Exhibit 10
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CREDIT AGREEMENT
among
HANGER ORTHOPEDIC GROUP, INC.,
VARIOUS LENDERS
and
BNP PARIBAS,
as administrative AGENT
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Dated as of February 15, 2002
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BNP PARIBAS, as
LEAD ARRANGER and BOOK MANAGER
▇▇▇▇▇▇ COMMERCIAL PAPER INC., as
SYNDICATION AGENT
and
GENERAL ELECTRIC CAPITAL CORPORATION, as
DOCUMENTATION AGENT
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CREDIT AGREEMENT, dated as of February 15, 2002, among HANGER
ORTHOPEDIC GROUP, INC., a Delaware corporation (the "Borrower"), the Lenders
party hereto from time to time, and BNP PARIBAS, as Administrative Agent (all
capitalized terms used herein and defined in Section 11 are used herein as
therein defined).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Lenders are willing to make available to the Borrower the respective
credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and conditions
set forth herein, each Lender severally agrees to make, at any time and from
time to time on and after the Effective Date and prior to the Final Maturity
Date, one or more loans (each, a "Revolving Loan", and collectively, the
"Revolving Loans") to the Borrower, which Revolving Loans (i) shall be made and
maintained in Dollars, (ii) shall be incurred and maintained as, and/or
converted into, Base Rate Loans or Eurodollar Loans, provided that, on the
Effective Date, Revolving Loans may only be incurred and maintained as Base Rate
Loans, (iii) if Eurodollar Loans, shall have such Interest Periods as are
selected by the Borrower pursuant to Section 1.09, (iv) may be repaid and
reborrowed in accordance with the provisions hereof, (v) shall not exceed for
any Lender at any time outstanding that aggregate principal amount which, when
added to the sum of (x) the aggregate principal amount of all other Revolving
Loans made by such Lender and then outstanding and (y) the product of (A) such
Lender's Percentage and (B) the sum of (1) the aggregate amount of all Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, Revolving Loans) at such
time and (2) the aggregate principal amount of all Swingline Loans (exclusive of
Swingline Loans which are repaid with the proceeds of, and simultaneously with
the incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Lender at such time,
and (vi) shall not exceed for all Lenders at any time outstanding that aggregate
principal amount which, when added to the sum of (I) the aggregate amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (II) the aggregate principal
amount of all Swingline Loans (exclusive of Swingline Loans which are repaid
with the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan
Commitment at such time.
(b) Subject to and upon the terms and conditions set forth herein, the
Swingline Lender agrees to make, at any time and from time to time on and after
the Effective Date and prior to the Swingline Expiry Date, a revolving loan or
revolving loans (each a "Swingline Loan" and, collectively, the "Swingline
Loans") to the Borrower, which Swingline
Loans (i) shall be made and maintained in Dollars and as Base Rate Loans, (ii)
may be repaid and reborrowed in accordance with the provisions hereof, (iii)
shall not exceed in aggregate principal amount at any time outstanding, when
combined with the sum of (I) the aggregate principal amount of all Revolving
Loans then outstanding and (II) the aggregate amount of all Letter of Credit
Outstandings at such time, an amount equal to the Total Revolving Loan
Commitment at such time, and (iv) shall not exceed in aggregate principal amount
at any time outstanding the Maximum Swingline Amount. Notwithstanding anything
to the contrary contained in this Section 1.01(b), (x) the Swingline Lender
shall not be obligated to make any Swingline Loans at a time when a Lender
Default exists unless the Swingline Lender has entered into arrangements
satisfactory to it and the Borrower to eliminate the Swingline Lender's risk
with respect to the Defaulting Lender's or Lenders' participation in such
Swingline Loans, including by cash collateralizing such Defaulting Lender's or
Lenders' Percentage of the outstanding Swingline Loans and (y) the Swingline
Lender shall not make any Swingline Loan after it has received written notice
from the Borrower or the Required Lenders stating that a Default or an Event of
Default exists and is continuing until such time as the Swingline Lender shall
have received written notice (I) of rescission of all such notices from the
party or parties originally delivering such notice or (II) of the waiver of such
Default or Event of Default by the Required Lenders.
(c) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the Lenders that the Swingline Lender's outstanding
Swingline Loans shall be funded with one or more Borrowings of Revolving Loans
(provided that such notice shall be deemed to have been automatically given upon
the occurrence of a Default or an Event of Default under Section 10.05 or upon
the exercise of any of the remedies provided in the last paragraph of Section
10), in which case one or more Borrowings of Revolving Loans constituting Base
Rate Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day by all Lenders pro rata based on each
Lender's Percentage (determined before giving effect to any termination of the
Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the
proceeds thereof shall be applied directly by the Swingline Lender to repay the
Swingline Lender for such outstanding Swingline Loans. Each Lender hereby
irrevocably agrees to make Revolving Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by the Swingline
Lender notwithstanding (i) the amount of the Mandatory Borrowing may not comply
with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any
conditions specified in Section 6 are then satisfied, (iii) whether a Default or
an Event of Default then exists, (iv) the date of such Mandatory Borrowing and
(v) the amount of the Total Revolving Loan Commitment at such time. In the event
that any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the Borrower), then
each Lender hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding Swingline Loans
as shall be necessary to cause the Lenders to share in such Swingline Loans
ratably based upon their respective Percentages (determined before giving effect
to any termination of the Revolving Loan Commitments pursuant to the last
paragraph of Section 10), provided that (x) all interest payable on the
Swingline Loans shall be
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for the account of the Swingline Lender until the date as of which the
respective participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the participant
from and after such date and (y) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Lender shall be
required to pay the Swingline Lender interest on the principal amount of the
participation so purchased for each day from and including the day upon which
the Mandatory Borrowing would otherwise have occurred to but excluding the date
of payment for such participation, at the overnight Federal Funds Rate for the
first three days and at the rate otherwise applicable to Revolving Loans
maintained as Base Rate Loans hereunder for each day thereafter.
1.02 Minimum Amount of Each Borrowing. The aggregate principal amount
of each Borrowing of Revolving Loans or Swingline Loans shall not be less than
the Minimum Borrowing Amount applicable thereto. More than one Borrowing may
occur on the same date, but at no time shall there be outstanding more than ten
Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur
Loans hereunder (other than Swingline Loans and Revolving Loans incurred
pursuant to a Mandatory Borrowing), the Borrower shall give the Administrative
Agent at the Notice Office at least one Business Day's prior notice of each Base
Rate Loan, and at least three Business Days' prior notice of each Eurodollar
Loan provided, that any such notice shall be deemed to have been given on a
certain day only if given before 12:00 Noon (New York time) on such day. Each
such notice (each a "Notice of Borrowing"), except as otherwise expressly
provided in Section 1.10, shall be irrevocable and shall be given by the
Borrower in writing, or by telephone promptly confirmed in writing, in the form
of Exhibit A, appropriately completed to specify (i) the date of such incurrence
(which shall be a Business Day), (ii) the aggregate principal amount of the
Loans to be made, (iii) whether such Loans being made are to be initially
maintained as Base Rate Loans or, to the extent permitted hereunder, Eurodollar
Loans, and (iv) in the case of Eurodollar Loans, the initial Interest Period to
be applicable thereto. The Administrative Agent shall promptly give each Lender
notice of such proposed incurrence, of such Lender's proportionate share thereof
and of the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, the Borrower shall give the Swingline Lender no later than 2:00 P.M.
(New York time) on the date that a Swingline Loan is to be incurred hereunder,
written notice or telephonic notice promptly confirmed in writing of each
Swingline Loan to be incurred hereunder. Each such notice shall be irrevocable
and specify in each case (A) the date of Borrowing (which shall be a Business
Day) and (B) the aggregate principal amount of the Swingline Loans to be
incurred pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(c), with the Borrower irrevocably agreeing, by its incurrence
of any Swingline Loan, to the making of the Mandatory Borrowings as set
forth in Section 1.01(c).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder of any
Borrowing or prepayment of Loans, the Administrative Agent or the Swingline
Lender, as the case may be, may act
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without liability upon the basis of telephonic notice of such Borrowing or
prepayment, as the case may be, believed by the Administrative Agent or the
Swingline Lender, as the case may be, in good faith to be from the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, the Treasurer or any Assistant Treasurer of the Borrower, or from any
other authorized officer of the Borrower designated in writing by any of the
foregoing officers of the Borrower to the Administrative Agent as being
authorized to give such notices, prior to receipt of written confirmation. In
each such case, the Borrower hereby waives the right to dispute the
Administrative Agent's or Swingline Lender's record of the terms of such
telephonic notice of such Borrowing or prepayment of Loans, as the case may be,
absent manifest error.
1.04 Disbursement of Funds. No later than 1:00 P.M. (New York time) on
the date specified in each Notice of Borrowing (or (x) in the case of Swingline
Loans, no later than 4:00 P.M. (New York time) on the date specified pursuant to
Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, no later than
1:00 P.M. (New York time) on the date specified in Section 1.01(c)), each Lender
will make available its pro rata portion (determined in accordance with Section
1.07) of each such Borrowing requested to be made on such date (or, in the case
of Swingline Loans, the Swingline Lender will make available the full amount
thereof). All such amounts will be made available in Dollars and in immediately
available funds at the Payment Office, and, except for Revolving Loans made
pursuant to a Mandatory Borrowing, the Administrative Agent will make available
to the Borrower at the Payment Office, in immediately available funds, the
aggregate of the amounts so made available by the Lenders to the extent of funds
actually received by the Administrative Agent. Unless the Administrative Agent
shall have been notified by any Lender prior to the date of Borrowing that such
Lender does not intend to make available to the Administrative Agent such
Lender's portion of any Borrowing to be made on such date, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing and the Administrative Agent may
(but shall not be obligated to), in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such corresponding amount
is not in fact made available to the Administrative Agent by such Lender, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrower and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The Administrative Agent
also shall be entitled to recover on demand from such Lender or the Borrower, as
the case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the Administrative
Agent to the Borrower until the date such corresponding amount is recovered by
the Administrative Agent, at a rate per annum equal to (i) if recovered from
such Lender, at the overnight Federal Funds Rate for the first three days and at
the interest rate otherwise applicable to such Loans for each day thereafter,
and (ii) if recovered from the Borrower, the rate of interest applicable to the
respective Borrowing, as determined pursuant to Section 1.08. Nothing in this
Section 1.04 shall be deemed to relieve any Lender from its obligation to make
Loans hereunder or to prejudice any rights which the Borrower may have against
any Lender as a result of any failure by such Lender to make Loans hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made by each Lender to the Borrower shall be evidenced in
the Register
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maintained by the Administrative Agent pursuant to Section 13.15 and shall, if
requested by such Lender, also be evidenced (i) if Revolving Loans, by a
promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit B-1, with blanks appropriately completed in conformity herewith
(each a "Revolving Note" and, collectively, the "Revolving Notes"), and (ii) if
Swingline Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-2, with blanks appropriately
completed in conformity herewith (the "Swingline Note").
(b) The Revolving Note issued by the Borrower to each Lender shall (i)
be executed by the Borrower, (ii) be payable to such Lender or its registered
assigns and be dated the Effective Date (or, if issued after the Effective Date,
be dated the date of the issuance thereof), (iii) be in a stated principal
amount (expressed in Dollars) equal to the Revolving Loan Commitment of such
Lender and be payable in Dollars, (iv) mature on the Final Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 1.08, (vi) be
subject to voluntary prepayment as provided in Section 4.01, and mandatory
repayment as provided in Section 4.02, and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(c) The Swingline Note issued by the Borrower to the Swingline Lender
shall (i) be executed by the Borrower, (ii) be payable to the Swingline Lender
or its registered assigns and be dated the Effective Date, (iii) be in a stated
principal amount (expressed in Dollars) equal to the Maximum Swingline Amount
and be payable in Dollars and in the outstanding principal amount of the
Swingline Loans evidenced thereby from time to time, (iv) mature on the
Swingline Expiry Date, (v) bear interest as provided in the appropriate clause
of Section 1.08 in respect of the Base Rate Loans evidenced thereby, (vi) be
subject to voluntary prepayment as provided in Section 4.01, and mandatory
repayment as provided in Section 4.02, and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(d) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert, on
any Business Day, all or a portion equal to at least the Minimum Borrowing
Amount of the outstanding principal amount of Revolving Loans made to the
Borrower pursuant to one or more Borrowings of one or more Types of Revolving
Loans into a Borrowing of another Type of Revolving Loan, provided that, (i)
except as otherwise provided in Section 1.10(b), Eurodollar Loans may be
converted into Base Rate Loans only on the last day of an Interest Period
applicable to the Revolving Loans being converted and no such partial conversion
of Eurodollar Loans shall reduce the outstanding principal amount of such
Eurodollar Loans made pursuant to a single Borrowing to less than the Minimum
Borrowing Amount applicable thereto, (ii) Base Rate Loans may only be converted
into Eurodollar Loans if no Default or Event of Default is in existence on the
date of such conversion, and (iii) no conversion pursuant to this Section 1.06
shall result in a greater number of Borrowings of Eurodollar Loans than is
permitted under Section 1.02. Each such conversion shall be effected by the
Borrower by giving the Administrative Agent at the Notice Office prior to 12:00
Noon (New York time) at least three Business Days'
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prior notice (each a "Notice of Conversion") specifying the Revolving Loans to
be so converted, the Borrowing or Borrowings pursuant to which such Revolving
Loans were made and, if to be converted into Eurodollar Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall give
each Lender prompt notice of any such proposed conversion affecting any of its
Revolving Loans. Upon any such conversion the proceeds thereof will be deemed to
be applied directly on the day of such conversion to prepay the outstanding
principal amount of the Revolving Loans being converted. Swingline Loans may not
be converted pursuant to this Section 1.06.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans under this
Agreement shall be incurred from the Lenders pro rata on the basis of their
Revolving Loan Commitments. It is understood that no Lender shall be responsible
for any default by any other Lender of its obligation to make Revolving Loans
hereunder and that each Lender shall be obligated to make the Revolving Loans
provided to be made by it hereunder, regardless of the failure of any other
Lender to make its Revolving Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan from the date of Borrowing
thereof until the earlier of (i) the maturity thereof (whether by acceleration
or otherwise) and (ii) the conversion of such Base Rate Loan to a Eurodollar
Loan pursuant to Section 1.06, at a rate per annum which shall be equal to the
sum of the Applicable Margin plus the Base Rate each as in effect from time to
time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan from the date of Borrowing thereof
until the earlier of (i) the maturity thereof (whether by acceleration or
otherwise) and (ii) the conversion of such Eurodollar Loan to a Base Rate Loan
pursuant to Section 1.06, 1.09 or 1.10(b), as applicable, at a rate per annum
which shall, during each Interest Period applicable thereto, be equal to the sum
of the Applicable Margin plus the Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall, in each case, bear interest at a rate
per annum equal to the greater of (x) the rate which is 2% in excess of the rate
then borne by such Loans and (y) the rate which is 2% in excess of the rate
otherwise applicable to Base Rate Loans from time to time, and all other overdue
amounts payable hereunder and under any other Credit Document shall bear
interest at the rate per annum equal to the rate which is 2% in excess of the
rate applicable to Base Rate Loans from time to time. Interest which accrues
under this Section 1.08(c) shall be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period, and (iii) in respect of each Loan, on any repayment
or prepayment (on the amount repaid or prepaid), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
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(e) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for the respective Interest Period or
Interest Periods and shall promptly notify the Borrower and the Lenders thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
(f) All computations of interest hereunder shall be made in accordance
with Section 13.07(b).
1.09 Interest Periods. At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 12:00 Noon (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans (in the case of any subsequent Interest Period),
the Borrower shall have the right to elect, by giving the Administrative Agent
notice thereof, the interest period (each an "Interest Period") applicable to
such Eurodollar Loan, which Interest Period shall, at the option of the
Borrower, be a one, two, three or six-month period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar Loans
shall commence on the date of such Borrowing (including the date of any
conversion thereto from a Base Rate Loan) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period applicable thereto expires;
(iii) if any Interest Period for any Borrowing of Eurodollar Loans
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month;
(iv) if any Interest Period for a Eurodollar Loan would otherwise
expire on a day which is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day; provided, however, that if any
Interest Period for any Borrowing of Eurodollar Loans would otherwise
expire on a day which is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day;
(v) no Interest Period for a Eurodollar Loan may be selected at any
time when a Default or an Event of Default is then in existence; and
(vi) no Interest Period in respect of any Borrowing of Eurodollar
Loans shall be selected which extends beyond the Final Maturity Date.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to such Eurodollar
Loans as provided above, the Borrower shall be
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deemed to have elected to convert such Eurodollar Loans into Base Rate Loans
effective as of the expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any
Lender shall have determined (which determination shall, absent manifest error,
be final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes
arising after the date of this Agreement affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Eurodollar Rate;
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of (x) any change since the Effective Date in
any applicable law or governmental rule, regulation, order, guideline or
request (whether or not having the force of law) or in the interpretation
or administration thereof and including the introduction of any new law or
governmental rule, regulation, order, guideline or request, such as, for
example, but not limited to: (A) a change in the basis of taxation of
payment to such Lender of the principal of or interest on such Eurodollar
Loans or any other amounts payable hereunder (except for changes in the
rate of tax on, or determined by reference to, the net income or profits of
such Lender pursuant to the laws of the jurisdiction in which it is
organized or in which its principal office or applicable lending office is
located or any subdivision thereof or therein) or (B) a change in official
reserve requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the Eurodollar
Rate and/or (y) other circumstances since the Effective Date affecting such
Lender, the interbank Eurodollar market or the position of such Lender in
such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has been made (x) unlawful by any law or governmental rule, regulation
or order, (y) impossible by compliance by such Lender in good faith with
any governmental request (whether or not having force of law) or (z)
impracticable as a result of a contingency occurring after the Effective
Date which materially and adversely affects the interbank Eurodollar
market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above), shall promptly give written notice to the Borrower
and, except in the case of clause (i) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Lenders). Thereafter (x) in the case of clause (i) above, in
the event that Eurodollar Loans are so affected, Eurodollar Loans shall no
longer be available until such time as the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice by
the Administrative Agent no longer exist, and any Notice of Borrowing or Notice
of Conversion given by the Borrower with respect to Eurodollar Loans which have
not yet been incurred (including by way of conversion) shall be deemed rescinded
by the Borrower, (y) in the case of clause (ii) above, the Borrower shall pay to
such
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Lender, upon written demand therefor (accompanied by the written notice
specified in the final parenthesis in this clause (y)), such additional amounts
(in the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Lender in its sole discretion shall determine) as
shall be required to compensate such Lender for such increased costs or
reductions in amounts received or receivable hereunder (a written notice as to
the additional amounts owed to such Lender, showing in reasonable detail the
basis therefor and the calculation thereof, submitted to the Borrower by such
Lender shall, absent manifest error, be final and conclusive and binding on all
the parties hereto), and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar
Loan is then being made initially or pursuant to a conversion, cancel the
respective Borrowing by giving the Administrative Agent written notice on the
same date that the Borrower was notified by the affected Lender or the
Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days'
written notice to the Administrative Agent and the affected Lender, require the
affected Lender to convert such Eurodollar Loan into a Base Rate Loan or repay
such Eurodollar Loan in full; provided that if more than one Lender is affected
at any time, then all affected Lenders must be treated the same pursuant to this
Section 1.10(b).
(c) If any Lender determines that after the Effective Date the
introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the
force of law) concerning capital adequacy or reserves, or any change in
interpretation or administration thereof by the NAIC or any governmental
authority, central bank or comparable agency, will have the effect of increasing
the amount of capital or reserves required or expected to be maintained by such
Lender or any corporation controlling such Lender based on the existence of such
Lender's Revolving Loan Commitment hereunder or its obligations hereunder, then
the Borrower shall pay to such Lender, upon its written demand therefor
(accompanied by the written notice described below in this clause (c)), such
additional amounts as shall be required to compensate such Lender or such other
corporation for the increased cost to such Lender or such other corporation or
the reduction in the rate of return to such Lender or such other corporation as
a result of such increase of capital or reserves. In determining such additional
amounts, each Lender will act reasonably and in good faith and will use
averaging and attribution methods which are reasonable, provided that such
Lender's determination of compensation owing under this Section 1.10(c) shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto. Each Lender, upon determining that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Borrower, which notice shall show in reasonable detail the basis
therefor and calculation of such additional amounts, although the failure to
give any such notice shall not release or diminish the Borrower's obligations to
pay additional amounts pursuant to this Section 1.10(c) upon the subsequent
receipt of such notice; provided that the Borrower shall not be required to
compensate any Lender or any Issuing Lender pursuant to this Section 1.10(c) for
any increased costs or reductions incurred more than 270 days prior to the date
that such Lender or such Issuing Lender, as the case may be, notifies the
Borrower of the
9
change in law giving rise to such increased costs or reductions and of such
Lender's or such Issuing Lender's intention to claim compensation therefor;
provided further that, if the change in law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
1.11 Compensation. The Borrower shall compensate each Lender, upon its
written request (which request shall set forth in reasonable detail the basis
for requesting such compensation), for all losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund its Eurodollar Loans, but excluding loss of anticipated
profit) which such Lender may sustain: (i) if for any reason (other than a
default by such Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion (whether or not
withdrawn by the Borrower); (ii) if any repayment (including any repayment made
pursuant to Section 4.01 or 4.02 or a result of an acceleration of the Loans
pursuant to Section 10 or as a result of the replacement of a Lender pursuant to
Section 1.13 or 13.12(b)) or conversion of any Eurodollar Loans occurs on a date
which is not the last day of an Interest Period with respect thereto; (iii) if
any prepayment of any Eurodollar Loans is not made on any date specified in a
notice of prepayment given by the Borrower; or (iv) as a consequence of (x) any
other default by the Borrower to repay its Loans when required by the terms of
this Agreement or any Note held by such Lender or (y) any election made pursuant
to Section 1.10(b). A Lender's basis for requesting compensation pursuant to
this Section 1.11 and a Lender's calculation of the amount thereof (which shall
accompany any demand for payments pursuant to this Section 1.11), shall, absent
manifest error, be final and conclusive and binding on all parties hereto.
1.12 Change of Lending Office. Each Lender agrees that upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to such
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Lender) to designate another lending
office for any Loans or Letters of Credit affected by such event, provided that
such designation is made on such terms that such Lender and its lending office
suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in Sections
1.10, 2.06 and 4.04.
1.13 Replacement of Lenders. (a)(i) If any Lender becomes a Defaulting
Lender or otherwise defaults in its obligations to make Loans, (ii) upon the
occurrence of an event giving rise to the operation of Section 1.10(a)(ii) or
(iii), Section 1.10(c), Section 2.06 or Section 4.04 with respect to any Lender
which results in such Lender charging to the Borrower increased costs in excess
of those being generally charged by the other Lenders or (iii) in the case of a
refusal by a Lender to consent to certain proposed changes, waivers, discharges
or terminations with respect to this Agreement which have been approved by the
Required Lenders as (and to the extent) provided in Section 13.12(b), the
Borrower shall have the right, if no Default or Event of Default then exists
(or, in the case of preceding clause (iii), no Default or Event of Default will
exist immediately after giving effect to such replacement), to replace such
Lender (the "Replaced Lender") with one or more other Eligible Transferees, none
of whom shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "Replacement Lender") and
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each of whom shall be required to be reasonably acceptable to the Administrative
Agent, provided that (i) at the time of any replacement pursuant to this Section
1.13, the Replacement Lender shall enter into one or more Assignment and
Assumption Agreements pursuant to Section 13.04(b) (and with all fees payable
pursuant to said Section 13.04(b) to be paid by the Replacement Lender) pursuant
to which the Replacement Lender shall acquire the entire Revolving Loan
Commitment and outstanding Revolving Loans of, and participations in Letters of
Credit by, the Replaced Lender and, in connection therewith, shall pay to (x)
the Replaced Lender in respect thereof an amount equal to the sum of (I) an
amount equal to the principal amount of, and all accrued interest on, all
outstanding Revolving Loans of the Replaced Lender, (II) an amount equal to all
Unpaid Drawings that have been funded by (and not reimbursed to) such Replaced
Lender, together with all then unpaid interest with respect thereto at such time
and (III) an amount equal to all accrued, but theretofore unpaid, Fees owing to
the Replaced Lender pursuant to Section 3.01, (y) each Issuing Lender an amount
equal to such Replaced Lender's Percentage of any Unpaid Drawing (which at such
time remains an Unpaid Drawing) to the extent such amount was not theretofore
funded by such Replaced Lender to such Issuing Lender and (z) the Swingline
Lender an amount equal to such Replaced Lender's Percentage of any Mandatory
Borrowings to the extent such amount was not theretofore funded by such Replaced
Lender to the Swingline Lender and (ii) all obligations of the Borrower due and
owing to the Replaced Lender at such time (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced
Lender concurrently with such replacement.
(b) Upon the execution of the respective Assignment and Assumption
Agreement, the payment of amounts referred to in clauses (i) and (ii) above and,
if so requested by the Replacement Lender, delivery to the Replacement Lender of
the appropriate Revolving Notes executed by the Borrower, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions
under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.06,
4.04, 12.06 and 13.01), which shall survive as to such Replaced Lender.
SECTION 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth herein, the Borrower may request that an Issuing Lender
issue, at any time and from time to time on and after the Effective Date and
prior to the 30th day prior to the Final Maturity Date, (x) for the account of
the Borrower and for the benefit of any holder (or any trustee, agent or other
similar representative for any such holders) of L/C Supportable Obligations of
the Borrower or any of its Subsidiaries, an irrevocable standby letter of
credit, in a form customarily used by such Issuing Lender or in such other form
as has been approved by such Issuing Lender and (y) for the account of the
Borrower and for the benefit of sellers of goods to the Borrower or any of its
Subsidiaries, an irrevocable trade letter of credit, in a form customarily used
by such Issuing Lender or in such other form as has been approved by such
Issuing Lender (each such letter of credit issued pursuant to this Section 2.01,
together with each letter of credit described in the second succeeding sentence,
a "Letter of Credit"). All Letters of Credit shall be denominated in Dollars and
shall be issued on a sight basis only.
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(b) Subject to and upon the terms and conditions set forth herein,
each Issuing Lender agrees that it will, at any time and from time to time on
and after the Effective Date and prior to the 30th day prior to the Final
Maturity Date, following its receipt of the respective Letter of Credit Request,
issue for the account of the Borrower, one or more Letters of Credit as are
permitted to remain outstanding hereunder without giving rise to a Default or an
Event of Default, provided that no Issuing Lender shall be under any obligation
to issue any Letter of Credit of the types described above if at the time of
such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Issuing
Lender from issuing such Letter of Credit or any requirement of law
applicable to such Issuing Lender or any request or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over such Issuing Lender shall prohibit, or request that such
Issuing Lender refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such Issuing
Lender with respect to such Letter of Credit any restriction or reserve or
capital requirement (for which such Issuing Lender is not otherwise
compensated) not in effect on the Effective Date, or any unreimbursed loss,
cost or expense which was not applicable or in effect with respect to such
Issuing Lender as of the date hereof and which such Issuing Lender
reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; or
(ii) such Issuing Lender shall have received notice from the Borrower
or the Required Lenders prior to the issuance of such Letter of Credit of
the type described in the second sentence of Section 2.03(b).
(c) Each Issuing Lender agrees to provide to the Administrative Agent
(together with a copy to the Borrower upon the Borrower's prior written request
therefor) by facsimile promptly on the first Business Day of each week the daily
aggregate Stated Amount of all Letters of Credit issued by such Issuing Lender
and outstanding during the immediately preceding week.
2.02 Maximum Letter of Credit Outstandings; Final Maturities.
Notwithstanding anything to the contrary contained in this Agreement, (i) no
Letter of Credit shall be issued the Stated Amount of which, when added to the
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on
the date of, and prior to the issuance of, the respective Letter of Credit) at
such time would exceed either (x) $5,000,000 or (y) when added to the sum of (I)
the aggregate principal amount of all Revolving Loans then outstanding and (II)
the aggregate principal amount of all Swingline Loans then outstanding, an
amount equal to the Total Revolving Loan Commitment at such time, (ii) each
standby Letter of Credit shall by its terms terminate on or before the earlier
of (x) the date which occurs 12 months after the date of the issuance thereof
(although any such standby Letter of Credit may be extendable for successive
periods of up to 12 months, but not beyond the tenth Business Day prior to the
Final Maturity Date, on terms acceptable to such Issuing Lender) and (y) ten
Business Days prior to the Final Maturity Date, and (iii) each trade Letter of
Credit shall by its terms terminate on or before the earlier of (x) the date
which occurs 180 days after the date of the issuance thereof and (y) 30 days
prior to the Final Maturity Date.
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2.03 Letter of Credit Requests; Minimum Stated Amount. (a) Whenever
the Borrower desires that a Letter of Credit be issued for its account, the
Borrower shall give the Administrative Agent and the respective Issuing Lender
at least five Business Days' (or such shorter period as is acceptable to such
Issuing Lender) written notice thereof (including by way of facsimile
transmission). Each notice shall be in the form of Exhibit C appropriately
completed (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and will not violate the requirements of, Section
2.02. Unless the respective Issuing Lender has received notice from the Borrower
or the Required Lenders before it issues a Letter of Credit that one or more of
the conditions specified in Section 5 or 6 are not then satisfied, or that the
issuance of such Letter of Credit would violate Section 2.02, then such Issuing
Lender shall, subject to the terms and conditions of this Agreement, issue the
requested Letter of Credit for the account of the Borrower in accordance with
such Issuing Lender's usual and customary practices. Upon its issuance of or
amendment to any standby Letter of Credit, the respective Issuing Lender shall
promptly notify the Borrower and the Administrative Agent, in writing, of such
issuance or amendment and such notice shall be accompanied by a copy of the
issued standby Letter of Credit or amendment. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Participant, in writing, of such
issuance or amendment and if so requested by a Participant, the Administrative
Agent will furnish such Participant with a copy of the issued standby Letter of
Credit or amendment. Notwithstanding anything to the contrary contained in this
Agreement, in the event that a Lender Default exists, no Issuing Lender shall be
required to issue any Letter of Credit unless such Issuing Lender has entered
into an arrangement satisfactory to it and the Borrower to eliminate such
Issuing Lender's risk with respect to the participation in Letters of Credit by
the Defaulting Lender or Lenders, including by cash collateralizing such
Defaulting Lender's or Lenders' Percentage of the Letter of Credit Outstandings.
(c) The initial Stated Amount of each Letter of Credit shall not be
less than $100,000 or such lesser amount as is acceptable to the respective
Issuing Lender.
2.04 Letter of Credit Participations. (a) Immediately upon the
issuance by each Issuing Lender of any Letter of Credit, such Issuing Lender
shall be deemed to have sold and transferred to each Lender, other than such
Issuing Lender (each such Lender, in its capacity under this Section 2.04, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Issuing Lender, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's Percentage, in such Letter of Credit, each drawing or payment
made thereunder and the obligations of the Borrower under this Agreement with
respect thereto, and any security therefor or guaranty pertaining thereto. Upon
any change in the Revolving Loan Commitments or Percentages of the Lenders
pursuant to Section 1.13 or 13.04, it is hereby agreed that, with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic
adjustment to the participations pursuant to this Section 2.04 to reflect the
new Percentages of the assignor and assignee Lender, as the case may be.
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(b) In determining whether to pay under any Letter of Credit issued by
it, no Issuing Lender shall have an obligation relative to the other Lenders
other than to confirm that any documents required to be delivered under such
Letter of Credit appear to have been delivered and that they appear to
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Lender under or
in connection with any Letter of Credit issued by it shall not create for such
Issuing Lender any resulting liability to the Borrower, any other Credit Party,
any Lender or any other Person unless such action is taken or omitted to be
taken with gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final and non-appealable decision).
