (iii) is acting as an independent contractor, the rights and duties of
which are limited to those expressly set forth in this Agreement and the other
Loan Documents. Each of the Lenders agrees to assert no claim against the
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Lender waives.
11.2 Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties or fiduciary duties to the Lenders, or
any obligation to the Lenders to take any action
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hereunder or under any of the other Loan Documents except any action
specifically provided by the Loan Documents required to be taken by the Agent.
11.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is found in a final judgment by a court
of competent jurisdiction to have arisen solely from the Gross Negligence or
willful misconduct of such Person.
11.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc.
Neither the Agent nor any of its directors, officers, agents or employees shall
be responsible for or have any duty to ascertain, inquire into, or verify (i)
any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii)
the satisfaction of any condition specified in Article V, except receipt of
items required to be delivered solely to the Agent; (iv) the existence or
possible existence of any Default or (v) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished
in connection therewith. The Agent shall not be responsible to any Lender for
any recitals, statements, representations or warranties herein or in any of the
other Loan Documents, or for the execution, effectiveness, genuineness,
validity, legality, enforceability, collectibility, or sufficiency of this
Agreement or any of the other Loan Documents or the transactions contemplated
thereby, or for the financial condition of any guarantor of any or all of the
Obligations, the Borrower or any of its Subsidiaries.
11.5 Action on Instructions of Lenders. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and on all holders of
Notes. The Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
11.6 Employment of Agents and Counsel. The Agent may execute any of
its duties as the Agent hereunder and under any other Loan Document by or
through employees, agents, and attorney-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the
Lenders and all matters pertaining to the Agent's duties hereunder and under
any other Loan Document.
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11.7 Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
11.8 The Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Agent ratably in proportion to their respective
Revolving Loan Commitments (i) for any amounts not reimbursed by the Borrower
for which the Agent is entitled to reimbursement by the Borrower under the Loan
Documents, (ii) for any other expenses incurred by the Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the extent
any of the foregoing is found in a final non-appealable judgment by a court of
competent jurisdiction to have arisen solely from the Gross Negligence or
willful misconduct of the Agent.
11.9 Rights as a Lender. With respect to its Revolving Loan
Commitment, its Term Loan Commitment, Loans made by it and the Notes issued to
it, the Agent shall have the same rights and powers hereunder and under any
other Loan Document as any Lender and may exercise the same as through it were
not the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent
may accept deposits from, lend money to, and generally engage in any kind of
trust, debt, equity or other transaction, in addition to those contemplated by
this Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which such Person is not prohibited hereby from engaging with
any other Person.
11.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each
Lender also acknowledges that it will, independently and without reliance upon
the Agent 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 and the other Loan
Documents.
11.11 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint, on behalf of
the Borrower and the Lenders, a successor Agent. If no successor Agent shall
have been so appointed by the Required Lenders and shall have
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accepted such appointment within thirty days after the retiring Agent's giving
notice of resignation, then the retiring Agent may appoint, on behalf of the
Borrower and the Lenders, a successor Agent. Notwithstanding anything herein
to the contrary, so long as no Default has occurred and is continuing, each
such successor Agent shall be subject to approval by the Borrower, which
approval shall not be unreasonably withheld. Such successor Agent shall be a
commercial bank having capital and retained earnings of at least $500,000,000.
Upon the acceptance of any appointment as the Agent hereunder by a successor
Agent, such successor Agent shall thereupon 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
and under the other Loan Documents. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article XI shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Agent hereunder and under the other Loan Documents.
No resignation of any Agent shall be effective until another person qualified
hereunder has accepted its appointment to act as successor Agent hereunder.
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs and is continuing, any
indebtedness from any Lender to the Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
12.2 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion
of the Loans held by the other Lenders so that after such purchase each Lender
will hold its ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligation or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to the obligations owing to
them. In case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
12.3 Application of Payments. Subject to the provisions of Section
9.2, the Agent shall, unless otherwise specified at the direction of the
Required Lenders which direction shall be consistent with the last sentence of
this Section 12.3, apply all payments and prepayments in respect of any
Obligations in the following order:
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(A) first, to pay interest on and then principal of any
portion of the Loans which the Agent may have advanced on behalf
of any Lender for which the Agent has not then been reimbursed by such
Lender or the Borrower;
(B) second, to pay interest on and then principal of any
advance made under Section 10.3 for which the Agent has not then
been paid by the Borrower or reimbursed by the Lenders;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Agent;
(D) fourth, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Lenders and
the issuer(s) of Letters of Credit;
(E) fifth, to pay interest due in respect of Swing Line Loans;
(F) sixth, to pay interest due in respect of Loans (other than
Swing Line Loans) and L/C Obligations;
(G) seventh, to the ratable payment or prepayment of principal
outstanding on Swing Line Loans;
(H) eighth, to the ratable payment or prepayment of principal
outstanding on Loans (other than Swing Line Loans), Reimbursement
Obligations and Hedging Obligations under Interest Rate Agreements
in such order as the Agent may determine in its sole discretion;
(I) ninth, to provide required cash collateral, if required
pursuant to Section 3.11 and
(J) tenth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior
to the occurrence of a Default) by the Borrower, all principal payments in
respect of Loans (other than Swing Line Loans) shall be applied first, to repay
outstanding Floating Rate Loans, and then to repay outstanding Eurodollar Rate
Loans with those Eurodollar Rate Loans which have earlier expiring Interest
Periods being repaid prior to those which have later expiring Interest Periods.