(c) In the event that any Issuing Lender makes any payment under any
Letter of Credit issued by it and the Borrower shall not have reimbursed such
amount in full to such Issuing Lender pursuant to Section 2.05(a), such Issuing
Lender shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and, except as provided in the proviso
of the immediately succeeding sentence, each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant's
Percentage of such unreimbursed payment in Dollars and in same day funds. If the
Administrative Agent so notifies, prior to 12:00 Noon (New York time) on any
Business Day, any Participant required to fund a payment under a Letter of
Credit, such Participant shall make available to the respective Issuing Lender
in Dollars such Participant's Percentage of the amount of such payment on such
Business Day in same day funds; provided, however, that no Participant shall be
obligated to pay to the respective Issuing Lender its Percentage of such
unreimbursed amount for any wrongful payment made by such Issuing Lender under a
Letter of Credit issued by it as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of such Issuing Lender (as
determined by a court of competent jurisdiction in a final and non-appealable
decision). If and to the extent such Participant shall not have so made its
Percentage of the amount of such payment available to the respective Issuing
Lender, such Participant agrees to pay to such Issuing Lender, forthwith on
demand such amount, together with interest thereon, for each day from such date
until the date such amount is paid to such Issuing Lender at the overnight
Federal Funds Rate for the first three days and at the interest rate applicable
to Base Rate Loans for each day thereafter. The failure of any Participant to
make available to the respective Issuing Lender its Percentage of any payment
under any Letter of Credit shall not relieve any other Participant of its
obligation hereunder to make available to such Issuing Lender its Percentage of
any Letter of Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other Participant to
make available to such Issuing Lender such other Participant's Percentage of any
such payment.
(d) Whenever an Issuing Lender receives a payment of a reimbursement
obligation as to which it has received any payments from the Participants
pursuant to clause (c) above, such Issuing Lender shall pay to each Participant
which has paid its Percentage thereof, in Dollars and in same day funds, an
amount equal to such Participant's share (based upon the proportionate aggregate
amount originally funded by such Participant to the aggregate amount funded by
all Participants) of the principal amount of such reimbursement obligation and
interest thereon accruing after the purchase of the respective participations;
provided, however, that if such Issuing Lender shall have received any such
payment of a reimbursement obligation on a day that is not a Business Day or on
or after 12:00 Noon (New York time) on any Business
14
Day, such Issuing Lender shall not be obliged to make any payment to any
Participant in respect thereof until the immediately succeeding Business Day .
(e) The obligations of the Participants to make payments to each
Issuing Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever (except
as otherwise provided in the proviso to the second sentence of Section 2.04(c))
and shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right which
the Borrower or any of its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, any Issuing Lender, any Participant or any other
Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between the Borrower or any
Subsidiary of the Borrower and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.05 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
agrees to reimburse each Issuing Lender, by making payment to the Administrative
Agent in Dollars and in immediately available funds at the Payment Office, for
any payment or disbursement made by such Issuing Lender under any Letter of
Credit issued by it (each such amount so paid until reimbursed, an "Unpaid
Drawing"), not later than one Business Day following receipt by the Borrower of
notice of such payment or disbursement (provided that no such notice shall be
required to be given if a Default or an Event of Default under Section 10.05
shall have occurred and be continuing, in which case the Unpaid Drawing shall be
due and payable immediately without presentment, demand, protest or notice of
any kind (all of which are hereby waived by the Borrower)), with interest on the
amount so paid or disbursed by such Issuing Lender, to the extent not reimbursed
prior to 12:00 Noon (New York time) on the date of such payment or disbursement,
from and including the date paid or disbursed to but excluding the date such
Issuing Lender was reimbursed by the Borrower therefor at a rate per annum which
shall be the sum of the Applicable Margin for Revolving Loans that are
maintained as Base Rate Loans plus the Base Rate each as in effect from time to
time; provided, however, to the extent such amounts are not reimbursed prior to
12:00 Noon (New York time) on the third Business Day following
15
the receipt by the Borrower of notice of such payment or disbursement or
following the occurrence of a Default or an Event of Default under Section
10.05, interest shall thereafter accrue on the amounts so paid or disbursed by
such Issuing Lender (and until reimbursed by the Borrower) at a rate per annum
which shall be the sum of the Applicable Margin for Revolving Loans that are
maintained as Base Rate Loans plus the Base Rate each as in effect from time to
time plus 2%, in each such case, with interest to be payable on demand. Each
Issuing Lender shall give the Borrower prompt written notice of each Drawing
under any Letter of Credit issued by it, provided that the failure to give any
such notice shall in no way affect, impair or diminish the Borrower's
obligations hereunder.
(b) The obligations of the Borrower under this Section 2.05 to
reimburse each Issuing Lender with respect to Unpaid Drawings (including, in
each case, interest thereon) shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrower may have or have had against any Lender (including in
its capacity as issuer of the Letter of Credit or as Participant), including,
without limitation, any defense based upon the failure of any drawing or payment
under a Letter of Credit (each a "Drawing") to conform to the terms of the
Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing; provided, however, that the Borrower shall not be
obligated to reimburse the respective Issuing Lender for any wrongful payment
made by such Issuing Lender under a Letter of Credit issued by it as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of such Issuing Lender (as determined by a court of competent jurisdiction
in a final and non-appealable decision).
2.06 Increased Costs. If at any time after the Effective Date, the
introduction of or any change in any applicable law, rule, regulation, order,
guideline or request or in the interpretation or administration thereof by the
NAIC or any governmental authority charged with the interpretation or
administration thereof, or compliance by any Issuing Lender or any Participant
with any request or directive by the NAIC or by any such authority (whether or
not having the force of law), shall either (i) impose, modify or make applicable
any reserve, deposit, capital adequacy or similar requirement against letters of
credit issued by any Issuing Lender or participated in by any Participant, or
(ii) impose on any Issuing Lender or any Participant any other conditions
relating, directly or indirectly, to this Agreement; and the result of any of
the foregoing is to increase the cost to any Issuing Lender or any Participant
of issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Lender or any
Participant hereunder or reduce the rate of return on its capital with respect
to Letters of Credit (except for changes in the rate of tax on, or determined by
reference to, the net income or profits of such Issuing Lender or such
Participant pursuant to the laws of the jurisdiction in which it is organized or
in which its principal office or applicable lending office is located or any
subdivision thereof or therein), then, upon the delivery of the certificate
referred to below to the Borrower by such Issuing Lender or such Participant (a
copy of which certificate shall be sent by such Issuing Lender or such
Participant to the Administrative Agent), the Borrower shall pay to such Issuing
Lender or such Participant such additional amount or amounts as will compensate
such Issuing Lender or such Participant for such increased cost or reduction in
the amount receivable or reduction on the rate of return on its capital. Each
Issuing Lender or Participant, upon determining that any additional amounts will
be payable to it pursuant to this Section 2.06, will give prompt written notice
thereof to the Borrower, which
16
notice shall include a certificate submitted to the Borrower by such Issuing
Lender or such Participant (a copy of which certificate shall be sent by such
Issuing Lender or such Participant to the Administrative Agent), setting forth
in reasonable detail the basis therefor and the calculation of such additional
amount or amounts necessary to compensate such Issuing Lender or such
Participant; provided that the Borrower shall not be required to compensate any
Lender or any Issuing Bank pursuant to this Section 2.06 for any increased costs
or reductions incurred more than 270 days prior to the date that such Lender or
such Issuing Lender, as the case may be, notifies the Borrower of the change in
law giving rise to such increased costs or reductions and of such Lender's or
such Issuing Lender's intention to claim compensation therefor; provided further
that, if the change in law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof. The certificate required to be
delivered pursuant to this Section 2.06 shall, absent manifest error, be final
and conclusive and binding on the Borrower, although the failure to deliver any
such certificate shall not release or diminish the Borrower's obligations to pay
additional amounts pursuant to this Section 2.05 upon subsequent receipt of such
certificate.
SECTION 3. Fees; Adjustments to the Total Revolving Loan Commitment.
3.01 Fees. (a) The Borrower shall pay to the Administrative Agent for
distribution to each Non-Defaulting Lender, a commitment fee (the "Commitment
Fee") for the period from and including the Effective Date to but excluding the
Final Maturity Date (or such earlier date on which the Total Revolving Loan
Commitment shall have been terminated), computed at a rate per annum equal to
1/2 of 1% on the daily average Unutilized Revolving Loan Commitment of such
Non-Defaulting Lender. Accrued Commitment Fee shall be due and payable quarterly
in arrears on each Quarterly Payment Date and on the Final Maturity Date (or
such earlier date on which the Total Revolving Loan Commitment shall have been
terminated).
(b) The Borrower shall pay to the Administrative Agent for
distribution to each Lender (based on each such Lender's respective Percentage)
a fee in respect of each Letter of Credit issued hereunder (the "Letter of
Credit Fee") for the period from and including the date of issuance of such
Letter of Credit to and including the date of termination or expiration of such
Letter of Credit, computed at a rate per annum equal to the Applicable Margin
then in effect for Eurodollar Loans on the daily Stated Amount of such Letter of
Credit. Accrued Letter of Credit Fees shall be due and payable quarterly in
arrears on each Quarterly Payment Date and on the first day after the
termination of the Total Revolving Loan Commitment upon which no Letters of
Credit remain outstanding.
(c) The Borrower shall pay to each Issuing Lender, for its own
account, a facing fee in respect of each Letter of Credit issued by such Issuing
Lender hereunder (the "Facing Fee") for the period from and including the date
of issuance of such Letter of Credit to and including the termination or
expiration of such Letter of Credit, computed at a rate equal to 1/4 of 1% per
annum of the daily Stated Amount of such Letter of Credit; provided that in no
event shall the annual Facing Fee with respect to any Letter of Credit be less
than $500 per year per Letter of Credit. Accrued Facing Fees shall be due and
payable quarterly in arrears on each Quarterly Payment Date and on the first day
after the termination of the Total Revolving Loan Commitment upon which no
Letters of Credit remain outstanding.
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(d) The Borrower shall pay to each Issuing Lender, for its own
account, upon each payment under, issuance of, or amendment to, any Letter of
Credit, such amount as shall at the time of such event be the administrative
charge and the reasonable expenses which such Issuing Lender is generally
imposing in connection with such occurrence with respect to letters of credit.
(e) The Borrower shall pay to the Administrative Agent, for its own
account, such other fees as have been agreed to in writing by the Borrower and
the Administrative Agent.
3.02 Voluntary Termination of Unutilized Commitments. Upon at least
three Business Day's prior written notice to the Administrative Agent at the
Notice Office (which notice the Administrative Agent shall promptly transmit to
each of the Lenders), the Borrower shall have the right, at any time or from
time to time, without premium or penalty, to terminate the Total Unutilized
Revolving Loan Commitment, in whole or in part, pursuant to this Section 3.02,
in a minimum amount of $1,000,000 and, in excess thereof, in integral multiples
of $100,000 in the case of partial reductions to the Total Unutilized Revolving
Loan Commitment, provided that each such reduction shall apply proportionately
to permanently reduce the Revolving Loan Commitment of each Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total Revolving Loan
Commitment (and the Revolving Loan Commitment of each Lender) shall terminate in
their entirety on February 28, 2002, unless the Effective Date has occurred on
or before such date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, on each date on or after the Effective Date on which the
Borrower or any of its Subsidiaries receives Cash Proceeds from any Asset Sale,
the Total Revolving Loan Commitment shall be permanently reduced on each such
date by an amount equal to 100% of the Net Sale Proceeds from such Asset Sale;
provided, that such Net Sale Proceeds shall not give rise to a reduction to the
Total Revolving Loan Commitment pursuant to this Section 3.03(b) on any such
date to the extent that (x) no Default or Event of Default then exists, (y) the
aggregate amount of Net Sale Proceeds from all Asset Sales received by the
Borrower or any of its Subsidiaries on or prior to such date does not exceed
$5,000,000 and (z) such Net Sale Proceeds shall be used to purchase assets
(other than working capital) used or to be used in the businesses permitted
pursuant to Section 9.16 (including, without limitation (but only to the extent
permitted by Section 8.14), the purchase of the assets or 100% of the equity of
a Person engaged in such business) within 180 days following the date of such
Asset Sale, and provided further, that if all or any portion of such Net Sale
Proceeds are not so reinvested within such 180-day period (or such earlier date,
if any, as the Borrower or the relevant Subsidiary determines not to reinvest
the Net Sale Proceeds from such Asset Sale as set forth above), the Total
Revolving Loan Commitment shall be permanently reduced on the last day of such
period (or such earlier date, as the case may be) by an amount equal to such
remaining portion.
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, on each date on or after the Effective Date on which the
Borrower or any of its Subsidiaries receives any cash proceeds from any
incurrence of Indebtedness for borrowed money (other than Indebtedness permitted
to be incurred pursuant to Section 9.04 as such Section is in effect on the
Effective Date) by the Borrower or any of its Subsidiaries, the Total
18
Revolving Loan Commitment shall be permanently reduced on each such date by an
amount equal to 100% of the Net Debt Proceeds of the respective incurrence of
Indebtedness.
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, on each date on or after the Effective Date on which the
Borrower or any of its Subsidiaries receives any cash proceeds from any Recovery
Event, the Total Revolving Loan Commitment shall be permanently reduced on each
such date by an amount equal to 100% of the Net Insurance Proceeds of such
Recovery Event; provided, however, that so long as no Default or Event of
Default then exists and the aggregate amount of Net Insurance Proceeds received
from such Recovery Event is less than $1,000,000, such Net Insurance Proceeds
shall not give rise to a reduction to the Total Revolving Loan Commitment
pursuant to this Section 3.03(d); provided further, that so long as no Default
or Event of Default then exists and the aggregate amount of Net Insurance
Proceeds received from such Recovery Event equals or exceeds $1,000,000 but when
added to the aggregate amount of all other Net Insurance Proceeds (excluding any
amounts that are less than $1,000,000) received from all other Recovery Events
does not exceed $5,000,000, such Net Insurance Proceeds shall not give rise to a
reduction to the Total Revolving Loan Commitment pursuant to this Section
3.03(d) to the extent that the Borrower has delivered a certificate to the
Administrative Agent stating that such Net Insurance Proceeds shall be used to
replace or restore any properties or assets in respect of which such Net
Insurance Proceeds were paid within 180 days following the date of the receipt
of such Net Insurance Proceeds (which certificate shall set forth the estimates
of the Net Insurance Proceeds to be so expended); provided, however, if all or
any portion of such Net Insurance Proceeds are not so used within 180 days after
the date of the receipt of such Net Insurance Proceeds (or such earlier date, if
any, as the Borrower or the relevant Subsidiary determines not to reinvest the
Net Insurance Proceeds relating to such Recovery Event as set forth above), the
Total Revolving Loan Commitment shall be permanently reduced by an amount equal
to such remaining portion on such date.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving
Loan Commitment of each Lender) shall terminate in its entirety on the earlier
of (i) the Final Maturity Date and (ii) unless the Required Lenders otherwise
agree, the date on which a Change of Control occurs.
(f) Each reduction to the Total Revolving Loan Commitment pursuant to
this Section 3.03 shall apply proportionately to reduce the Revolving Loan
Commitment of each Lender.
SECTION 4. Prepayments; Payments; Taxes.
4.01 Voluntary Prepayments. The Borrower shall have the right to
prepay the Loans made to it, without premium or penalty, in whole or in part at
any time and from time to time on the following terms and conditions: (i) the
Borrower shall give the Administrative Agent prior to 12:00 Noon (New York time)
at the Notice Office (x) at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of its intent to prepay Base
Rate Loans (or same day notice in the case of a prepayment of Swingline Loans)
and (y) at least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of its intent to prepay Eurodollar Loans, whether
Revolving Loans or Swingline Loans shall be
19
prepaid, the amount of such prepayment, the Types of the Loans to be prepaid
and, in the case of Eurodollar Loans, the specific Borrowing or Borrowings
pursuant to which made, which notice the Administrative Agent shall, except in
the case of Swingline Loans, promptly transmit to each of the Lenders; (ii) each
prepayment of Revolving Loans pursuant to this Section 4.01 shall be in an
aggregate principal amount of at least $500,000 and, in excess thereof, in
integral multiples of $100,000 and each prepayment of Swingline Loans pursuant
to this Section 4.01 shall be in an aggregate principal amount of at least
$100,000, provided that if any partial prepayment of Eurodollar Loans made
pursuant to any Borrowing shall reduce the outstanding principal amount of
Eurodollar Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto, then such Borrowing may not be
continued as a Borrowing of Eurodollar Loans and any election of an Interest
Period with respect thereto given by the Borrower shall have no force or effect;
and (iii) each prepayment pursuant to this Section 4.01 in respect of any
Revolving Loans made pursuant to a Borrowing shall be applied pro rata among
such Revolving Loans, provided that at the Borrower's election in connection
with any prepayment of Revolving Loans pursuant to this Section 4.01 and so long
as no Default or Event of Default then exists, such prepayment shall not be
applied to any Revolving Loan of a Defaulting Lender.
4.02 Mandatory Repayments. (a)(i) On any day on which the sum of (I)
the aggregate outstanding principal amount of all Revolving Loans (after giving
effect to all other repayments thereof on such date), (II) the aggregate
outstanding principal amount of all Swingline Loans (after giving effect to all
other repayments thereof on such date) and (III) the aggregate amount of all
Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as
then in effect, the Borrower shall prepay on such day the principal of Swingline
Loans and, after all Swingline Loans have been repaid in full or if no Swingline
Loans are outstanding, the Borrower shall prepay Revolving Loans in an amount
equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and Revolving Loans, the aggregate amount of the
Letter of Credit Outstandings exceeds the Total Revolving Loan Commitment as
then in effect, the Borrower shall pay to the Administrative Agent (for the
benefit of the Lenders and the Issuing Lenders) at the Payment Office on such
day an amount of cash and/or Cash Equivalents equal to the amount of such excess
(up to a maximum amount equal to the Letter of Credit Outstandings at such
time), such cash and/or Cash Equivalents to be held as security for all
obligations of the Borrower to the Issuing Lenders and the Lenders hereunder in
a cash collateral account to be established by the Administrative Agent.
(ii) On each date on or after the Effective Date on which the Borrower
or any of its Subsidiaries receives any cash proceeds (net of underwriting
discounts and commissions) from any sale or issuance of Equity Interests of
the Borrower or any of its Subsidiaries, the Borrower shall (x) prepay on
such date the principal of Swingline Loans and, after all Swingline Loans
have been repaid in full or if no Swingline Loans are outstanding, the
Borrower shall prepay Revolving Loans in an amount equal to the remaining
amount of such proceeds and (y) to the extent any such proceeds remain
unused after giving effect to the prepayment of such Swingline Loans and
Revolving Loans, the Borrower shall pay to the Administrative Agent (for
the benefit of the Lenders and the Issuing Lenders) at the Payment Office
on such date an amount of cash and/or Cash Equivalents equal to the amount
of such excess (up to a maximum amount equal to the Letter of Credit
Outstandings at such time, if any), such cash and Cash Equivalents to
20
be held as security for all obligations of the Borrower to the Issuing
Lenders and the Lenders hereunder in a cash collateral account to be
established by the Administrative Agent.
(iii) On any day on which the aggregate amount of all Letter of Credit
Outstandings exceeds $5,000,000, the Borrower shall pay to the
Administrative Agent (for the benefit of the Lenders and the Issuing
Lenders) at the Payment Office on such day an amount of cash and/or Cash
Equivalents equal to the amount of such excess, such cash and/or Cash
Equivalents to be held as security for all obligations of the Borrower to
the Issuing Lenders and the Lenders hereunder in a cash collateral account
to be established by the Administrative Agent.
(b) With respect to each repayment of Revolving Loans required by this
Section 4.02, the Borrower may designate the Types of Revolving Loans which are
to be repaid and, in the case of Eurodollar Loans, the specific Borrowing or
Borrowings pursuant to which such Eurodollar Loans were made, provided that: (i)
repayments of Eurodollar Loans pursuant to this Section 4.02 may only be made on
the last day of an Interest Period applicable thereto unless all Eurodollar
Loans with Interest Periods ending on such date of required repayment and all
Base Rate Loans have been paid in full; (ii) if any repayment of Eurodollar
Loans made pursuant to a single Borrowing shall reduce the outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto, such Borrowing shall be converted
at the end of the then current Interest Period into a Borrowing of Base Rate
Loans; and (iii) each repayment of any Revolving Loans made pursuant to a
Borrowing shall be applied pro rata among such Revolving Loans. In the absence
of a designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its
sole discretion.
(c) Notwithstanding anything to the contrary contained in this
Agreement or in any other Credit Document, (i) all then outstanding Revolving
Loans shall be repaid in full on the Final Maturity Date, (ii) all then
outstanding Swingline Loans shall be repaid in full on the Swingline Expiry
Date, (iii) each Swingline Loan shall be repaid in full on or prior to the date
falling seven Business Days after the date of incurrence of such Swingline Loan
and (iv) unless the Required Lenders otherwise agree, all then outstanding Loans
shall be repaid in full on the date on which a Change of Control occurs.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or under any Note shall be
made to the Administrative Agent for the account of the Lender or Lenders
entitled thereto not later than 12:00 Noon (New York time) on the date when due
and shall be made in immediately available funds in Dollars at the Payment
Office. Whenever any payment to be made hereunder or under any Note shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable at the applicable rate during
such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder or
under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or with-
21
holding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein with respect to such payments (but excluding, except as provided in the
second succeeding sentence, any tax imposed on or measured by the net income or
net profits of a Lender pursuant to the laws of the jurisdiction in which it is
organized or the jurisdiction in which the principal office or applicable
lending office of such Lender is located or any subdivision thereof or therein)
and all interest, penalties or similar liabilities with respect to such
non-excluded taxes, levies, imposts, duties, fees, assessments or other charges
(all such non-excluded taxes, levies, imposts, duties, fees, assessments or
other charges being referred to collectively, as "Taxes"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and
such additional amounts as may be necessary so that every payment of all amounts
due under this Agreement or under any Note, after withholding or deduction for
or on account of any Taxes, will not be less than the amount provided for herein
or in such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, the Borrower agrees to reimburse each Lender, upon the
written request of such Lender, for taxes imposed on or measured by the net
income or net profits of such Lender pursuant to the laws of the jurisdiction in
which such Lender is organized or in which the principal office or applicable
lending office of such Lender is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction in which such Lender is
organized or in which the principal office or applicable lending office of such
Lender is located and for any withholding of taxes as such Lender shall
determine are payable by, or withheld from, such Lender, in respect of such
amounts so paid to or on behalf of such Lender pursuant to the preceding
sentence and in respect of any amounts paid to or on behalf of such Lender
pursuant to this sentence. The Borrower will furnish to the Administrative Agent
within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Lender, and
reimburse such Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Lender.
(b) In the case of Loans to the Borrower, each Lender that is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes agrees to deliver to the Borrower and
the Administrative Agent on or prior to the Effective Date, or in the case of a
Lender that is an assignee or transferee of an interest under this Agreement
pursuant to Section 1.13 or 13.04 (unless the respective Lender was already a
Lender hereunder immediately prior to such assignment or transfer), on the date
of such assignment or transfer to such Lender, (i) two accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN
(with respect to a complete exemption under an income tax treaty) (or successor
forms) certifying to such Lender's entitlement as of such date to a complete
exemption from United States withholding tax with respect to payments to be made
by the Borrower under this Agreement and under any Note or (ii) if the Lender is
not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect
to a complete exemption under an income tax treaty) pursuant to clause (i)
above, (x) a certificate substantially in the form of Exhibit D (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN (with
respect to the portfolio interest exemption) (or successor form) certifying to
such Lender's entitlement as of such date to a complete exemption from United
States withholding tax
22
with respect to payments of interest to be made by the Borrower under this
Agreement and under any Note. In addition, in the case of Loans to the Borrower,
each Lender agrees that from time to time after the Effective Date, when a lapse
in time or change in circumstances renders the previous certification obsolete
or inaccurate in any material respect, such Lender will deliver to the Borrower
and the Administrative Agent two new accurate and complete original signed
copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to
the benefit of any income tax treaty), or Form W-8BEN (with respect to the
portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the case
may be, and such other forms as may be required in order to confirm or establish
the entitlement of such Lender to a continued exemption from or reduction in
United States withholding tax with respect to payments by the Borrower under
this Agreement and any Note, or such Lender shall immediately notify the
Borrower and the Administrative Agent of its inability to deliver any such Form
or Certificate, in which case such Lender shall not be required to deliver any
such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding
anything to the contrary contained in Section 4.04(a), but subject to Section
13.04(b) and the immediately succeeding sentence, (x) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, Fees or other
amounts payable by it hereunder for the account of any Lender which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Lender has
not provided to the Borrower U.S. Internal Revenue Service Forms that establish
a complete exemption from such deduction or withholding and (y) the Borrower
shall not be obligated pursuant to Section 4.04(a) to gross-up payments to be
made by it to a Lender in respect of income or similar taxes imposed by the
United States if (I) such Lender has not provided to the Borrower the Internal
Revenue Service Forms required to be provided to the Borrower pursuant to this
Section 4.04(b) or (II) in the case of a payment, other than interest, to a
Lender described in clause (ii) above, to the extent that such Forms do not
establish a complete exemption from withholding of such taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 4.04 and except as set forth in Section 13.04(b), the Borrower
agrees to pay any additional amounts and to indemnify each Lender in the manner
set forth in Section 4.04(a) (without regard to the identity of the jurisdiction
requiring the deduction or withholding) in respect of any Taxes deducted or
withheld by it as described in the immediately preceding sentence as a result of
any changes that are effective after the Effective Date in any applicable law,
treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of such Taxes.
SECTION 5. Conditions Precedent to the Effective Date.
The occurrence of the Effective Date pursuant to Section 13.10 is
subject to the satisfaction of the following conditions:
5.01 Execution of Agreement; Notes. On or prior to the Effective Date,
(i) this Agreement shall have been executed and delivered as provided in Section
13.10 and (ii) there shall have been delivered to the Administrative Agent for
the account of each of the Lenders the appropriate Revolving Notes executed by
the Borrower and to the Swingline Lender, the Swingline Note executed by the
Borrower, in each case, in the amount, maturity and as otherwise provided
herein.
23
5.02 Officer's Certificate. On the Effective Date, the Administrative
Agent shall have received a certificate from the Borrower, dated the Effective
Date and signed on behalf of the Borrower by the Chairman of the Board, the
Chief Executive Officer, the President, any Vice President or Director of the
Borrower, certifying on behalf of the Borrower that all of the conditions in
Sections 5.05, 5.06, 5.07 and 6.02 have been satisfied on such date.
5.03 Opinion of Counsel. On the Effective Date, the Administrative
Agent shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to the Credit
Parties, an opinion addressed to the Administrative Agent, the Collateral Agent
and each of the Lenders and dated the Effective Date covering the matters set
forth in Exhibit E and such other matters incident to the transactions
contemplated herein as the Administrative Agent may reasonably request.
5.04 Corporate Documents; Proceedings; etc. (a) On the Effective Date,
the Administrative Agent shall have received a certificate from each Credit
Party, dated the Effective Date, signed on behalf of such Credit Party by the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President or any Director of such Credit Party, and attested to by the Secretary
or any Assistant Secretary of such Credit Party, in the form of Exhibit F with
appropriate insertions, together with copies of the certificate or articles of
incorporation (or equivalent organizational document) and by-laws of such Credit
Party and the resolutions of such Credit Party referred to in such certificate,
and the foregoing shall be in form and substance reasonably acceptable to the
Administrative Agent.
(b) All corporate and legal proceedings and all instruments and
agreements in connection with the transactions contemplated by this Agreement
and the other Credit Documents shall be reasonably satisfactory in form and
substance to the Administrative Agent and the Required Lenders, and the
Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate proceedings, governmental
approvals, good standing certificates and bring-down telegrams or facsimiles, if
any, which the Administrative Agent reasonably may have requested in connection
therewith, such documents and papers where appropriate to be certified by proper
corporate or governmental authorities.
5.05 Refinancing, etc. (a) On the Effective Date and contemporaneously
with the incurrence of Loans hereunder on such date, the commitments under the
Indebtedness to be Refinanced shall have been terminated, all loans outstanding
thereunder shall have been repaid in full, together with all accrued and unpaid
interest thereon, all accrued and unpaid fees thereon shall have been paid in
full, all letters of credit and bank guarantees issued thereunder shall have
been terminated and all other amounts owing pursuant to the Indebtedness to be
Refinanced shall have been repaid in full.
(b) On the Effective Date, all security interests in respect of, and
Liens securing, obligations under the Indebtedness to be Refinanced shall have
been terminated and released to the satisfaction of the Administrative Agent,
and the Administrative Agent shall have received all such releases as may have
been requested by the Administrative Agent, which releases shall be in form and
substance satisfactory to the Administrative Agent. Without limiting the
foregoing, there shall have been delivered (i) proper termination statements
(Form UCC-3, "in lieu of" continuation statements or the appropriate equivalent)
for filing under the UCC of (A) each jurisdiction where a financing statement
(Form UCC-1 or the equivalent) was
24
filed with respect to the Borrower or any of its Subsidiaries in connection with
the security interests created pursuant to the Indebtedness to be Refinanced and
the documentation related thereto and (B) each jurisdiction of organization for
the Borrower and each of its Subsidiaries (or, if a Foreign Subsidiary, in the
District of Columbia), (ii) termination or reassignment of any security interest
in, or Lien on, any patents, trademarks, copyrights or similar interests of the
Borrower or any of its Subsidiaries on which filings have been made to secure
obligations under the Indebtedness to be Refinanced, fully executed by the
appropriate parties, and (iii) terminations of all mortgages, leasehold
mortgages and deeds of trusts created with respect to property of the Borrower
or any of its Subsidiaries to secure the obligations under the Indebtedness to
be Refinanced, fully executed by the appropriate parties, all of which shall be
in form and substance satisfactory to the Administrative Agent.
(c) On or prior to the Effective Date, (i) the Borrower shall have
received gross cash proceeds in immediately available funds of at least
$200,000,000 (the "Senior Note Proceeds") from the issuance of the Senior Notes
pursuant to the Senior Note Indenture (the "Senior Note Financing") and (ii) the
Borrower shall have utilized the full amount of the Senior Note Proceeds for the
purpose of effecting the refinancing set forth in Section 5.05(a) above and
paying the fees and expenses incurred by the Borrower in connection therewith,
and prior to or contemporaneously with utilizing the proceeds of any Loans for
any purpose whatsoever. All of the terms and conditions of the Senior Note
Documents shall be satisfactory to the Administrative Agent and the Required
Lenders, and all conditions to the consummation of the Senior Note Financing as
set forth in the Senior Note Documents shall have been satisfied (and not
waived, unless consented to by the Administrative Agent and the Required
Lenders), to the satisfaction of the Administrative Agent and the Required
Lenders. The Senior Note Financing shall have been consummated in all material
respects in accordance with the terms and conditions of the Senior Note
Documents and all applicable laws (the foregoing matters set forth in paragraphs
(a), (b) and (c) above, the "Refinancing").
5.06 Adverse Change, etc. (a) Nothing shall have occurred (and neither
the Administrative Agent nor the Lenders shall have become aware of any facts or
conditions not previously known) which the Administrative Agent or the Required
Lenders shall reasonably determine (i) has had, or could reasonably be expected
to have, a material adverse effect on the rights or remedies of the Lenders or
the Administrative Agent, or on the ability of any Credit Party to perform its
obligations to the Lenders or the Administrative Agent hereunder or under any
other Credit Document or (ii) has had, or could reasonably be expected to have,
a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower and
the other Credit Parties taken as a whole.
(b) On or prior to the Effective Date, all necessary governmental
(domestic and foreign) and third party approvals and/or consents in connection
with the transactions contemplated by this Agreement and the other Credit
Documents and otherwise referred to herein or therein shall have been obtained
and remain in effect. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief or other restraint pending or notified prohibiting or imposing materially
adverse conditions upon the transactions contemplated by this Agreement and the
other Credit Documents or otherwise referred to herein or therein.
25
5.07 Litigation. On the Effective Date, there shall be no actions,
suits or proceedings pending or threatened (i) with respect to this Agreement or
any other Credit Document or (ii) which the Administrative Agent or the Required
Lenders shall reasonably determine could reasonably be expected to have a
material adverse effect on (a) the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower and
the other Credit Parties taken as a whole, (b) the rights or remedies of the
Lenders or the Administrative Agent hereunder or under any other Credit Document
or (c) the ability of any Credit Party to perform its respective obligations to
the Lenders or the Administrative Agent hereunder or under any other Credit
Document.
5.08 Pledge Agreement. On the Effective Date, each Credit Party shall
have duly authorized, executed and delivered the Pledge Agreement in the form of
Exhibit G (such Pledge Agreement as modified, amended or supplemented from time
to time in accordance with the terms thereof and hereof, the "Pledge Agreement")
and shall have delivered to the Collateral Agent, as Pledgee thereunder, all of
the certificated Pledge Agreement Collateral, if any, referred to therein and
then owned by each such Credit Party, (A) endorsed in blank in the case of
promissory notes constituting such Pledge Agreement Collateral and (B) together
with (x) executed and undated stock powers in the case of capital stock
constituting such Pledge Agreement Collateral and (y) proper financing
statements (Form UCC-1 or the equivalent) fully executed for filing under the
UCC or other appropriate filing offices of each jurisdiction as may be necessary
or, in the reasonable opinion of the Collateral Agent, desirable to perfect the
security interests purported to be created by the Pledge Agreement, and (iii)
each Credit Party shall have taken all such further actions as may be necessary
or, in the reasonable opinion of the Collateral Agent desirable, to perfect the
security interest purported to be created by the Pledge Agreement.
5.09 Security Agreement. On the Effective Date, each Credit Party
shall have duly authorized, executed and delivered the Security Agreement in the
form of Exhibit H (such Security Agreement as modified, amended or supplemented
from time to time in accordance with the terms thereof and hereof, the "Security
Agreement"), in each case covering all of each such Credit Party's present and
future Security Agreement Collateral, together with:
(i) proper financing statements (Form UCC-1 or the equivalent) fully
executed for filing under the UCC or other appropriate filing offices of
each jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent desirable, to perfect the security interests purported to
be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, listing all effective financing statements
that name any Credit Party as debtor and that are filed in the
jurisdictions referred to in clause (i) above, together with copies of such
other financing statements that name any Credit Party as debtor (none of
which shall cover the Collateral except to the extent evidencing Permitted
Liens or in respect of which the Collateral Agent shall have received
termination statements (Form UCC-3 or the equivalent) as shall be required
by local law fully executed for filing);
(iii) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the reasonable opinion of
26
the Collateral Agent, desirable to perfect the security interests intended
to be created by the Security Agreement (other than evidence of the
completion of recordings and filings (x) of financing statements (Form
UCC-1 or the equivalent) and (y) in the United States Patent and Trademark
Office and United States Copyright Office in accordance with the Security
Agreement, which are in each case to be filed within 3 days after the
Effective Date); and
(iv) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect and protect the
security interests purported to be created by the Security Agreement have
been taken.
5.10 Subsidiary Guaranties. On the Effective Date, each Subsidiary
Guarantor shall have duly authorized, executed and delivered the Subsidiaries
Guaranty in the form of Exhibit I (as amended, modified or supplemented from
time to time, the "Subsidiaries Guaranty").
5.11 Financial Statements. On or prior to the Effective Date, the
Administrative Agent shall have received true and correct copies of the
historical financial statements referred to in Section 7.05(a), which historical
financial statements shall be in form and substance satisfactory to the
Administrative Agent and the Required Lenders.
5.12 Solvency Certificate. On the Effective Date, the Borrower shall
have delivered to the Administrative Agent a solvency certificate from the Chief
Financial Officer of the Borrower in the form of Exhibit J.
5.13 Insurance Certificates. On or prior to the Effective Date, the
Borrower shall have delivered to the Administrative Agent certificates from its
insurance brokers or carriers with respect to the business and properties of the
Credit Parties in scope, form and substance satisfactory to the Administrative
Agent and naming the Collateral Agent as an additional insured and/or as loss
payee and stating that the respective insurer shall endeavor to provide at least
30 days' prior written notice to the Collateral Agent before such insurance
shall be cancelled.
5.14 Fees, etc. On the Effective Date, the Borrower shall have paid to
the Administrative Agent and each Lender all costs, fees and expenses
(including, without limitation, reasonable legal fees and expenses) payable to
the Administrative Agent and such Lender to the extent then due pursuant hereto
or as otherwise agreed between the Borrower and the Administrative Agent.
5.15 Employee Benefit Plans; Shareholders' Agreements; Management
Agreements; Employment Agreements; Collective Bargaining Agreements; Existing
Indebtedness Agreements; Tax Sharing Agreements; Material Contracts. On or prior
to the Effective Date, there shall have been made available for inspection and
copying to the Lenders true and correct copies, certified as true and complete
by an appropriate officer of the Borrower, of the following documents, in each
case as same will be in effect on the Effective Date:
(i) all Plans (and for each Plan that is required to file an annual
report on Internal Revenue Service Form 5500-series, a copy of the most
recent such report
27
(including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information), and for each Plan that is a "single-employer
plan," as defined in Section 4001(a)(15) of ERISA, the most recently
prepared actuarial valuation therefor) and any other "employee benefit
plans," as defined in Section 3(3) of ERISA, and any other material
agreements, plans or arrangements, with or for the benefit of current or
former employees of the Borrower or any of its Subsidiaries or any ERISA
Affiliate (provided that the foregoing shall apply in the case of any
multiemployer plan, as defined in 4001(a)(3) of ERISA, only to the extent
that any document described therein is in the possession of the Borrower or
any Subsidiary of the Borrower or any ERISA Affiliate or reasonably
available thereto from the sponsor or trustee of any such plan)
(collectively, the "Employee Benefit Plans");
(ii) all agreements (including, without limitation, shareholders'
agreements, subscription agreements and registration rights agreements)
entered into by the Borrower or any of its Subsidiaries governing the terms
and relative rights of its Equity Interests and any agreements entered into
by shareholders relating to any such entity with respect to its Equity
Interests (collectively, the "Shareholders' Agreements");
(iii) all material agreements with members of, or with respect to, the
management of the Borrower or any of its Subsidiaries (collectively, the
"Management Agreements");
(iv) any material employment agreements entered into by the Borrower
or any of its Subsidiaries (collectively, the "Employment Agreements");
(v) all collective bargaining agreements applying or relating to any
employee of the Borrower or any of its Subsidiaries (collectively, the
"Collective Bargaining Agreements");
(vi) all agreements evidencing or relating to Existing Indebtedness of
the Borrower or any of its Subsidiaries, in each case to the extent the
principal amount of Indebtedness evidenced thereby equals or exceeds
$350,000 (collectively, the "Existing Indebtedness Agreements");
(vii) any tax sharing or tax allocation agreements entered into by the
Borrower or any of its Subsidiaries (collectively, the "Tax Sharing
Agreements"); and
(viii) all material contracts and licenses of the Borrower or any of
its Subsidiaries (collectively, the "Material Contracts");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Collective Bargaining Agreements, Existing
Indebtedness Agreements, Tax Sharing Agreements and Material Contracts shall be
in form and substance reasonably satisfactory to the Administrative Agent and
the Required Lenders and shall be in full force and effect on the Effective
Date.
28
5.16 Projections, etc. On or prior to the Effective Date, there shall
have been delivered to the Administrative Agent and the Lenders detailed
projected consolidated financial statements (including, without limitation,
detailed projected income statements, cash flow statements and balance sheets)
of the Borrower and its Subsidiaries for the period from the Effective Date to
December 31, 2008 (the "Projections"), which Projections (x) shall reflect the
forecasted financial conditions and income and expenses of the Borrower and its
Subsidiaries and (y) shall be satisfactory in form and substance to the
Administrative Agent.
SECTION 6. Conditions Precedent to All Credit Events.
The obligation of each Lender to make Loans (including Loans made on
the Effective Date), and the obligation of each Issuing Lender to issue Letters
of Credit, is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
6.01 Effective Date. The Effective Date shall have occurred.
6.02 No Default; Representations and Warranties. At the time of each
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.03 Notice of Borrowing; Letter of Credit Request. (a) Prior to the
making of each Revolving Loan (other than a Revolving Loan made pursuant to a
Mandatory Borrowing), the Administrative Agent shall have received a Notice of
Borrowing meeting the requirements of Section 1.03(a). Prior to the making of
each Swingline Loan, the Swingline Lender shall have received the notice
referred to in Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the Administrative
Agent and the respective Issuing Lender shall have received a Letter of Credit
Request meeting the requirements of Section 2.03.
6.04 No Excess Cash. The obligation of each Lender to make Loans shall
be subject to the satisfaction of the condition that at the time of each such
making of a Loan and immediately after giving effect thereto the Borrower and
its Subsidiaries shall not hold cash and Cash Equivalents in an aggregate amount
(after giving effect to the incurrence of such Credit Event and the application
of proceeds therefrom and any other cash or Cash Equivalents on hand (to the
extent such proceeds and/or other cash or Cash Equivalents are actually utilized
by the respective Borrower and/or any other Subsidiary of the Borrower on the
respective date of incurrence of the respective Credit Event for a permitted
purpose under this Agreement other than an investment in Cash Equivalents)) in
excess of $2,500,000.
The occurrence of the Effective Date and the acceptance of the
benefits of each Credit Event shall constitute a representation and warranty by
the Borrower to the ▇▇▇▇▇▇▇▇▇▇-
▇▇
tive Agent and each of the Lenders that all the conditions specified in Section
5 (with respect to the Effective Date and Credit Events to occur on the
Effective Date) and in this Section 6 (with respect to the Effective Date and
Credit Events to occur on or after the Effective Date) and applicable to such
Credit Event have been satisfied as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 and in this Section 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Lenders and, except for the Notes, in sufficient counterparts or copies for each
of the Lenders and shall be in form and substance satisfactory to the
Administrative Agent and the Required Lenders.
SECTION 7. Representations, Warranties and Agreements.
In order to induce the Lenders to enter into this Agreement and to
make the Loans, and issue (or participate in) the Letters of Credit as provided
herein, the Borrower makes the following representations, warranties and
agreements, in each case as of and after giving effect to the Effective Date,
all of which shall survive the execution and delivery of this Agreement, the
Notes and the other Credit Documents and the making of the Loans and issuance of
the Letters of Credit, with the occurrence of the Effective Date and the
occurrence of each Credit Event on or after the Effective Date being deemed to
constitute a representation and warranty that the matters specified in this
Section 7 are true and correct in all material respects on and as of the
Effective Date and on the date of each such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct only as of such
specified date).
7.01 Status. The Borrower and each of its Subsidiaries (i) is a duly
organized and validly existing corporation, partnership or limited liability
company, as the case may be, in good standing under the laws of the jurisdiction
of its organization, (ii) has the corporate, partnership or limited liability
company power and authority, as the case may be, to own its property and assets
and to transact the business in which it is engaged and presently proposes to
engage and (iii) is duly qualified and is authorized to do business and is in
good standing in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except
for failures to be so qualified which, either individually or in the aggregate,
could not reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
7.02 Power and Authority. Each Credit Party has the corporate,
partnership or limited liability company power and authority, as the case may
be, to execute, deliver and perform the terms and provisions of each of the
Credit Documents to which it is party and has taken all necessary corporate,
partnership or limited liability company action, as the case may be, to
authorize the execution, delivery and performance by it of each of such Credit
Documents. Each Credit Party has duly executed and delivered each of the Credit
Documents to which it is party, and each of such Credit Documents constitutes
its legal, valid and binding obligation enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
30
7.03 No Violation. Neither the execution, delivery or performance by
any Credit Party of the Credit Documents to which it is a party, nor compliance
by it with the terms and provisions thereof, (i) will contravene any provision
of any law, statute, rule or regulation or any order, writ, injunction or decree
of any court or governmental or regulatory instrumentality, (ii) will conflict
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the property or assets of the Borrower or
any of its Subsidiaries pursuant to the terms of any indenture (including the
Senior Note Indenture and the Senior Subordinated Note Indenture), mortgage,
deed of trust, credit agreement or loan agreement, or any other material
agreement, contract or instrument, to which the Borrower or any of its
Subsidiaries is a party or by which it or any of its property or assets is bound
or to which it may be subject or (iii) will violate any provision of the
certificate or articles of incorporation or by-laws (or equivalent
organizational documents) of the Borrower or any of its Subsidiaries.
7.04 Approvals. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except for (x) those
that have otherwise been obtained or made on or prior to the Effective Date and
which remain in full force and effect on the Effective Date and (y) filings and
recordings of financing statements (Form UCC-1 or the equivalent) and filings in
the United States Patent and Trademark Office and United States Copyright Office
to be filed in accordance with the Security Documents and this Agreement no
later than 3 days after the Effective Date), or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required by any
Credit Party to authorize, or is required in connection with, (i) the execution,
delivery and performance of any Credit Document by any Credit Party or (ii) the
legality, validity, binding effect or enforceability of any such Credit Document
against any Credit Party.
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc. (a) The consolidated balance sheet of the
Borrower and its Subsidiaries for its fiscal years ended on December 31, 2000
and December 31, 2001, and the related consolidated statements of income, cash
flows and shareholders' equity of the Borrower and its Subsidiaries for such
fiscal years ended on such date, copies of which have been furnished to the
Lenders on or prior to the Effective Date, present fairly in all material
respects the consolidated financial position of the Borrower and its
Subsidiaries at the dates of such balance sheet and the consolidated results of
the operations of the Borrower and its Subsidiaries for the periods covered
thereby. All of the foregoing financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied,
except as otherwise expressly noted therein. Since December 31, 2000, there has
been no material adverse change in the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole.
(b) On and as of the Effective Date and after giving effect thereto,
(a) the sum of the assets, at a fair valuation, of the Borrower on a stand-alone
basis and of the Borrower and its Subsidiaries taken as a whole will exceed
their respective debts; (b) the Borrower on a stand-alone basis and the Borrower
and its Subsidiaries taken as a whole has not incurred and does not intend to
incur, and does not believe that it will incur, debts beyond its ability to pay
such debts as such debts mature; and (c) the Borrower on a stand-alone basis and
the Borrower and its
31
Subsidiaries taken as a whole will have sufficient capital with which to conduct
their respective businesses. For purposes of this Section 7.05(b), "debt" means
any liability on a claim, and "claim" means (i) right to payment, whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured,
or unsecured or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability of the Borrower or its
Subsidiaries.
(c) Except as fully disclosed in the financial statements delivered
pursuant to Section 7.05(a), there were as of the Effective Date no liabilities
or obligations with respect to the Borrower or any of its Subsidiaries of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, could reasonably
be expected to have a material adverse effect on the Borrower and its
Subsidiaries taken as a whole. As of the Effective Date, the Borrower does not
know of any basis for the assertion against the Borrower or any of its
Subsidiaries of any liability or obligation of any nature whatsoever that is not
fully disclosed in the financial statements delivered pursuant to Section
7.05(a) which, either individually or in the aggregate, could reasonably be
expected to have a material adverse effect on the Borrower and its Subsidiaries
taken as a whole.
(d) On and as of the Effective Date, the Projections delivered to the
Administrative Agent and the Lenders prior to the Effective Date have been
prepared in good faith and are based on reasonable assumptions, and there are no
statements or conclusions in the Projections which are based upon or include
information known to the Borrower to be misleading in any material respect or
which fail to take into account material information known to the Borrower
regarding the matters reported therein. On the Effective Date, the Borrower
believes that the Projections are reasonable and attainable, it being recognized
by the Lenders, however, that projections as to future events are not to be
viewed as facts and that the actual results during the period or periods covered
by the Projections may differ from the projected results and such differences
may be material.
7.06 Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of the Borrower, threatened (i) with respect to this
Agreement or any other Credit Document, (ii) with respect to any material
Indebtedness of the Borrower or any of its Subsidiaries or (iii) that are
reasonably likely to, either individually or in the aggregate, materially and
adversely affect the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole.
7.07 True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of any Credit Party in writing to the
Administrative Agent or any Lender (including, without limitation, all
information contained in the Credit Documents) for purposes of or in connection
with this Agreement, the other Credit Documents or any transaction contemplated
herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of any Credit Party in writing to the
Administrative Agent or
32
any Lender will be, true and accurate in all material respects on the date as of
which such information is dated or certified and not incomplete by omitting to
state any fact necessary to make such information (taken as a whole) not
misleading in any material respect at such time in light of the circumstances
under which such information was provided.
7.08 Use of Proceeds; Margin Regulations. (a) All proceeds of the
Revolving Loans and the Swingline Loans shall be used (i) to repay the
Indebtedness to be Refinanced, (ii) to pay fees and expenses related thereto and
(iii) for the working capital and general corporate purposes of the Borrower and
its Subsidiaries (including, without limitation, for Permitted Acquisitions).
(b) No part of any Credit Event (or the proceeds thereof) will be used
to purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock.
7.09 Tax Returns and Payments. The Borrower and each of its
Subsidiaries has timely filed with the appropriate taxing authority all federal
and state income tax returns and all other material tax returns, domestic and
foreign, required to be filed by it and has paid all taxes and assessments
payable by, or with respect to, it which have become due, except for those
contested in good faith and adequately disclosed and fully provided for on the
financial statements of the Borrower and its Subsidiaries in accordance with
generally accepted accounting principles. The returns accurately reflect in all
material respects all liability for taxes of the Borrower and its Subsidiaries
taken as a whole for the periods covered thereby. The Borrower and each of its
Subsidiaries have paid, or have provided adequate reserves (in accordance with
generally accepted accounting principles) for the payment of, all material
federal, state, local and foreign income taxes applicable for all prior fiscal
years and for the current fiscal year to date. There is no material action,
suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of the Borrower threatened, by any authority regarding any material
taxes relating to the Borrower or any of its Subsidiaries. As of the Effective
Date, neither the Borrower nor any of its Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of the Borrower or any of its Subsidiaries, or is aware of any
circumstances that would cause the taxable years or other taxable periods of the
Borrower or any of its Subsidiaries not to be subject to the normally applicable
statute of limitations.
7.10 Compliance with ERISA. (i) Schedule IX sets forth as of the
Effective Date the name of each Plan (and each related trust, insurance contract
or fund). Each Plan is in substantial compliance with its terms and in
substantial compliance with all applicable laws, including without limitation
ERISA and the Code; each Plan (and each related trust, if any) which is intended
to be qualified under Section 401(a) of the Code has received a determination
letter from the Internal Revenue Service to the effect that it meets the
requirements of Sections 401(a) and 501(a) of the Code (unless the Plan is a
standardized Plan that meets the requirements in Section 6 of Revenue Procedure
2000-24, in which case each such Plan has received an opinion letter from the
Internal Revenue Service); no Reportable Event has occurred; no Plan which is a
multiemployer plan (as defined in Section 4001(a)(3) of ERISA) is insolvent or
in reorganization; no Plan has an Unfunded Current Liability; no Plan which is
subject to Section 412 of the Code or Section 302 of ERISA has an accumulated
funding deficiency, within the
33
meaning of such sections of the Code or ERISA, or has applied for or received a
waiver of an accumulated funding deficiency or an extension of any amortization
period, within the meaning of Section 412 of the Code or Section 303 or 304 of
ERISA; all contributions required to be made with respect to a Plan have been
made and no material liability has occurred as a result of any failure to make
any such contribution in a timely manner; neither the Borrower nor any
Subsidiary of the Borrower nor any ERISA Affiliate has incurred any material
liability (including any indirect, contingent or secondary liability) to or on
account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of
the Code or expects to incur any such material liability under any of the
foregoing sections with respect to any Plan; no condition exists which presents
a material risk to the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate of incurring a material liability to or on account of a Plan pursuant
to the foregoing provisions of ERISA and the Code; no proceedings have been
instituted to terminate or appoint a trustee to administer any Plan which is
subject to Title IV of ERISA; no action, suit, proceeding, hearing, audit or
investigation with respect to the administration, operation or the investment of
assets of any Plan (other than routine claims for benefits) is pending, expected
or threatened; using actuarial assumptions and computation methods consistent
with Part 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of the
Borrower and its Subsidiaries and its ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the date of the most recent Credit Event, would
not exceed $500,000; each group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) which covers or has covered employees
or former employees of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate has at all times been operated in compliance with the provisions of
Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code except
for any failure to comply that would not result in a material liability; no lien
imposed under the Code or ERISA on the assets of the Borrower or any Subsidiary
of the Borrower or any ERISA Affiliate exists or is likely to arise on account
of any Plan; and the Borrower and its Subsidiaries may cease contributions to or
terminate any employee benefit plan maintained by any of them without incurring
any material liability. Neither the Borrower nor any Subsidiary of the Borrower
nor any ERISA Affiliate has ever maintained or contributed to or had an
obligation to contribute to (or borne any liability with respect to) any Foreign
Pension Plan.
7.11 Security Documents. (a) The security interests created in favor
of the Collateral Agent, as Pledgee, for the benefit of the Secured Creditors,
under the Pledge Agreement constitute first priority perfected security
interests in the Pledge Agreement Collateral described in the Pledge Agreement,
subject to no security interests of any other Person other than Permitted Liens
of the type described in Section 9.01(i). Except as have been obtained or made
on or prior to the Effective Date (or prior to the date required by Section 8.11
or 8.12, as applicable), no filings or recordings are required in order to
perfect (or maintain the perfection or priority of) the security interests
created in the Pledge Agreement Collateral under the Pledge Agreement.
(b) The provisions of the Security Agreement are effective to create
in favor of the Collateral Agent for the benefit of the Secured Creditors a
legal, valid and enforceable security interest in all right, title and interest
of the Credit Parties party thereto in the Security Agreement Collateral
described therein, and the Collateral Agent, for the benefit of the Secured
34
Creditors has (or, within 3 days after the Effective Date, will have) a fully
perfected first lien on, and security interest in, all right, title and interest
in all of the Security Agreement Collateral described therein, subject to no
other Liens other than Permitted Liens of the type described in Section 9.01(i).
(c) On and after the execution and delivery thereof, each Mortgage
shall create, as security for the obligations purported to be secured thereby, a
valid and enforceable perfected security interest in and Lien on all of the
Mortgaged Property referred to therein in favor of the Collateral Agent (or such
other trustee as may be required or desired under local law) for the benefit of
the Secured Creditors, superior to and prior to the rights of all third persons
(except that the security interest created in such Mortgaged Property may be
subject to the Permitted Encumbrances related thereto) and subject to no other
Liens (other than Permitted Liens). Each of the Borrower and its Subsidiaries
has good and marketable title at the time of the grant thereof and at all times
thereafter to all Mortgaged Properties free and clear of all Liens except those
described in the immediately preceding sentence.
7.12 Properties. All Real Property owned by the Borrower and each of
its Subsidiaries and all material Leaseholds leased by the Borrower or any of
its Subsidiaries, in each case as of the Effective Date and after giving effect
to the Transaction and the nature of the interest therein, is correctly set
forth in Schedule VIII. Each of the Borrower and each of its Subsidiaries has
good and marketable title to, or a validly subsisting leasehold interest in, all
material properties owned or leased by it, including all Real Property reflected
in Schedule VIII and all real property reflected in the balance sheet referred
to in Section 7.05(a) (except as sold or otherwise disposed of since the date of
such balance sheet in the ordinary course of business or as permitted by the
terms of this Agreement or, if prior to the Effective Date, the Existing Credit
Agreement), free and clear of all Liens, other than Permitted Liens.
7.13 Capitalization. On the Effective Date, the authorized capital
stock of the Borrower shall consist of (x) 60,000,000 shares of common stock,
$.001 par value per share and (y) 60,000 shares of Preferred Stock, $.001 par
value per share. All outstanding shares of capital stock of the Borrower have
been duly and validly issued and are fully paid and non-assessable (other than
as required by law). The Borrower does not have outstanding any securities
convertible into or exchangeable for its capital stock or outstanding any rights
to subscribe for or to purchase, or any options for the purchase of, or any
agreement providing for the issuance (contingent or otherwise) of, or any calls,
commitments or claims of any character relating to, its capital stock, except
for options, warrants or rights to purchase shares of the Borrower's common
stock and/or Qualified Preferred Stock which may be issued from time to time.
7.14 Subsidiaries. As of the Effective Date, the Borrower has no
Subsidiaries other than those Subsidiaries listed on Schedule III. Schedule III
correctly sets forth, as of the Effective Date, (i) the percentage ownership
(direct or indirect) of the Borrower in each class of capital stock or other
equity of each of its Subsidiaries and also identifies the direct owner thereof
and (ii) the jurisdiction of incorporation of each such Subsidiary.
7.15 Compliance with Statutes, etc. The Borrower and each of its
Subsidiaries is in compliance with all applicable laws, statutes, rules,
regulations and orders of, and all applicable restrictions imposed by, all
governmental, administrative or regulatory bodies, domestic or
35
foreign, in respect of the conduct of its business and the ownership of its
property (including applicable laws, statutes, rules, regulations, orders and
restrictions relating to environmental standards and controls), except such
noncompliances as could not, either individually or in the aggregate, reasonably
be expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of the Borrower and its Subsidiaries taken as a whole.
7.16 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.17 Public Utility Holding Company Act. Neither the Borrower nor any
of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
7.18 Environmental Matters. (a) The Borrower and each of its
Subsidiaries have complied with, and on the date of each Credit Event are in
compliance with, all applicable Environmental Laws and have obtained and are in
compliance with the requirements of any permits required under such
Environmental Laws. There are no pending or, to the best knowledge of the
Borrower, threatened Environmental Claims against the Borrower or any of its
Subsidiaries (including any such claim arising out of the ownership, lease or
operation by the Borrower or any of its Subsidiaries of any Real Property no
longer owned, leased or operated by the Borrower or any of its Subsidiaries) or
any Real Property owned, leased or operated by the Borrower or any of its
Subsidiaries. There are no facts, circumstances, conditions or occurrences with
respect to the business or operations of the Borrower or any of its
Subsidiaries, or any Real Property owned, leased or operated by the Borrower or
any of its Subsidiaries (including any Real Property formerly owned, leased or
operated by the Borrower or any of its Subsidiaries but no longer owned, leased
or operated by the Borrower or any of its Subsidiaries) that could be expected
(i) to form the basis of an Environmental Claim against the Borrower or any of
its Subsidiaries or any Real Property owned, leased or operated by the Borrower
or any of its Subsidiaries or (ii) to cause any Real Property owned, leased or
operated by the Borrower or any of its Subsidiaries to be subject to any
restrictions on the ownership, occupancy or transferability of such Real
Property by the Borrower or any of its Subsidiaries under any applicable
Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned, leased
or operated by the Borrower or any of its Subsidiaries where such generation,
use, treatment or storage has violated or could be expected to violate any
Environmental Law. Hazardous Materials have not at any time been Released on or
from any Real Property owned, leased or operated by the Borrower or any of its
Subsidiaries where such Release has violated or could be expected to violate any
applicable Environmental Law.
(c) Notwithstanding anything to the contrary in this Section 7.18, the
representations made in this Section 7.18 shall not be untrue unless the
aggregate effect of all violations, claims, restrictions, failures and
noncompliances of the types described above could,
36
either individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of the Borrower and
its Subsidiaries taken as a whole.
7.19 Labor Relations. Neither the Borrower nor any of its Subsidiaries
is engaged in any unfair labor practice that could reasonably be expected to
have a material adverse effect on the Borrower and its Subsidiaries taken as a
whole. There is (i) no unfair labor practice complaint pending against the
Borrower or any of its Subsidiaries or threatened against any of them, before
the National Labor Relations Board (or any foreign equivalent labor relations
authority), and no grievance or arbitration proceeding arising out of or under
any collective bargaining agreement is so pending against the Borrower or any of
its Subsidiaries or, to the best knowledge of the Borrower, threatened against
any of them, (ii) no strike, labor dispute, slowdown or stoppage pending against
the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries and (iii)
no union representation question exists with respect to the employees of the
Borrower or any of its Subsidiaries, except (with respect to any matter
specified in clause (i), (ii) or (iii) above, either individually or in the
aggregate) such as could not reasonably be expected to have a material adverse
effect on the business, operations, property, assets, liabilities, condition
(financial or otherwise) or prospects of the Borrower and its Subsidiaries taken
as a whole.
7.20 Patents, Licenses, Franchises and Formulas. The Borrower and each
of its Subsidiaries owns or has the right to use all the patents, trademarks,
permits, service marks, trade names, copyrights, licenses, franchises,
proprietary information (including but not limited to rights in computer
programs and databases) and formulas, or rights with respect to the foregoing,
and has obtained assignments of all leases and other rights of whatever nature,
necessary for the present conduct of its business, without any known conflict
with the rights of others which, or the failure to obtain which, as the case may
be, could reasonably be expected to result in a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
7.21 Indebtedness. Schedule IV sets forth a true and complete list of
all Indebtedness (including Contingent Obligations) of the Borrower and its
Subsidiaries as of the Effective Date and which is to remain outstanding after
giving effect thereto (excluding the Loans and the Letters of Credit and the
Senior Subordinated Notes and Senior Notes, the "Existing Indebtedness"), in
each case showing the aggregate principal amount thereof and the name of the
respective borrower and any Credit Party or any of its Subsidiaries which
directly or indirectly guarantees such debt.
7.22 Senior Subordinated Notes. The subordination provisions contained
in the Senior Subordinated Notes and in the other Senior Subordinated Note
Documents are enforceable against the respective Credit Parties party thereto
and the holders of the Senior Subordinated Notes, and all Obligations and
Guaranteed Obligations (as defined in this Agreement and in the Subsidiaries
Guaranty) of such Credit Parties are within the definition of "Designated Senior
Debt", "Senior Debt", "Guarantor Designated Senior Debt", and "Guarantor Senior
Debt", as the case may be, included in such subordination provisions.
37
7.23 Transaction. At the time of consummation thereof, each element of
the Transaction shall have been consummated in all material respects in
accordance with the terms of the relevant Documents therefor and all applicable
laws. At the time of consummation thereof, all consents and approvals of, and
filings and registrations with, and all other actions in respect of, all
governmental, administrative or regulatory agencies, authorities or
instrumentalities required in order to make or consummate each element of the
Transaction in accordance with the terms of the relevant Documents therefor and
all applicable laws have been obtained, given, filed or taken and are or will be
in full force and effect (or effective judicial relief with respect thereto has
been obtained) except for the filing and recording of financing statements (Form
UCC-1 or the equivalent) and filings in the United States Patent and Trademark
Office and United States Copyright Office in accordance with the terms of the
Security Agreement and this Agreement which is to occur no later than 3 days
after the Effective Date. All applicable waiting periods with respect thereto
have or, prior to the time when required, will have, expired without, in all
such cases, any action being taken by any competent authority which restrains,
prevents, or imposes material adverse conditions upon the Transaction.
Additionally, there does not exist any judgment, order or injunction prohibiting
or imposing material adverse conditions upon any element of the Transaction, the
occurrence of any Credit Event, or the performance by the Borrower or any of its
Subsidiaries of their respective obligations under the Documents and all
applicable laws.
7.24 Legal Names; Organizational Identification Numbers; Jurisdiction
and Type of Organization; etc. Schedule XI hereto sets forth a true and correct
list, as of the Effective Date, of the exact legal name of each Credit Party,
the organizational identification number (if any) of such Credit Party, the
jurisdiction of organization of such Credit Party and the type of organization
of such Credit Party.
SECTION 8. Affirmative Covenants.
The Borrower hereby covenants and agrees that on and after the
Effective Date and until the Total Revolving Loan Commitment and all Letters of
Credit have terminated and the Loans, Notes and Unpaid Drawings, together with
interest, Fees and all other Obligations (other than any amount payable pursuant
to any indemnity hereunder which is not then due and payable) incurred hereunder
and thereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to each Lender:
(a) Monthly Reports. Within 30 days after the end of each fiscal month
of the Borrower, the consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as at the end of such fiscal month and the related
consolidated and consolidating statements of income and retained earnings and
consolidated statements of cash flows for such fiscal month and for the elapsed
portion of the fiscal year ended with the last day of such fiscal month, in each
case setting forth comparative figures for the related periods in the prior
fiscal year and comparable budgeted figures for such fiscal month as set forth
in the respective budget delivered pursuant to Section 8.01(e), all of which
shall be certified by a Senior Financial Officer of the Borrower that they
fairly present in all material respects in accordance with generally accepted
accounting principles the financial condition of the Borrower and its
Subsidiaries as of the dates
38
indicated and the results of their operations and changes in their cash flows
for the periods indicated, subject to normal year-end audit adjustments and the
absence of footnotes.
(b) Quarterly Financial Statements. Within 45 days after the close of
the first three quarterly accounting periods in each fiscal year of the
Borrower, (i) the consolidated and consolidating balance sheets of the Borrower
and its Subsidiaries as at the end of such quarterly accounting period and the
related consolidated and consolidating statements of income and retained
earnings and consolidated statement of cash flows for such quarterly accounting
period and for the elapsed portion of the fiscal year ended with the last day of
such quarterly accounting period, in each case setting forth comparative figures
for the related periods in the prior fiscal year and comparable budgeted figures
for such quarterly accounting period as set forth in the respective budget
delivered pursuant to Section 8.01(e), all of which shall be certified by a
Senior Financial Officer of the Borrower that they fairly present in all
material respects in accordance with generally accepted accounting principles
the financial condition of the Borrower and its Subsidiaries as of the dates
indicated and the results of their operations and changes in their cash flows
for the periods indicated, subject to normal year-end audit adjustments and the
absence of footnotes, and (ii) management's discussion and analysis of the
important operational and financial developments during such quarterly
accounting period.