The order of priority set forth in this Section 12.3 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities
of the Agent, the Lenders, the Swing Line Bank and the issuer(s) of Letters of
Credit as among themselves. The order of priority set forth in clauses (D)
through (J) of this Section 12.3 may at any time and from time to time be
changed by the Required Lenders without necessity of notice to or consent of or
approval by the Borrower, or any other Person; provided, that the order of
priority of payments in respect of Swing Line Loans may be changed only with
the prior written consent
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of the Swing Line Bank. The order of priority set forth in clauses (A) through
(C) of this Section 12.3 may be changed only with the prior written consent of
the Agent.
12.4 Relations Among Lenders.
(A) Except with respect to the exercise of set-off rights of any
Lender in accordance with Section 12.1, the proceeds of which are applied
in accordance with this Agreement, and except as set forth in the following
sentence, each Lender agrees that it will not take any action, nor institute
any actions or proceedings, against the Borrower or any other obligor hereunder
or with respect to any Loan Document, without the prior written consent of the
Required Lenders or, as may be provided in this Agreement or the other Loan
Documents, at the direction of the Agent.
(B) The Lenders are not partners or co-venturers, and no Lender shall
be liable for the acts or omissions of, or (except as otherwise set forth
herein in case of the Agent) authorized to act for, any other Lender. The
Agent shall have the exclusive right on behalf of the Lenders to enforce on the
payment of the principal of and interest on any Loan after the date such
principal or interest has become due and payable pursuant to the terms of this
Agreement.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and
the Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 13.3 hereof. Notwithstanding clause (ii) of this Section 13.1,
any Lender may at any time, without the consent of the Borrower or the Agent,
assign all or any portion of its rights under this Agreement and its Notes to a
Federal Reserve Bank; provided, however, that no such assignment shall release
the transferor Lender from its obligations hereunder. The Agent may treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
such payee complies with Section 13.3 hereof in the case of an assignment
thereof or, in the case of any other transfer, a written notice of the transfer
is filed with the Agent. Any assignee or transferee of a Note agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the holder of any
Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
13.2 Participations.
(A) Permitted Participants; Effect. Subject to the terms set forth
in this Section 13.2, any Lender may, in the ordinary course of its business
and in accordance with applicable law, at any time sell to one or more banks or
other entities ("PARTICIPANTS") participating interests
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in any Loan owing to such Lender, any Note held by such Lender, any Revolving
Loan Commitment of such Lender, any L/C Interest of such Lender or any other
interest of such Lender under the Loan Documents on a pro rata or non-pro rata
basis. Notice of such participation to the Borrower and the Agent shall be
required prior to any participation becoming effective with respect to a
Participant which is not a Lender or an Affiliate thereof. In the event of any
such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any
such Note for all purposes under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had not
sold such participating interests, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents except that, for
purposes of Article IV hereof, the Participants shall be entitled to the same
rights as if they were Lenders; provided, however, that such Participant shall
have complied with all requirements required to be complied with by any Lender
under such Article IV and provided further, however, that no Participant shall
be entitled to receive any greater amount pursuant to such Article IV than the
transferor Lender would have been entitled to receive in respect to the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(B) Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or Revolving Loan Commitment in
which such Participant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, postpones
any date fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Revolving Loan Commitment, or releases all or
substantially all of the Collateral, if any, securing any such Loan.
(C) Benefit of Setoff. The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 12.1 hereof in
respect to its participating interest in amounts owing under the Loan Documents
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided that each Lender
shall retain the right of setoff provided in Section 12.1 hereof with respect
to the amount of participating interests sold to each Participant except to the
extent such Participant exercises its right of setoff. The Lenders agree to
share with each Participant, and each Participant, by exercising the right of
setoff provided in Section 12.1 hereof, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts
to be shared in accordance with Section 12.2 as if each Participant were a
Lender.
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13.3 Assignments.
(A) Permitted Assignments. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("PURCHASERS") all or a portion of its rights
and obligations under this Agreement (including, without limitation, its
Revolving Loan Commitment, all Loans owing to it, all of its participation
interests in existing Letters of Credit, and its obligation to participate in
additional Letters of Credit hereunder) in accordance with the provisions of
this Section 13.3. Each assignment shall be of a constant, and not a varying,
ratable percentage of all of the assigning Lender's rights and obligations
under this Agreement. Such assignment shall be substantially in the form of
Exhibit E hereto and shall not be permitted hereunder unless such assignment is
either for all of such Lender's rights and obligations under the Loan Documents
or, without the prior written consent of the Agent, involves loans and
commitments in an aggregate amount of at least $5,000,000 (which minimum amount
may be waived by the Required Lenders after the occurrence of a Default or
Unmatured Event of Default). The consent of the Agent and, prior to the
occurrence of a Default or Unmatured Default, the Borrower (which consent, in
each such case, shall not be unreasonably withheld), shall be required prior to
an assignment becoming effective with respect to a Purchaser which is not a
Lender or an Affiliate thereof.