(c) Annual Financial Statements. Within 90 days after the close of
each fiscal year of the Borrower, (i) the consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries as at the end of such fiscal year
and the related consolidated and consolidating statements of income and retained
earnings and consolidated statement of cash flows for such fiscal year setting
forth comparative figures for the preceding fiscal year and (x) in the case of
the consolidated financial statements, certified by a firm of independent
certified public accountants of recognized national standing reasonably
acceptable to the Administrative Agent (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of such audit), together with a report of such accounting firm stating
that such consolidated financial statements fairly present in all material
respects in accordance with generally accepted accounting principles the
financial condition of the Borrower and its Subsidiaries as at such date and the
consolidated results of operations and cash flows for such fiscal year then
ended and that in the course of its regular audit of the financial statements of
the Borrower and its Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm obtained no
knowledge of any Default or an Event of Default which has occurred and is
continuing or, if in the opinion of such accounting firm such a Default or Event
of Default has occurred and is continuing, a statement as to the nature thereof
and (y) in the case of the consolidating financial statements, certified by a
Senior Financial Officer of the Borrower that they fairly present in all
material respects in accordance with generally accepted accounting principles
the financial condition of the Borrower and its Subsidiaries as of the dates
indicated and the results of their operations and changes in their cash flows
for the periods indicated, and (ii) management's discussion and analysis of the
important operational and financial developments during such fiscal year.
(d) Management Letters. Promptly after the Borrower's or any of its
Subsidiaries' receipt thereof, a copy of any "management letter" received from
its certified public accountants and management's response thereto.
39
(e) Budgets. No later than 30 days following the first day of each
fiscal year of the Borrower, a budget in form reasonably satisfactory to the
Administrative Agent (including budgeted statements of income and sources and
uses of cash and balance sheets) prepared by the Borrower for each of the twelve
months of such fiscal year prepared in detail setting forth, with appropriate
discussion, the principal assumptions upon which such budgets are based.
(f) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 8.01(a), (b) and (c), a
certificate of a Senior Financial Officer of the Borrower to the effect that, to
the best of such officer's knowledge, (x) no Default or Event of Default has
occurred and is continuing or, if any Default or Event of Default has occurred
and is continuing, specifying the nature and extent thereof, which certificate
shall, in the case of any such financial statements delivered in accordance with
Sections 8.01(b) and (c), set forth in reasonable detail the calculations
required to establish whether the Borrower and its Subsidiaries were in
compliance with the provisions of Sections 3.03, 4.02, 9.03, 9.04, 9.05 and 9.07
through 9.12, inclusive, at the end of such fiscal quarter or year, as the case
may be and (y) (i) no changes are required to be made to any of Schedule XI
hereto, Annexes A through K of the Security Agreement or Annexes A through G of
the Pledge Agreement, in each case so as to make the information set forth
therein accurate and complete as of the date of such certificate, or (ii) to the
extent that such information is no longer accurate and complete as of such date,
list in reasonable detail all information necessary to make such Schedule and
all such Annexes accurate and complete (at which time such Schedule and/or such
Annexes, as the case may be, shall be deemed modified to reflect such
information).
(g) Notice of Default, Litigation or Material Adverse Effect. Promptly
upon, and in any event within three Business Days after, an officer of any
Credit Party obtains knowledge thereof, notice of (i) the occurrence of any
event which constitutes a Default or an Event of Default and/or (ii) any
litigation or governmental or other investigation or proceeding pending (x)
against the Borrower or any of its Subsidiaries which could reasonably be
expected to materially and adversely affect the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole, (y) with respect to any material
Indebtedness of the Borrower or any of its Subsidiaries or (z) with respect to
any Credit Document and/or (iii) any other act, omission or other event which
could reasonably be expected to materially and adversely affect the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole.
(h) Other Reports and Filings. Promptly after the filing or delivery
thereof, copies of all reports on Forms 10-K, 10-Q and 8-K and all proxy
materials, if any, which the Borrower or any of its Subsidiaries shall publicly
file with the Securities and Exchange Commission or any successor thereto (the
"SEC")
(i) Environmental Matters. Promptly after any officer of any Credit
Party obtains knowledge thereof, notice of one or more of the following
environmental matters:
(i) any material pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned, leased or
operated by the Borrower or any of its Subsidiaries;
40
(ii) any condition or occurrence on or arising from any Real Property
owned, leased or operated by the Borrower or any of its Subsidiaries that
(a) results in material noncompliance by the Borrower or any of its
Subsidiaries with any applicable Environmental Law or (b) could be expected
to form the basis of a material Environmental Claim against the Borrower or
any of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned, leased
or operated by the Borrower or any of its Subsidiaries that could be
expected to cause such Real Property to be subject to any restrictions on
the ownership, lease, occupancy, use or transferability by the Borrower or
any of its Subsidiaries of such Real Property under any Environmental Law;
and
(iv) the taking of any material removal or remedial action in response
to the actual or alleged presence of any Hazardous Material on any Real
Property owned, leased or operated by the Borrower or any of its
Subsidiaries as required by any Environmental Law or any governmental,
regulatory or other administrative agency; provided, that in any event the
Borrower shall deliver to each Lender all notices received by the Borrower
or any of its Subsidiaries from any government or governmental, regulatory
or administrative agency under, or pursuant to, CERCLA which identify the
Borrower or any of its Subsidiaries as potentially responsible parties for
remediation costs or which otherwise notify the Borrower or any of its
Subsidiaries of potential liability under CERCLA.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the Borrower's or such Subsidiary's response thereto.
(j) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to the Borrower or any of its
Subsidiaries as the Administrative Agent or any Lender may reasonably request.
8.02 Books, Records and Inspections; Annual Meetings. (a) The Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and accounts in which full, true and correct entries in conformity with
generally accepted accounting principles and all requirements of law shall be
made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to,
permit officers and designated representatives of the Administrative Agent or
any Lender to visit and inspect, under guidance of officers of the Borrower or
such Subsidiary, any of the properties of the Borrower or such Subsidiary, and
to examine and make copies of the books of account of the Borrower or such
Subsidiary and discuss the affairs, finances and accounts of the Borrower or
such Subsidiary with, and be advised as to the same by, its and their officers
and independent accountants, all at such reasonable times and intervals and to
such reasonable extent as the Administrative Agent or such Lender may reasonably
request.
(b) At a date to be mutually agreed upon between the Administrative
Agent and the Borrower, the Borrower will, at the request of the Administrative
Agent, hold a meeting
41
with all of the Lenders at which meeting shall be reviewed the financial results
of the Borrower and its Subsidiaries for the previous fiscal year and the
budgets presented for the current fiscal year of the Borrower.
8.03 Maintenance of Property; Insurance. (a) The Borrower will, and
will cause each of its Subsidiaries to, (i) keep all property necessary to the
business of the Borrower and its Subsidiaries in reasonably good working order
and condition, ordinary wear and tear and damage by casualty excepted, (ii)
maintain insurance in at least such amounts and against at least such risks as
is consistent and in accordance with industry practice for companies similarly
situated owning similar properties in the same general areas in which the
Borrower or any of its Subsidiaries operates, and (iii) furnish to the
Administrative Agent or any Lender, upon written request, full information as to
the insurance carried.
(b) The Borrower will, and will cause each of the other Credit Parties
that have executed the Security Agreement to, at all times keep their respective
property insured in favor of the Collateral Agent, and all certificates with
respect to such insurance (i) shall name the Collateral Agent as loss payee
(with respect to property) and, to the extent permitted by applicable law, as an
additional insured, (ii) shall state that the respective insurer shall endeavor
to provide at least 30 days' prior written notice to the Collateral Agent before
such insurance shall be cancelled and (iii) shall be delivered to the Collateral
Agent.
(c) If the Borrower or any of its respective Subsidiaries shall fail
to maintain insurance in accordance with this Section 8.03, or if the Borrower
or any of its Subsidiaries shall fail to so endorse and deliver all certificates
with respect thereto as provided in clause (b) of this Section 8.03, the
Administrative Agent shall have the right (but shall be under no obligation) to
procure such insurance and the Borrower agrees to reimburse the Administrative
Agent for all costs and expenses of procuring such insurance.
8.04 Corporate Franchises. The Borrower will, and will cause each of
its Subsidiaries to, do or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, licenses and patents; provided, however, that nothing in this
Section 8.04 shall prevent (i) sales of assets and other transactions by the
Borrower or any of its Subsidiaries in accordance with Section 9.02, (ii) the
abandonment by the Borrower or any of its Subsidiaries of any copyrights,
trademarks or patents which the Borrower reasonably determines are no longer
material to the operations of the Borrower and its Subsidiaries taken as a whole
or (iii) the withdrawal by the Borrower or any of its Subsidiaries of its
qualification as a foreign corporation in any jurisdiction where such withdrawal
could not reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
8.05 Compliance with Statutes, etc. The Borrower will, and will cause
each of its Subsidiaries to, comply with all applicable laws, statutes, rules,
regulations and orders of, and all applicable restrictions imposed by, all
governmental, regulatory or administrative bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property
(including applicable laws, statutes, rules, regulations, orders and
restrictions relating to environmental standards and controls), except such
noncompliances (x) as could not, either
42
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole or (y) as are being contested in good faith by the
Borrower or such Subsidiary through appropriate proceedings which are being
diligently prosecuted.
8.06 Compliance with Environmental Laws. (a) The Borrower will, and
will cause each of its Subsidiaries to, comply in all material respects with all
Environmental Laws applicable to the ownership or use of its Real Property now
or hereafter owned, leased or operated by the Borrower or any of its
Subsidiaries (except such noncompliances as could not, either individually or in
the aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole),
will promptly pay or cause to be paid all costs and expenses incurred in
connection with such compliance, and will keep or cause to be kept all such Real
Property free and clear of any Liens imposed pursuant to such Environmental
Laws. Neither the Borrower nor any of its Subsidiaries will generate, use,
treat, store, Release or dispose of, or permit the generation, use, treatment,
storage, Release or disposal of Hazardous Materials on any Real Property now or
hereafter owned, leased or operated by the Borrower or any of its Subsidiaries,
or transport or permit the transportation of Hazardous Materials to or from any
such Real Property, except for Hazardous Materials generated, used, treated,
stored, Released or disposed of at any such Real Properties in compliance in all
material respects with all applicable Environmental Laws and reasonably required
in connection with the operation, use and maintenance of the business or
operations of the Borrower or any of its Subsidiaries.
(b) (i) After the receipt by the Administrative Agent or any Lender of
any notice of the type described in Section 8.01(i), (ii) at any time that the
Borrower or any of its Subsidiaries are not in compliance with Section 8.06(a)
or (iii) in the event that the Administrative Agent or the Lenders have
exercised any of the remedies pursuant to Section 10, the Borrower will provide,
at the sole expense of the Borrower and at the request of the Administrative
Agent or the Required Lenders, an environmental site assessment report
concerning any Real Property owned, leased or operated by the Borrower or any of
its Subsidiaries, prepared by an environmental consulting firm reasonably
approved by the Administrative Agent, indicating the presence or absence of
Hazardous Materials and the potential cost of any removal or remedial action in
connection with such Hazardous Materials on such Real Property. If the Borrower
fails to provide the same within 30 days after such request was made, the
Administrative Agent may order the same, the cost of which shall be borne by the
Borrower, and the Borrower shall grant and hereby grants to the Administrative
Agent and the Lenders and their respective agents access to such Real Property
and specifically grants the Administrative Agent and the Lenders an irrevocable
non-exclusive license, subject to the rights of tenants, to undertake such an
assessment at any reasonable time upon reasonable notice to the Borrower, all at
the sole expense of the Borrower.
8.07 ERISA. As soon as possible and, in any event, within ten (10)
days after an officer of the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate knows or has reason to know of the occurrence of any of the
following, the Borrower will deliver to each of the Lenders a certificate of an
officer of the Borrower setting forth the full details as to such
43
occurrence and the action, if any, that the Borrower, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed by the Borrower, the Subsidiary,
the Plan administrator, or the ERISA Affiliate to or with the PBGC or any other
government agency, or a Plan participant and any notices received by the
Borrower, such Subsidiary or ERISA Affiliate from the PBGC or any other
government agency, or a Plan participant with respect thereto: that a Reportable
Event has occurred (except to the extent that the Borrower has previously
delivered to the Lenders a certificate and notices (if any) concerning such
event pursuant to the next clause hereof); that a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA
is subject to the advance reporting requirement of PBGC Regulation Section
4043.61 (without regard to subparagraph (b)(1) thereof), and an event described
in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section
4043 is reasonably expected to occur with respect to such Plan within the
following 30 days; that an accumulated funding deficiency, within the meaning of
Section 412 of the Code or Section 302 of ERISA, has been incurred or an
application may be or has been made for a waiver or modification of the minimum
funding standard (including any required installment payments) or an extension
of any amortization period under Section 412 of the Code or Section 303 or 304
of ERISA with respect to a Plan; that any contribution required to be made with
respect to a Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability; that proceedings may be or
have been instituted to terminate or appoint a trustee to administer a Plan
which is subject to Title IV of ERISA; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan;
that the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate will or
may incur any material liability (including any indirect, contingent, or
secondary liability) to or on account of the termination of or withdrawal from a
Plan under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409 or 502(i) or 502(l) of ERISA or with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code; or that the Borrower or any Subsidiary of the
Borrower may incur any material liability for retiree benefits pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any Plan. The Borrower will deliver to each
of the Lenders copies of any records, documents or other information that must
be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA. The Borrower will also deliver to each of the Lenders a complete copy of
the annual report (on Internal Revenue Service Form 5500-series) of each Plan
(including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to the Lenders
pursuant to the first sentence hereof, copies of any records, documents or other
information that must be furnished to the PBGC or any other government agency,
and any material notices received by the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate with respect to any Plan shall be delivered to
the Lenders no later than ten (10) days after the date such annual report has
been filed with the Internal Revenue Service or such records, documents and/or
information has been furnished to the PBGC or any other government agency or
such notice has been received by the Borrower, the Subsidiary or the ERISA
Affiliate, as applicable.
44
8.08 End of Fiscal Years; Fiscal Quarters. The Borrower will cause (i)
its fiscal year to end on December 31, and (ii) its fiscal quarters to end on
March 31, June 30, September 30 and December 31.
8.09 Performance of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, indenture, security agreement, loan agreement or credit agreement
and each other material agreement, contract or instrument by which it is bound,
except such non-performances as could not, either individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
8.10 Payment of Taxes. The Borrower will pay and discharge, and will
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, in each case on a timely basis, and all
lawful claims for sums that have become due and payable which, if unpaid, might
become a Lien not otherwise permitted under Section 9.01(i); provided, that
neither the Borrower nor any of its Subsidiaries shall be required to pay any
such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with
respect thereto in accordance with generally accepted accounting principles.
8.11 Foreign Subsidiaries Security. If, following a change in the
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, the Borrower
does not within 30 days after a request from the Administrative Agent or the
Required Lenders deliver evidence, in form and substance reasonably satisfactory
to the Administrative Agent, with respect to any Foreign Subsidiary of the
Borrower which has not already had all of its stock pledged pursuant to the
Pledge Agreement to secure the Obligations of the Borrower that (i) a pledge of
66-2/3% or more of the total combined voting power of all classes of capital
stock of such Foreign Subsidiary entitled to vote to secure the Obligations of
the Borrower, (ii) the entering into by such Foreign Subsidiary of a security
agreement in substantially the form of the Security Agreement to secure the
Obligations of the Borrower and (iii) the entering into by such Foreign
Subsidiary of a guaranty in substantially the form of the Subsidiaries Guaranty,
in any such case could reasonably be expected to cause (I) any undistributed
earnings of such Foreign Subsidiary as determined for Federal income tax
purposes to be treated as a deemed dividend to such Foreign Subsidiary's United
States parent for Federal income tax purposes or (II) other materially adverse
Federal income tax consequences to the Credit Parties, then in the case of a
failure to deliver the evidence described in clause (i) above, that portion of
such Foreign Subsidiary's outstanding capital stock not theretofore pledged
pursuant to the Pledge Agreement to secure the Obligations of the Borrower shall
be promptly pledged to the Collateral Agent for the benefit of the Secured
Creditors pursuant to the Pledge Agreement (or another pledge agreement in
substantially similar form, if needed), and in the case of a failure to deliver
the evidence described in clause (ii) above, such Foreign Subsidiary shall
promptly execute and deliver the Security Agreement and Pledge Agreement (or
another security agreement or pledge agreement in substantially similar form, if
needed), granting the Secured Creditors a security interest in all of such
Foreign Subsidiary's assets and securing the Obligations of the Borrower under
the Credit Documents
45
and under any Interest Rate Protection Agreement or Other Hedging Agreement
entered into with a Secured Creditor and, in the event the Subsidiaries Guaranty
shall have been executed by such Foreign Subsidiary, the obligations of such
Foreign Subsidiary thereunder, and in the case of a failure to deliver the
evidence described in clause (iii) above, such Foreign Subsidiary shall promptly
execute and deliver the Subsidiaries Guaranty (or another guaranty in
substantially similar form, if needed), guaranteeing the Obligations of the
Borrower under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement entered into with a Secured Creditor, in
each case to the extent that the entering into of the Security Agreement, the
Pledge Agreement or the Subsidiaries Guaranty is permitted by the laws of the
respective foreign jurisdiction and with all documents delivered pursuant to
this Section 8.11 to be in form and substance reasonably satisfactory to the
Administrative Agent.
8.12 Additional Security; Further Assurances. (a) Promptly after the
creation or acquisition of any new Wholly-Owned Domestic Subsidiary, the
Borrower will notify the Administrative Agent and will cause each new
Wholly-Owned Domestic Subsidiary to duly authorize, execute and deliver
counterparts of the applicable Credit Documents that any such Wholly-Owned
Domestic Subsidiary would have been required to duly authorize, execute and
deliver on the Effective Date if same were a Credit Party on such date, together
with each of the other relevant certificates, opinions of counsel and other
documentation that such Wholly-Owned Domestic Subsidiary would have been
required to deliver pursuant to (x) Sections 5.03, 5.04, 5.08, 5.09, and 5.10 on
the Effective Date and (y) pursuant to Section 8.15 on or prior to March 15,
2002 (or March 25, 2002, as the case may be).
(b) Subject to Sections 8.11 and 8.15, the Borrower will, and will
cause each of its Wholly-Owned Subsidiaries to, (i) grant to the Collateral
Agent security interests in such assets and properties of the Borrower and such
Wholly-Owned Subsidiaries as are not covered by the original Security Documents,
and as may be reasonably requested from time to time by the Administrative Agent
or the Required Lenders (including, without limitation, mortgages over any
property designated on Schedule VIII as a Property To Be Sold, but excluding
mortgages over leasehold properties), and (ii) in the case of any such
Wholly-Owned Subsidiary, execute and deliver a counterpart of the Subsidiaries
Guaranty (or one or more other guaranties in substantially similar form, if
necessary, and/or an assumption agreement in form and substance satisfactory to
the Administrative Agent whereby such Wholly-Owned Subsidiary shall become a
party to the Subsidiaries Guaranty) (all such security and guaranty
documentation are collectively referred to as the "Additional Security and
Guaranty Documents"), in each case to the extent that the entering into of such
Credit Documents is permitted under applicable law. All such Additional Security
and Guaranty Documents shall be reasonably satisfactory in form and substance to
the Administrative Agent and, in the case of security documentation, shall
constitute valid and enforceable perfected security interests superior to and
prior to the rights of all third Persons and subject to no other Liens except
for Permitted Liens. The Additional Security and Guaranty Documents or
instruments related thereto shall have been duly recorded or filed in such
manner and in such places as are required by law to give the Administrative
Agent and/or the Collateral Agent (for the benefit of the Secured Creditors) the
Liens, rights, powers and privileges purported to be created thereby and all
taxes, fees and other charges payable in connection therewith shall have been
paid in full.
46
(c) The Borrower will, and will cause each of the Subsidiary
Guarantors to, at the expense of the respective Credit Party or Credit Parties,
make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent
from time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, mortgages, transfer endorsements, powers of
attorney, certificates, landlord waivers and other assurances or instruments and
take such further steps relating to the Collateral covered by any of the
Security Documents as the Collateral Agent may reasonably require. Furthermore,
the Borrower will cause to be delivered to the Collateral Agent such opinions of
counsel and other related documents as may be reasonably requested by the
Administrative Agent to assure itself that this Section 8.12 has been complied
with.
(d) At any time after the Effective Date at which time the Borrower or
any Subsidiary of the Borrower receives or has performed on its behalf any
survey of any Mortgaged Property, the Borrower shall promptly thereafter deliver
a copy of such survey (certified to the Collateral Agent) to the Administrative
Agent.
(e) The Borrower agrees that each action required above by this
Section 8.12 shall be completed as soon as possible, but in no event later than
60 days after such action is either requested to be taken by the Administrative
Agent or the Required Lenders or required to be taken by the Borrower and/or its
Subsidiaries pursuant to the terms of this Section 8.12; provided that, in no
event, will the Borrower or any of its Subsidiaries be required to take any
action, other than using commercially reasonable efforts, to obtain consents
from third parties or approvals from governmental officials with respect to its
compliance with this Section 8.12.
8.13 Margin Stock. The Borrower will, and will cause each of the other
Credit Parties to, take any and all actions as may be required to ensure that no
capital stock pledged, or required to be pledged, pursuant to the Pledge
Agreement shall constitute Margin Stock.
8.14 Permitted Acquisitions. (a) Subject to the provisions of this
Section 8.14 and the requirements contained in the definition of Permitted
Acquisition, the Borrower and its Wholly-Owned Domestic Subsidiaries may from
time to time effect Permitted Acquisitions, so long as (in each case except to
the extent the Required Lenders otherwise specifically agree in writing in the
case of a specific Permitted Acquisition): (i) no Default or Event of Default
shall have occurred and be continuing at the time of the consummation of the
proposed Permitted Acquisition or immediately after giving effect thereto; (ii)
the Borrower shall have given to the Administrative Agent and the Lenders at
least 10 Business Days' (or 5 Business Days', in the case of a Specified
Acquisition (as defined below)) prior written notice of any Permitted
Acquisition, together with an executive summary setting forth (in reasonable
detail) the principal terms and conditions of such Permitted Acquisition and a
description of the business which is being acquired; (iii) calculations are made
by the Borrower of compliance with the financial covenants contained in Sections
9.08, 9.09, 9.10, 9.11 and 9.12 for the respective Calculation Period, on a Pro
Forma Basis as if the respective Permitted Acquisition (as well as all other
Permitted Acquisitions theretofore consummated after the first day of such
Calculation Period) had occurred on the first day of such Calculation Period,
and such recalculations shall show that such financial covenants would have been
complied with if the Permitted Acquisition had occurred on the first day of such
Calculation Period, provided, that the foregoing calculations in this clause
(iii) shall not be required in respect of a Permitted Acquisition if (A) the
aggregate
47
consideration for such Permitted Acquisition does not exceed $1,000,000 and (B)
no more than four other Permitted Acquisitions of the type described in the
immediately preceding clause (A) shall have occurred in the fiscal quarter in
which such Permitted Acquisition is to be consummated (each such Permitted
Acquisition, a "Specified Acquisition"); (iv) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Permitted Acquisition
(both before and after giving effect thereto), unless stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and correct in all material respects as of such earlier date; (v) the
aggregate consideration (including, without limitation, (I) the aggregate
principal amount of any Indebtedness assumed, incurred or issued in connection
therewith and (II) the aggregate amount paid and to be paid pursuant to any
earn-out, non-compete or deferred compensation or purchase price arrangements)
for any such proposed Permitted Acquisition shall not exceed either (A)
$35,000,000 or (B) when added to the aggregate consideration paid for all other
Permitted Acquisitions consummated during such fiscal year, $50,000,000; (vi)
the aggregate consideration (including, without limitation, (I) the aggregate
principal amount of any Indebtedness assumed, incurred or issued in connection
therewith and (II) the aggregate amount paid and to be paid pursuant to any
earn-out, non-compete or deferred compensation or purchase price arrangements)
for all Permitted Acquisitions shall not exceed $150,000,000 (vii) immediately
after giving effect to each Permitted Acquisition (and all payments to be made
in connection therewith), the Total Unutilized Revolving Loan Commitment shall
equal or exceed $20,000,000; and (viii) the Borrower shall have delivered to the
Administrative Agent and each Lender an officer's certificate executed by a
Senior Financial Officer of the Borrower, certifying to the best of such
officer's knowledge, compliance with the requirements of preceding clauses (i)
through (vii), inclusive, and containing the calculations (in reasonable detail)
to the extent required by the preceding clauses (iii), (v), (vi) and (vii).
(b) At the time of each Permitted Acquisition involving the creation
or acquisition of a Subsidiary, or the acquisition of capital stock or other
equity interest of any Person, all capital stock or other equity interests
thereof created or acquired in connection with such Permitted Acquisition (to
the extent owned by a Credit Party) shall be pledged for the benefit of the
Secured Creditors pursuant to (and to the extent required by) the Pledge
Agreement.
(c) The Borrower will cause each Wholly-Owned Subsidiary which is
formed to effect, or is acquired pursuant to, a Permitted Acquisition to comply
with, and to execute and deliver, all of the documentation as and to the extent
required by, Sections 8.12 and 9.17, to the satisfaction of the Administrative
Agent.
(d) The consummation of each Permitted Acquisition shall be deemed to
be a representation and warranty by the Borrower that the certifications by the
Borrower pursuant to Section 8.14(a) are true and correct and that all
conditions thereto have been satisfied and that same is permitted in accordance
with the terms of this Agreement, which representation and warranty shall be
deemed to be a representation and warranty for all purposes hereunder,
including, without limitation, Sections 7 and 10.
48
8.15 Mortgages. On or prior to March 15, 2002 (or, in the case of
clause (ii) below, March 25, 2002), or such later date or dates as the
Administrative Agent may specify in its discretion, the Collateral Agent shall
have received:
(i) fully executed counterparts of Mortgages in form and substance
satisfactory to the Collateral Agent, which Mortgages shall cover such of the
Real Property owned by the Borrower or any of its Subsidiaries as are designated
on Schedule VIII as a Mortgaged Property, and, if requested by the Collateral
Agent, together with evidence that counterparts of the Mortgages have been
delivered to the title insurance company insuring the lien of such Mortgage for
recording in all places to the extent necessary or, in the reasonable opinion of
the Collateral Agent, desirable to effectively create a valid and enforceable
first priority mortgage lien on such Mortgaged Property in favor of the
Collateral Agent (or such other trustee as may be required or desired under
local law) for the benefit of the Secured Creditors, subject to Permitted Liens;
(ii) title insurance policies issued by a reputable title insurer
satisfactory to the Collateral Agent ("Mortgage Policies") on each Mortgaged
Property that is designated on Schedule VIII as a Title Insurance Property and,
if requested by the Collateral Agent, any other Mortgaged Property, in amounts
satisfactory to the Administrative Agent and the Required Lenders assuring the
Collateral Agent that the Mortgages on such Mortgaged Properties are valid and
enforceable first priority mortgage liens on the respective Mortgaged
Properties, free and clear of all defects and encumbrances except Permitted
Encumbrances and such Mortgage Policies shall otherwise be in form and substance
satisfactory to the Collateral Agent and the Required Lenders and shall include,
as appropriate, an endorsement for future advances under this Agreement and the
Notes and for any other matter that the Collateral Agent may reasonably request,
shall not include an exception for mechanics' liens, and shall provide for
affirmative insurance and such reinsurance (including direct access agreements)
as the Collateral Agent may request; and
(iii) in respect of each Mortgaged Property, an opinion from local
counsel satisfactory to the Collateral Agent, which opinion shall cover the
perfection of the security interests granted pursuant to such Mortgage and such
other matters incident to the transactions contemplated herein as the Collateral
Agent may reasonably request and shall be in form and substance satisfactory to
the Collateral Agent.
SECTION 9. Negative Covenants.
The Borrower hereby covenants and agrees that on and after the
Effective Date and until the Total Revolving Loan Commitment and all Letters of
Credit have terminated and the Loans, Notes and Unpaid Drawings, together with
interest, Fees and all other Obligations (other than indemnities described in
Section 13.01 which are not then due and payable) incurred hereunder and
thereunder, are paid in full:
9.01 Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
the Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of
49
accounts receivable with recourse to the Borrower or any of its Subsidiaries),
or assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute; provided that the provisions of this Section 9.01
shall not prevent the creation, incurrence, assumption or existence of the
following (Liens described below are herein referred to as "Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due or not yet delinquent and payable without any penalty of
any kind or character or Liens for taxes, assessments or governmental
charges or levies being contested in good faith and by appropriate
proceedings promptly instituted and diligently concluded for which adequate
reserves have been established in accordance with generally accepted
accounting principles;
(ii) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law, which were incurred in the ordinary course
of business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of the Borrower's or
such Subsidiary's property or assets or materially impair the use thereof
in the operation of the business of the Borrower or such Subsidiary or (y)
which are being contested in good faith by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property or assets subject to any such Lien;
(iii) Liens in existence on the Effective Date (and after giving
effect thereto) which are listed, and the property subject thereto
described, in Schedule V, plus renewals, replacements and extensions of
such Liens, provided that (x) the aggregate principal amount of the
Indebtedness, if any, secured by such Liens does not increase from that
amount outstanding at the time of any such renewal, replacement or
extension, (y) the terms and conditions of the Liens to be renewed,
replaced or extended are no less favorable to the Lenders than the terms
and conditions of the Liens existing prior to such renewal, replacement or
extensions and (z) any such renewal, replacement or extension does not
encumber any additional assets or properties of the Borrower or any of its
Subsidiaries;
(iv) Liens created pursuant to the Security Documents;
(v) leases, subleases, licenses or sublicenses granted to other
Persons not materially interfering with the conduct of the business of the
Borrower or any of its Subsidiaries;
(vi) Liens upon assets of the Borrower or any of its Subsidiaries
subject to Capitalized Lease Obligations to the extent such Capitalized
Lease Obligations are permitted by Section 9.04(iv), provided that (x) such
Liens only serve to secure the payment of Indebtedness arising under such
Capitalized Lease Obligation and (y) the Lien encumbering the asset giving
rise to the Capitalized Lease Obligation does not encumber any other asset
of the Borrower or any Subsidiary of the Borrower (other than proceeds of
the asset giving rise to such Capitalized Loan Obligation);
50
(vii) Liens placed upon equipment or machinery used in the ordinary
course of business of the Borrower or any of its Subsidiaries at the time
of the acquisition thereof by the Borrower or any such Subsidiary or within
90 days thereafter to secure Indebtedness incurred to pay all or a portion
of the purchase price thereof or to secure Indebtedness incurred solely for
the purpose of financing the acquisition of any such equipment or machinery
or extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount, provided that (x) such Indebtedness is permitted
by Section 9.04(iv) and (y) in all events, the Lien encumbering the
equipment or machinery so acquired does not encumber any other asset of the
Borrower or such Subsidiary (other than proceeds of the equipment or
machinery subject to such purchase money Lien);
(viii) easements, rights-of-way, restrictions, municipal and zoning
ordinances, encroachments and other similar charges or encumbrances, and
minor title deficiencies, in each case not securing Indebtedness and not
materially interfering with the conduct of the business of the Borrower or
any of its Subsidiaries;
(ix) Liens arising from precautionary UCC financing statement filings
regarding operating leases;
(x) Liens arising out of the existence of judgments or awards in
respect of which the Borrower or any of its Subsidiaries shall in good
faith be prosecuting an appeal or proceedings for review in respect of
which there shall have been secured a subsisting stay of execution pending
such appeal or proceedings, provided that the aggregate amount of any cash
and the fair market value of any property subject to such Liens do not
exceed $5,000,000 at any time outstanding;
(xi) statutory and common law landlords' liens under leases to which
the Borrower or any of its Subsidiaries is a party;
(xii) Liens (other than Liens imposed under ERISA) incurred in the
ordinary course of business in connection with workers compensation claims,
unemployment insurance and social security benefits;
(xiii) Liens securing (x) the performance of bids, tenders, leases and
contracts in the ordinary course of business and (y) statutory obligations,
surety bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business (exclusive of obligations in
respect of the payment for borrowed money), provided that the aggregate
outstanding amount of obligations secured by Liens permitted by this clause
(xiii) (and the value of all cash and property encumbered by Liens
permitted pursuant to this clause (xiii)) shall not at any time exceed
$1,000,000;
(xiv) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition, provided that (x) any Indebtedness that is secured by such
Liens is permitted to exist under Section 9.04(xi), and (y) such Liens are
not incurred in connection with, or in contemplation or
51
anticipation of, such Permitted Acquisition, and do not attach to any other
asset of the Borrower or any of its Subsidiaries;
(xv) Permitted Encumbrances;
(xvi) Liens on assets of Foreign Subsidiaries that are not Credit
Parties and securing Indebtedness permitted to be incurred by such Foreign
Subsidiaries pursuant to Section 9.04;
(xvii) Liens in favor of customs or revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(xviii) Liens granted by Subsidiaries of the Borrower that are not
Credit Parties in favor of the Borrower or any Subsidiary Guarantor;
(xix) customary Liens in favor of banking institutions encumbering
deposits (including the right of set-off) held by such banking institutions
incurred in the ordinary course of business;
(xx) rights of customers with respect to inventory which arise from
deposits and progress payments made in the ordinary course of business; and
(xxi) other Liens incidental to the conduct of the business of the
Borrower or any of its Subsidiaries that (i) were not incurred in
connection with Indebtedness, (ii) do not encumber any Collateral (other
than on a junior and subordinated basis) and do not materially detract from
the value of the assets subject to such Liens or materially impair the use
thereof in the operation of such business and (iii) do not at any time for
all such Liens encumber cash and other property having an aggregate value
in excess of, or secure outstanding obligations in the aggregate in excess
of, $1,000,000 at any time outstanding.
In connection with the granting of Liens of the type described in clauses (vi),
(vii) and (xiv) of this Section 9.01 by the Borrower or any of its Subsidiaries,
the Administrative Agent and the Collateral Agent shall be authorized to take
any actions deemed appropriate by it in connection therewith (including, without
limitation, by executing appropriate lien releases or lien subordination
agreements in favor of the holder or holders of such Liens, in either case
solely with respect to the item or items of equipment or other assets subject to
such Liens).
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc. The
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part of
its property or assets, or enter into any sale-leaseback transactions, or
purchase or otherwise acquire (in one or a series of related transactions) any
part of the property or assets (other than purchases or other acquisitions of
inventory, materials and equipment in the ordinary course of business) of any
Person (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrower and its Subsidiaries shall be
permitted to the extent not in violation of Section 9.07;
52
(ii) the Borrower and its Subsidiaries may make sales of inventory in
the ordinary course of business;
(iii) the Borrower and its Subsidiaries may sell or otherwise transfer
obsolete or worn-out equipment or materials in the ordinary course of
business;
(iv) the Borrower and its Subsidiaries may sell or discount, in each
case without recourse and in the ordinary course of business, accounts
receivable arising in the ordinary course of business in an aggregate
principal amount not to exceed $5,000,000 in any fiscal year of the
Borrower, but only in connection with the compromise or collection thereof
and not as part of any financing transaction;
(v) the Borrower and its Subsidiaries may sell assets in the ordinary
course of business in an aggregate amount not to exceed $1,000,000 per sale
or series of related sales, provided that no more than $5,000,000 of such
sales may be made pursuant to this clause (v) in any fiscal year of the
Borrower;
(vi) the Borrower and its Subsidiaries may sell other assets (other
than the capital stock of a Subsidiary unless all of the capital stock of
such Subsidiary is so sold pursuant to this clause (vi)) so long as (i) no
Default or no Event of Default then exists or would result therefrom, (ii)
each such sale is in an arm's-length transaction and the Borrower or the
respective Subsidiary receives at least fair market value (as determined in
good faith by the Borrower or such Subsidiary, as the case may be,
provided, that if the fair market value is greater than $1,000,000 such
value shall be as determined by the board of directors of the Borrower or
such Subsidiary and evidenced by a resolution of such board of directors
set forth in an officer's certificate delivered to the Administrative Agent
within 15 Business Days of such resolution), (iii) the total consideration
received by the Borrower or such Subsidiary is at least 80% cash and is
paid at the time of the closing of such sale, (iv) the Net Sale Proceeds
therefrom are applied and/or reinvested as (and to the extent) required by
Section 3.03(b) and (v) the aggregate amount of the proceeds received from
all assets sold pursuant to clauses (v) and (vi) of this Section 9.02 shall
not exceed $5,000,000 in any fiscal year of the Borrower;
(vii) Investments may be made to the extent permitted by Section 9.05;
(viii) the Borrower and its Subsidiaries may lease (as lessee) or
license (as licensee) real or personal property (so long as any such lease
does not create a Capitalized Lease Obligation except to the extent
permitted by Section 9.04(iv));
(ix) Permitted Acquisitions may be made in accordance with Section
8.14;
(x) the Borrower and its Subsidiaries may grant leases, subleases,
licenses or sublicenses to other Persons not materially interfering with
the conduct of the business of the Borrower or any of its Subsidiaries;
(xi) the Borrower and its Subsidiaries may consummate sale and
leaseback transactions of fixed or capital assets, in each case so long as
(i) no Default or Event of Default then exists or would result therefrom,
(ii) each such sale and leaseback
53
transaction is in an arm's-length transaction and the Borrower or the
respective Subsidiary receives at least fair market value (as determined in
good faith by the Borrower or such Subsidiary, as the case may be), (iii)
the total consideration received by the Borrower or such Subsidiary in
connection with each such sale and leaseback transaction is in the form of
cash and is paid at the time of the closing thereof, (iv) the consummation
thereof shall occur within 90 days after the Borrower or such Subsidiary
acquires or completes the construction of such fixed or capital asset and
(v) the Net Sale Proceeds therefrom are applied and/or reinvested as (and
to the extent) required by Section 3.03(b);
(xii) any Subsidiary of the Borrower may be merged, consolidated,
dissolved or liquidated with or into the Borrower or any other Credit Party
so long as the Borrower or such other Credit Party is the surviving
corporation of such merger, consolidation, dissolution or liquidation;
(xiii) any Domestic Subsidiary of the Borrower may be merged,
consolidated, dissolved or liquidated with or into any other Domestic
Subsidiary of the Borrower so long as (i) in the case of any such merger,
consolidation, dissolution or liquidation involving a Subsidiary Guarantor,
a Subsidiary Guarantor is the surviving corporation of such merger,
consolidation, dissolution or liquidation, and (ii) in the case of any such
merger, consolidation, dissolution or liquidation involving a Wholly-Owned
Domestic Subsidiary of the Borrower, in addition to the requirements of
preceding clause (i), a Wholly-Owned Domestic Subsidiary is the surviving
corporation of such merger, consolidation, dissolution or liquidation;
(xiv) any Foreign Subsidiary of the Borrower may be merged,
consolidated, dissolved or liquidated with or into any other Foreign
Subsidiary of the Borrower so long as (i) in the case of any such merger,
consolidation, dissolution or liquidation involving a Subsidiary Guarantor,
a Subsidiary Guarantor is the surviving corporation of such merger,
consolidation, dissolution or liquidation, and (ii) in the case of any such
merger, consolidation, dissolution or liquidation involving a Wholly-Owned
Foreign Subsidiary of the Borrower, in addition to the requirements of the
preceding clause (i), a Wholly-Owned Foreign Subsidiary is the surviving
corporation of such merger, consolidation, dissolution or liquidation;
(xv) the Borrower may transfer assets to any Wholly-Owned Domestic
Subsidiary of the Borrower which is a Subsidiary Guarantor and any
Subsidiary of the Borrower may transfer assets to the Borrower or to any
Wholly-Owned Domestic Subsidiary of the Borrower which is a Subsidiary
Guarantor, in each case so long as the security interests granted to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the
Security Documents in the assets so transferred shall remain in full force
and effect and perfected (to at least the same extent as in effect
immediately prior to such transfer); and
(xvi) Dividends may be paid as, and to the extent, permitted by
Section 9.03.
54
To the extent the Required Lenders or all of the Lenders, as the case
may be, waive the provisions of this Section 9.02 with respect to the sale of
any Collateral, or any Collateral is sold as permitted by this Section 9.02
(other than to the Borrower or a Subsidiary thereof), such Collateral shall be
sold free and clear of the Liens created by the respective Security Documents
and the Administrative Agent and the Collateral Agent shall be authorized to
take any actions deemed appropriate in order to effect the foregoing.
9.03 Restricted Payments. The Borrower will not, and will not permit
any of its Subsidiaries to, authorize, declare, pay or make any Restricted
Payment, except that:
(i) any Subsidiary of the Borrower may pay cash Dividends to the
Borrower or to any Wholly-Owned Domestic Subsidiary of the Borrower and any
Foreign Subsidiary of the Borrower may pay cash Dividends to the Borrower
or any Subsidiary Guarantor;
(ii) any non-Wholly-Owned Subsidiary of the Borrower may pay cash
Dividends to its shareholders generally so long as the Borrower or its
respective Domestic Subsidiary which owns the equity interest in the
Subsidiary paying such Dividends receives at least its proportionate share
thereof (based upon its relative holding of the equity interest in the
Subsidiary paying such Dividends and taking into account the relative
preferences, if any, of the various classes of equity interests of such
Subsidiary);
(iii) the Borrower may make payments not exceeding $1,000,000 during
any fiscal year pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of the Borrower and its
Subsidiaries;
(iv) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower may repurchase outstanding shares of its
common stock (or options to purchase such common stock) held by former
officers, directors or employees of the Borrower or any of its Subsidiaries
following the death, disability, retirement or termination of employment of
such officers, directors or employees, provided that the aggregate amount
of all payments made by the Borrower pursuant to this clause (iv) shall not
exceed $250,000 in any fiscal year of the Borrower;
(v) the Borrower may pay regularly scheduled Dividends on its
Qualified Preferred Stock pursuant to the terms thereof solely through the
issuance of additional shares of such Qualified Preferred Stock;
(vi) the Borrower may make mandatory interest payments in respect of
the Senior Notes and the Senior Subordinated Notes in accordance with the
terms of the Senior Note Documents and the Senior Subordinated Note
Documents (each as in effect on the Effective Date);
(vii) so long as no Default or Event of Default then exists or would
result therefrom, the Borrower may make voluntary prepayments in respect of
the Senior Subordinated Notes and the Senior Subordinated Note Documents
(each as in effect on the Effective Date) to the extent that (x) such
prepayments are made solely with the remaining proceeds of the sale or
issuance of Equity Interests of the Borrower or any of
55
its Subsidiaries on or after the Effective Date (after giving effect to all
mandatory payment obligations under Section 4.02(a)(ii)) and (y) such
prepayments are permitted under the terms of the Senior Note Documents; and
(viii) the Borrower and its Subsidiaries may make mandatory payments
in respect of the Existing Indebtedness.
Notwithstanding anything to the contrary contained above in this Section 9.03,
the Borrower will not, and will not permit any of its Subsidiaries to, make any
Restricted Payment in respect of the Senior Subordinated Notes (i) to the extent
that the payment thereof would violate the subordination provisions contained in
the Senior Subordinated Note Documents or (ii) as a result of any asset sale,
change of control or similar event.
9.04 Indebtedness. The Borrower will not, and will not permit any of
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Existing Indebtedness outstanding on the Effective Date (and
after giving effect thereto), and giving effect to any subsequent
extension, renewal or refinancing thereof, provided that (x) the aggregate
principal amount of the Indebtedness to be extended, renewed or refinanced
does not increase from that amount outstanding at the time of any such
extension, renewal or refinancing and (y) the terms and conditions of the
Indebtedness to be extended, renewed or refinanced are no less favorable to
the Lenders than the terms and conditions of the Existing Indebtedness
existing prior to such extension, renewal or refinancing;
(iii) Indebtedness of the Borrower under Interest Rate Protection
Agreements entered into in the ordinary course of business with respect to
other fixed rate Indebtedness permitted under this Section 9.04 with an
aggregate notional amount not to exceed, at any time, the lesser of (x)
$150,000,000, (y) the maximum aggregate notional amount of such Interest
Rate Protection Agreements permitted to be outstanding under the terms of
the Senior Note Documents at such time and (z) the maximum aggregate
notional amount of such Interest Rate Protection Agreements permitted to be
outstanding under the terms of the Senior Subordinated Note Documents at
such time, on terms and conditions (including, without limitation, duration
and maturity) satisfactory to the Administrative Agent;
(iv) Indebtedness of the Borrower and its Subsidiaries evidenced by
Capitalized Lease Obligations and purchase money Indebtedness subject to
Liens permitted under Section 9.01(vii), provided that in no event shall
the sum of (I) the aggregate principal amount of all Capitalized Lease
Obligations and (II) the aggregate principal amount of all purchase money
Indebtedness incurred pursuant to this clause (iv), together with the
aggregate principal amount of all Capitalized Lease Obligations and
purchase money Indebtedness constituting Existing Indebtedness, exceed
$2,500,000 at any time outstanding;
56
(v) Indebtedness of any Foreign Subsidiary of the Borrower that is not
a Credit Party under lines of credit and overdraft facilities extended by
third Persons to such Foreign Subsidiary the proceeds of which Indebtedness
are used for any Foreign Subsidiary's working capital and general corporate
purposes, provided that the aggregate principal amount of all such
Indebtedness incurred pursuant to this clause (v), together with the
aggregate principal amount of all Existing Indebtedness under such lines of
credit and overdraft facilities, shall not exceed $1,000,000 (or the Dollar
Equivalent thereof in the case of Indebtedness incurred in a currency other
than Dollars) at any time outstanding (the "Foreign Subsidiary Third Party
Borrowings");
(vi) intercompany Indebtedness among the Borrower and its Subsidiaries
to the extent permitted by Section 9.05;
(vii) Indebtedness consisting of guaranties by the Borrower and the
Subsidiary Guarantors of each other's Indebtedness and lease and other
contractual obligations permitted under this Agreement (other than such
Indebtedness permitted under this Section 9.04(ii), (vi), (xi) and (xii));
(viii) Indebtedness of the Borrower under Other Hedging Agreements
entered into in the ordinary course of business providing protection
against fluctuations in currency values in connection with the Borrower's
or any of its Subsidiaries' operations so long as management of the
Borrower or such Subsidiary, as the case may be, has determined that the
entering into of such Other Hedging Agreements are bona fide hedging
activities and are not for speculative purposes, provided, that the
aggregate notional amount of such Other Hedging Agreements shall not
exceed, at any time, the lesser of (x) $20,000,000, (y) the maximum
aggregate notional amount of such Other Hedging Agreements permitted to be
outstanding under the terms of the Senior Note Documents at such time and
(z) the maximum aggregate notional amount of such Other Hedging Agreements
permitted to be outstanding under the terms of the Senior Subordinated Note
Documents at such time;
(ix) Indebtedness of the Borrower and the Subsidiary Guarantors under
the Senior Subordinated Notes and the other Senior Subordinated Note
Documents in an aggregate principal amount not to exceed $150,000,000 (as
reduced by any repayments of principal thereof); provided, however, to the
extent that any Credit Party guaranties the Borrower's obligations under
the Senior Subordinated Notes, such Credit Party also shall execute and
deliver a counterpart of the Subsidiaries Guaranty;
(x) Indebtedness of the Borrower and the Subsidiary Guarantors under
the Senior Notes and the other Senior Note Documents in an aggregate
principal amount not to exceed $200,000,000 (as reduced by any repayments
of principal thereof); provided, however, to the extent that any Credit
Party guaranties the Borrower's obligations under the Senior Notes, such
Credit Party also shall execute and deliver a counterpart of the
Subsidiaries Guaranty;
(xi) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition
of an asset securing such
57
Indebtedness), provided that (x) such Indebtedness was not incurred in
connection with, or in anticipation or contemplation of, such Permitted
Acquisition, (y) such Indebtedness does not constitute debt for borrowed
money (other than debt for borrowed money incurred in connection with
industrial revenue or industrial development bond financings), it being
understood and agreed that Capitalized Lease Obligations and purchase money
Indebtedness shall not constitute debt for borrowed money for purposes of
this clause (y), and (z) after giving effect to such Permitted Acquisition,
the aggregate principal amount of all such acquired Indebtedness does not
exceed $7,500,000 at any time;
(xii) Indebtedness constituting Permitted Earn-Out Obligations and
Permitted Seller Notes to the extent incurred by the Borrower in connection
with any Permitted Acquisition;
(xiii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business so long as such Indebtedness is
extinguished within 5 Business Days of the incurrence thereof;
(xiv) Indebtedness in respect of bid, payment, performance, advance
payment or surety bonds entered into in the ordinary course of business and
consistent with past practices; and
(xv) additional unsecured Indebtedness incurred by the Borrower and
its Subsidiaries in an aggregate principal amount not to exceed $7,000,000
at any one time outstanding.
9.05 Advances, Investments and Loans. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, lend money or
credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract, or hold any
cash or Cash Equivalents (each of the foregoing an "Investment" and,
collectively, "Investments"), except that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivables owing to any of them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms of the Borrower or such Subsidiary;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and
Cash Equivalents, provided that at any time that Revolving Loans or
Swingline Loans are outstanding, the aggregate amount of cash and Cash
Equivalents permitted to be held by the Borrower and its Subsidiaries shall
not exceed $5,000,000 for any period of five consecutive Business Days;
58
(iii) the Borrower and its Subsidiaries may hold the Investments held
by them on the Effective Date and described on Schedule VI, provided that
any additional Investments made with respect thereto shall be permitted
only if independently justified under the other provisions of this Section
9.05;
(iv) the Borrower and its Subsidiaries may acquire and own investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in good faith settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(v) the Borrower and its Subsidiaries may make loans and advances in
the ordinary course of business to their respective employees so long as
the aggregate principal amount thereof at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and advances)
shall not exceed $2,500,000;
(vi) the Borrower may acquire and hold obligations of one or more
officers, directors or other employees of the Borrower or any of its
Subsidiaries in connection with such officers', directors' or employees'
acquisition of shares of stock of the Borrower so long as no cash is paid
by the Borrower or any of its Subsidiaries to such officers, directors or
employees in connection with the acquisition of any such obligations;
(vii) the Borrower may enter into Interest Rate Protection Agreements
to the extent permitted by Section 9.04(iii);
(viii) the Borrower may enter into Other Hedging Agreements to the
extent permitted by Section 9.04(viii);
(ix) (i) the Borrower and its Wholly-Owned Domestic Subsidiaries may
make intercompany loans and advances between or among one another, and (ii)
Foreign Subsidiaries of the Borrower may make intercompany loans and
advances between or among one another and to the Borrower and its
Wholly-Owned Domestic Subsidiaries (collectively, "Intercompany Loans") so
long as (x) each Intercompany Loan made by a Credit Party shall be
evidenced by an Intercompany Note that is pledged to the Collateral Agent
pursuant to the Pledge Agreement and (y) each Intercompany Loan that is
made to either the Borrower by any Wholly-Owned Domestic Subsidiary or to
any other Credit Party by any Wholly-Owned Domestic Subsidiary that is a
Credit Party shall (in each case) be subject to the subordination
provisions set forth in Exhibit M; provided, however, that (A) any
subsequent issuance or transfer of Equity Interests that results in any
such intercompany Indebtedness being held by a Person other than a Credit
Party and (B) any sale or other transfer of any such intercompany
Indebtedness to a Person that is not a Credit Party shall be deemed, in
each case, to constitute an incurrence of Indebtedness by the Borrower for
the purpose of Section 9.04(xv);
(x) the Borrower may (i) make cash equity contributions to the capital
of its Wholly-Owned Domestic Subsidiaries and Wholly-Owned Domestic
Subsidiaries of the Borrower may make cash equity contributions to the
capital of their respective Wholly-Owned Domestic Subsidiaries (including
as a result of converting any intercompany
59
obligation into an equity contribution) and (ii) the Borrower and its
Subsidiaries may make equity contributions to the capital of Foreign
Subsidiaries of the Borrower (including as a result of converting any
intercompany obligation into an equity contribution) in an aggregate amount
not to exceed $1,500,000;
(xi) Permitted Acquisitions shall be permitted pursuant to Section
9.02(ix); and
(xii) the Borrower and its Subsidiaries may acquire and hold
promissory notes and other non cash consideration issued by the purchaser
of assets in connection with a sale of such assets to the extent permitted
by Section 9.02(iii), (v) and (vi).
9.06 Transactions with Affiliates. (a) The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into or
permit to exist any transaction or series of related transactions (including,
without limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service), with, or for the benefit of, any Affiliate of the
Borrower or any of its Subsidiaries (each an "Affiliate Transaction"), other
than (x) Affiliate Transactions permitted under clause (b) of this Section 9.06
and (y) Affiliate Transactions on terms that are no less favorable than those
that might reasonably have been obtained in a comparable transaction at such
time on an arm's length basis from a Person that is not an Affiliate of the
Borrower or such Subsidiary. All Affiliate Transactions (and each series of
related Affiliate Transactions which are similar or part of a common plan),
other than Affiliate Transactions exclusively among Credit Parties at such time,
involving aggregate payments or other property with a fair market value (as
determined in good faith by the Board of Directors of the Borrower or such
Subsidiary, as the case may be) in excess of $1,000,000 shall, prior to the
consummation thereof, be approved by the Board of Directors of the Borrower or
such Subsidiary, as the case may be, and with such approval to be evidenced by a
Board resolution stating that such Board of Directors has determined that such
transaction complies with the foregoing provisions. If the Borrower or any
Subsidiary of the Borrower enters into an Affiliate Transaction (or a series of
related Affiliate Transactions related to a common plan), other than Affiliate
Transactions exclusively among Credit Parties at such time, that involves an
aggregate fair market value (as determined in good faith by the Board of
Directors of the Borrower or such Subsidiary, as the case may be) of more than
$5,000,000, the Borrower or such Subsidiary, as the case may be, shall, prior to
the consummation thereof, obtain a favorable opinion as to the fairness of such
transaction or series of related transactions to the Borrower or the relevant
Subsidiary, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with the Administrative Agent.
(b) The restrictions set forth in clause (a) of this Section 9.06
shall not apply to (i) reasonable fees and compensation paid to, and indemnity
provided on behalf of, officers, directors, employees or consultants of the
Borrower or any Subsidiary of the Borrower (x) as determined in good faith by
the Borrower's Board of Directors or senior management and (y) as is consistent
with the past practice of the Borrower or such Subsidiary, (ii) transactions
exclusively between or among the Borrower and any of its Subsidiaries or
exclusively between or among such Subsidiaries, provided such transactions are
not otherwise prohibited by the Credit Documents, (iii) transactions exclusively
between or among the Borrower and any of its Subsidiaries on the one hand and
any joint venture in which the Borrower and its Subsidiaries own at least 45% of
the total equity interest on the other hand, so long as no portion of the
60
remaining interest in such joint venture is owned by a Person who is an
Affiliate of the Borrower (other than another Subsidiary of the Borrower) and
such transactions are not otherwise prohibited by the Credit Documents, (iv) any
agreement as in effect as of the Effective Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
in any replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Lenders in any material
respect than the original agreement as in effect on the Effective Date; (v)
advances or loans to employees, officers and directors of the Borrower and its
Subsidiaries permitted by Section 9.05(v); (vi) Restricted Payments permitted by
Section 9.03; and (vii) Dividends permitted by Section 9.03.
9.07 Capital Expenditures. (a) The Borrower will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
the Borrower and its Subsidiaries may make Capital Expenditures so long as the
aggregate amount of all such Capital Expenditures does not exceed $10,000,000 in
any fiscal year of the Borrower.
(b) In addition to the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the Borrower and its Subsidiaries
pursuant to clause (a) above in any fiscal year of the Borrower (before giving
effect to any increase in such permitted Capital Expenditure amount pursuant to
this clause (b)) is greater than the amount of Capital Expenditures actually
made by the Borrower and its Subsidiaries during such fiscal year, 50% of such
excess may be carried forward and utilized to make Capital Expenditures in the
immediately succeeding fiscal year, provided that no amounts once carried
forward pursuant to this Section 9.07(b) may be carried forward to any fiscal
year thereafter and such amounts may only be utilized after the Borrower and its
Subsidiaries have utilized in full the permitted Capital Expenditure amount for
such fiscal year as permitted in clause (a) above (without giving effect to any
increase in such amount by operation of this clause (b)).
(c) In addition to the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures with the amount of Net Sale Proceeds received by
the Borrower or any of its Subsidiaries from any Asset Sale so long as such Net
Sale Proceeds are reinvested within 180 days following the date of such Asset
Sale, but only to the extent that such Net Sale Proceeds are not otherwise
required to be applied to reduce the Total Revolving Loan Commitment pursuant to
Section 3.03(b).
(d) In addition to the foregoing, the Borrower or any of its
Subsidiaries may make Capital Expenditures with the amount of Net Insurance
Proceeds received by the Borrower or any of its Subsidiaries from any Recovery
Event so long as such Net Insurance Proceeds are used to replace or restore any
properties or assets in respect of which such Net Insurance Proceeds were paid
within 180 days following the date of receipt of such Net Insurance Proceeds
from such Recovery Event, but only to the extent that such Net Insurance
Proceeds are not otherwise required to be applied to reduce the Total Revolving
Loan Commitment pursuant to Section 3.03(d).
(e) In addition to the foregoing, the Borrower and its Wholly-Owned
Domestic Subsidiaries may consummate Permitted Acquisitions to the extent
permitted by Section 9.02(ix).
61
9.08 Consolidated Interest Coverage Ratio. The Borrower will not
permit the Consolidated Interest Coverage Ratio for any Test Period ending on
the last day of a fiscal quarter of the Borrower set forth below to be less than
the ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
Each fiscal quarter ending
in the period commencing
the Effective Date to and
including September 30, 2002 1.75:1.00
Each fiscal quarter ending
in the period commencing
December 31, 2002 to and
including September 30, 2003 2.00:1.00
Each fiscal quarter ending
in the period commencing
December 31, 2003 to and
including September 30, 2004 2.25:1.00
Each fiscal quarter ending
in the period commencing
December 31, 2004 to and
including September 30, 2005 2.50:1.00
The fiscal quarter ending
December 31, 2005 and the
last day of each fiscal quarter
of the Borrower thereafter 3.00:1.00
9.09 Maximum Total Leverage Ratio. The Borrower will not permit the
Leverage Ratio at any time during a period set forth below to be greater than
the ratio set forth opposite such period below:
Fiscal Quarter Ending Ratio
--------------------- -----
Each fiscal quarter ending
in the period commencing
the Effective Date to and
including September 30, 2002 5.75:1.00
62
Each fiscal quarter ending
in the period commencing
December 31, 2002 to and
including September 30, 2003 5.00:1.00
Each fiscal quarter ending
in the period commencing
December 31, 2003 to and
including September 30, 2004 4.25:1.00
Each fiscal quarter ending
in the period commencing
December 31, 2004 to and
including September 30, 2005 3.50:1.00
The fiscal quarter ending
December 31, 2005 and the
last day of each fiscal quarter
of the Borrower thereafter 3.00:1.00
9.10 Maximum Senior Secured Leverage Ratio. The Borrower will not
permit the Senior Secured Leverage Ratio at any time to be greater than
1.00:1.00.
9.11 Minimum Consolidated EBITDA. The Borrower will not permit
Consolidated EBITDA for any Test Period ending on the last day of a fiscal
quarter of the Borrower set forth below to be less than the amount set forth
opposite such fiscal quarter below:
Fiscal Quarter Ending Amount
--------------------- ------
Each fiscal quarter ending
in the period commencing
the Effective Date to and
including September 30, 2002 $75,000,000
Each fiscal quarter ending
in the period commencing
December 31, 2002 to and
including September 30, 2003 $85,000,000
Each fiscal quarter ending
in the period commencing
December 31, 2003 to and
including September 30, 2004 $95,000,000
The fiscal quarter ending
December 31, 2004 and the
last day of each fiscal quarter
of the Borrower thereafter $110,000,000
63
9.12 Fixed Charge Coverage Ratio. The Borrower will not permit the
Fixed Charge Coverage Ratio for any Test Period ending on the last day of any
fiscal quarter of the Borrower set forth below to be less than the ratio set
forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
Each fiscal quarter ending
in the period commencing
the Effective Date to and
including September 30, 2002 1.10:1.00
Each fiscal quarter ending
in the period commencing
December 31, 2002 to and
including September 30, 2003 1.20:1.00
Each fiscal quarter ending
in the period commencing
December 31, 2003 to and
including September 30, 2004 1.30:1.00
Each fiscal quarter ending
in the period commencing
December 31, 2004 to and
including September 30, 2005 1.40:1.00
The fiscal quarter ending
December 31, 2005 and the last
day of each fiscal quarter of
the Borrower thereafter 1.50:1.00
9.13 Limitation on Modifications of Certificate of Incorporation,
By-Laws, Senior Note Documents and Senior Subordinated Note Documents; etc. (a)
The Borrower will not, and will not permit any of its Subsidiaries to, (i)
amend, modify or change its certificate or articles of incorporation (including,
without limitation, by the filing or modification of any certificate of
designation) or by-laws (or the equivalent organizational documents) unless any
such amendment, modification or change could not reasonably be expected to be
adverse to the interests of the Lenders in any material respect or (ii) amend,
modify or change any of the Senior Subordinated Note Documents, the Senior Note
Documents or any of the documents evidencing the Existing Indebtedness except
for amendments which provide for less restrictive provisions with respect to the
Borrower and its Subsidiaries.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, make (or give any notice in respect of) any voluntary or optional payment or
prepayment on or redemption (including pursuant to any "change of control"
provision) or acquisition for value of (including, without limitation, by way of
depositing with the trustee with respect thereto money or securities before due
for the purposes of paying when due), the Senior Subordinated Notes,
64
the Senior Notes or the Existing Indebtedness or otherwise in relation to the
Senior Subordinated Note Documents, Senior Note Documents or the Existing
Indebtedness.
9.14 Limitation on Certain Restrictions on Subsidiaries. The Borrower
will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or any Subsidiary
of the Borrower, (b) make loans or advances to the Borrower or any Subsidiary of
the Borrower or (c) transfer any of its properties or assets to the Borrower or
any Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) this Agreement and the
other Credit Documents, (iii) the Senior Subordinated Note Documents and the
Senior Note Documents, (iv) customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Borrower or any
Subsidiary of the Borrower, (v) customary provisions restricting assignment of
any licensing agreement or other contract entered into by the Borrower or any
Subsidiary of the Borrower in the ordinary course of business and (vi)
restrictions on the transfer of any asset subject to a Lien permitted by Section
9.01.
9.15 Limitation on Issuance of Capital Stock. (a) The Borrower will
not, and will not permit any of its Subsidiaries to, issue (i) any preferred
stock (other than Qualified Preferred Stock of the Borrower) or (ii) any
redeemable common stock (other than common stock that is redeemable at the sole
option of the Borrower or such Subsidiary).
(b) The Borrower will not permit any of its Subsidiaries to issue any
capital stock (including by way of sales of treasury stock) or any options or
warrants to purchase, or securities convertible into, capital stock, except (i)
for transfers and replacements of then outstanding shares of capital stock, (ii)
for stock splits, stock dividends and issuances which do not decrease the
percentage ownership of the Borrower or any of its Subsidiaries in any class of
the capital stock of such Subsidiary, (iii) to qualify directors to the extent
required by applicable law or (iv) for issuances by newly created or acquired
Subsidiaries in accordance with the terms of this Agreement.
9.16 Business. The Borrower and its Subsidiaries will not engage to
any material extent in any business other than orthotic and prosthetic
patient-care clinic management and the manufacture and distribution of orthotic
and prosthetic devices and patient-care products and business activities
incidental and reasonably related thereto and reasonable extensions thereof.
9.17 Limitation on Creation of Subsidiaries. Notwithstanding anything
to the contrary contained in this Agreement, the Borrower will not, and will not
permit any of its Subsidiaries to, establish, create or acquire after the
Effective Date any Subsidiary, provided that the Borrower and its Wholly-Owned
Domestic Subsidiaries shall be permitted to establish, create or, to the extent
permitted by this Agreement, acquire (x) Wholly-Owned Domestic Subsidiaries so
long as (i) the capital stock or other equity interests of each such new
Wholly-Owned Domestic Subsidiary (to the extent owned by a Credit Party) is
pledged pursuant to, and to the extent required by, the Pledge Agreement, and
(ii) each such new Wholly-Owned Domestic Subsidiary takes all such actions as
may be required or requested to be taken by it as and to the
65
extent provided for in Sections 8.11 and/or 8.12, (y) non-Wholly-Owned Domestic
Subsidiaries so long as the capital stock or other equity interest of each such
new non-Wholly-Owned Domestic Subsidiary (to the extent owned by a Credit Party)
is pledged pursuant to, and to the extent required by, the Pledge Agreement and
(z) Wholly-Owned Foreign Subsidiaries.