(B) Effect; Effective Date. Upon (i) delivery to the Agent of a
notice of assignment, substantially in the form attached as Appendix I to
Exhibit E hereto (a "NOTICE OF ASSIGNMENT"), together with any consent required
by Section 13.3.(A) hereof, and (ii) payment of a $3,500 fee to the Agent for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. The Notice of
Assignment shall contain a representation by the Purchaser to the effect that
none of the consideration used to make the purchase of the Commitment, Loans
and L/C Obligations under the applicable assignment agreement are "plan assets"
as defined under ERISA and that the rights and interests of the Purchaser in
and under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser, if not already a
Lender, shall for all purposes be a Lender party to this Agreement and any
other Loan Documents executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as if it
were an original party hereto, and no further consent or action by the
Borrower, the Lenders or the Agent shall be required to release the transferor
Lender with respect to the percentage of the Aggregate Revolving Loan
Commitment, Loans and Letter of Credit participations assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser pursuant to
this Section 13.3(B), the transferor Lender, the Agent and the Borrower shall
make appropriate arrangements so that replacement Notes are issued to such
transferor Lender, the Notes being replaced are canceled and the originals
thereof delivered to the Borrower and new Notes or, as appropriate, replacement
Notes, are issued to such Purchaser, in each case in principal amounts
reflecting their Revolving Loan Commitment and their Term Loans, as adjusted
pursuant to such assignment.
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(C) The Register. The Agent shall maintain at its address referred
to in Section 14.1 a copy of each assignment delivered to and accepted by it
pursuant to this Section 13.3 and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the Revolving Loan
Commitment of and principal amount of the Loans owing to, each Lender from time
to time and whether such Lender is an original Lender or the assignee of
another Lender pursuant to an assignment under this Section 13.3. The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower and each of its Subsidiaries, the Agent and
the Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
13.4 Confidentiality. Subject to Section 13.5, the Agent and the
Lenders shall hold all nonpublic information obtained pursuant to the
requirements of this Agreement and identified as such by the Borrower in
confidence and in accordance with such Person's customary procedures for
handling confidential information of this nature and in accordance with safe
and sound banking practices and in any event may make disclosure reasonably
required by a prospective Transferee in connection with the contemplated
participation or assignment or as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process and shall
require any such Transferee to agree (and require any of its Transferees to
agree) to comply with this Section 13.4. In no event shall the Agent or any
Lender be obligated or required to return any materials furnished by the
Borrower; provided, however, each prospective Transferee shall be required to
agree that if it does not become a participant or assignee it shall return all
materials furnished to it by or on behalf of the Borrower in connection with
this Agreement.
13.5 Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning the Borrower and its Subsidiaries; provided that
prior to any such disclosure, such prospective Transferee shall agree to
preserve in accordance with Section 13.4 the confidentiality of any
confidential information described therein.
ARTICLE XIV: NOTICES
14.1 Giving Notice. Except as otherwise permitted by Section 2.14
with respect to borrowing notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Documents
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties.
Any notice, if mailed and properly addressed with postage prepaid, shall be
deemed given when
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received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes).
14.2 Change of Address. The Borrower, the Agent and any Lender may
each change the address for service of notice upon it by a notice in writing
to the other parties hereto.
ARTICLE XV: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed and delivered by the
Borrower, the Agent and the Lenders.
[Remainder of This Page Intentionally Blank]
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102
IN WITNESS WHEREOF, the Borrower, Holdings, the Lenders, Michigan
National Bank and the Agent have executed this Agreement as of the date first
above written.
FLORISTS' TRANSWORLD DELIVERY,
INC., as the Borrower
By: ___________________________
Xxxxxxx X. Xxxxxxxxxx
Chief Financial Officer
Address:
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FTD CORPORATION
By:____________________________
Xxxxxxx X. Xxxxxxxxxx
Treasurer
Address:
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
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103
THE FIRST NATIONAL BANK OF
CHICAGO, as Agent, a Lender and
an Issuing Bank
By: ___________________________
Xxxxx X. Xxxxxxxx
Authorized Agent
Address:
One First National Plaza
Suite 0353
Agency Division
Syndications and Placements Department
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
and
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Facsimile No.: 000-000-0000
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104
MICHIGAN NATIONAL BANK,
as an Issuing Bank
By: ___________________________
Name:
Title:
Address:
___________________________
___________________________
___________________________
Attention: ________________
Telephone No.: ____________
Facsimile No.: ____________
-97-