9.18 Foreign Pension Plans. Neither the Borrower nor any Subsidiary of
the Borrower nor any ERISA Affiliate thereof will maintain or contribute to (or
have an obligation to contribute to) any Foreign Pension Plan.
9.19 Changes To Legal Names; Organizational Identification Numbers,
Jurisdiction or Type of Organization. No Credit Party shall change, or permit
any change to, its legal name until (i) it shall have given to the
Administrative Agent and the Collateral Agent not less than 15 days prior
written notice of its intention so to do, clearly describing such new name and
providing other information in connection therewith as the Administrative Agent
or Collateral Agent may reasonably request and (ii) with respect to such new
name, it shall have taken all action reasonably requested by the Administrative
Agent or Collateral Agent to maintain the security interests of the
Administrative Agent or Collateral Agent in the Collateral intended to be
granted pursuant to the Security Documents at all times fully perfected and in
full force and effect. In addition, to the extent that any Credit Party does not
have an organizational identification number on the date hereof and later
obtains one, or if there is any change in the organizational identification
number of any Credit Party, the Borrower or such Credit Party shall promptly
notify the Administrative Agent and the Collateral Agent of such new or changed
organizational identification number and shall take all actions reasonably
satisfactory to the Administrative Agent and the Collateral Agent to the extent
necessary to maintain the security interests of the Administrative Agent or
Collateral Agent in the Collateral intended to be granted pursuant to the
Security Documents fully perfected and in full force and effect. Furthermore, no
Credit Party shall change its jurisdiction of organization or its type of
organization until (i) it shall have given to the Administrative Agent and the
Collateral Agent not less than 15 days prior written notice of its intention so
to do, clearly describing such new jurisdiction of organization and/or type of
organization and providing such other information in connection therewith as the
Administrative Agent or Collateral Agent may reasonably request and (ii) with
respect to such new jurisdiction and/or type of organization, it shall have
taken all actions reasonably requested by the Administrative Agent or the
Collateral Agent to maintain the security interests of the Administrative Agent
or Collateral Agent in the Collateral intended to be granted pursuant to the
Security Documents at all times fully perfected and in full force and effect. If
at any time Schedule XI hereto is not true and correct (as of the date in
question, which may be after the Effective Date), whether because of changes
thereto or as a result of the creation or acquisition of additional Credit
Parties, the Borrower shall promptly furnish to the Administrative Agent and the
Collateral Agent a true and correct updated Schedule XI, which shall contain the
updated information required therein with respect to each Credit Party as of the
date of any change thereto.
9.20 No Designation of Other Indebtedness as "Designated Senior
Indebtedness". The Borrower will not, and will not permit any of its
Subsidiaries to, designate any Indebtedness (other than the Obligations, the
Guaranteed Obligations and the Senior Notes) of such Credit Party as "Designated
Senior Indebtedness", "Senior Debt", "Guarantor Designated Senior Debt"
66
or "Guarantor Senior Debt" for the purposes of the Senior Subordinated Notes or
the other Senior Subordinated Note Documents.
SECTION 10. Events of Default.
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when due
of any principal of any Loan or any Note or (ii) default, and such default shall
continue unremedied for three or more Business Days, in the payment when due of
any interest on any Loan or Note, any Unpaid Drawing (or any interest thereon)
or any Fees or any other amounts owing hereunder or thereunder; or
10.02 Representations, etc. Any representation, warranty or statement
made or deemed made by any Credit Party herein or in any other Credit Document
or in any certificate delivered to the Administrative Agent or any Lender
pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which made or deemed made; or
10.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 8.01(g)(i), 8.08 or 8.15 or Section 9 or (ii) default in the due
performance or observance by it of any other term, covenant or agreement
contained in this Agreement or any other Credit Document (other than those set
forth in Sections 10.01 and 10.02) and such default shall continue unremedied
for a period of 30 days (or in the case of any default under any Mortgage, such
longer time as may be provided in such Mortgage in respect of such default)
after written notice thereof to the defaulting party by the Administrative Agent
or the Required Lenders; or
10.04 Default Under Other Agreements. (i) The Borrower or any of its
Subsidiaries shall (x) default in any payment of any Indebtedness (other than
the Notes) beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created or (y) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Notes) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become due prior to
its stated maturity, or (ii) any Indebtedness (other than the Notes) of the
Borrower or any of its Subsidiaries shall be declared to be (or shall become)
due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof, provided that it
shall not be a Default or an Event of Default under this Section 10.04 unless
the aggregate principal amount of all Indebtedness as described in preceding
clauses (i) and (ii) is at least $5,000,000; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code");
67
or an involuntary case is commenced against the Borrower or any of its
Subsidiaries, and the petition is not controverted within 10 days, or is not
dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of the Borrower or any of its Subsidiaries, or
the Borrower or any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower or any of its Subsidiaries, or
there is commenced against the Borrower or any of its Subsidiaries any such
proceeding which remains undismissed for a period of 60 days, or the Borrower or
any of its Subsidiaries is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or the
Borrower or any of its Subsidiaries suffers any appointment of any custodian or
the like for it or any substantial part of its property to continue undischarged
or unstayed for a period of 60 days; or the Borrower or any of its Subsidiaries
makes a general assignment for the benefit of creditors; or any corporate action
is taken by the Borrower or any of its Subsidiaries for the purpose of effecting
any of the foregoing; or the Borrower or any of its Subsidiaries shall become
unable, admit in writing its inability or fail generally to pay its debts as
they become due; or
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan which is
subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been or is likely to be terminated or to be the subject of
termination proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made with respect to a Plan has not
been timely made, the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate has incurred or is likely to incur any liability to or on account of a
Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account
of a group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) under Section 4980B of the Code, or the Borrower or any
Subsidiary of the Borrower has incurred or is likely to incur liabilities
pursuant to one or more employee welfare benefit plans (as defined in Section
3(1) of ERISA) that provide benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or Plans, a
"default," within the meaning of Section 4219(c)(5) of ERISA, shall occur with
respect to any Plan, any applicable law, rule or regulation is adopted, changed
or interpreted, or the interpretation or administration thereof is changed, in
each case after the date hereof, by any governmental authority or agency or by
any court (a "Change in Law"), or, as a result of a Change in Law, an event
occurs following a Change in Law, with respect to or otherwise affecting any
Plan; (b) there shall result from any such event or events the imposition of a
lien, the granting of a security interest, or a liability or a material risk of
incurring a liability; and (c) such lien, security interest or liability,
individually, and/or in the aggregate in the opinion of the
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Administrative Agent determined in a reasonable manner, has had, or could
reasonably be expected to have, a material adverse effect on the business,
operations, properties, assets, liabilities, condition (financial or otherwise)
or prospects of the Borrower and its Subsidiaries taken as a whole; or
10.07 Security Documents. At any time after the execution and delivery
thereof, any of the Security Documents (x) shall cease to be in full force and
effect or any Credit Party shall so assert, or (y) shall cease to be enforceable
and to give the Collateral Agent for the benefit of the Secured Creditors the
Liens, rights, powers and privileges purported to be created thereby; or
10.08 Guaranties. At any time after the execution and delivery
thereof, any Guaranty or any provision thereof shall cease to be in full force
or effect as to any Guarantor, or any Guarantor or any Person acting by or on
behalf of such Subsidiary Guarantor shall deny or disaffirm such Guarantor's
obligations under any Guaranty to which it is a party or any Guarantor shall
default in the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to any Guaranty to which it is
a party; or
10.09 Judgments. One or more judgments or decrees shall be entered
against the Borrower or any Subsidiary of the Borrower involving in the
aggregate for the Borrower and its Subsidiaries a liability (not paid or fully
covered by a reputable and solvent insurance company) and such judgments and
decrees either shall be final and non-appealable or shall not be vacated,
discharged or stayed or bonded pending appeal for any period of 30 consecutive
days, and the aggregate amount of all such judgments equals or exceeds
$5,000,000; or
10.10 Change of Control. A Change of Control shall occur;
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then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, may with the written consent
of the Required Lenders and upon the written request of the Required Lenders,
shall by written notice to the Borrower, take any or all of the following
actions, without prejudice to the rights of any Administrative Agent, any Lender
or the holder of any Note to enforce its claims against any Credit Party
(provided, that, if an Event of Default specified in Section 10.05 shall occur
with respect to the Borrower, the result which would occur upon the giving of
written notice by the Administrative Agent as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Revolving Loan Commitment terminated, whereupon the Revolving
Loan Commitment of each Lender shall forthwith terminate immediately and any
Commitment Fee shall forthwith become due and payable without any other notice
of any kind; (ii) declare the principal of and any accrued interest in respect
of all Loans and the Notes and all Obligations owing hereunder and thereunder to
be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Credit Party; (iii) terminate any Letter of Credit which
may be terminated in accordance with its terms; (iv) direct the Borrower to pay
(and the Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in Section 10.05 with respect to the
Borrower, it will pay) to the Collateral Agent at the Payment Office such
additional amount of cash or Cash Equivalents, to be held as security by the
Collateral Agent, as is equal to the aggregate Stated Amount of all Letters of
Credit issued for the account of the Borrower and then outstanding; (v) enforce,
as Collateral Agent, all Liens, rights and remedies created pursuant to any of
the Security Documents; and (vi) apply any cash collateral held by the
Administrative Agent pursuant to Section 4.02 to the repayment of the
Obligations.
SECTION 11. Definitions and Accounting Terms.
11.01 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Additional Security and Guaranty Documents" shall have the meaning
provided in Section 8.12.
"Administrative Agent" shall mean BNP Paribas (and/or any lending
affiliate of BNP Paribas performing obligations or functions on its behalf), in
its capacity as Administrative Agent for the Lenders hereunder, and shall
include any successor to the Administrative Agent appointed pursuant to Section
12.09. As of the Effective Date, and until BNP Paribas otherwise notifies the
Borrower and the Lenders, the Administrative Agent shall be BNP Paribas.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. A Person shall be deemed to control another
Person if such Person possesses, directly or indirectly, the power (i) to vote
5% or more of the securities having ordinary voting power for the election of
directors of such corporation or (ii) to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting
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securities, by contract or otherwise; provided that no Lender (in its capacity
as a Lender) shall be considered an Affiliate of the Borrower or any of its
Subsidiaries.
"Affiliate Transaction" shall have the meaning provided in Section
9.06.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented, amended, restated (including any amendment and restatement
hereof), extended or renewed from time to time.
"Applicable Margin" shall mean, with respect to Revolving Loans and
Swingline Loans, from and after any Start Date to and including the
corresponding End Date, the respective percentage per annum set forth below
under the respective Type of Revolving Loans or Swingline Loans and opposite the
respective Level (i.e., ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ or Level 4, as the case may
be) indicated to have been achieved on the applicable Test Date for such Start
Date (as shown on the respective officer's certificate delivered pursuant to
Section 8.01(f) or the first proviso below):
Level Leverage Ratio Base Rate Loans Eurodollar Loans
----- -------------- --------------- ----------------
1 Less than or equal
to 3.25:1.00 1.50% 2.50%
2 Greater than
3.25:1.00 but less
than or equal to
4.25:1.00 2.00% 3.00%
3 Greater than
4.25:1.00 but less
than or equal to
5.25:1.00 2.50% 3.50%
4 Greater than
5.25:1.00 3.00% 4.00%
provided, however, that if the Borrower fails to deliver the financial
statements required to be delivered pursuant to Section 8.01(b) or (c)
(accompanied by the officer's certificate required to be delivered pursuant to
Section 8.01(f) showing the applicable Leverage Ratio on the relevant Test Date)
on or prior to the respective date required by such Sections, then Level 4
pricing shall apply until such time, if any, as the financial statements
required as set forth above and the accompanying officer's certificate have been
delivered showing the pricing for the respective Margin Reduction Period is at a
level which is less than Level 4 (it being understood that, in the case of any
late delivery of the financial statements and officer's certificate as so
required, any reduction in the Applicable Margin shall apply only from and after
the date of the delivery of the complying financial statements and officer's
certificate); provided further, that Level 4 pricing shall apply at any time
when any Default or Event of Default is in existence. Notwithstanding anything
to the contrary contained in the immediately preceding sentence (other than the
second
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proviso thereof), Level 3 pricing shall apply for the period from the Effective
Date to but not including the date which is the first Start Date after the
Borrower's fiscal quarter ending on June 30, 2002.
"Asset Sale" shall mean any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries to any Person (including by-way-of
redemption by such Person), other than to the Borrower or a Wholly-Owned
Domestic Subsidiary of the Borrower, of any asset (including, without
limitation, any capital stock or other securities of, or equity interests in,
another Person) other than sales of assets pursuant to Sections 9.02 (ii) or
(iv).
"Assignment and Assumption Agreement" shall mean an Assignment and
Assumption Agreement substantially in the form of Exhibit K (appropriately
completed).
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" shall mean, at any time, the higher of (i) the Prime
Lending Rate and (ii) 1/2 of 1% in excess of the Federal Funds Rate.
"Base Rate Loan" shall mean (i) each Swingline Loan and (ii) each
Revolving Loan designated or deemed designated as such by the Borrower at the
time of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrowing" shall mean (i) the borrowing of Swingline Loans from the
Swingline Lender on a given date and (ii) the borrowing of Revolving Loans of a
single Type from all the Lenders on a given date (or resulting from a conversion
or conversions on such date) having in the case of Eurodollar Loans the same
Interest Period, provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of the related Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in New York City, New York, a legal holiday or a day on which banking
institutions are authorized or required by law or other government action to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollars Loans, any day
which is a Business Day described in clause (i) above and which is also a day
for trading by and between banks in Dollar deposits in the London Eurodollar
market.
"Calculation Period" shall mean, in the case of any Permitted
Acquisition, the Test Period most recently ended prior to the date of such
Permitted Acquisition for which financial statements are available.
"Capital Expenditures" shall mean, with respect to any Person, all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, but excluding the amount of
Capitalized Lease Obligations incurred by such Person.
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"Capitalized Lease Obligations" shall mean, with respect to any
Person, all rental obligations of such Person which, under generally accepted
accounting principles, are or will be required to be capitalized on the books of
such Person, in each case taken at the amount thereof accounted for as
indebtedness in accordance with such principles.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of not more than
one year from the date of acquisition, (ii) Dollar denominated time deposits and
certificates of deposit of any commercial bank having, or which is the principal
banking subsidiary of a bank holding company having, a long-term unsecured debt
rating of at least "A" or the equivalent thereof from Standard & Poor's Ratings
Services or "A2" or the equivalent thereof from ▇▇▇▇▇'▇ Investors Service, Inc.
with maturities of not more than one year from the date of acquisition by such
Person, (iii) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper issued by any Person incorporated in the United States rated at
least A-1 or the equivalent thereof by Standard & Poor's Ratings Services or at
least P-1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in
each case maturing not more than one year after the date of acquisition by such
Person, (v) marketable direct obligations issued by the District of Columbia or
any State of the United States or any political subdivision of any such State or
any public instrumentality thereof maturing within one year from the date of
acquisition and, at the time of acquisition, having one of the two highest
ratings obtainable from either Standard & Poor's Ratings Services or ▇▇▇▇▇'▇
Investors Service, Inc. and (vi) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
clauses (i) through (v) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection with such Asset Sale or
pursuant to a receivable or otherwise, other than (in each case) the portion of
such deferred payment constituting interest, but only as and when so received)
received by the Borrower and/or any of its Subsidiaries from such Asset Sale.
"Certificate of Designation" means the certificate of designations
dated as of June 16, 1999 governing the Preferred Stock (as amended to the
Effective Date).
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as the same may be amended from time to
time, 42 U.S.C. ss. 9601 et seq.
"Change of Control" shall mean (i) any Person or "group" (within the
meaning of Section 13(d) and 14(d) under the Securities Exchange Act, as in
effect on the Effective Date), shall (A) have acquired beneficial ownership of
35% or more on a fully diluted basis of the voting and/or economic interest in
the Borrower's capital stock or (B) obtained the power (whether or not
exercised) to elect a majority of the Borrower's directors or (ii) the Board of
Directors of the Borrower shall cease to consist of a majority of Continuing
Directors or (iii) the occurrence of any "change of control" or "Change of
Control" or similar event, however
73
denominated, under the Senior Note Documents or the Senior Subordinated Note
Documents, any other instrument or agreement evidencing or governing
Indebtedness or any certificate of designations, instrument or agreement
governing the Preferred Stock or any other Equity Interests of the Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect on the Effective
Date of this Agreement and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean each Mortgaged Property, the Pledge Agreement
Collateral, the Security Agreement Collateral and all cash and Cash Equivalents
delivered as collateral pursuant to Section 4.02 or 10.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors pursuant to the Security Documents.
"Commitment Fee" shall have the meaning set forth in Section 3.01(a).
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate amount of Capital Expenditures of the Borrower and its Subsidiaries
during such period.
"Consolidated Cash Interest Expense" shall mean, for any period, the
total consolidated interest expense of the Borrower and its Subsidiaries for
such period (calculated without regard to the limitations on the payment
thereof) paid in cash plus, without duplication, that portion of Capitalized
Lease Obligations of the Borrower and its Subsidiaries representing the interest
factor for such period.
"Consolidated Current Assets" shall mean the consolidated current
assets of the Borrower and its Subsidiaries.
"Consolidated Current Liabilities" shall mean the consolidated current
liabilities of the Borrower and its Subsidiaries, but excluding the current
portion of any long-term Indebtedness which would otherwise be included therein.
"Consolidated EBIT" shall mean, for any period, Consolidated Net
Income for such period plus (a) without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (i) consolidated
Interest Expense for such period, (ii) consolidated income tax expenses for such
period, (iii) any extraordinary charges for such period, (iv) non-recurring
restructuring fees, expenses or charges incurred by the Borrower (A) during the
fiscal quarter ending on March 31, 2001 in an aggregate amount not to exceed
$1,750,000, (B) during the fiscal quarter ending on June 30, 2001 in an
aggregate amount not to exceed $13,550,000, (C) during the fiscal quarter ending
on September 30, 2001 in an aggregate amount not to exceed $1,750,000, (D)
during the fiscal quarter ending December 31, 2001 in an aggregate amount not to
exceed $7,650,000 and (E) during the fiscal year ending December 31, 2002 in an
aggregate amount not to exceed $1,000,000 and (v) a non-cash restructuring
charge incurred by the Borrower during the fiscal year ended December 31, 2002
to the extent such charge is attributable to the granting of stock options to
▇▇▇ ▇▇▇▇ & Associates and minus (b)
74
without duplication and to the extent included in determining such Consolidated
Net Income, any extraordinary gains for such period, all determined on a
consolidated basis.
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT
for such period, adjusted by adding thereto the amount of all amortization of
intangibles and depreciation that were deducted in arriving at Consolidated EBIT
for such period.
"Consolidated Fixed Charges" shall mean, for any period, the sum of,
without duplication, (i) Consolidated Cash Interest Expense for such period,
(ii) the amount of all Taxes paid in cash for such period and (iii) the
scheduled principal amount of all amortization payments on all Indebtedness
(excluding payments pursuant to a revolving credit facility or an over-draft
facility as a result of the occurrence of the scheduled termination date
thereunder) of the Borrower and its Subsidiaries for such period.
"Consolidated Indebtedness" shall mean, at any time, the principal
amount of all Indebtedness of the Borrower and its Subsidiaries at such time as
determined on a consolidated basis; provided that for purposes of this
definition, the amount of Indebtedness in respect of Interest Rate Protection
Agreements and Other Hedging Agreements shall be at any time the unrealized net
loss position, if any, of the Borrower and/or its Subsidiaries thereunder on a
marked-to-market basis determined no more than one month prior to such time.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of Consolidated EBITDA to Consolidated Cash Interest Expense for such
period.
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
plus, without duplication, that portion of Capitalized Lease Obligations of the
Borrower and its Subsidiaries representing the interest factor for such period.
"Consolidated Net Income" shall mean, for any period, the net income
(or loss) of the Borrower and its Subsidiaries for such period, determined on a
consolidated basis (and after deductions for minority interests), provided that
(i) the net income of any other Person which is not a Subsidiary of the Borrower
or is accounted for by the Borrower by the equity method of accounting shall be
included only to the extent of the payment of cash dividends or distributions by
such other Person to the Borrower or a Subsidiary thereof during such period,
(ii) the net income of any Subsidiary of the Borrower shall be excluded to the
extent that the declaration or payment of cash dividends or similar
distributions by that Subsidiary of that net income is not at the time permitted
by operation of the terms of its charter or any agreement, instrument or law
applicable to such Subsidiary; and (iii) the net income (or loss) of any other
Person acquired by such specified Person or a Subsidiary of such Person in a
pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded.
"Consolidated Senior Secured Indebtedness" shall mean, at any time, an
amount equal to the sum of (x) all Obligations, (y) without duplication, all
Guaranteed Obligations and (z) any Indebtedness secured by Liens permitted
pursuant to Section 9.01(xiv), at such time.
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"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person as a result of such Person being a general partner of the other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations ("primary
obligations") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of such
Person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of any such primary
obligation or (y) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the holder of such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the lesser of (x) the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith and (y) the stated amount
of such Contingent Obligation.
"Continuing Directors" shall mean the directors of the Borrower on the
Effective Date and each other director if such director's election to or
nomination for election to the Board of Directors of the Borrower is recommended
or approved by a majority of the then Continuing Directors.
"Credit Documents" shall mean this Agreement and, after the execution
and delivery thereof pursuant to the terms of this Agreement, each Note, each
Subsidiaries Guaranty and each Security Document.
"Credit Event" shall mean the making of any Loan or the issuance of
any Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary Guarantor.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to which a
Lender Default is in effect.
"Dividend" shall mean, with respect to any Person, that such Person
has declared or paid a dividend or returned any equity capital to its
stockholders, partners or members or authorized or made any other distribution,
payment or delivery of property (other than common stock of such Person,
Qualified Preferred Stock of the Borrower or rights to purchase common stock of
such Person or Qualified Preferred Stock of the Borrower) or cash to its
stockholders,
76
partners or members as such, or redeemed, retired, purchased or otherwise
acquired, directly or indirectly, for a consideration any shares of any class of
its capital stock or any partnership or membership interests outstanding on or
after the Effective Date (or any options or warrants issued by such Person with
respect to its capital stock), or set aside any funds for any of the foregoing
purposes, or shall have permitted any of its Subsidiaries to purchase or
otherwise acquire for a consideration any shares of any class of the capital
stock or any partnership or membership interests of such Person outstanding on
or after the Effective Date (or any options or warrants issued by such Person
with respect to its capital stock). Without limiting the foregoing, "Dividends"
with respect to any Person shall also include all payments (other than common
stock of such Person, Qualified Preferred Stock of the Borrower or rights to
purchase common stock of such Person or Qualified Preferred Stock of the
Borrower) made or required to be made by such Person with respect to any stock
appreciation rights plans, equity incentive or achievement plans or any similar
plans or setting aside of any funds for the foregoing purposes.
"Documents" shall mean and include (i) the Credit Documents, (ii) the
Senior Note Documents and (iii) the Senior Subordinated Note Documents.
"Dollar Equivalent" shall mean, at any time for the determination
thereof, (i) except as provided in clause (ii) below, the amount of Dollars
which could be purchased with the amount of the relevant Foreign Currency
involved in such computation at the spot exchange rate therefor as quoted by the
Administrative Agent as of 11:00 A.M. (London time) on the date two Business
Days prior to the date of any determination thereof for purchase on such date
and (ii) for purposes of Section 13.07(d), the amount of Dollars which could be
purchased with the amount of the relevant Foreign Currency involved in such
computation at the spot exchange rate therefor as quoted or utilized by the
Administrative Agent on the date of any determination thereof for purchase on
such day.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
"Domestic Subsidiary" shall mean (i) each Subsidiary of the Borrower
that is incorporated under the laws of the United States or any State or
territory thereof and (ii) each Subsidiary of the Borrower that is incorporated
or organized outside the United States or any State or territory thereof but
which is, or has elected to be, treated as a partnership or a disregarded entity
pursuant to the provisions of Treasury Regulations Section 301.7701-3.
"Drawing" shall have the meaning provided in Section 2.05(b).
"Effective Date" shall have the meaning provided in Section 13.10.
"Eligible Transferee" shall mean and include a commercial bank, an
insurance company, a finance company, a financial institution, any fund that
invests in loans or any other "accredited investor" (as defined in Regulation D
of the Securities Act), but in any event excluding the Borrower and its
Subsidiaries.
"End Date" shall mean, for any Margin Reduction Period, the last day
of such Margin Reduction Period.
77
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the indoor or
outdoor environment due to the presence of Hazardous Materials.
"Environmental Law" shall mean any Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, guideline, written policy and
rule of common law now or hereafter in effect and in each case as amended, and
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the indoor or
outdoor environment, employee health and safety or Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution Control
Act, 33 ▇.▇.▇.▇▇. 1251 et seq.; the Toxic Substances Control Act, 15 ▇.▇.▇.▇▇.
2601 et seq.; the Clean Air Act, 42 ▇.▇.▇.▇▇. 7401 et seq.; the Safe Drinking
Water Act, 42 ▇.▇.▇.▇▇. 3803 et seq.; the Oil Pollution Act of 1990, 33 U.S.C.
ss. 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of
1986, 42 ▇.▇.▇.▇▇. 11001 et seq.; the Hazardous Material Transportation Act, 49
▇.▇.▇.▇▇. 1801 et seq.; the Occupational Safety and Health Act, 29 ▇.▇.▇.▇▇. 651
et seq.; and any state and local or foreign counterparts or equivalents, in each
case as amended from time to time.
"Equity Interests" of any Person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interest in (however designated) equity of such Person,
including any preferred stock, any limited or general partnership interest and
any limited liability company membership interest.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect on the
Effective Date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary of the Borrower would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary
of the Borrower being or having been a general partner of such person.
"Eurodollar Loan" shall mean each Revolving Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to first-class
banks in the London interbank Eurodollar market by BNP Paribas for Dollar
deposits of amounts in
78
immediately available funds comparable to the outstanding principal amount of
the Eurodollar Loan of BNP Paribas with maturities comparable to the Interest
Period applicable to such Eurodollar Loan commencing two Business Days
thereafter as of 11:00 A.M. (New York time) on the applicable Interest
Determination Date, divided (and rounded off to the nearest 1/100 of 1%) by (b)
a percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of Eurocurrency
funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Existing Credit Agreement" shall mean the Credit Agreement, dated as
of June 16, 1999, and as further amended, modified or supplemented through the
Effective Date, among the Borrower, the lenders party thereto, The Chase
Manhattan Bank, as Administrative Agent, Collateral Agent and Issuing Bank,
Bankers Trust Company, as Syndication Agent, Paribas, as Documentation Agent and
Chase Securities, Inc., as Lead Arranger and Book Manager.
"Existing Indebtedness" shall have the meaning provided in Section
7.21.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 3.01.
"Final Maturity Date" shall mean the fifth anniversary of the
Effective Date.
"Fixed Charge Coverage Ratio" shall mean, for any Test Period, the
ratio of (i) Consolidated EBITDA minus Consolidated Capital Expenditures to (ii)
Consolidated Fixed Charges for such Test Period.
"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by the Borrower or any one or
more of its Subsidiaries primarily for the benefit of employees of the Borrower
or such Subsidiaries residing outside the United States of America, which plan,
fund or other similar program provides, or results in, retirement income, a
deferral of income in contemplation of retirement or payments to be made upon
termination of employment, and which plan is not subject to ERISA or the Code.
79
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower which
is not a Domestic Subsidiary.
"Foreign Subsidiary Third Party Borrowings" shall have the meaning
provided in Section 9.04(v).
"Guaranteed Creditors" shall mean and include each of the
Administrative Agent, the Collateral Agent, each Lender and each party (other
than any Credit Party) party to an Interest Rate Protection Agreement or Other
Hedging Agreement with a Subsidiary of the Borrower to the extent that such
party constitutes a Secured Creditor under the Security Documents.
"Guaranteed Obligations" shall mean (i) the principal and interest on
each Note issued by the Borrower to each Lender, and Loans made to the Borrower,
under this Agreement, together with all other obligations (including obligations
which, but for the automatic stay under Section 362(a) of the Bankruptcy Code,
would become due) and liabilities (including, without limitation, indemnities,
fees and interest thereon) of the Borrower to such Lender, the Administrative
Agent and the Collateral Agent now existing or hereafter incurred under, arising
out of or in connection with this Agreement and each other Credit Document to
which the Borrower is a party and the due performance and compliance by the
Borrower with all the terms, conditions and agreements contained in this
Agreement and each such other Credit Document and (ii) all obligations
(including obligations which, but for the automatic stay under Section 362(a) of
the Bankruptcy Code, would become due) and liabilities of the Borrower and each
Subsidiary of the Borrower owing under any Interest Rate Protection Agreement or
Other Hedging Agreement entered into with any Lender or any affiliate thereof
(even if such Lender subsequently ceases to be a Lender under this Agreement for
any reason) so long as such Lender or affiliate participates in such Interest
Rate Protection Agreement or Other Hedging Agreement, and their subsequent
assigns, if any, whether now in existence or hereafter arising, and the due
performance and compliance by each of the Borrower and such Subsidiary of the
Borrower with all terms, conditions and agreements contained therein.
"Guaranty" shall mean the Subsidiaries Guaranty.
"Hazardous Materials" shall mean (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
(b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous waste," "hazardous materials,"
"extremely hazardous substances," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, the Release of which is prohibited, limited or
regulated by any governmental authority.
"Indebtedness" shall mean, as to any Person, without duplication, (i)
all indebtedness (including principal, interest, fees and charges) of such
Person for borrowed money or for the deferred purchase price of property or
services, (ii) the maximum amount available to be drawn under all letters of
credit issued for the account of such Person and all unpaid drawings in
80
respect of such letters of credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person, whether or not such
Indebtedness has been assumed by such Person (provided, that, if the Person has
not assumed or otherwise become liable in respect of such Indebtedness, such
Indebtedness shall be deemed to be in an amount equal to the fair market value
of the property to which such Lien relates as determined in good faith by such
Person), (iv) the aggregate amount required to be capitalized under leases under
which such Person is the lessee, (v) all obligations of such Person to pay a
specified purchase price for goods or services, whether or not delivered or
accepted, i.e., take-or-pay and similar obligations, (vi) all Contingent
Obligations of such Person and (vii) all obligations under any Interest Rate
Protection Agreement, any Other Hedging Agreement or under any similar type of
agreement. Notwithstanding the foregoing, Indebtedness shall not include trade
payables and accrued expenses incurred by any Person in accordance with
customary practices and in the ordinary course of business of such Person.
"Indebtedness to be Refinanced" shall mean all Indebtedness set forth
on Schedule VII.
"Independent Financial Advisor" shall mean a firm (i) which does not,
and whose directors, officers and employees or Affiliates do not, have a direct
or indirect financial interest in the Borrower and (ii) which, in the judgment
of the Board of Directors of the Borrower, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Intercompany Loan" shall have the meaning provided in Section
9.05(ix).
"Intercompany Note" shall mean a promissory note, in the form of
Exhibit L or such other form as may be reasonably acceptable to the
Administrative Agent, in either case evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest collar agreement, interest rate
hedging agreement or other similar agreement or arrangement.
"Investments" shall have the meaning provided in Section 9.05.
"Issuing Lender" shall mean BNP Paribas and its affiliates and any
other Lender which at the request of the Borrower and with the consent of the
Administrative Agent agrees, in such Lender's sole discretion, to become an
Issuing Lender for the purpose of issuing Letters of Credit pursuant to Section
2 (and/or any lending affiliate of the foregoing Persons performing obligations
on its behalf).
"L/C Supportable Obligations" shall mean (i) obligations of the
Borrower or any of its Subsidiaries with respect to workers compensation, surety
bonds and other similar statutory
81
obligations, (ii) such other obligations of the Borrower or any of its
Subsidiaries as are reasonably acceptable to the respective Issuing Lender and
otherwise permitted to exist pursuant to the terms of this Agreement (other than
obligations with respect to the Senior Subordinated Notes and the Senior Notes).
"Leaseholds" of any Person shall mean all the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Lender" shall mean each financial institution listed on Schedule I,
as well as any Person which becomes a "Lender" hereunder pursuant to Section
1.13 or 13.04(b).
"Lender Default" shall mean (i) the refusal (which has not been
retracted) or the failure of a Lender to make available its portion of any
Borrowing required to be made available by it hereunder (including any Mandatory
Borrowing) or to fund its portion of any unreimbursed payment under Section
2.04(c) or (ii) a Lender having notified in writing the Borrower and/or the
Administrative Agent that such Lender does not intend to comply with its
obligations under Section 1.01(a), 1.01(c) or 2.04, in the case of either clause
(i) or (ii) as a result of any takeover or control (including, without
limitation, as a result of the occurrence of any event of the type described in
Section 10.05 with respect to such Lender) of such Lender by any regulatory
authority or agency.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fee" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Letters of Credit at such
time and (ii) the amount of all Unpaid Drawings at such time.
"Letter of Credit Request" shall have the meaning provided in Section
2.03(a).
"Leverage Ratio" shall mean, at any time, the ratio of Consolidated
Indebtedness at such time to Consolidated EBITDA for the Test Period then most
recently ended, provided that, for purposes of calculating the Applicable
Margin, the foregoing numerator shall instead be the sum of (I) Consolidated
Indebtedness (excluding Revolving Outstandings) at such time plus (II) the
average Revolving Outstandings for the then most recently ended fiscal quarter
of the Borrower.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the UCC or
any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
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"Mandatory Borrowing" shall have the meaning provided in Section
1.01(c).
"Margin Reduction Period" shall mean each period which shall commence
on the date occurring after the Effective Date upon which the respective
officer's certificate is delivered pursuant to Section 8.01(f) and which shall
end on the date of actual delivery of the next officer's certificate pursuant to
Section 8.01(f) or the latest date on which such next officer's certificate is
required to be so delivered.
"Margin Stock" shall have the meaning provided in Regulation U.
"Maximum Swingline Amount" shall mean $5,000,000.
"Minimum Borrowing Amount" shall mean (i) with respect to Revolving
Loans maintained as Eurodollar Loans, $1,000,000, (ii) with respect to Revolving
Loans maintained as Base Rate Loans, $500,000, and (iii) with respect to
Swingline Loans, $100,000.
"Mortgage" shall mean each mortgage, deed to secure debt or deed of
trust pursuant to which any Credit Party shall have granted to the Collateral
Agent a mortgage lien on such Credit Party's Mortgaged Property.
"Mortgage Policy" shall have the meaning provided in Section 8.15.
"Mortgaged Property" shall mean each Real Property owned by any Credit
Party and designated as a Mortgaged Property on Schedule VIII.
"NAIC" shall mean the National Association of Insurance Commissioners.
"Net Debt Proceeds" shall mean, with respect to any incurrence of
Indebtedness for borrowed money, the cash proceeds (net of underwriting
discounts and commissions and other reasonable costs associated therewith)
received by the respective Person from the respective incurrence of such
Indebtedness for borrowed money.
"Net Equity Proceeds" shall mean, with respect to each issuance or
sale of any equity by any Person or any capital contribution to such Person, the
cash proceeds (net of underwriting discounts and commissions and other costs
associated therewith) received by such Person from the respective sale or
issuance of its equity or from the respective capital contribution.
"Net Insurance Proceeds" shall mean, with respect to any Recovery
Event, the cash proceeds (net of reasonable costs and taxes incurred in
connection with such Recovery Event) received by the respective Person in
connection with the respective Recovery Event.
"Net Sale Proceeds" shall mean, for any Asset Sale, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from such Asset Sale, net of the reasonable costs of such sale
(including fees and commissions, payments of unassumed liabilities relating to
the assets sold and required payments of any Indebtedness (other than
Indebtedness which is secured under the Security Documents) which is secured by
the respective assets which were sold), and the incremental taxes paid or
payable as a result of such Asset Sale.
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"Non-Defaulting Lender" shall mean and include each Lender other than
a Defaulting Lender.
"Note" shall mean each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of BNP Paribas, as
Administrative Agent, located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Lands ▇▇▇▇▇▇▇, with a copy to such other office or offices as the
Administrative Agent may designate to the Borrower and the Lenders from time to
time.
"Obligations" shall mean all amounts owing to the Administrative
Agent, the Collateral Agent, any Issuing Lender or any Lender pursuant to the
terms of this Agreement or any other Credit Document.
"Other Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.04(a).
"Payment Office" shall mean the office of the Administrative Agent
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Lands
▇▇▇▇▇▇▇ or such other office as the Administrative Agent may designate to the
Borrower and the Lenders from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" of any Lender at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Lender at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the Percentage of any
Lender is to be determined after the Total Revolving Loan Commitment has been
terminated, then the Percentages of the Lenders shall be determined immediately
prior (and without giving effect) to such termination.
"Permitted Acquisition" shall mean the acquisition by the Borrower or
a Wholly-Owned Domestic Subsidiary thereof of assets constituting a business,
division or product line of any Person not already a Domestic Subsidiary of the
Borrower or of 100% of the capital stock or other equity interests of any such
Person (including by way of merger and including by purchasing the remaining
portion of the capital stock of any Person in which the Borrower or a
Wholly-Owned Domestic Subsidiary already has an ownership interest and as a
result of which such Person shall become a Wholly-Owned Domestic Subsidiary of
the Borrower), which Person shall, as a result of such stock or other equity
acquisition, become a Wholly-Owned Domestic Subsidiary of the Borrower (or shall
be merged with and into a Wholly-Owned Domestic
84
Subsidiary of the Borrower) (such assets or Person are referred to as an
"Acquired Entity or Business"), provided that (in each case) (A) (x) the
consideration paid by the Borrower or such Wholly-Owned Domestic Subsidiary
consists solely of cash (including proceeds of Loans), the issuance or
incurrence of Indebtedness otherwise permitted by Section 9.04, Permitted Seller
Notes, Permitted Earn-Out Obligations, the issuance of common stock of the
Borrower or Qualified Preferred Stock of the Borrower to the extent no Default
or Event of Default exists pursuant to Section 10.10 or would result therefrom
and the assumption/acquisition of any Indebtedness (calculated at face value)
which is permitted to remain outstanding in accordance with the requirements of
Section 9.04 and (y) at least 40% of such consideration is in the form of
Permitted Seller Notes, (B) in the case of the acquisition of 100% of the
capital stock or other equity interests of any Person (including by way of
merger and including by purchasing the remaining portion of the capital stock of
any Person in which the Borrower or a Wholly-Owned Domestic Subsidiary already
has an ownership interest and as a result of which such Person shall become a
Wholly-Owned Subsidiary of the Borrower), such Person shall own no capital stock
or other equity interests of any other Person (other than de minimis amounts)
unless either (x) such Person owns 100% of the capital stock or other equity
interests of such other Person or (y) (1) such Person and/or its Wholly-Owned
Subsidiaries own at least 75% of the consolidated assets of such Person and its
Subsidiaries and (2) any non-Wholly Owned Subsidiary or other non-wholly owned
equity interest of such Person was non-Wholly Owned prior to the date of such
Permitted Acquisition of such Person, (C) the Acquired Entity or Business
acquired pursuant to the respective Permitted Acquisition is in a business
permitted by Section 9.16, (D) the Acquired Entity or Business acquired pursuant
to the respective Permitted Acquisition must have at least 50% of the fair
market value of its assets located in the United States immediately prior to
giving effect to the consummation of such acquisition and (E) all applicable
requirements of Sections 8.14, 9.02 and 9.17 applicable to Permitted
Acquisitions are satisfied. Notwithstanding anything to the contrary contained
in the immediately preceding sentence, an acquisition which does not otherwise
meet the requirements set forth above in the definition of "Permitted
Acquisition" shall constitute a Permitted Acquisition if, and to the extent, the
Required Lenders agree in writing, prior to the consummation thereof, that such
acquisition shall constitute a Permitted Acquisition for purposes of this
Agreement.
"Permitted Earn-Out Obligations" shall mean obligations of the
Borrower incurred in connection with an acquisition permitted pursuant to
Section 8.14 which (i) are not secured or guaranteed by any Subsidiary of the
Borrower and shall be subordinated to the Obligations and the Guaranteed
Obligations on terms at least as favorable to the Lenders as those set forth on
Exhibit M hereto, (ii) are payable solely by the Borrower in the event that
certain future performance goals are achieved in the business acquired in such
acquisition and (iii) arise under written agreements, in form and substance
satisfactory to the Administrative Agent, specifying in each case an amount as
the maximum potential liability of the Borrower in respect thereof; provided,
that the Maximum Earn-Out Liability (as defined below) shall not exceed (x)
$1,000,000 for any single acquisition (including all amounts payable over the
term of the agreement creating such Permitted Earn-Out Obligation) or (y)
$10,000,000 in any fiscal year. For purposes of this definition, the amount of
any Permitted Earn-Out Obligation shall be the maximum potential liability (the
"Maximum Earn-Out Liability") of the Borrower specified in the agreement
creating such Permitted Earn-Out Obligation.
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"Permitted Encumbrances" shall mean (i) those liens, encumbrances and
other matters affecting title to any Real Property and found reasonably
acceptable by the Administrative Agent, (ii) as to any particular Real Property
at any time, such easements, encroachments, covenants, rights of way, minor
defects, irregularities or encumbrances on title which could not reasonably be
expected to materially impair such Real Property for the purpose for which it is
held by the mortgagor thereof, or the lien held by the Collateral Agent, (iii)
zoning and other municipal ordinances which are not violated in any material
respect by the existing improvements and the present use made by the mortgagor
thereof of the premises, (iv) general real estate taxes and assessments not yet
delinquent, (v) matters disclosed on title reports delivered in connection with
the Mortgages, (vi) Liens permitted under Section 9.01(x) and (vii) such other
similar items affecting any Real Property or Mortgages thereon as the
Administrative Agent (and, if the fair market value of the applicable Real
Property exceeds $500,000, the Required Lenders) may consent to (such consent of
the Administrative Agent and, if applicable, the Required Lenders not to be
unreasonably withheld).
"Permitted Liens" shall have the meaning provided in Section 9.01.
"Permitted Seller Notes" means notes issued by the Borrower to sellers
of stock or assets in one or more acquisitions permitted under Section 8.14,
which notes (i) shall be unsecured and not guaranteed by any Subsidiaries of the
Borrower, (ii) shall be subordinated to the Obligations and the Guaranteed
Obligations on terms at least as favorable to the Lenders as those set forth on
Exhibit M hereto, (iii) shall mature no earlier than the date that is six months
after the Final Maturity Date and (iv) shall otherwise be in form and substance
satisfactory to the Administrative Agent; provided, that such notes in an
aggregate principal amount outstanding at any time shall not exceed the lesser
of (x) $75,000,000, (y) the maximum amount of such notes permitted to be
outstanding under the terms of the Senior Note Documents at such time and (z)
the maximum amount of such notes permitted to be outstanding under the terms of
the Senior Subordinated Note Documents at such time; provided that the aggregate
principal amount of Permitted Seller Notes issued by the Borrower in any fiscal
year of the Borrower shall not exceed $25,000,000.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, or a Subsidiary of the Borrower
or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section 5.08.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in, or in which a security interest has been granted pursuant to, the Pledge
Agreement.
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"Preferred Stock" means the 7% Redeemable Preference Stock, par value
$0.01 per share, original issue price $1,000 per share, of the Borrower, issued
under the Certificate of Designations.
"Prime Lending Rate" shall mean the rate which BNP Paribas announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BNP Paribas may make commercial loans or other
loans at rates of interest at, above or below the Prime Lending Rate.
"Pro Forma Basis" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (x) the incurrence of any
Indebtedness after the first day of the relevant Calculation Period as if such
Indebtedness had been incurred (and the proceeds thereof applied) on the first
day of the relevant Calculation Period, (y) the permanent repayment of any
Indebtedness after the first day of the relevant Calculation Period as if such
Indebtedness had been retired or redeemed on the first day of the relevant
Calculation Period and (z) the Permitted Acquisition, if any, then being
consummated as well as any other Permitted Acquisition consummated after the
first day of the relevant Calculation Period and on or prior to the date of the
respective Permitted Acquisition then being effected, with the following rules
to apply in connection therewith:
(i) all Indebtedness (x) incurred or issued after the first day of the
relevant Calculation Period (whether incurred to finance a Permitted
Acquisition, to refinance Indebtedness or otherwise) shall be deemed to
have been incurred or issued (and the proceeds thereof applied) on the
first day of the respective Calculation Period and remain outstanding
through the date of determination and (y) permanently retired or redeemed
after the first day of the relevant Calculation Period shall be deemed to
have been retired or redeemed on the first day of the respective
Calculation Period and remain retired through the date of determination;
(ii) all Indebtedness assumed to be outstanding pursuant to preceding
clause (i) shall be deemed to have borne interest at (x) the rate
applicable thereto, in the case of fixed rate indebtedness or (y) the rates
which would have been applicable thereto during the respective period when
same was deemed outstanding, in the case of floating rate Indebtedness
(although interest expense with respect to any Indebtedness for periods
while same was actually outstanding during the respective period shall be
calculated using the actual rates applicable thereto while same was
actually outstanding); and
(iii) in making any determination of Consolidated EBITDA, the Borrower
may not take into account any pro forma cost savings or expenses expected
to be realized as part of any Permitted Acquisition, whether or not same
would otherwise be permitted to be accounted for as an adjustment pursuant
to Article 11 of Regulation S-X under the Securities Act.
"Projections" shall have the meaning provided in Section 5.16.
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"Qualified Preferred Stock" shall mean any preferred stock of the
Borrower so long as the terms of any such preferred stock (i) do not contain any
mandatory put, redemption, repayment, sinking fund or other similar provision
occurring before December 31, 2012, (ii) do not require the cash payment of
dividends, (iii) require that all dividends paid or payable prior to the first
anniversary of the Final Maturity Date be paid and payable solely in the form of
additional Qualified Preferred Stock, (iv) do not contain any covenants, and (v)
are otherwise reasonably satisfactory to the Administrative Agent.
"Quarterly Payment Date" shall mean the last Business Day of each
September, December, March and June occurring after the Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. ss. 6901 et seq.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any of its
Subsidiaries of any cash insurance proceeds or condemnation awards payable (i)
by reason of theft, loss, physical destruction, damage, taking or any other
similar event with respect to any property or assets of the Borrower or any of
its Subsidiaries and (ii) under any policy of insurance required to be
maintained under Section 8.03.
"Refinancing" shall have the meaning provided in Section 5.05.
"Register" shall have the meaning provided in Section 13.15.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Release" shall mean the disposing, discharging, injecting, spilling,
pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring or
migrating, into or upon any land or water or air, or otherwise entering into the
environment.
"Replaced Lender" shall have the meaning provided in Section 1.13.
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"Replacement Lender" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"Required Lenders" shall mean Non-Defaulting Lenders the sum of whose
Revolving Loan Commitments (or after the termination thereof, outstanding
Revolving Loans and Percentages of outstanding Swingline Loans and Letter of
Credit Outstandings) represent an amount greater than 50% of the sum of the
Total Revolving Loan Commitment less the Revolving Loan Commitments of all
Defaulting Lenders (or after the termination thereof, the sum of the then total
outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate
Percentages of Non-Defaulting Lenders of the total outstanding Swingline Loans
and Letter of Credit Outstandings at such time).
"Restricted Payment" shall mean (a) any authorization, declaration or
payment of any Dividends with respect to the Borrower or any of its
Subsidiaries, or (b) the making (or the giving of any notice in respect thereof)
by the Borrower or any of its Subsidiaries of any voluntary, optional or
mandatory payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying when
due) any of the Senior Subordinated Notes, any of the Senior Notes, any of the
Permitted Seller Notes or any Existing Indebtedness.
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"Revolving Loan Commitment" shall mean, for each Lender, the amount
set forth opposite such Lender's name in Schedule I directly below the column
entitled "Revolving Loan Commitment," as same may be (x) reduced from time to
time pursuant to Sections 3.02, 3.03 and/or 10 or (y) adjusted from time to time
as a result of assignments to or from such Lender pursuant to Section 1.13 or
13.04(b).
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"Revolving Outstandings" shall mean, at any time, the sum of the
aggregate principal amount of all Revolving Loans and Swingline Loans then
outstanding plus the aggregate amount of all Letter of Credit Outstandings at
such time.
"SEC" shall have the meaning provided in Section 8.01(h).
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning assigned that term
in the Security Documents.
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"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section 5.09.
"Security Agreement Collateral" shall mean all "Collateral" as defined
in, or in which a security interest has been granted pursuant to, the Security
Agreement.
"Security Document" shall mean and include each Mortgage, the Security
Agreement, the Pledge Agreement and the Additional Security and Guaranty
Documents.
"Senior Financial Officer" of the Borrower shall mean any of the chief
financial officer, treasurer or corporate controller of the Borrower.
"Senior Note Documents" shall mean the Senior Note Indenture, the
Senior Notes and each other document or agreement relating to the issuance of
the Senior Notes.
"Senior Note Indenture" shall mean the Indenture, dated as of February
__, 2002 (as amended, supplemented or modified to the date hereof and thereafter
in accordance with the terms hereof and thereof) by and among the Borrower, the
guarantors party thereto and Wilmington Trust Company, as trustee.
"Senior Note Financing" shall have the meaning provided in Section
5.05(c).
"Senior Note Proceeds" shall have the meaning provided in Section
5.05(c).
"Senior Notes" shall mean the Borrower's 10 3/8% Senior Notes due 2009
issued pursuant to the Senior Note Indenture, as in effect on the Effective Date
and as the same may be modified, amended or supplemented from time to time in
accordance with the terms hereof and thereof.
"Senior Secured Leverage Ratio" shall mean, at any time, the ratio of
Consolidated Senior Secured Indebtedness at such time to Consolidated EBITDA for
the Test Period most recently ended.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Note Indenture, the Senior Subordinated Notes and each other
document or agreement relating to the issuance of the Senior Subordinated Notes.
"Senior Subordinated Note Indenture" shall mean the Indenture, dated
as of June 16, 1999 (as amended, supplemented or modified to the date hereof and
thereafter in accordance with the terms thereof and hereof) by and among the
Borrower, the guarantors party thereto and U.S. Bank Trust National Association,
as trustee.
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"Senior Subordinated Notes" shall mean the Borrower's 11-1/4% Senior
Subordinated Notes due 2009, issued pursuant to the Senior Subordinated Note
Indenture, as in effect on the Effective Date and as the same may be modified,
amended or supplemented from time to time in accordance with the terms hereof
and thereof.
"Specified Acquisition" shall have the meaning provided in Section
8.14(a).
"Start Date" shall mean, with respect to any Margin Reduction Period,
the first day of such Margin Reduction Period.
"Stated Amount" of each Letter of Credit shall mean, at any time, the
maximum amount available to be drawn thereunder (in each case determined without
regard to whether any conditions to drawing could then be met).
"Subsidiaries Guaranty" shall have the meaning provided in Section
5.10.
"Subsidiary" shall mean, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"Subsidiary Guarantor" shall mean (i) each Wholly-Owned Domestic
Subsidiary of the Borrower, and (ii) each other Wholly-Owned Foreign Subsidiary
of the Borrower required to execute a counterpart of any Subsidiaries Guaranty
pursuant to the terms of this Agreement.
"Swingline Lender" shall mean BNP Paribas.
"Swingline Expiry Date" shall mean that date which is five Business
Days prior to the Final Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(b).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Taxes" shall have the meaning provided in Section 4.04(a).
"Test Date" shall mean, with respect to any Start Date, the last day
of the most recent fiscal quarter of the Borrower ended immediately prior to
such Start Date.
"Test Period" shall mean, at any time, each period of four consecutive
fiscal quarters of the Borrower then last ended (in each case taken as one
accounting period).
"Total Revolving Loan Commitment" shall mean, at any time, the sum of
the Revolving Loan Commitments of each of the Lenders.
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"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
an amount equal to the remainder of (x) the Total Revolving Loan Commitment then
in effect less (y) the sum of the aggregate principal amount of all Revolving
Loans and Swingline Loans then outstanding plus the then aggregate amount of all
Letter of Credit Outstandings.
"Transaction" shall mean, collectively, the Refinancing, the entering
into of the Credit Documents and the incurrence of all Loans and issuance of all
Letters of Credit on the Effective Date, and the payment of fees and expenses in
connection with the foregoing.
"Type" shall mean the type of Loan determined with regard to the
interest option applicable thereto, i.e., whether a Base Rate Loan or a
Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan, determined on a plan termination basis in accordance with actuarial
assumptions at such time consistent with those prescribed by the PBGC for
purposes of Section 4044 of ERISA, exceeds the fair market value of the assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
"United States" and "U.S." shall each mean the United States of
America.
"Unpaid Drawing" shall have the meaning provided for in Section
2.05(a).
"Unutilized Revolving Loan Commitment" shall mean, with respect to any
Lender at any time, such Lender's Revolving Loan Commitment at such time less
the sum of (i) the aggregate outstanding principal amount of all Revolving Loans
made by such Lender at such time and (ii) such Lender's Percentage of the Letter
of Credit Outstandings at such time.
"Wholly-Owned Domestic Subsidiary" shall mean each Domestic Subsidiary
of the Borrower that is also a Wholly-Owned Subsidiary of the Borrower.
"Wholly-Owned Foreign Subsidiary" shall mean each Foreign Subsidiary
of the Borrower that is also a Wholly-Owned Subsidiary of the Borrower.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any partnership, limited liability company,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
SECTION 12. The Administrative Agent.
12.01 Appointment. The Lenders hereby irrevocably designate BNP
Paribas as Administrative Agent (for purposes of this Section 12, the term
"Administrative Agent" also
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shall include BNP Paribas in its capacity as Collateral Agent pursuant to the
Security Documents and any lending affiliate of BNP Paribas performing any of
the duties or functions of the Administrative Agent hereunder or under any other
Credit Document) to act as specified herein and in the other Credit Documents.
Each Lender hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on their behalf under the provisions of
this Agreement, the other Credit Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto (including, without
limitation, acting on behalf of and for the account of each Lender and each
holder of any Note, in the creation, execution, perfection, delivery and
enforcement of the Security Documents). The Administrative Agent may perform any
of its duties hereunder by or through its officers, directors, agents, employees
or affiliates.
12.02 Nature of Duties. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and in the other Credit Documents. Neither the Administrative Agent nor any of
its officers, directors, agents, employees or affiliates shall be liable for any
action taken or omitted by them hereunder or under any other Credit Document or
in connection herewith or therewith, unless caused by its or their gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision). The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Lender or the holder
of any Note; and nothing in this Agreement or any other Credit Document,
expressed or implied, is intended to or shall be so construed as to impose upon
the Administrative Agent any obligations in respect of this Agreement or any
other Credit Document except as expressly set forth herein or therein.
12.03 Lack of Reliance on the Administrative Agent. Independently and
without reliance upon the Administrative Agent, each Lender and the holder of
each Note, to the extent it deemed or deems appropriate, has made and shall
continue to make (i) its own independent investigation of the financial
condition and affairs of the Borrower and its Subsidiaries in connection with
the making and the continuance of the Loans and the taking or not taking of any
action in connection herewith and (ii) its own appraisal of the creditworthiness
of the Borrower and its Subsidiaries and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Lender or the holder
of any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. None of the Administrative Agent nor any of its affiliates nor
any of their respective officers, directors, agents, or employees shall be
responsible to any Lender or the holder of any Note for, or be required or have
any duty to ascertain, inquire or verify the accuracy of, (i) any recitals,
statements, information, representations or warranties herein or in any
document, certificate or other writing delivered in connection herewith, (ii)
the execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document, (iii) the financial condition of the Borrower and any of its
Subsidiaries, (iv) the performance or observance of any of the terms,
93
provisions or conditions of this Agreement or any other Credit Document, (v) the
satisfaction of any of the conditions precedent set forth in Section 5 or 6, or
(vi) the existence or possible existence of any Default or Event of Default.
12.04 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders or all
of the Lenders, as applicable, with respect to any act or action (including
failure to act) in connection with this Agreement or any other Credit Document,
the Administrative Agent shall be entitled to refrain from such act or taking
such action unless and until the Administrative Agent shall have received
instructions from the Required Lenders or all of the Lenders, as applicable; and
the Administrative Agent shall not incur liability to any Lender by reason of so
refraining. Without limiting the foregoing, no Lender or the holder of any Note
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder or
under any other Credit Document in accordance with the instructions of the
Required Lenders or all of the Lenders, as applicable.
12.05 Reliance. The Administrative Agent shall be entitled to rely,
and shall be fully protected in relying (and shall have no liability to any
Person), upon any note, writing, resolution, notice, statement, certificate,
telex, teletype or telecopier message, cablegram, radiogram, order or other
document or telephone message signed, sent or made by any Person that the
Administrative Agent believed to be the proper Person, and, with respect to all
legal matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by the
Administrative Agent (which may be counsel for the Credit Parties).
12.06 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by the Borrower or any of the Subsidiary Guarantors,
the Lenders will reimburse and indemnify the Administrative Agent in proportion
to their respective "percentage" as used in determining the Required Lenders
(determined as if there were no Defaulting Lender at such time) for and against
any and all liabilities, obligations, losses, damages, penalties, claims,
actions, judgments, costs, expenses or disbursements of whatsoever kind or
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties hereunder or under any other
Credit Document or in any way relating to or arising out of this Agreement or
any other Credit Document; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct (as determined by
a court of competent jurisdiction in a final non-appealable decision).
12.07 The Administrative Agent in its Individual Capacity. With
respect to its obligation to make Loans, or issue or participate in Letters of
Credit, under this Agreement, the Administrative Agent shall have the rights and
powers specified herein for a "Lender" and may exercise the same rights and
powers as though it were not performing the duties specified herein; and the
term "Lenders," "Required Lenders," "holders of Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent and
its affiliates may accept deposits from, lend money to, and generally engage in
any kind of banking, investment banking, trust or other business with, or
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provide debt financing, equity capital or other services (including financial
advisory services) to, any Credit Party or any Affiliate of any Credit Party (or
any Person engaged in a similar business with any Credit Party or any Affiliate
thereof) as if they were not performing the duties specified herein, and may
accept fees and other consideration from any Credit Party or any Affiliate of
any Credit Party for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.
12.08 Holders. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in exchange therefor.
12.09 Resignation by the Administrative Agent. (a) The Administrative
Agent may resign from the performance of all its respective functions and duties
hereunder and/or under the other Credit Documents at any time by giving 30
Business Days' prior written notice to the Borrower and the Lenders. Such
resignation shall take effect upon the appointment of a successor Administrative
Agent pursuant to clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the Administrative Agent,
the Required Lenders shall appoint a successor Administrative Agent hereunder or
thereunder who shall be a commercial bank or trust company reasonably acceptable
to the Borrower, which acceptance shall not be unreasonably withheld or delayed
(provided that the Borrower's approval shall not be required if any Default or
any Event of Default then exists).
(c) If a successor Administrative Agent shall not have been so
appointed within such 30 Business Day period, the Administrative Agent with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed, provided that the Borrower's consent shall not be required if any
Default or any Event of Default then exists), shall then appoint a successor
Administrative Agent who shall serve as Administrative Agent hereunder or
thereunder until such time, if any, as the Required Lenders appoint a successor
Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 35th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Lenders shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Credit Document until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above.
12.10 Syndication and Documentation Agents. Notwithstanding any other
provision hereof, each of ▇▇▇▇▇▇ Commercial Paper Inc., as Syndication Agent and
General Electric Capital Corporation, as Documentation Agent, in their
respective capacities as such,
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shall have no duties or responsibilities under the Credit Documents and shall
incur no liability under this Agreement or the other Credit Documents in such
capacities.
12.11 Collateral Matters. (a) Each Lender authorizes and directs the
Collateral Agent to enter into the Security Documents for the benefit of the
Lenders and the other Secured Creditors. Each Lender hereby agrees, and each
holder of any Note or participant in Letters of Credit by the acceptance thereof
will be deemed to agree, that, except as otherwise set forth herein, any action
taken by the Required Lenders in accordance with the provisions of this
Agreement or the Security Documents, and the exercise by the Required Lenders of
the powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders. The Collateral Agent is hereby authorized on behalf of all of the
Lenders, without the necessity of any notice to or further consent from any
Lender, from time to time prior to the occurrence and continuation of an Event
of Default, to take any action with respect to any Collateral or Security
Documents which may be necessary to perfect and maintain perfected the security
interest in and liens upon the Collateral granted pursuant to the Security
Documents.
(b) The Lenders hereby authorize the Collateral Agent, at its option
and in its discretion, to release any Lien granted to or held by the Collateral
Agent upon any Collateral (i) upon termination of the Commitments and payment
and satisfaction (or, in the case of reimbursement obligations relating to any
outstanding Letters of Credit, cash collateralization thereof in a manner
satisfactory to the applicable Issuing Lender in its discretion) of all of the
Obligations (other than any amount payable pursuant to any indemnity hereunder
which is not then due and payable) at any time arising under or in respect of
this Agreement or the Credit Documents or the transactions contemplated hereby
or thereby, (ii) constituting property being sold or disposed of (to Persons
other than the Borrower and its Subsidiaries) upon the sale or disposition
thereof in compliance with Section 9.02, (iii) to the extent such Collateral
consists of property subject to a Capitalized Lease Obligation or a purchase
money security interest if the holder or holders of such Capitalized Lease
Obligation or purchase money security interest has issued a written request to
the Collateral Agent seeking a release or subordination of such Lien or (iv) if
approved, authorized or ratified in writing by the Required Lenders (unless such
release is required to be approved by all of the Lenders hereunder). Upon
request by the Administrative Agent at any time, the Lenders will confirm in
writing the Collateral Agent's authority to release particular types or items of
Collateral pursuant to this Section 12.11.
(c) Upon any sale and transfer of Collateral which is expressly
permitted pursuant to the terms of this Agreement, or consented to in writing by
the Required Lenders, or all of the Lenders, as applicable, and upon at least
five (5) Business Days' (or such shorter period as is acceptable to the
Collateral Agent) prior written request by the Borrower, the Collateral Agent
shall (and is hereby irrevocably authorized by the Lenders to) execute such
documents as may be necessary to evidence the release of the Liens granted to
the Collateral Agent for the benefit of the Lenders herein or pursuant hereto
upon the Collateral that was sold or transferred, provided, that (i) the
Collateral Agent shall not be required to execute any such document on terms
which, in the Collateral Agent's opinion, would expose the Collateral Agent to
liability or create any obligation or entail any consequence other than the
release of such Liens without recourse, representation or warranty and (ii) such
release shall not in any manner discharge, affect or impair the Obligations or
any Liens upon (or obligations of the Borrower or any of its
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Subsidiaries in respect of) all interests retained by the Borrower or any of its
Subsidiaries, including, without limitation, the proceeds of the sale, all of
which shall continue to constitute part of the Collateral. In the event of any
foreclosure or similar enforcement action with respect to any of the Collateral,
the Collateral Agent shall be authorized to deduct all of the costs and expenses
reasonably incurred by the Collateral Agent from the proceeds of any such sale,
transfer or foreclosure.
(d) The Collateral Agent shall have no obligation whatsoever to the
Lenders or to any other Person to assure that the Collateral exists or is owned
by any the Borrower or any of its Subsidiaries or is cared for, protected or
insured or that the Liens granted to the Collateral Agent herein or pursuant
hereto have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority, or to exercise
or to continue exercising at all or in any manner or under any duty of care,
disclosure or fidelity any of the rights, authorities and powers granted or
available to the Collateral Agent in this Section 12.11 or in any of the
Security Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission or event related thereto, the Collateral Agent
may act in any manner it may deem appropriate, in its sole discretion, given the
Collateral Agent's own interest in the Collateral as one of the Lenders and that
the Collateral Agent shall have no duty or liability whatsoever to the Lenders,
except for its gross negligence or willful misconduct (as determined by a court
of competent jurisdiction in a final and non-appealable decision).
12.12 Delivery of Information. The Administrative Agent shall not be
required to deliver to any Lender originals or copies of any documents,
instruments, notices, communications or other information received by the
Administrative Agent from the Borrower or any of its Subsidiaries, the Required
Lenders, any Lender or any other Person under or in connection with this
Agreement or any other Credit Document except (i) as specifically provided in
this Agreement or any other Credit Document and (ii) as specifically requested
from time to time in writing by any Lender with respect to a specific document,
instrument, notice or other written communication received by and in the
possession of the Administrative Agent at the time of receipt of such request
and then only in accordance with such specific request.
SECTION 13. Miscellaneous.
13.01 Payment of Expenses, etc. The Borrower agrees to: (i) whether or
not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Administrative Agent (including, without
limitation, the reasonable fees and disbursements of White & Case LLP and other
counsel to the Administrative Agent and all appraisal fees, trustee's fees,
documentary and recording taxes, title insurance and recording, filing and other
expenses) in connection with the preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto, of the Administrative Agent in connection with its
syndication efforts with respect to this Agreement and of the Administrative
Agent and, after the occurrence and during the continuation of an Event of
Default, each of the Lenders in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or pursuant to any insolvency or bankruptcy
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proceedings (including, in each case without limitation, the reasonable fees and
disbursements of counsel and consultants for the Administrative Agent and, after
the occurrence and during the continuation of an Event of Default, counsel for
each of the Lenders); (ii) pay and hold the Administrative Agent, each of the
Issuing Lenders and each of the Lenders harmless from and against any and all
present and future stamp, excise and other similar documentary taxes with
respect to the foregoing matters and save each of the Administrative Agent, each
of the Issuing Lenders and each of the Lenders harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to the Administrative Agent, such Issuing Lender
or such Lender) to pay such taxes; and (iii) indemnify the Administrative Agent,
each Issuing Lender and each Lender, and each of their respective officers,
directors, employees, representatives, agents and affiliates from and hold each
of them harmless against any and all liabilities, obligations (including removal
or remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
the Administrative Agent, any Issuing Lender or any Lender is a party thereto
and whether or not such investigation, litigation or other proceeding is brought
by or on behalf of any Credit Party) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of any
Letter of Credit or the proceeds of any Loans hereunder or the consummation of
any of the transactions contemplated herein or in any other Credit Document or
the exercise of any of their rights or remedies provided herein or in the other
Credit Documents, or (b) the actual or alleged or threatened presence or Release
of Hazardous Materials in the air, surface water or groundwater or on the
surface or subsurface of any Real Property owned, leased or at any time operated
by the Borrower or any of its Subsidiaries, the Release, generation, storage,
transportation, handling or disposal of Hazardous Materials by the Borrower or
any of its Subsidiaries at any location, whether or not owned, leased or
operated by the Borrower or any of its Subsidiaries, the non-compliance of any
Real Property with foreign, federal, state and local laws, regulations, and
ordinances (including applicable permits thereunder) applicable to any Real
Property, or any Environmental Claim asserted against the Borrower, any of its
Subsidiaries or any Real Property owned, leased or at any time operated by the
Borrower or any of its Subsidiaries, including, in each case, without
limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence, bad faith or
willful misconduct of the Person to be indemnified (as determined by a court of
competent jurisdiction in a final and non-appealable decision)). To the extent
that the undertaking to indemnify, pay or hold harmless the Administrative
Agent, any Issuing Lender or any Lender set forth in the preceding sentence may
be unenforceable because it is violative of any law or public policy, the
Borrower shall make the maximum contribution to the payment and satisfaction of
each of the indemnified liabilities which is permissible under applicable law.
13.02 Right of Setoff. (a) In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of an Event of
Default, each Lender is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to any Credit
Party or to any other Person, any such notice being hereby expressly waived,
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to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by such Lender
(including, without limitation, by branches and agencies of such Lender wherever
located) to or for the credit or the account of any Credit Party against and on
account of the Obligations and liabilities of the Credit Parties to such Lender
under this Agreement or under any of the other Credit Documents, including,
without limitation, all interests in Obligations purchased by such Lender
pursuant to Section 13.06(b), all participations by any Lender in any Swingline
Loans or Letters of Credit as required pursuant to the provisions of this
Agreement and all other claims of any nature or description arising out of or
connected with this Agreement or any other Credit Document, irrespective of
whether or not such Lender shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. The Borrower agrees that any Lender purchasing participations in one
or more Letters of Credit or Swingline Loans as required by the provisions of
this Agreement, or purchasing participations as required by Section 13.06(b),
may, to the fullest extent permitted by law, exercise all rights (including
without limitation the right of setoff) with respect to such participations as
fully as if such Lender is a direct creditor of the Borrower with respect to
such participations in the amount thereof; provided, that upon any such exercise
of the right of set off by any Lender, such Lender shall promptly notify the
Borrower and the Administrative Agent of the same.
(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE
LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN
CALIFORNIA, NO LENDER OR THE ADMINISTRATIVE AGENT SHALL EXERCISE A RIGHT OF
SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR
INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE
UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS OR APPROVED IN
WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING
WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a,
580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF
THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE
VALIDITY, PRIORITY OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL
AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND
OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OR THE
ADMINISTRATIVE AGENT OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE
REQUIRED LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID. THIS
SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE
ADMINISTRATIVE AGENT HEREUNDER.
13.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents (in each case with a copy to the Borrower); if to the Lender,
at its address specified on Schedule II; and if to the Administrative Agent, at
the Notice Office; or,
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as to any Credit Party or the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties
hereto and, as to each Lender, at such other address as shall be designated by
such Lender in a written notice to the Borrower and the Administrative Agent.
All such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be effective when deposited
in the mails, delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or telecopier, except that notices
and communications to the Administrative Agent and the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.
13.04 Benefit of Agreement; Assignments; Participations. (a) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto; provided,
however, no Credit Party may assign or transfer any of its rights, obligations
or interest hereunder without the prior written consent of each of the Lenders
and, provided further, that, although any Lender may transfer, assign or grant
participations in its rights hereunder, such Lender shall remain a "Lender" for
all purposes hereunder (and may not transfer or assign all or any portion of its
Revolving Loan Commitment hereunder except as provided in Sections 1.13 and
13.04(b)) and the transferee, assignee or participant, as the case may be, shall
not constitute a "Lender" hereunder and, provided further, that no Lender shall
transfer or grant any participation under which the participant shall have
rights to approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver would (i) extend
the final scheduled maturity or expiration date of any Revolving Loan
Commitment, Revolving Loan, Note or Letter of Credit (unless such Letter of
Credit is not extended beyond the Final Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof
(it being understood that any amendment or modification to the financial
definitions in this Agreement or to Section 13.07(a) shall not constitute a
reduction in the rate of interest or Fees payable hereunder), or increase the
amount of the participant's participation over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Total Revolving Loan Commitment shall not constitute
a change in the terms of such participation, and that an increase in any
Revolving Loan Commitment or Revolving Loan shall be permitted without the
consent of any participant if the participant's participation is not increased
as a result thereof), (ii) consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement (except in the
circumstances permitted by the exception to the first proviso to this sentence)
or (iii) release all or substantially all of the Collateral or all or
substantially all of the Subsidiary Guarantors (except as expressly provided in
the Credit Documents) supporting the Obligations hereunder in which such
participant is participating. In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant's rights against such Lender in respect of
such participation to be those set forth in the agreement executed by such
Lender in favor of the participant relating thereto) and all amounts payable by
the Borrower hereunder shall be determined as if such Lender had not sold such
participation.
(b) Notwithstanding the foregoing, any Lender (or any Lender together
with one or more other Lenders) may (x) assign all or a portion of its Revolving
Loan Commitment
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and related outstanding Obligations hereunder to (i) its parent company and/or
any affiliate of such Lender which is at least 50% owned by such Lender or its
parent company or to one or more Lenders or (ii) in the case of any Lender that
is a fund that invests in bank loans, any other fund that invests in bank loans
and is managed or advised by the same investment advisor of such Lender or by an
Affiliate of such investment advisor or (y) assign all, or if less than all, a
portion equal to at least $2,000,000 in the aggregate for the assigning Lender
or assigning Lenders, of such Revolving Loan Commitment or Revolving Loan
Commitments and related outstanding Obligations hereunder to one or more
Eligible Transferees (treating (A) any fund that invests in bank loans and (B)
any other fund that invests in bank loans and is managed or advised by the same
investment advisor, of such fund or by an Affiliate of such investment advisor
as a single Eligible Transferee), each of which assignees shall become a party
to this Agreement as a Lender by execution of an Assignment and Assumption
Agreement, provided that, (i) at such time Schedule I shall be deemed modified
to reflect the Revolving Loan Commitments of such new Lender and of the existing
Lenders, (ii) upon the surrender of the relevant old Revolving Notes by the
assigning Lender (or, upon such assigning Lender's indemnifying the Borrower for
any lost Revolving Note pursuant to a customary indemnification agreement) new
Revolving Notes will be issued, at the Borrower's expense, to such new Lender or
to the assigning Lender upon the request of such new Lender or assigning Lender,
such new Revolving Note to be in conformity with the requirements of Section
1.05 (with appropriate modifications) to the extent needed to reflect the
revised Revolving Loan Commitments and/or outstanding Revolving Loans, as the
case may be, (iii) the consent of the Administrative Agent, each Issuing Lender
and, so long as no Default or Event of Default then exists, the consent of the
Borrower shall (in each case) be required in connection with any such assignment
pursuant to clause (y) above (each of which consents shall not be unreasonably
withheld or delayed), (iv) the Administrative Agent shall receive at the time of
each such assignment, from the assigning or assignee Lender, the payment of a
non-refundable assignment fee of $3,500 and (v) no such transfer or assignment
will be effective until recorded by the Administrative Agent on the Register
pursuant to Section 13.15. To the extent of any assignment pursuant to this
Section 13.04(b), the assigning Lender shall be relieved of its obligations
hereunder with respect to its assigned Revolving Loan Commitment, its
outstanding Revolving Loans and its other obligations hereunder. At the time of
each assignment pursuant to this Section 13.04(b) to a Person which is not
already a Lender hereunder, which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Lender shall, to the extent legally entitled to do so,
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent that an assignment of all or any
portion of a Lender's Revolving Loan Commitment and related outstanding
Obligations pursuant to Section 1.13 or this Section 13.04(b) would, at the time
of such assignment, result in increased costs under Section 1.10, 2.06 or 4.04
from those being charged by the respective assigning Lender prior to such
assignment, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower, in accordance with and pursuant to the other provisions
of this Agreement, shall be obligated to pay any other increased costs of the
type described above resulting from changes after the date of the respective
assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Lender
from pledging its Revolving Loans and Revolving Notes hereunder to a Federal
Reserve Bank in
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support of borrowings made by such Lender from such Federal Reserve Bank and,
with the consent of the Administrative Agent, any Lender which is a fund may
pledge all or any portion of its Revolving Loans and Revolving Notes to its
trustee in support of its obligations to its trustee. No pledge pursuant to this
clause (c) shall release the transferor Lender from any of its obligations
hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of the Administrative Agent, the Collateral Agent, any Issuing Lender or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Borrower or any other
Credit Party and the Administrative Agent, the Collateral Agent, any Issuing
Lender or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights,
powers and remedies herein or in any other Credit Document expressly provided
are cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender to
any other or further action in any circumstances without notice or demand.
13.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Lenders (other than any
Lender that has consented in writing to waive its pro rata share of any such
payment) pro rata based upon their respective shares, if any, of the Obligations
with respect to which such payment was received.
(b) Each of the Lenders agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Revolving Loans, Unpaid Drawings, Commitment Fee or Letter of Credit
Fees, of a sum which with respect to the related sum or sums received by other
Lenders is in a greater proportion than the total of such Obligation then owed
and due to such Lender bears to the total of such Obligation then owed and due
to all of the Lenders immediately prior to such receipt, then such Lender
receiving such excess payment shall purchase for cash without recourse or
warranty from the other Lenders an interest in the Obligations of the respective
Credit Party to such Lenders in such amount as shall result in a proportional
participation by all the Lenders in such amount; provided that if all or any
portion of such excess amount is thereafter recovered from such Lender, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this
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Agreement which require, or permit, differing payments to be made to
Non-Defaulting Lenders as opposed to Defaulting Lenders.
13.07 Calculations; Computations; Accounting Terms. (a) The financial
statements to be furnished to the Lenders pursuant hereto shall be made and
prepared in accordance with generally accepted accounting principles in the
United States consistently applied throughout the periods involved (except as
set forth in the notes thereto or as otherwise disclosed in writing by the
Borrower to the Lenders); provided that except as otherwise specifically
provided herein, all computations and all definitions used in determining
compliance with Sections 9.07 through 9.12, inclusive, shall utilize (x)
accounting principles, policies and definitions in conformity with those used to
prepare the historical financial statements of the Borrower referred to in
Section 7.05(a) and (y) to the extent that any definition used in determining
compliance with Sections 9.07 through 9.12, inclusive, does not correspond to a
definition in conformity with those used to prepare the historical financial
statements of the Borrower referred to in Section 7.05(a) and such definition
does not have a meaning customarily attributed to it in accordance with
generally accepted accounting principles in the United States, the meaning to be
given to such definition shall be determined by a major international accounting
firm retained by the Administrative Agent and the Required Lenders for such
purpose.
(b) All computations of interest, Commitment Fee and other Fees
hereunder shall be made on the basis of a year of 360 days for the actual number
of days (including the first day but excluding the last day; except that in the
case of Letter of Credit Fees, the last day shall be included) occurring in the
period for which such interest, Commitment Fee or other Fees are payable.
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS EXPRESSLY
PROVIDED IN CERTAIN OF THE OTHER CREDIT DOCUMENTS, BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT, THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY
CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER IT, AND AGREES NOT TO
PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENTS BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT
SUCH COURTS LACK PERSONAL JURISDICTION OVER IT. THE BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POST-
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AGE PREPAID, TO IT AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. THE BORROWER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS
WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE AGENT, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE BORROWER IN ANY OTHER JURISDICTION. A COPY OF ANY PROCESS SERVED BY
MAIL SHALL ALSO BE SENT TO THE BORROWER BY COMMERCIAL OVERNIGHT COURIER SERVICE.
(b) THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
FURTHER IRREVOCABLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the date
(the "Effective Date") on which (i) the Borrower, the Administrative Agent and
the Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered the same to the Administrative
Agent at the Notice Office or, in the case of the Lenders, shall have given to
the Administrative Agent telephonic (confirmed in writing), written or telex
notice (actually received) at such office that the same has been signed and
mailed to it and (ii) the conditions set forth in Section 5 are met to the
satisfaction of the Administrative Agent and the Required Lenders. Unless the
Administrative Agent has received actual notice from any Lender that the
conditions contained in Section 5 have not been met to its satisfaction, upon
the satisfaction of the condition described in clause (i) of the immediately
preceding sentence and upon the Administrative Agent's good faith determination
that the conditions
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described in clause (ii) of the immediately preceding sentence have been met,
then the Effective Date shall have been deemed to have occurred, regardless of
any subsequent determination that one or more of the conditions thereto had not
been met (although the occurrence of the Effective Date shall not release the
Borrower from any liability for failure to satisfy one or more of the applicable
conditions contained in Section 5). The Administrative Agent will give the
Borrower and each Lender prompt written notice of the occurrence of the
Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Lenders, provided that no such change, waiver, discharge or termination
shall, without the consent of each Lender directly affected thereby (other than
a Defaulting Lender) (with Obligations being directly affected thereby), (i)
extend the final scheduled maturity of any Loan or Note or extend the stated
expiration date of any Letter of Credit beyond the Final Maturity Date, or
reduce the rate or extend the time of payment of interest (other than as a
result of any waiver of the applicability of any post-default increase in
interest rates) or Fees thereon, or reduce the principal amount thereof (except
to the extent repaid in cash) (it being understood that any amendment or
modification to the financial definitions in this Agreement or to Section
13.07(a) shall not constitute a reduction in the rate of interest or Fees for
the purposes of this clause (i), notwithstanding the fact that such amendment or
modification actually results in such a reduction), (ii) release all or
substantially all of the Collateral (except as expressly provided in the Credit
Documents) under all the Security Documents, (iii) release all or substantially
all of the Subsidiary Guarantors from the Subsidiaries Guaranty (except as
expressly provided in the Credit Documents), (iv) amend, modify or waive any
provision of this Section 13.12 (except for technical amendments with respect to
additional extensions of credit pursuant to this Agreement which afford the
protections to such additional extensions of credit of the type provided to the
Revolving Loan Commitments on the Effective Date), (v) reduce the percentage
specified in the definition of Required Lenders (it being understood that, with
the consent of the Required Lenders, additional extensions of credit pursuant to
this Agreement may be included in the determination of the Required Lenders on
substantially the same basis as the Revolving Loan Commitments are included on
the Effective Date) or (vi) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement; provided
further, that no such change, waiver, discharge or termination shall (A)
increase the Revolving Loan Commitment of any Lender over the amount thereof
then in effect or extend the expiration date of any Revolving Loan Commitment of
any Lender without the consent of such Lender (it being understood that waivers
or modifications of conditions precedent, covenants, Defaults or Events of
Default or of a mandatory reduction in the Total Revolving Loan Commitment shall
not constitute an increase of the Revolving Loan Commitment of any Lender, and
that an increase in the available portion of any Revolving Loan Commitment of
any Lender shall not constitute an increase of the Revolving Loan Commitment of
such Lender), (B) without the consent of the respective Issuing Lender or
Issuing Lenders, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit, (C) without the consent
of the Swingline Lender,
105
alter the Swingline Lender's rights or obligations with respect to Swingline
Loans (including, without limitation, the obligations of the other Lenders to
fund Mandatory Borrowings), (D) without the consent of the Administrative Agent,
amend, modify or waive any provision of Section 12 or any other provision as
same relates to the rights or obligations of the Administrative Agent, or (E)
without the consent of the Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
clauses (i) through (vi), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is required is not obtained, then the
Borrower shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described below, to replace each
such non-consenting Lender or Lenders with one or more Replacement Lenders
pursuant to Section 1.13 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed change, waiver, discharge or
termination, provided, that, in any event the Borrower shall not have the right
to replace a Lender solely as a result of the exercise of such Lender's rights
(and the withholding of any required consent by such Lender) pursuant to the
second proviso to Section 13.12(a).
(c) Notwithstanding anything to the contrary contained above in this
Section 13.12, the Administrative Agent and the Collateral Agent may (i) enter
into amendments to the Subsidiaries Guaranties and the Security Documents for
the purpose of adding additional Subsidiaries of the Borrower or other Credit
Parties as parties thereto and (ii) enter into security documents and guaranty
agreements to satisfy the requirements of Sections 8.11, 8.12, 8.14, 9.01 and
9.02, in each case without the consent of the Required Lenders.
13.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 2.06, 4.04, 12.06 and 13.01 shall survive
the execution, delivery and termination of this Agreement, the Notes and any
Letters of Credit and the making and repayment of the Obligations.
13.14 Domicile of Loans. Each Lender may transfer and carry its Loans
at, to or for the account of any office, Subsidiary or Affiliate of such Lender.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 13.14 would, at the time of such
transfer, result in increased costs under Section 1.10, 2.06 or 4.04 from those
being charged by the respective Lender prior to such transfer, then the Borrower
shall not be obligated to pay such increased costs (although the Borrower shall
be obligated to pay any other increased costs of the type described above
resulting from changes after the date of the respective transfer).
13.15 Register. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.15, to maintain a register (the "Register") on which it will record the
Revolving Loan Commitments from time to time of each of the Lenders and the
Revolving Loans made by each of the Lenders and each repayment in respect of the
principal amount of the Revolving Loans of each Lender. Failure to make any such
recordation, or any error in such recordation, shall not affect the Borrower's
obligations in
106
respect of such Loans. With respect to any Lender, the transfer of the Revolving
Loan Commitment of such Lender and the rights to the principal of, and interest
on, any Revolving Loan made pursuant to such Revolving Loan Commitment shall not
be effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Revolving Loan Commitment
and Revolving Loans and prior to such recordation all amounts owing to the
transferor with respect to such Revolving Loan Commitment and Revolving Loans
shall remain owing to the transferor. The registration of assignment or transfer
of all or part of any Revolving Loan Commitments and Revolving Loans shall be
recorded by the Administrative Agent on the Register only upon the acceptance by
the Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 13.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a
Revolving Loan, or as soon thereafter as practicable, the assigning or
transferor Lender shall surrender the Revolving Note or Swingline Loan
evidencing such Revolving Loan or Swingline Loan, as the case may be, and
thereupon one or more new Revolving Notes or Swingline Notes in the same
aggregate principal amount shall be issued to the assigning or transferor Lender
and/or the new Lender. The Borrower agrees to indemnify the Administrative Agent
from and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.15.
13.16 Confidentiality. (a) Subject to the provisions of clause (b) of
this Section 13.16, each Lender agrees that it will use its reasonable efforts
not to disclose without the prior consent of the Borrower (other than to its
directors, officers, employees, auditors, advisors, representatives or counsel
or to another Lender if such Lender or such Lender's holding or parent company
in its sole discretion determines that any such party should have access to such
information, provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Lender) any information with respect to
the Borrower or any of its Subsidiaries which is now or in the future furnished
pursuant to this Agreement or any other Credit Document and which is designated
by the Borrower to the Lenders in writing as confidential, provided that any
Lender may disclose any such information (i) as has become generally available
to the public other than by virtue of a breach of this Section 13.16(a) by the
respective Lender, (ii) as may be required or appropriate in any report,
statement or testimony submitted to any domestic or foreign municipal, state or
Federal governmental agency or regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States or elsewhere) or their successors, (iii) as may be required or
appropriate in respect to any summons or subpoena or in connection with any
litigation, (iv) in order to comply with any law, order, regulation or ruling
applicable to such Lender, (v) to the Administrative Agent or the Collateral
Agent, (vi) to any prospective or actual transferee or participant in connection
with any contemplated transfer or participation of any of the Revolving Notes or
Revolving Loan Commitments or any interest therein by such Lender, provided that
such prospective transferee or participant agrees to be bound by the
confidentiality provisions contained in this Section 13.16 and (vii) to such
Lender's direct or indirect contractual counterparties in swap agreements or
hedge arrangements or to auditors,
107
advisors, representatives or counsel to such counterparties, provided that such
counterparties, auditors, advisors, representatives, or counsel agree to be
bound by confidentiality provisions equivalent to those set forth in this
Section 13.16.
(b) The Borrower hereby acknowledges and agrees that each Lender may
share with any of its affiliates any information related to the Borrower or any
of its Subsidiaries (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Borrower and its
Subsidiaries), provided such Persons shall be subject to the provisions of this
Section 13.16 to the same extent as such Lender.
13.17 Post-Closing Actions. Notwithstanding anything to the contrary
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
1. The actions described on Schedule XI shall be completed in accordance
with Schedule XI.
All provisions of this Credit Agreement and the other Credit Documents
(including, without limitation, all conditions precedent, representations,
warranties, covenants, events of default and other agreements herein and
therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the
time periods required above, rather than as otherwise provided in the Credit
Documents); provided that (x) to the extent any representation and warranty
would not be true because the foregoing actions were not taken on the Effective
Date the respective representation and warranty shall be required to be true and
correct in all material respects at the time the respective action is taken (or
was required to be taken) in accordance with the foregoing provisions of this
Section 13.17 and (y) all representations and warranties relating to the
Security Documents shall be required to be true immediately after the actions
required to be taken by this Section 13.17 have been taken (or were required to
be taken). The acceptance of the benefits of each Credit Event shall constitute
a covenant and agreement by the Borrower to each of the Lenders that the actions
required pursuant to this Section 13.17 will be, or have been, taken within the
relevant time periods referred to in this Section 13.17 and that, at such time,
all representations and warranties contained in this Credit Agreement and the
other Credit Documents shall then be true and correct without any modification
pursuant to this Section 13.17. The parties hereto acknowledge and agree that
the failure to take any of the actions required above, within the relevant time
periods required above, shall give rise to an immediate Event of Default
pursuant to this Agreement.
* * *
108
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
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Two Bethesda Metro Center HANGER ORTHOPEDIC GROUP, INC.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ By:
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Attention: Chief Executive Officer Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman & Chief Executive Officer
BNP PARIBAS,
Individually and as Administrative Agent
By:
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Name:
Title:
By:
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Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Name:
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:
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Name:
Title:
CITICORP USA, INC.
By:
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Name:
Title:
JPMORGAN CHASE BANK
By:
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Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
Title:
TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit..........................................1
1.01 The Commitments..................................................1
1.02 Minimum Amount of Each Borrowing.................................3
1.03 Notice of Borrowing..............................................3
1.04 Disbursement of Funds............................................4
1.05 Notes............................................................4
1.06 Conversions......................................................5
1.07 Pro Rata Borrowings..............................................6
1.08 Interest.........................................................6
1.09 Interest Periods.................................................7
1.10 Increased Costs, Illegality, etc.................................8
1.11 Compensation....................................................10
1.12 Change of Lending Office........................................10
1.13 Replacement of Lenders..........................................10
SECTION 2. Letters of Credit..................................................11
2.01 Letters of Credit...............................................11
2.02 Maximum Letter of Credit Outstandings; Final Maturities.........12
2.03 Letter of Credit Requests; Minimum Stated Amount................13
2.04 Letter of Credit Participations.................................13
2.05 Agreement to Repay Letter of Credit Drawings....................15
2.06 Increased Costs.................................................16
SECTION 3. Fees; Adjustments to the Total Revolving Loan Commitment...........17
3.01 Fees............................................................17
3.02 Voluntary Termination of Unutilized Commitments.................18
3.03 Mandatory Reduction of Commitments..............................18
SECTION 4. Prepayments; Payments; Taxes.......................................19
4.01 Voluntary Prepayments...........................................19
4.02 Mandatory Repayments............................................20
4.03 Method and Place of Payment.....................................21
4.04 Net Payments....................................................21
SECTION 5. Conditions Precedent to the Effective Date.........................23
5.01 Execution of Agreement; Notes...................................23
5.02 Officer's Certificate...........................................24
5.03 Opinion of Counsel..............................................24
5.04 Corporate Documents; Proceedings; etc...........................24
(i)
Page
5.05 Refinancing, etc................................................24
5.06 Adverse Change, etc.............................................25
5.07 Litigation......................................................26
5.08 Pledge Agreement................................................26
5.09 Security Agreement..............................................26
5.10 Subsidiary Guaranties...........................................27
5.11 Financial Statements............................................27
5.12 Solvency Certificate............................................27
5.13 Insurance Certificates..........................................27
5.14 Fees, etc.......................................................27
5.15 Employee Benefit Plans; Shareholders' Agreements; Management
Agreements; Employment Agreements; Collective Bargaining
Agreements; Existing Indebtedness Agreements; Tax Sharing
Agreements; Material Contracts................................27
5.16 Projections, etc................................................29
SECTION 6. Conditions Precedent to All Credit Events..........................29
6.01 Effective Date..................................................29
6.02 No Default; Representations and Warranties......................29
6.03 Notice of Borrowing; Letter of Credit Request...................29
6.04 No Excess Cash..................................................29
SECTION 7. Representations, Warranties and Agreements.........................30
7.01 Status..........................................................30
7.02 Power and Authority.............................................30
7.03 No Violation....................................................31
7.04 Approvals.......................................................31
7.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc.................................31
7.06 Litigation......................................................32
7.07 True and Complete Disclosure....................................32
7.08 Use of Proceeds; Margin Regulations.............................33
7.09 Tax Returns and Payments........................................33
7.10 Compliance with ERISA...........................................33
7.11 Security Documents..............................................34
7.12 Properties......................................................35
7.13 Capitalization..................................................35
7.14 Subsidiaries....................................................35
7.15 Compliance with Statutes, etc...................................35
7.16 Investment Company Act..........................................36
7.17 Public Utility Holding Company Act..............................36
7.18 Environmental Matters...........................................36
7.19 Labor Relations.................................................37
7.20 Patents, Licenses, Franchises and Formulas......................37
7.21 Indebtedness....................................................37
7.22 Senior Subordinated Notes.......................................37
Page
7.23 Transaction.....................................................38
7.24 Legal Names; Organizational Identification Numbers;
Jurisdiction and Type of Organization; etc....................38
SECTION 8. Affirmative Covenants..............................................38
8.01 Information Covenants...........................................38
8.02 Books, Records and Inspections; Annual Meetings.................41
8.03 Maintenance of Property; Insurance..............................42
8.04 Corporate Franchises............................................42
8.05 Compliance with Statutes, etc...................................42
8.06 Compliance with Environmental Laws..............................43
8.07 ERISA...........................................................43
8.08 End of Fiscal Years; Fiscal Quarters............................45
8.09 Performance of Obligations......................................45
8.10 Payment of Taxes................................................45
8.11 Foreign Subsidiaries Security...................................45
8.12 Additional Security; Further Assurances.........................46
8.13 Margin Stock....................................................47
8.14 Permitted Acquisitions..........................................47
8.15 Mortgages.......................................................49
SECTION 9. Negative Covenants.................................................49
9.01 Liens...........................................................49
9.02 Consolidation, Merger, Purchase or Sale of Assets, etc..........52
9.03 Restricted Payments.............................................55
9.04 Indebtedness....................................................56
9.05 Advances, Investments and Loans.................................58
9.06 Transactions with Affiliates....................................60
9.07 Capital Expenditures............................................61
9.08 Consolidated Interest Coverage Ratio............................62
9.09 Maximum Total Leverage Ratio....................................62
9.10 Maximum Senior Secured Leverage Ratio...........................63
9.11 Minimum Consolidated EBITDA.....................................63
9.12 Fixed Charge Coverage Ratio.....................................64
9.13 Limitation on Modifications of Certificate of Incorporation,
By-Laws, Senior Note Documents and Senior Subordinated
Note Documents; etc...........................................64
9.14 Limitation on Certain Restrictions on Subsidiaries..............65
9.15 Limitation on Issuance of Capital Stock.........................65
9.16 Business........................................................65
9.17 Limitation on Creation of Subsidiaries..........................65
9.18 Foreign Pension Plans...........................................66
9.19 Changes To Legal Names; Organizational Identification
Numbers, Jurisdiction or Type of Organization.................66
9.20 No Designation of Other Indebtedness as "Designated
Senior Indebtedness"..........................................66
Page
SECTION 10. Events of Default.................................................67
10.01 Payments.......................................................67
10.02 Representations, etc...........................................67
10.03 Covenants......................................................67
10.04 Default Under Other Agreements.................................67
10.05 Bankruptcy, etc................................................67
10.06 ERISA..........................................................68
10.07 Security Documents.............................................69
10.08 Guaranties.....................................................69
10.09 Judgments......................................................69
10.10 Change of Control..............................................69
SECTION 11. Definitions and Accounting Terms..................................70
11.01 Defined Terms..................................................70
SECTION 12. The Administrative Agent..........................................92
12.01 Appointment....................................................92
12.02 Nature of Duties...............................................93
12.03 Lack of Reliance on the Administrative Agent...................93
12.04 Certain Rights of the Administrative Agent.....................94
12.05 Reliance.......................................................94
12.06 Indemnification................................................94
12.07 The Administrative Agent in its Individual Capacity............94
12.08 Holders........................................................95
12.09 Resignation by the Administrative Agent........................95
12.10 Syndication and Documentation Agents...........................95
12.11 Collateral Matters.............................................96
12.12 Delivery of Information........................................97
SECTION 13. Miscellaneous.....................................................97
13.01 Payment of Expenses, etc.......................................97
13.02 Right of Setoff................................................98
13.03 Notices........................................................99
13.04 Benefit of Agreement; Assignments; Participations.............100
13.05 No Waiver; Remedies Cumulative................................102
13.06 Payments Pro Rata.............................................102
13.07 Calculations; Computations; Accounting Terms..................103
13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL........................................103
13.09 Counterparts..................................................104
13.10 Effectiveness.................................................104
13.11 Headings Descriptive..........................................105
13.12 Amendment or Waiver; etc......................................105
13.13 Survival......................................................106
Page
13.14 Domicile of Loans.............................................106
13.15 Register......................................................106
13.16 Confidentiality...............................................107
13.17 Post-Actions Closing..........................................107
SCHEDULE I Revolving Loan Commitments
SCHEDULE II Lender Addresses
SCHEDULE III List of Subsidiaries
SCHEDULE IV Existing Indebtedness
SCHEDULE V Existing Liens
SCHEDULE VI Existing Investments
SCHEDULE VII Indebtedness to be Refinanced
SCHEDULE VIII List of Properties
SCHEDULE IX Plans
SCHEDULE X Legal Names; Organizational Numbers;
Jurisdiction and Type of Organization; Etc.
SCHEDULE XI Post-Closing Actions
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B-1 Form of Revolving Note
EXHIBIT B-2 Form of Swingline Note
EXHIBIT C Form of Letter of Credit Request
EXHIBIT D Form of Section 4.04(b)(ii) Certificate
EXHIBIT E Form of Opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
Special Counsel to the Credit Parties
EXHIBIT F Form of Officers' Certificate
EXHIBIT G Form of Pledge Agreement
EXHIBIT H Form of Security Agreement
EXHIBIT I Form of Subsidiaries Guaranty
EXHIBIT J Form of Solvency Certificate
EXHIBIT K Form of Assignment and Assumption Agreement
EXHIBIT L Form of Intercompany Note
EXHIBIT M Form of Subordination Provisions
(vi)